Thesis XII

Simultaneous polyandry is unlawful and invalid by the law of nature. Successive polyandry and polygamy is lawful and of itself honorable.

I. Polyandry is the conjunction of one woman with several men. It is simultaneous or successive. We teach that simultaneous polyandry is unlawful and invalid by natural law itself (concerning successive polyandry we shall speak on the following page). For that conjunction which positively excludes all the ends of marriage cannot be marriage; but such is simultaneous polyandry. Indeed, the first end is the procreation and education of offspring, and thus the good of marriage is offspring; the other end is the restraining of the concupiscence of each spouse, and thus the other good of marriage is the remedy of concupiscence; likewise the end is domestic society, which can be understood under the good of marriage which is fidelity; and besides, from divine institution there is the signification of the union of Christ with the Church; and thus, with the remedy of concupiscence included, the fourth good of marriage is sacrament (cf. Th. II). But the first end is excluded. And first indeed, although not altogether and always, insofar as a woman mingled with several men and using them in turn is, by the physical law of nature, generally infertile: "Several women can be made fruitful by one man; but one woman cannot by several: this is the force of the principles," says Augustine, de Bono coniugali, n. 20. Therefore the power over her body which a woman would hand over to several men, insofar as she hands it over to several, would of itself tend to this, that the woman should become infertile, and that the men should have a right to an act of itself impeditory of generation; but this directly conflicts with that power in whose mutual handing over and acceptance marriage is contained, for it is a power for an act whose primary end is the procreation of offspring. Then, moreover, from that power over her body handed over by the woman to several men, it comes about that the men have a right to that by which the father of the offspring is rendered uncertain, and by which therefore the offspring cannot be educated by the father. They have a right, I say, whatever may be the case about use; for marriage consists in a right. But that is of itself altogether repugnant to the end of marriage, which is the education of offspring. And so through this union the primary end of the use of marriage is excluded, and indeed positively, since the conjunction itself of itself is repugnant to that end.

Nor can a woman subject to several men satisfy all when they ask, so as to avoid their incontinence; nor can she be subject to several men enjoying equal right and independent of one another, and render the fidelity due: therefore this other good, which is the remedy of concupiscence, is at least very greatly impeded. But there can be no peace in a family in which there are several heads; for the woman, who is subject, cannot recall the men to unity. "For by a hidden law of nature those things which rule love singularity. But things subject are subject not only singly to single things, but, if natural or social reason admits it, even several to one, not without fittingness," Augustine, l. c. Wherefore this other end also is wholly taken away. But the union of Christ with the Church, which is of one with one, that is, of one head fitting one body to itself, so that it is one because the head is one, can in no way be represented by the union of several with one, that is, of several heads with one body. But that is repugnant to positive divine law. Therefore there is no marriage of this sort.

Therefore this conjunction is so contrary to the law of nature, and also to divine law, that not only is the marriage unlawful, but it is also invalid by that same law.

II. But what we say concerning invalidation must be explained a little; for the natural law seems indeed to have the force of prohibiting; yet it does not immediately appear how it is able also to invalidate. Certainly the law of nature prohibits homicide, and nevertheless a prohibited action, if it is done, is not invalid; moreover, as Suarez objects to himself (de Legibus l. 2, c. 12, n. 2), the efficacy of the law of nature is the same in all things, and it does not have special words by which it prohibits, so that on account of the diversity of those words we should say that sometimes it invalidates and not always, as can be said in positive law. Nevertheless, that there are certain things which the law of nature not only prohibits but also invalidates is easily agreed among all doctors, and this has the sense of the Church; for in this way, for example, a marriage between mother and son is judged null by the law of nature, and a contract entered upon through grave fraud is null, etc. It remains, therefore, that it be seen whether there are rules, and what they are, according to which it must be judged that something is not only prohibited by the natural law, but also invalidated.

And first it must be presupposed that the invalidation of an act has place not in the physical order but in the moral order. For the invalidation of an act comes back to this, that although the act (whether prohibited or otherwise) is done, nevertheless nothing is done, that is, it does not obtain its effect, just as if it had not been done; this cannot happen in the physical order, as is clear in the cited example of homicide, but it can have place in the moral order, when rights and obligations are at issue. For the effect which would be either of an acquired right or of an obligation undertaken, as in contracts, when an invalidating law intervenes, is null, although the interior and exterior action is done integrally, with the full will of acquiring the right or of binding oneself.

