Question II

GRATIAN. PART I. That a woman who is taken solely on account of incontinence is not a wife appears capable of proof from this: marriage was instituted by God for the sake of propagation, not for satisfying lust. For this was the blessing of marriage: “Increase and multiply.” Hence Ambrose on Luke, [Book I, on c. 1]:

It is a shame for women not to have the rewards of marriage, for whom this is the sole cause of marrying.

The same, [at the beginning of Book II]. § 1. Since childbearing is the reward of marriage and the grace of nuptials for women, it is no slight reason that Mary’s virginity should deceive the prince of the world.

GRATIAN. Therefore, those who are joined to one another not for the sake of procreating offspring but of satisfying lust appear not so much spouses as fornicators. Hence Jerome also, [on Ephesians c. 5]:

Just as not every congregation of heretics can be called the Church of Christ, nor is Christ their head, so not every marriage in which a woman is not joined to her own husband according to the precepts of Christ can rightly be called a marriage, but rather adultery.

PART II. GRATIAN. To these things it is answered thus: The first institution of marriage was made in paradise, so that the bed might be undefiled and the nuptials honorable, from which women would conceive without ardor and give birth without pain. The second was made outside paradise to eliminate unlawful movement, so that weakness, prone to fall into shamefulness, might be received by the honorable state of marriage. Hence the Apostle, writing to the Corinthians, says: “Because of fornication, let each man have his own wife, and each woman her own husband.” From this cause, therefore, it happens that married persons owe themselves to one another and cannot deny themselves to one another. Hence the Apostle says: “Do not defraud one another, except perhaps by consent and for a time, so that you may more readily devote yourselves to prayer; and return again to the same thing, lest Satan tempt you. But I say this because of your incontinence.” Therefore, those who because of incontinence are admonished to return to natural use are clearly not commanded to mingle solely for the procreation of children.

§ 1. Nevertheless, marriages are not therefore judged evil. For what is done apart from the intention of begetting is not an evil of marriage, but is venial because of the good of marriage, which is threefold: namely, fidelity, offspring, and sacrament. Hence Augustine, On the Good of Marriage, [c. 6]:

Whatever immoderate, immodest, or sordid thing married persons conduct between themselves is a vice of human beings, not a fault of marriage. Even in the immoderate exaction of the carnal due itself, which the Apostle does not command them by authority but concedes by indulgence, so that they may mingle with one another even apart from the cause of procreation, although depraved morals impel them to such intercourse, marriage nevertheless defends them from adultery or fornication. Nor is that admitted because of marriage; rather, it is forgiven because of marriage. Therefore, married persons owe to one another not only fidelity in the mingling of their sex for the sake of procreating children—which is the first society of the human race in this mortality—but also a kind of mutual servitude for receiving one another’s weakness, in order to avoid unlawful intercourse, so that, even if perpetual continence pleases one of them, it cannot occur except by the other’s consent.

PART III. GRATIAN. But the presence of the Holy Spirit is not given during the time in which marital acts are performed. Hence Jerome on Matthew:

Lawful marriages indeed lack sin; nevertheless, at that time in which marital acts are performed, the presence of the Holy Spirit will not be given, even if one who attends to the duty of generation appears to be a prophet. But there are also many other things in which human power alone suffices for itself, and the matter neither needs nor is fitting for the presence of the Holy Spirit to attend.

GRATIAN. Therefore, just as such intercourse is not fornicatory but lawful because of the good of marriage, so also that union about which the question is asked is not fornicatory but lawful because of the good of marriage. Likewise, as Augustine says in the book On the Good of Marriage, [c. 14]:

“Concubines taken for a time do not make their concubinage just, not even if they have intercourse for the sake of children.”

