Title XX: On Donations between Husband and Wife, and on Dowry to Be Restored after Separation

Latin source headnote: When a marriage has been lawfully separated, the dowry is to be restored.

From the council held at Worms.

But when women have been separated from their own husbands for some lawful cause, we command that their entire dowry be returned to them, which they received on the wedding day; and after the completion of a year let them marry another husband, if they wish; and likewise let a husband marry another wife.

Latin source headnote: When the marriage has been dissolved, the husband is compelled to restore the dowry and to divide the goods which came to them in common.

Urban III, to the Dean, Cantor, and Chapter of Lisieux.

The woman P. signified to us that H., whom she held in the place of a husband, after a separation had solemnly been pronounced between them, unlawfully detains her dowry and refuses to return it; he also endeavors to claim for himself, with her wholly excluded, the possessions which came to them in common by the title of any contract while they lived together. Therefore, by apostolic writings, we command your discretion that, if it is so and there is nothing else that stands in the way, by ecclesiastical compulsion you compel him to restitution of the dowry and to division of those things which they formerly had in common.

Latin source headnote: A delegate to a matrimonial case, if he renders a sentence of separation, ought to pronounce that the dowry is to be restored. And it is a case very capable of being cited.

Clement III.

We wonder greatly at your prudence, because, when we had committed to you for canonical termination the matrimonial case which was being conducted between H., a citizen of Pisa, and the woman M., and you, finding consanguinity between them in the sixth or seventh degree, had rendered a sentence of separation, you deferred making any determination concerning the dowry which the woman was seeking back from the man. Therefore, because according to the laws you, who took principal cognizance of the marriage, were also able to take accessory cognizance of and judicially determine the dowry, which is an incidental cause, by apostolic writings we command your discretion that, after a warning has been premised, you compel the aforesaid H. not to delay restoring to the aforesaid M. her entire dowry, as shall be canonical.

Latin source headnote: A woman separated from her husband on account of adultery loses her dowry.

Clement III.

It very often happens, as you propose, that in your parish women withdraw from their husbands on account of fornication and are known to remain so until the death of the husbands themselves; but when those men are dead and the women seek back their dowry together with their dower from the blood relatives to whom the inheritances of those men come, they deny them a hearing and are unwilling to restore what they demand, for this reason: because they are thought to have made themselves unworthy by the very fact that they considered that they should withdraw from their husbands on account of fornication. [Moreover, etc. Compare chapter 2, On Delays, II. 8.] Therefore, because you desire to be instructed by an apostolic response about what is to be done in each case,] we therefore respond in this matter that, if a woman, on account of her own fornication, withdraws from her husband by a judgment of the Church or by her own will, and afterward is not reconciled to him, when he is dead she will not be able to seek back her dowry or her dower. [In the second case, etc. (Compare chapter 2, On Delays, II. 8.) Given at the Lateran, in the third year, 1190.]

Latin source headnote: A woman is compelled by the office of the judge to relinquish things given to her by a man on account of nuptials for the preservation of an unlawful marriage, if such a donation presents an impediment to the dissolution of such a marriage. This is what it says according to the understanding which pleases Panormitanus more.

Innocent III, to the Archbishop of Compostela and all the Bishops constituted in the Kingdom of León.

