Question V

GRATIAN. PART I. That clandestine marriages ought not to be made is attested by Pope Evaristus, writing to the bishops of Africa, [epistle 1]:

A marriage is not made legitimate otherwise than if the wife is sought from those who are seen to have authority over the woman herself and by whom she is guarded; if she is betrothed by her nearest relatives and endowed according to the laws; if, at the proper time, as is the custom, she is blessed by a priest with prayers and offerings; if, guarded and accompanied by the bridal attendants as custom teaches, sought from her relatives at the proper time, she is endowed according to the laws and solemnly received; and if for two or three days they devote themselves to prayers and preserve chastity.

Likewise: § 1. Know that marriages performed thus are legitimate; but do not doubt that those presumed otherwise are not marriages, but rather adulteries, informal unions, acts of defloration, or fornications rather than legitimate marriages, unless their own will has supported them and lawful vows have come to their aid.

Likewise from a decree of Pope Hormisdas, c. 6. Let no believer, of whatever condition, make a marriage secretly; rather, having received a blessing from a priest, let that person marry publicly in the Lord.

Likewise Nicholas in response to the inquiries of the Bulgars, [c. 3]. Our people, both men and women, do not wear upon their heads a band of gold or silver, or one fashioned from any metal, when they contract the bonds of marriage. Rather, after the betrothal, which is the promise of future marriage, the covenants are also celebrated by the consent of those who contract these things and of those in whose power they are. And after the bridegroom has betrothed the bride by pledges, marking her finger with the ring of fidelity, and has delivered to her, before persons invited by both parties, the dowry pleasing to each together with a writing containing this agreement—either immediately or at a suitable time, lest, namely, they presume to do any such thing before the time determined by law—both are led to the bonds of marriage. First they are placed in the church of the Lord with offerings, which they ought to offer to God through the hand of the priest, and thus at last they receive the blessing and heavenly veil.

Likewise: § 1. These, besides other things that do not occur to memory, are the solemn agreements of marriages. We do not, however, say that it is a sin if all these things do not intervene in the marriage covenant.

Likewise Pope Leo. What sort of wife is to be had according to the law: a chaste virgin, betrothed in virginity, lawfully endowed, handed over to the bridegroom by her parents, to be received by the bridal attendants, and thus, according to the law and the Gospel, plainly to be taken into marriage in public nuptials; never to be separated for a human reason during all the days of her life—except by consent and for the sake of devoting themselves to God—and, if she has fornicated, to be put away, but while she is living another is not to be taken, because adulterers will not possess the kingdom of God; and her penance is to be received in writing.

Likewise from the Fourth Council of Carthage, [c. 13]. When the bridegroom and bride are to be blessed by a priest, let them be presented in the church to the priest by their parents or by the bridal attendants; and when they have received the blessing, let them remain in virginity that same night out of reverence for the blessing.

Likewise from the Council of Arles, c. 6. Let no marriage be made without a dowry; let a dowry be made according to one’s means, and let no one presume to marry or take a wife without public nuptials.

GRATIAN. By all these authorities secret nuptials are prohibited, and therefore, when nuptials occur contrary to authority, they ought to be held as not having occurred.

PART II. § 1. But it is asked what those solemnities of the veil and ring that are observed in marriages mean. Concerning these Isidore writes thus in Book II of On Ecclesiastical Offices, c. 16:

Women are veiled when they marry so that they may know that they are always to be subject and humble to their husbands.

§ 1. Likewise, the fact that after the blessing those marrying are joined to one another by a headband in a single bond is done, namely, so that they may not break apart the joining of marital unity.

§ 2. But the fact that the same headband is interwoven with white and purple color has this meaning: whiteness is purity of life, while purple is applied to the posterity of blood, so that by this sign both continence and the rule of practicing continence for a time may be impressed upon each, and afterward the rendering of the marital due may not be denied.