PART IV. [GRATIAN.] Thus, to the contrary, it is given to be understood concerning those who are joined to one another with marital affection that, even if they come together not for the sake of procreating children but of satisfying lust, they are not for that reason called fornicators, but spouses. This same thing is proved by the authority of Augustine in the book On the Good of Marriage, [c. 5]:

It is customary to ask: when a male and female, neither he the husband nor she the wife of another, are joined to one another not for the sake of procreating children but solely for intercourse on account of incontinence, with this pledge between them—that neither he will do this with another woman nor she with another man—are these to be called nuptials? And perhaps it can indeed not absurdly be called a marriage if this has pleased them until the death of one of them, and if they have nevertheless not avoided the generation of offspring, although they were not joined for that cause, so that they either do not wish children to be born to them or employ some evil work so that they are not born. But if either both or one of these things is absent, I do not find how we can call these nuptials. For if a man has taken some woman to himself for a time, until he finds another worthy of his honors or his resources whom he may take in marriage, he is an adulterer by that very intention—not with the woman whom he desires to find, but with this woman with whom he lies in such a way that he does not have marital fellowship with her.

The same, On Marriage and Concupiscence, [Book I, c. 15]. Sometimes this lustful cruelty, or cruel lust, reaches such a point that it even procures poisons of sterility and, if these have accomplished nothing, by some means extinguishes or expels the fetuses conceived within the womb, willing that its offspring perish before living, or, if it was living in the womb, that it be killed before being born. Assuredly, if both are such, they are not spouses; and if they were such from the beginning, they came together not by marriage but rather by illicit intercourse. But if both are not such, I dare to say that either she is in some manner the prostitute of her husband, or he the adulterer of his wife.

PART V. GRATIAN. Concerning those who procure abortion, it is asked whether they are judged murderers or not. Augustine in the book Questions on Exodus, [question LXXX], says:

But in not willing unformed offspring to pertain to homicide, he certainly did not reckon as a human being that which is carried in the womb in such a state. Here the question concerning the soul is customarily discussed: whether whatever is not formed can be understood not yet to be ensouled, and therefore whether it is not homicide, because it cannot be said to have been deprived of a soul if it did not have a soul.

Likewise: § 1. If that unformed offspring indeed already existed but was still ensouled in some unformed manner—since the great question concerning the soul is not to be rushed by the unexamined rashness of a judgment—the law therefore did not wish it to pertain to homicide, because it cannot yet be called a living soul in a body that lacks sensation.

The same, in the book Questions of the Old and New Testament, [c. 23]. Moses handed down: “If anyone strikes a woman carrying in the womb and causes an abortion, if it was formed, let him give a life for a life; but if it was unformed, let him be fined with money,” to prove that there is no soul before form. Therefore, if it is given to a body already formed, it is not born at the body’s conception, derived with the seed. For if a soul exists from a soul together with the seed, many souls perish every day when seed, by some discharge, does not advance to birth. But if we look first, we will see what we ought to follow. Let us contemplate the formation of Adam. For in Adam an example was given so that from it it may be understood that a body already formed received a soul. For God could have mingled a soul with the clay of the earth and formed the body in this way. But this would be weakened by reason, because first the house had to be fitted together, and thus the inhabitant brought in. The soul certainly, because it is spirit, cannot dwell in what is dry, and therefore is reported to dwell in the blood. Therefore, when the outlines have not been fitted together, where will the soul be?

Likewise Jerome to Algasia, [question IV]. Just as seeds are gradually formed in the womb, and it is not reckoned homicide until the elements, once completed, receive their shapes and limbs, so a thought conceived by reason, unless it breaks forth into works, is still retained in the womb and quickly perishes by the enemy.

PART VI. GRATIAN. Therefore, since one who takes some woman to himself for a time is said to be an adulterer with her, he does not sin by departing from her, nor does one sin by handing one’s daughter over to him. Hence Pope Leo, [to Rusticus, bishop of Narbonne, epistle XC, otherwise XCII, cc. 5 and 6]:

To cast a female slave from the bed and receive a wife of certain freeborn status is not a doubling of marriage but an advance in honorable conduct.