Although it is necessary [that scandals come, nevertheless woe to that man through whom scandal comes. For how many disturbances and scandals have come upon the entire world in our days we experience today more in fact than we find written in a book. But it is necessary that scandals come, not only, namely, as something unavoidable, but also as something useful, since where the evil man fails, the good man makes progress, and gold is proved in the furnace. But among the other things by which the Christian people is scandalized today, foremost is the persecution of the pagans, which, with sins demanding it, has grown strong beyond measure both in the east and in the west; against this, in both places, they thought to find a remedy similar in a certain manner, but because they did not set God before their sight, what was found as a remedy was turned into danger. Indeed, in the east one woman was incestuously joined to two men, but in the west one man presumed to join two women to himself through incest. And in the incest committed in the east, not only the consent but also the authority of the clerics dwelling there intervened. But in the detestable union contracted in the west, although perhaps it was attempted not without the assent of certain ecclesiastical men, ecclesiastical authority nevertheless in no way intervened. But God, wishing to avenge the greater sin more quickly and to deter others from similar things, destroyed Conrad, the late marquis, who ... had previously adhered through incest to the Queen of Jerusalem, by the sword, and Henry, the late Count of Champagne, who succeeded him in a certain manner both in fault and in punishment, by a fall, but each by an unforeseen death. Yet he has not exercised his vengeance against the authors of this iniquity in the west. But the more long-sufferingly he bears them, perhaps the more severely he will avenge. Although the Apostolic See seemed to have dissembled what had been committed concerning this in the east on account of the malice of the time and the pressing persecution, nevertheless it employed the rigor of canonical compulsion to avenge what had been attempted in the west. For when it had come to the hearing of Pope Celestine, our predecessor of good memory, that the King of León had presumed incestuously to join to himself the daughter of our dearest son in Christ, the illustrious King of Portugal, he bound both the King of Portugal himself and those incestuously joined with a sentence of excommunication, and subjected the kingdoms of León and Portugal to a sentence of interdict, whence what had been unlawfully done was wholly revoked. But the said King of León, extending his hand to worse things, like the one of whom scripture says, “Woe to that man who draws sin after himself like a long garment, and the impious man, when he has come into the depth of vices, despises,” shamelessly presumed, contrary to the interdict of the Church, to join to himself the daughter of our dearest son in Christ, the illustrious King of Castile—namely, his own niece. When this came to our knowledge, we considered that our beloved son Brother Rainerius, a man equally worthy of reverence for knowledge and religion, acceptable to God and men by reason of his knowledge and honesty, should be sent into Spain, so that according to the prophetic word he might dissolve the bonds of impiety and loose the bundles that oppress. By the grace of God he shook his hands free from every gift, so that what is read might truly be referred to him: “There was no one who enriched Abraham.” Therefore, when he arrived in Spain, he diligently admonished the said King of León once and a second time on our behalf that he should recoil from so detestable and unspeakable a union, all the bonds which had been contracted for consummating that union having been dissolved. But when he had made no progress at all with him by his admonitions, he assigned him a fixed day and place; and when he had waited for him even beyond the term, he promulgated against him, who contumaciously absented himself, a sentence of excommunication according to the form of our mandate, and enclosed the Kingdom of León under a general interdict. But he proceeded in nothing against the aforementioned King of Castile or his land, since the same king submitted himself to his mandates and assertively proposed that he would receive his daughter if she were returned to him. Whether he did this from his heart is known more fully by him who is the searcher of hearts and knower of secrets. Recently, however, our venerable brothers the Archbishop of Toledo and the Bishop of Palencia on behalf of the King of Castile himself, and our venerable brother the Bishop of Zamora on behalf of the King of León, coming to the Apostolic See, requested that we ought to dispense with the same King of León and the daughter of the said King of Castile concerning so incestuous a union. On account of this, unless that special grace which we have toward the devotion of the said King of Castile had tempered the movement of our mind, we would have taken care to exercise ecclesiastical severity against them in such a way that thereafter, in our times, no persons would bring to us petitions so often repudiated and condemned; since they themselves also knew that this had been requested more often from the same predecessor of ours, and had been prohibited by him, not granted. But finally the aforementioned archbishop and bishops, understanding that not only could they not obtain indulgence from us concerning this, but could scarcely obtain a hearing from us, at last requested from us that the interdict pronounced upon the land of the King of León be remitted, asserting that from it a threefold danger threatened the whole kingdom from heretics, Saracens, and even Christians. From heretics: because, since through the interdict itself the mouths of the shepherds were closed in those regions, the faithful could not be instructed by them against the heretics and be informed in any manner to resist them; whence, both from this and because the King of León, asserting himself to be aggrieved by the Church, scarcely resisted them, the heretics grew strong against the faithful and various heresies sprouted in the kingdom itself. From the Saracens: because, since through the exhortations and remissions of the Church the people of the Spains had been accustomed to be induced to the conquest of the pagans, when the office of preachers ceased, the devotion of the people also grew cold; because, since the people saw themselves with their prince subjected to the same penalty with respect to the interdict, perhaps they did not believe themselves immune from the fault to which they had consented even by remaining silent, on account of which they burned less