Question II

GRATIAN. PART I. It is now asked whether, after the vice of ravishment has been purged, the ravisher can take the woman ravished as wife. Their union is wholly prohibited by the authority of the holy canons. For it is read in the Council of Chalcedon, c. 27:

The holy synod decreed concerning those who seize girls or women under the pretext of living together, and those who cooperate with or connive at the ravishers, that if they are clerics they shall fall from their own rank; but if laypersons, they shall be anathematized.

Likewise Symmachus, [letter to Caesarius, c. 3]. Therefore, we detest ravishers of widows or virgins on account of the enormity of so great a crime, pursuing more vehemently those who attempt to join sacred virgins, whether willing or unwilling, to themselves in marriage. On account of the atrocity of so unspeakable a crime, we command that they be suspended from communion.

Likewise Emperor Jovian in book I of the Code, title On Bishops and Clerics. If anyone has dared—I do not say to seize, but merely to attempt—to join most sacred virgins in marriage, let that person be struck with capital punishment.

Likewise from the Council of Chalon. Concerning girls who have been seized but not yet betrothed, it is written in the Council of Chalcedon: the holy synod decreed concerning those who seize girls under the pretext of living together, and those who cooperate with and connive at ravishers, that if they are clerics they shall fall from their own rank; but if laypersons, they shall be excommunicated. By these words it is given to be understood how the authors of this evil are to be condemned, when participants in the counsel and those who connive are struck by so great an anathema; and according to canonical authority they can in no way lawfully claim for themselves in lawful marriage the woman ravished.

Likewise Gregory, [Pope Gregory II at a Roman Synod]. If anyone seizes a virgin or widow, unless he has betrothed her, or steals her as wife, let him be anathema together with his supporters.

Likewise from the Council of Paris, [I, c. 6]. Let no one presume either to seize a widow or another’s daughter against the parents’ will, or consider that she is to be sought by the king’s favor. But if anyone does so, let that person, removed from the communion of the Church, be struck by the sword of anathema.

PART II. GRATIAN. By these authorities it is clearly given to be understood that the ravisher cannot take the woman ravished as wife. But “ravisher” and “woman ravished” are names of vices, not of persons. When vices have been purged through penance, their names are abolished. Hence Gregory says in a certain homily:

“For before the almighty Lord, even one who erases the fault of falsehood through penance will not be regarded as deceitful.”

GRATIAN. Therefore, by the foregoing authorities the woman ravished is prohibited from being joined to the ravisher before the vice of ravishment is abolished, for as long as he is rightly called a ravisher and she a woman ravished. But when she has been restored to her father’s power, the ravisher has performed penance for his ravishment, and the will of the parents of both has come together as one, they are not prohibited from being joined to one another. Hence Jerome says:

Three lawful marriages are read of in the Scriptures. The first lawful marriage is a chaste virgin lawfully given to a man in virginity, together with the other things that follow among those stated above. The second is a virgin found by a man in a city and joined to him by force. If her father wills, this man will dower her by as much as the father judges and will give the price of her chastity. The third is the aforesaid daughter when found. If the father’s will is lacking, he will draw her away from the aforesaid man, hand her over to another, and dower her, and she will be a lawful wife to him. But the first is preferred to these two.

Likewise Ambrose in the Apology of David, [c. 8]. Finally, the father of that girl, betrothed to no one, who suffered the violence of intercourse will receive fifty silver drachmas; but she herself will remain in marriage.

Likewise from the Council of Meaux, [c. 65]. But if, when this constitution has been promulgated to everyone, they have not yet taken in marriage with the parents’ will under the name of betrothal or dower those women whom they had seized, let them be separated from union with them and subjected to public penance; but let the women ravished be lawfully restored to their parents. When public penance has been completed, if age demands relief from incontinence, let them be joined in a marriage agreed upon by both sides. We do not establish a rule in these matters but—as we may use the words of the great Leo—consider what is more tolerable. But if one of the spouses dies and the one who has completed public penance survives, let that person not presume to repeat marriage unless the bishop has granted some indulgence so that a graver offense can be removed.

GRATIAN. By this authority of the Council of Meaux, the woman ravished is not permitted to be joined to the ravisher after penance; rather, each is permitted after penance to be joined in lawful marriage, so that the woman ravished may marry after penance not the ravisher but another. Similarly, after penance the ravisher is permitted to have as wife not the woman whom he ravished but another. For since the ravisher and the woman ravished are commanded to be subjected to penance, if that authority permitted their union with one another, it would be said in vain near the end of the chapter: “But if one of the spouses dies and the one who has completed public penance survives, let that person not presume to repeat marriage.” For whichever of them died, the one who completed penance would remain as survivor. Therefore, by this authority the ravisher is not proved able to take the woman ravished in marriage. Rather, it is found in the Council at Aachen that they cannot be joined to one another even by the will of the parents. For it is read as follows in the aforesaid council:

It was resolved that those who seize, steal, or seduce women shall in no way have them as wives, although the women afterward agree with them, or the men have dowered them, or have received them in marriage with their parents’ consent.

GRATIAN. This authority does not prejudice the authority of Jerome, especially since the latter is supported by the testimony of divine law. Therefore, after penance has been completed, the ravisher will lawfully be able to join to himself the woman whom he ravished, unless the girl’s father wishes to withdraw her from the ravisher.

[PALEA. Likewise in book V of the Code, title On Marriages: The discipline of the laws does not permit even a son under paternal power to be compelled against his will to take a wife. Therefore, as you desire, provided that the precepts of law are observed, you are not prevented from joining in marriage to yourself the woman whom you wish, yet in such a way that your father’s consent accedes to the marriage being contracted. Likewise in the same work, [law 20]: In the union of daughters placed under paternal power, let the father’s decision be awaited. Likewise in the Digest, On the Rites of Marriage, [law 2]: Marriages cannot exist unless all consent, that is, those who come together and those under whose power they are. Likewise in book I of the Institutes, title On Marriages: Roman citizens contract lawful marriages among themselves when they come together according to the precepts of the laws—males who have reached puberty and females who are of marriageable age, whether they are heads of households or children under paternal power—provided, however, that children under paternal power possess the consent of the parents under whose power they are. For both civil and natural reason persuade that this ought to be done, to such an extent that the parent’s authorization ought to precede.]