§ 1. Indeed, let the negligence of such persons be blamed, but not utterly despaired of, so that, stirred by repeated exhortations, they may faithfully carry out what they sought by necessity. For no one is to be despaired of while established in this body, because sometimes what is deferred by the diffidence of age is completed by more mature counsel.

The same, [in the same place, c. 4]. Not every woman joined to a man is the man’s wife, because not every son is his father’s heir. But the covenants of marriage are lawful between freeborn persons and between equals, and this was so much earlier, when the Lord himself established it, than the beginning of Roman law existed. Accordingly, a wife is one thing and a concubine another, just as a female slave is one thing and a free woman another.

§ 1. For this reason the Apostle also, to make clear the distinction between these persons, set down a testimony from Genesis, where it is said to Abraham: “Cast out the female slave and her son, for the son of the female slave will not be heir with the son of the free woman.”

§ 2. Therefore, if a cleric of any place has given his daughter in marriage to a man having a concubine, it is not to be understood as though he had given her to a married man, unless perhaps that woman is seen both to have been made freeborn, lawfully endowed, and honored by public nuptials.

§ 4. Women joined to men by their father’s decision are without fault if the women who were kept by the men were not in marriage, because a wife is one thing and a concubine another.

PART VII. GRATIAN. When it is said, “women joined to men by their father’s decision,” it is given to be understood that paternal consent is desired in nuptials, and that without it nuptials are not held lawful, according to that saying of Pope Evaristus: “A marriage is not made lawful otherwise than if she is handed over by her parents.”

Likewise Ambrose in the book On the Patriarchs, [that is, Book I, On Abraham, final chapter]. “Rebecca’s parents are honored with gifts; the girl is consulted not about the betrothal—for she awaits the judgment of her parents, since it does not belong to virginal modesty to choose a husband—but, when already betrothed to a man, she is consulted concerning the day of departure, and not without cause did she offer no delay. For by right she ought to hasten to her husband. Hence it is manifest whence that saying of Euripides, whose source many wonder at, has been translated. For he says in the person of a woman who nevertheless wished to leave her husband and was being sought for another marriage: ‘My father will undertake the care of my betrothal. For this is not mine.’ Therefore, virgins, preserve what even the philosophers themselves have admired. But also, if some young woman, having quickly lost her husband, fears that she may fall into the snare of her weakness, if she wishes to marry, let her marry, only in the Lord, so that she may defer the choice of a husband to her parents, lest she be reckoned the author of desire if she claims for herself the choice concerning her own marriage. She ought to appear rather to have been sought by a man than herself to have sought a man. Let her send modesty before her before she marries, so that modesty may commend the marriage itself all the more.”

Likewise in the Book of Numbers, [c. XXX, v. 4 and following]. “If a woman makes any vow and binds herself by an oath while she is in her father’s house and still of girlhood age, if her father learns of the vow she promised and the oath by which she bound her soul, and remains silent, she will not be guilty; whatever she promised and swore she will fulfill in deed. But if her father contradicts her immediately when he hears it, both her vows and her oaths will be void, nor will she be held liable to the promise, because her father contradicted it.”

Augustine, [question LVII on Numbers]. “Deservedly, the question is asked here also concerning a vow of virginity. For in Scripture even virgins are customarily called women, and the Apostle also appears to speak of a father when he says: ‘Let him keep his virgin,’ and: ‘Let him give his virgin in marriage.’”

To the contrary, in the Third Council of Toledo, [c. 10]:

This holy council affirms that widows whom it has pleased may maintain chastity. But if, before they profess continence, they have chosen to marry, let them marry those whom they wished by their own will to have as husbands. Let a similar condition also be maintained concerning virgins, and let them not be compelled to receive husbands contrary to the will of their parents or their own. But if anyone impedes the purpose of chastity of a widow or virgin, let him be held a stranger from holy communion and from the thresholds of the church.

GRATIAN. By the foregoing authorities it is clearly asserted that, although some come together not for the sake of procreating children but because of incontinence, they are nevertheless called spouses.