ardently for the defeat of the Saracens, lest they die in sin. From the Catholics: because, since clerics could not minister spiritual things to laymen, the laymen withdrew temporal things from the clerics, withholding offerings, first fruits, and tithes; whence, since the clerics in those regions had been accustomed for the greater part to be sustained from these things, when they were withdrawn, they were compelled not only to beg but to dig and to serve Jews, to the reproach of the Church and of the whole of Christianity. But it seemed difficult to assent to their petition and canonically to relax without fitting satisfaction a sentence rendered from intention, order, and cause. From intention indeed: because, as God bears witness to our conscience, we proceeded to this for no reason except the consideration of justice and honesty, since, on the contrary, a presumption could rather have arisen against us if we had considered that so detestable a deed should be tolerated with patience. From order: because the said Brother R., after lawful admonitions and delays, finally struck the contumacious man with ecclesiastical compulsion. From cause: by example, namely divine and human. Divine: because, when David sinned in numbering the people, the Lord poured out upon the people the vessels of his wrath; whence the same David is read to have said, confessing the sin to the Lord: “I am he who sinned; I am he who acted iniquitously. These, who are sheep, what had they done? Remove, I beseech you, your face, O Lord, from your people.” Human: since our already-mentioned predecessor (so that examples may not be sought far away) took care to promulgate the aforesaid sentences against the aforesaid kings of Portugal and León and their kingdoms. Moreover, it would be a matter of evil example, because if perhaps it happened that we promulgated a similar sentence against other kingdoms, a similar grace would be sought from us; if perhaps we denied it, there would seem to be acceptance of persons with us. From this also a suspicion concerning us could arise among certain persons, some perhaps presuming that we were moved to this by a hidden cause. Although, therefore, for the aforesaid causes the said petition did not seem admissible, nevertheless, because where there is a multitude in a case something is to be taken away from severity so that sincere charity may come to the aid of greater evils to be healed, in that matter, at the petition of the aforesaid archbishop and bishops, on the common counsel of our brothers, we considered that grace should be granted concerning the matter from which the impediments expressed above seemed to proceed. Therefore we relaxed the interdict not wholly, but only in one part, and not perpetually, but for a time—namely for as long as it shall please us and we shall see it to be expedient—so that meanwhile we may prove the spirits, whether they are of God, and whether (as the same archbishop and bishops assert) the utility hoped for from it would follow; namely, in such a way that divine offices are celebrated in the kingdom itself, but the bodies of the dead are not delivered to ecclesiastical burial. In this, however, we grant special grace to the clerics, namely that they be buried in an ecclesiastical cemetery with the accustomed solemnity ceasing. Although this could perhaps seem discordant to certain persons, that when the office has been restored ecclesiastical burial should be denied, because according to the canonical sanctions we ought to communicate when dead with the one with whom we communicated when living, nevertheless to those who understand rightly nothing incongruous occurs from this, since, according to the institutes of the Lateran Council, those who die from tournaments, even if through penance they are reconciled to the Church, are nevertheless deprived of Christian burial. But so that we may seem not to remit the penalty but rather to commute it, we took care to bind the said King of León, the aforementioned daughter of the King of Castile, and all their principal counselors and supporters with a sentence of excommunication, commanding that, to whatever city, town, or village they come, no one presume to celebrate divine offices there while they are present. But we shall command the said King of Castile and our dearest daughter in Christ, the queen his wife, to furnish sworn security that they will stand by our mandates, and either to express in the oath that they will devote effective labor to dissolving so unlawful a union, or we shall cause this to be commanded to them after the oath has been furnished; nor do we believe that concerning this they will show themselves contumacious in any manner, since in the hands of the aforesaid Brother R. (as appears from the letters of the same king) they had firmly promised that they would stand by the mandates of the Church, and had furnished sufficient cause for consummating a union of this kind. But if perchance (which we do not believe) they are unwilling to obey our mandates, we shall command them and their principal counselors and supporters to be excommunicated, and wherever they come we shall prohibit divine offices from being celebrated, so that in this way at least they may return to the mandate of the Church, according to what is read in the Psalmist: “Fill their faces with ignominy, and they shall seek your name, O Lord.”] But because certain castles which the same King of León is said to have delivered as dowry to the said daughter of the King of Castile, in such a way that if he left her on any occasion they would fall into her right, seem to present an impediment to dissolving a union of this kind, since the castles themselves were given not so much for a base cause as rather for no cause, seeing that no marriage exists between them and therefore neither a dowry nor a donation on account of nuptials, lest that fall to her advantage which ought rather to be turned to her punishment, we will that the castles themselves be restored and that the girl herself be constrained to this through a sentence of excommunication, decreeing by apostolic authority that, if any offspring has been or shall be received from so incestuous and condemned a union, it is to be held wholly spurious and illegitimate, and according to lawful statutes is to succeed to the paternal goods on no occasion whatsoever. But if not even [thus] do the aforesaid King of León and daughter of the King of Castile hasten to depart from one another according to the apostolic mandate, we shall take care to exercise against them the gravest compulsion, which as a precaution we did not consider should be explained in the present letters. [Therefore to the fraternity, etc. Given at the Lateran, on the eighth day before the Kalends of June, 1199.]