Now Suarez, l. c., nn. 4 seq., proposes chiefly two rules for discerning when acts are invalid by the law of nature. The former is: "when the act is prohibited by the law of nature because of a defect of power or because of the incapacity of the matter." And he gives an example in the donation of the same thing after a prior valid donation and the thing handed over; for power is lacking; and also in a contract entered upon through fraud touching the substance of the thing; for consent extorted by fraud is incapable of begetting an obligation. The other rule is: "when the act is prohibited on account of the indecency or turpitude found in its matter, and the same indecency or turpitude endures in the effect itself, or after the act has been posited." It is necessary that the same indecency persevere, and not cease or be diminished by the force of another law. He gives an example in marriage between blood-relatives in the first degree, where that natural indecency which makes such a marriage prohibited endures perpetually, if such a marriage endures.

Now opposition to the principal end of marriage is the greatest indecency and turpitude; but polyandry has such an opposition, and this same opposition endures if the marriage endures: therefore even the perseverance of this marriage is prohibited by the law of nature, which is the same as for the act to be invalidated: therefore.

You will say: by the law of nature marriage after a vow, even a simple vow, of chastity is prohibited, and its indecency remains, and yet it is not invalidated. Suarez answers in the same place, n. 6, that that vow has not taken away, but has bound, the power which a man has over his body, and that marriage contracted against it, insofar as it is an actual handing over, has a greater efficacy than a promise has, and can also have an honorable use, at least by rendering the debt; and therefore it can rightly be valid. Perhaps it is permitted to answer more simply that a vow of chastity is not properly repugnant to marriage, but to its use, and therefore there is no reason why by the law of nature marriage after a vow should be invalidated.

III. Polygamy is the conjunction of a man with several wives: one kind is simultaneous, another successive. Concerning this latter we speak first; and because the same reason holds in both, we also speak concerning successive polyandry. The question is whether to marry a second time and thereafter is lawful by divine law, so that successive unions are true nuptials by divine law and honorable of themselves. But it is necessary that they be true marriage just as the former one, if by divine law it is lawful to marry again, that is, to repeat nuptials, namely that which was previously done, which was true marriage. And so that successive polygamy and polyandry are lawful is clear from the words of Paul, 1 Cor. VII. 8: But I say to the unmarried and to widows: it is good for them if they so remain, even as I. But if they do not contain themselves, let them marry; for it is better to marry than to burn. And v. 39: A woman is bound by law so long as her husband lives; but if her husband has fallen asleep, she is freed; let her marry whom she wills, only in the Lord. It is clear, first, that the Apostle counsels widows to marry, and therefore to enter a new marriage, if they cannot contain themselves; because, namely, marriage is also a remedy of concupiscence. It is clear, secondly, in the other testimony, that the Apostle simply gives the woman whose husband has died the power of passing to second nuptials, and requires only this, that she marry in the Lord (cf. Augustine, de Adult. Coniug. c. 25). Moreover, what the Apostle counsels for an honorable end is certainly lawful by divine law; and that is likewise lawful which the Apostle grants as placed in our power, and which can be done in the Lord; but what the Apostle counsels is marriage, which cannot be among Christians unless divine law consents. Now, thirdly, the words of the Apostle are universal: I say to widows, the woman whose husband has fallen asleep, which are true both of widows for the first time and for the second time and thereafter. Therefore the following marital unions are both true nuptials and all of themselves lawful. "For who am I," says Augustine, de Bono Viduitatis, n. 15, "that I should think something must be defined which I do not see that even the Apostle defined? For he says: A woman is bound by law as long as her husband lives. He did not say: the first, or the second, or the third, or the fourth; but, as long as her husband lives; but if her husband has died, she is freed; let her marry whom she wills ... what can be added to or taken away from this sentence, so far as this matter is concerned, I do not know." But what the Apostle says concerning women belongs also to men by an equal reason; therefore successive polygamy and polyandry, both the first time and in other following instances, is certainly lawful.

Note that the first testimony of the Apostle is wrongly brought forward by Tournely (q. V. a. 1) to prove that the Church never recommended second and further nuptials. For in fact the Apostle does recommend them there, not indeed of themselves, but by reason of avoiding fornication; for this is the sense of those words: if they do not contain themselves, let them marry, for it is better to marry than to burn.