§ 3. Likewise, the fact that at the beginning a ring is given by the bridegroom to the bride is done, certainly, either as a sign of mutual love, or rather so that their hearts may be joined by the same pledge. Hence the ring is also placed upon the fourth finger, because a certain vein in it, as is reported, reaches all the way to the heart.

Ambrose in the book On the Patriarchs. PART III. Nor is it without significance that, when Rebecca came, she saw Isaac walking about and, when she had asked who he was and learned that he was the one to whom she was being led as wife, she descended and began to veil her head, teaching that modesty ought to precede nuptials. For from this nuptials are also named, because, for the sake of modesty, young women veiled themselves.

PART IV. GRATIAN. But it is objected to the foregoing: There are many things that are prohibited which, if they occur, acquire validity afterward. Those who have taken vows are prohibited from contracting marriages, which nevertheless, if they have contracted them, must remain inviolate. So also clandestine marriages are indeed made contrary to the laws; nevertheless, once contracted, they cannot be dissolved, because they are strengthened by a lawful vow that follows. Hence also Evaristus, after he had said, “Marriages presumed otherwise are not marriages, but adulteries,” added: “unless their own will has supported them and lawful vows have come to their aid.” Hence also in the Novels:

“If anyone, touching the divine Scriptures, has sworn to a woman that he will have her as his lawful wife, or if he has given such an oath in an oratory, let her be his lawful wife, although no dowry and no other written instrument has intervened.”

[GRATIAN.] To these things it is answered thus: Marriages that are contracted secretly are not denied to be marriages, nor are they commanded to be dissolved, if they can be proved by the confession of both. Nevertheless, they are prohibited because, when the will of one of them has changed, credibility cannot be created for the judge by the confession of the other. Hence, when the vows of one have publicly transferred themselves to another party, a judgment cannot be rendered for the former marriage, which is uncertain to the judge. For, as Pope Sixtus writes to the bishops established throughout Spain, let none of the pontiffs presume to judge uncertain matters; and although they are true, those things are nevertheless not to be believed unless they are proved by certain indications, unless they are established by manifest judgment, unless they are made public by judicial order. Hence Pope Victor also writes to Bishop Theophilus: “Dearest brother, let us in no way judge uncertain matters until the Lord comes, who will bring hidden things into the light, illuminate the things concealed in darkness, and manifest the counsels of hearts. For although they are true, they are nevertheless not to be believed unless they are proved by manifest indications, unless they are established by manifest judgment, unless they are made public by judicial order.”

Likewise Pope Evaristus, [epistle II], to all bishops. We ought to judge or condemn no one before true and just proof, as the Apostle testifies when he says: “Who are you who judges another’s servant? To his own master he stands or falls.” Therefore, let evil things heard move no one, nor let anyone ever believe things said indiscriminately without certain proof; rather, let him carefully investigate what he has heard beforehand, and let no one do anything precipitately.

Likewise Pope Eleutherius, [epistle to the provinces of Gaul]. One who judges must examine all things and investigate the order of events by a full inquiry, with patience for asking, answering, and objecting afforded by him, so that there the case of both parties may be fully illuminated. Nor should a judge wish to forestall the litigants by his judgment before, after everything has already been completed, they have nothing in question to propose; and let the case be debated until they arrive at the truth of the matter. It is necessary to ask questions repeatedly, lest perhaps something remain omitted which ought to be adjoined.

GRATIAN. From the foregoing it is most manifestly gathered that one must not depart from certain things on account of uncertain things, nor is a definite judgment to be given in a doubtful matter. But since credibility concerning a doubtful matter cannot be created for a judge except by the confirmation of witnesses or by a lawful confession, and since, by the authority of Pope Callixtus, witnesses cannot give testimony concerning cases or affairs other than those which are known to have been done in their presence, it appears that clandestine marriages are prohibited for this reason: when one of them wishes to deny having had marital affection toward the other, that person will not be able to be convicted by lawful proofs. When these are lacking and each has been duly absolved by the judgment of the judge, each incurs the guilt of adultery when, while both of them are living, they join themselves to others.