Latin source headnote: A usufructuary who, without the consent of the owner, gives the thing itself to his wife on account of nuptials does not transfer to her more right than he himself had; the same concerning one who has a thing as an inheritance or a fief under a condition that takes it away.

The same, to the Archdeacon of Saint Andrews in Scotland.

Recently your discretion asked of us: if some land had been given to someone not as an inheritance or fief, but only to him to be possessed for as long as he lived, and he afterward granted a third part to his wife as dowry, whether, when he was dead, the wife ought to have and hold the aforesaid dowry for as long as she lived, since the Church is bound to protect the dowries of widows. You asked in addition to be instructed by our letters: if some land had been given to someone and to the heir whom he would beget from a lawful wife as an inheritance or fief, and afterward, after a certain part of it had been granted to his wife as dowry, he died without offspring, whether the woman herself could have the same dowry by law, and whether the Church ought to stand for her in this case, or, when the man was dead, that land ought to return without burden into the goods of the grantor. But we respond to your consultation in this manner: since as a rule no one can transfer to another more right than it is established that he has, a man to whom land is granted in the aforesaid manner cannot leave to his wife what it was not lawful for him to possess except for as long as he lived. Nor is it lawful for his wife to hold a part of that land as a donation on account of nuptials by the grant of the man, unless perhaps the one to whom the ownership of that land pertains wishes to consent to that donation. But what we say concerning the first consultation, we respond also concerning the second. For although the Church ought to show herself favorable in the cases of widows, ecclesiastical favor is nevertheless not to be granted to them contrary to justice. But we do not wish you to be ignorant of this: that according to the lawful sanctions the wife is said to give a dowry to the husband, but the husband to make to the wife a donation on account of nuptials.

Latin source headnote: A husband proceeding for a dowry is not wholly excluded by the fact that he is tending toward poverty, nor is he absolutely compelled to give security beyond his own means; but the dowry is assigned to him under such security as he can furnish. And if through that security sufficient provision would not be made against consumption of the dowry, the dowry will be deposited with a merchant, so that from an honest profit the husband may sustain the burdens of marriage. This is what it says according to the understanding which Panormitanus holds by adhering to the words of the letter, and it is a noteworthy and everyday case.

The same, to the Archbishop and Archdeacon of Genoa.

Through your letters you intimated to us that, when by our authority you took care to sue Master R. concerning a certain sum of money in Genoese currency on behalf of the poor man H., bearer of the present letters, which the same H. was demanding from him as the dowry of his wife, the said R. opposed against him the exception that namely he had repelled his wife from himself and that, with the truth concerning this suppressed, he had obtained our letters; because, when a question concerning the same dowry had already on another occasion been moved before the consuls of your city, they pronounced, according to the custom of the land, that, since the same H. seemed to be tending toward poverty, that dowry should not be assigned to him unless he furnished suitable security that it would not perish. Whence you, after sharing the counsel of prudent men, commanded him to give security for preserving the dowry and to receive his wife, and that, until he could do this, the dowry itself should, if he wished, be deposited in the treasury of the Church of Genoa. Since he could not fulfill this, at his instance you took care to write these things back to us. Therefore, since a small portion of the dowry can sufficiently be entrusted to him to whom the body of the wife was entrusted, by apostolic writings we command your discretion that you cause the dowry to be assigned to him under such security as he can furnish, or at least to be committed to some merchant, so that from a part of the honest profit the said man may be able to sustain the burdens of marriage, lest on the occasion of the detained dowry the wife dismissed by the husband, or the husband who dismissed the wife, incur the guilt of adultery. [Given at Rome at Saint Peter’s, on the eighth day before the Ides of March, in the ninth year of our pontificate, 1206.]

Latin source headnote: This decretal sufficiently summarizes itself.

Gregory IX.

A donation which is said to have been made between spouses while the marriage endures, from which one becomes richer and the other poorer, has no firmness unless it is confirmed by the death of the donor; yet it wholly vanishes if it is revoked by him tacitly or expressly, or if the one who received what was donated first pays the debt of nature. Indeed, when the marriage has been dissolved, just as the dowry returns to the woman, so also the donation on account of nuptials returns to the man, unless otherwise obtains by custom or by an agreement concerning acquiring the dowry or the donation on account of nuptials, which agreement is equal when the contrary is introduced from each side.