This is the doctrine of the Church. In the Profession of Faith prescribed by Innocent III to the Waldensians, you have these words: "We also believe and confess that a man with his wife can be saved, nor do we condemn second and further marriages." Eugene IV solemnly declared this in the decree for the Jacobites (Labbaeus, Tom. 18, col. 12, 19): "Since some are said to reject fourth nuptials as condemned, lest that be thought to be sin where there is none, since according to the Apostle, when the husband has died, the woman is loosed from his law and has the faculty of marrying whom she wills in the Lord, and he does not distinguish whether the first or second or third has died, we declare that not only second, but also third and fourth and further nuptials, if some canonical impediment does not stand in the way, can be contracted lawfully. Yet we say that those persons are more commendable if, abstaining further from conjugal union, they remain in chastity; because just as we judge virginity to be preferred to widowhood, so chaste widowhood is to be preferred to nuptials in praise and merit."

IV. Thus antiquity taught. And indeed, as to second nuptials simply, Epiphanius, Haer. 59, and Augustine, de Haeresibus, refer it among the heresies of Montanus and Novatian that they condemned second nuptials; but the Synod of Nicaea openly approved them. Indeed, the ecclesiastical law itself promulgated by the Apostle, which rejects digamists from sacred orders, supposes that it is lawful for Christians to enter upon second nuptials, just as Epiphanius rightly observed, n. 4, that the Novatians erred because "they judge that those things which, on account of the singular dignity of that function, have been attributed especially to the priesthood, pertain commonly to all." Therefore the doctrine of the Church in this matter is evident. Nor should the sayings of certain ancients move us, who, in order to commend the honorable character of Christians before the heathen, proclaim that which was proper to them, namely, that they were content with single nuptials, which could frequently be seen among Christians. "Everyone either remains as he was born, or in single nuptials," says Athenagoras, Legat., n. 33. And Theophilus of Antioch, L. 3: "Among Christians," he says, "monogamy is observed"; and Minucius in the Octavius: "we experience the desire of procreating either once or not at all." Cf. Cotelerius's note to c. 4, Mandate 1, book 2 of Hermas.

V. But as regards nuptials repeated more often, one may first bring forward the general sentence of Hermas, l. c., n. 4, teaching that "if the husband or wife of someone has departed (from this life, coll. n. 1), and one of those persons has married, he who marries does not sin; but if he has remained by himself, he will acquire great honor for himself before the Lord." Then Jerome, that greatest preacher of virginity, says, Epist. 30 to Pammachius: "I now proclaim with free voice that bigamy is not condemned in the Church, indeed not even trigamy, and that it is lawful to marry a fifth and sixth and beyond, in the same way as to marry a second husband. But just as these nuptials are not condemned, so neither are they proclaimed. They are consolations of misery, not praises of continence. All things are lawful, but not all things are expedient. I do not condemn bigamists, indeed not even trigamists, and, if it can be said, octogamists." So Augustine, de Bono Viduitatis, n. 5: "Concerning third and fourth and still more numerous nuptials, men are accustomed to raise a question. Whence, that I may answer briefly, I do not dare to condemn any nuptials, nor to take away from them the modesty of their number." And Epiphanius, Haer. LIX, n. 6: "For as the first wife was appointed by God, so the later one was granted to the weakness of men; but if he desires another besides, his weakness in this respect is tolerated." Fulgentius, de Fide ad Petrum, n. 43: "If it has happened to anyone first to be deprived of marriage, if he wishes to enter upon second or even third nuptials, he will have no sin from them, if he has kept them chastely." Cf. also the second Epistle of Clement to James, n. 7, and Hom. 3, n. 68.

VI. But in order that a certain disagreement which seems to have existed among the Fathers may be understood, a distinction must be made between the nuptials themselves and the affection which the one who seeks second and further nuptials bears, or is presumed to bear. Namely, he who enters second nuptials, and especially he who enters further nuptials, generally seems to pursue too much the pleasure of the flesh and to labor under an impotent lust. I say generally; for what if, after first nuptials have been contracted, the spouse should die shortly thereafter? What if no offspring has been had or none survives? Moreover that condition of the man indeed is not praiseworthy; yet nevertheless, by that very fact, it is honorable to enter nuptials, because they are a remedy of concupiscence. Therefore several Greek Fathers, considering further nuptials under that respect, that is, directing their mind to the affection of the contracting parties poured out toward lust and judging this not sufficiently congruent with Christian sanctity, repeatedly rush vehemently upon those nuptials, especially after second nuptials, so that they seem to reprove the nuptials themselves. Hence it is that Nazianzen, who in Orat. 39, in ss. Lumina, n. 18, approves second nuptials, in Orat. 37 on Matt. XIX, 1-17, n. 8, says that third nuptials are iniquitous and calls those who enter fourth nuptials swinish; then Basil, in the first Canonical Epistle to Amphilochius, can. 4, calls third nuptials constrained or moderated fornication, and in can. 80, Epist. 3, says that polygamy seems to him a sin greater than fornication. Already the author of the Apostolic Constitutions (a Greek man, l. III, c. 2) had taught that "third nuptials show intemperance, and that any marriage after third nuptials is manifest fornication and indubitable wantonness." From this it came about that in the Greek Church, which in this matter was more severe than is fitting, it subjected trigamists and indeed even bigamists themselves to penance, though those thus joined were not separated; which is an indication that those nuptials were held to have been valid and also lawful, although less honorable and therefore deserving of some compensation. Notice that those who exceeded the measure of bigamy were called polygamists by the Greeks. Cf. Basil in the cited places and Balsamon in the same place. Moreover concerning trigamists Basil says in the same place, can. 4: "By custom we have received a segregation of five years for trigamists, not from the canons, but from the usage of those who preceded." Therefore he says: "That they ought not altogether to be driven away from the Church, but to be deemed worthy of hearing (it was a grade of penitents) for two or three years, and after this to permit them indeed to stand together, but to abstain from the communion of the good, and so, after they have shown some fruit of penance, to restore them to the place of communion," no mention of separation having been made. But in canon 50, which is the last of the second canonical Epistle, the same says: "There is no law of trigamy. Wherefore according to law a third marriage is not contracted.

And indeed we consider such things as defilements of the Church; nevertheless we do not subject them to public condemnations, because they are more eligible than loose fornication." Balsamon and Zonaras think that for trigamy not to be publicly condemned is the same as not to be dissolved; the Maurist editors with Aristenus judge otherwise, for they judge it to be the same as not being placed in the place of the prostrate or penitents, by comparison with can. 1 of the same Basil. But whatever may be the case concerning this question, it is certain that trigamists were not held as fornicators by Basil in this canon. But in the third canonical Epistle, can. 80, he established something else concerning trigamists and those following: "Polygamy (namely trigamy and thenceforth) the Fathers passed over in silence, as beastly and altogether foreign to the race of men. This seems to us to be a sin greater than fornication; wherefore it is fitting that they be subjected to the canons, so that, after they have wept for a year and have been prostrate for three years, they may thus be received." Moral malice, namely, is supposed and reproved in the affection, which is judged greater than some act of fornication; but in reality there is still no certain mention of nullity and separation. Basil followed the ancient Greek canons. Indeed, in can. 1 of the Council of Laodicea, second nuptials are called legitimate; nevertheless the spouses are ordered to pray and fast for a certain time. Likewise in the Council of Ancyra, can. 19, some penance constituted for digamists is supposed. The same also is established concerning digamists and polygamists in cann. 3 and 7 of the Council of Neocaesarea. Cf. Arcudius, de Concordia, L. VII, c. 28.

VII. Yet the Greek Church easily advanced so far that in the tenth century it was wholly unwilling to tolerate fourth nuptials and forbade them under penalty of excommunication, wishing them themselves to be invalid, though not with all Greeks consenting, nor was this decree ever received as certain and immutable. Basil the Macedonian had already prohibited fourth nuptials by imperial authority as invalid by the law of God (Novel: that it is not lawful to enter fourth nuptials), abrogating the law of Justinian, who had permitted them according to his clemency. But his son Leo, surnamed the Wise, not content with these things, also prohibited third nuptials, yet for others, not for himself, who, after his third wife had died, since he lacked offspring, took a fourth. Thence in the year 906 arose a scandal and schism in the Greek Church, chiefly through the work of Nicholas Mysticus, Patriarch of Constantinople, which was finally removed by the Tome or Decree of union, first indeed issued in the Synod under the same Patriarch and under Constantine, the son of Leo, in the year 920, and afterwards, when all fully consented, published and accepted under Constantine and Basil in the year 996. That decree established that third nuptials indeed should be permitted under certain conditions; but fourth should be altogether prohibited, those contracting them being excluded from ecclesiastical communion so long as they remained in such a conjugal union, from which it is understood that the nuptials were held to have been null and invalid. Several letters of Nicholas Mysticus, Patriarch of Constantinople, report the same sense; he, having reproved the fourth nuptials of Leo, had stirred up that storm and therefore had been driven into exile; afterwards, however, he was restored, and under him the decree of union was composed. But although in his earlier epistles to the Roman Pontiffs he represents fourth nuptials as null by force of divine law, nevertheless in later letters to John X he signifies clearly enough that he judges that those nuptials can be entered upon by dispensation of the Church (read his letters edited by Angelo Mai in Migne, P. G. Tom. CXI). From this certain persons gather not ineptly that the reprobation of fourth nuptials among the Greeks rested upon custom and upon an ecclesiastical law invalidating these nuptials.

Therefore, lest you think that this persuasion concerning the nullity and malice of fourth nuptials from divine law had adhered to the Greeks, notice what John Veccus, Patriarch of Constantinople, with his Synod, professed in letters given to the Roman Pontiff John XXI in the year 1277. For after he had narrated that the union of the Greek Church with the Roman, begun under Gregory X, had at last been completed in the Council of Lyons, he immediately issued a profession of faith especially concerning the procession of the Holy Spirit and the primacy of the Roman See, and concerning the seven sacraments; among these he has this: "we receive marriage, concerning which the Roman Church herself holds that neither one man is permitted likewise to have several wives nor one woman several husbands at the same time; but when the law has been dissolved by the death of either spouse, it says that second and third and thereafter nuptials, legitimately made successively, are lawful." Comparing this profession of Veccus with the profession issued by Emperor Michael Palaeologus in the Council of Lyons ("second," he says, "and third successive nuptials the Roman Church says are lawful"), Joseph Simon Assemanus suspects that something has fallen out from this by which other nuptials besides third nuptials were affirmed to be lawful. For this is the doctrine of the Roman Church, which the emperor says he reports and follows.

VIII. Certainly the Roman Church never approved the doctrine of the Greeks in this matter, although formerly, when that decree of union was made, it tolerated that practice for the good of peace. For both the Roman Pontiff Sergius III, at the request of Leo the Wise, had approved his fourth nuptials; and Innocent IV, before the Council of Lyons, in letters to the Bishop of Tusculum, his legate in the Kingdom of Cyprus, orders the Greeks to hold this concerning nuptials: "Because, according to the Apostle, when the husband has died the woman has a free faculty, let the Greeks not in any way reprehend or condemn second and third and even further nuptials, but rather approve them among persons who otherwise can lawfully be joined to one another in marriage." Thus also Eugene IV established, as we have seen, with whom Benedict XIV agrees in the Constitution Etsi pastoralis given for the Italo-Greeks. Cf. the cited Assemanus, Bibliotheca Iuris Orientalis, Lib. I, c. 13.

Nevertheless the Church does not impart a blessing to the nuptials of bigamists, especially if even the woman alone is bigamous (c. Cappellanum 1 and c. Vir autem 3, de Secundis Nuptiis; cf. the Roman Ritual on the Sacrament of Matrimony; also canon 7 of the Synod of Neocaesarea), which blessing is customarily given within the celebration of Mass at first nuptials; because although, considered in themselves, they are a perfect sacrament, nevertheless, considered in order to the first nuptials, they have something of a defect of sacrament, because they do not have the full signification, since, the prior nuptials having been posited, there does not perfectly exist the union of one with one, as St. Thomas says, q. LXIII, c. 2; for this reason, that one is found to have adhered to several in fact, although successively; and this defect of the signification of the sacrament is the cause of irregularity.

Certain Latins, that is, Spaniards, seem to have enacted a severe law, when in the Council of Toledo, in the year 683, they prohibited the widow left by the King from marrying another, ordering her to be handed over immediately to a monastery of virgins; but this was established to avoid disturbances of the Kingdom, to which law the royal wives, when they entered marriage, subjected themselves spontaneously. The same custom seems to have prevailed among the Hebrews, as the learned judge. Cf. 3 Kings II. 13-25.

IX. From the things said it is clear that second and further nuptials are lawful by divine law and therefore are honorable; for what the Apostle grants, what he counsels, what the Church forbids to be condemned and teaches to be lawful and says to be less commendable only in comparison with a greater good, that is honorable of itself.

But the reason is evident: for when the spouse has died, the surviving spouse is of his or her own right and fit for marriage no less than before; the end of marriage likewise can be intended and obtained; and the remedy which it furnishes for concupiscence can itself alone be a reason why it is again entered. Nor should you say that this argument is called a sophism by Chrysostom (in Serm. ad iuniorem viduam de non iterando con-

iugio, n. 2). For the holy Doctor does not reprove this very thing which we infer, but that argument by which certain persons, from the fact that it is honorable to marry the first time, inferred that it is likewise honorable to do this a second, third, and thereafter, indeed that the one who uses marriage more frequently is to be praised by a stronger right, as if the state of marriage surpassed widowhood. For the rest, the same Doctor, at the beginning of this sermon, after he had said that second nuptials are lawful, but nevertheless that one marriage far surpasses repeated marriages, had admonished that in this comparison, when we say that one thing surpasses another, no one should think that this very thing which we say holds the lower place is a vice.