Thesis XVI

Having distinguished intrinsic and extrinsic indissolubility, we first state that intrinsic dissolubility, simply permitted to the discretion of the spouses for any cause whatever, is repugnant to the law of nature; but that a certain determinate intrinsic dissolubility is indeed repugnant to the secondary rights of nature, but not to the primary ones.

I. A twofold dissolubility of a contract must be distinguished: one which is called intrinsic, another which is called extrinsic. The former is present when, by the power of the contracting parties themselves, a contract once entered into can be dissolved; and for that reason it is called intrinsic, because it is situated in the nature of the contract itself that those obligations which are contracted by consent should be dissolved by contrary will, Tit. 30, lib. 3, Instit. Quibus modis tollitur obligatio, § 4; although certain rites can be prescribed by positive law, so that the dissolution of the contract may be done licitly and validly. Extrinsic dissolubility is present when, by the authority of a superior, the contract is loosed, or the obligation is taken away. Hence also a twofold indissolubility must be distinguished: intrinsic, by which it happens that a contract once entered into cannot be dissolved by the power of the contracting parties; extrinsic, by which it happens that it cannot be dissolved by the will of a superior. When the former indissolubility belongs to a contract, the contract itself is deservedly called indissoluble per se, although per accidens it may be able to be dissolved extrinsically. For those things belong per se to a contract which arise from the very consent by which the contract is made. Therefore, when the consent is such that afterward it can validly be retracted by the contracting parties, the contract is dissoluble per se; and, on the contrary, when the consent is such that it cannot any longer be validly retracted, the contract is indissoluble per se. But this does not prevent the contract from being able to be dissolved by the authority of a superior, for instance God, to whom the contract and the contracting parties are subject; for then it is dissolved (which must be noted), not by the consent of the contracting parties, but by the power which the superior has of taking away the obligation arisen from the prior consent. Wherefore this potestative act of the superior taking away the obligation must be distinguished from that by which he would permit, or would give power to, the contracting parties themselves to dissolve the contract; for in this latter hypothesis their consent would be the cause of the dissolution.

Directly opposed to intrinsic indissolubility is the faculty in both spouses, or in either one, of giving the other spouse a repudiation, by which one is drawn apart from the other, by which also the bond is loosed and all power and obligation of one toward the other ceases.

II. It is asked whether matrimony enjoys the aforesaid intrinsic indissolubility, and by what right the same belongs to it, and whether it belongs to every matrimony whatever. We shall solve the questions one by one.

Therefore it is first asked how long the mutual obligation of the spouses must endure. And so it cannot be denied that the matrimonial contract requires a certain stability which other contracts do not require. For this belongs to its essence. Its end is the procreation and education of offspring; it is a society of souls; it is a family. But these things cannot exist unless matrimony is permanent; therefore a certain stability, or perpetuity, is required. Yet because these ends seem sometimes able to be obtained, or at least not to be opposed, although the matrimonial bond between the spouses is at some time dissolved, it must be inquired more exactly whether, and in what manner, intrinsic dissolubility, of which alone we are speaking, is repugnant to the law of nature. And so it is certain that dissolubility of this kind will be repugnant by the law of nature insofar as it is repugnant to the essence of matrimony. Moreover, in the law of nature, primary rights, requiring that which is essential, and secondary rights, requiring that which is congruous and more fitting, must be distinguished (Th. XIV, n. 1).

III. This having been posited. 1. Intrinsic dissolubility, simply permitted to the discretion of both spouses or of either one, which could take place from any motive whatever, is repugnant to the primary rights of nature. Namely, with no extrinsic law determining certain motives, and with no intervention of an independent authority approving the dissolution, this act is governed in such a way that any spouses whatever, as often as they wish, from whatever cause, provided only that they wish it, may loose the bond of marriage, whether the will of one is sufficient, or at least the consent of both is required. This dissolubility indeed has been approved in no even slightly cultivated nation.

For although Justin the Younger, by his Novel constitution given in the year 566, granted that marriages be loosed by the mutual consent of the spouses, nevertheless this law was not received by the Greeks themselves, but another opposed to it, which Justinian had earlier issued, Novel 117. Cf. Assemani, Bibl. iuris orient., Tom. III, pag. 329 seqq. And indeed, with this very broad power of dissolving matrimony existing in the spouses, the essence of matrimony is taken away in reality, although in appearance it is preserved. For the essence of matrimony is situated in the mutual power and obligation to the use of the body and to the leading of common life, and therefore in a certain stable power and obligation, which the end requires, which is the society of the family and the procreation and education of offspring. Whence through matrimony there is constituted a certain and determinate family, to which father, mother, and offspring belong. But with that power of dissolving marriage existing in one spouse, or in both together, that stable mutual obligation ceases which the ends of matrimony require. In this hypothesis, certainly, it could happen per se that the offspring would lack due education, if, before he is rightly educated, the marriage were loosed as often as the contracting parties please. Common life also, or the communication of works, would be taken away, and there would be no certain family, since the foundation for keeping faith would be lacking. Wherefore this power is directly opposed to the end of that power and obligation in which matrimony consists. And indeed, in truth, if marriage could be loosed at the pleasure of the spouses, wandering fornication would be introduced by this very fact (Th. VI, III); for whatever, apart from the name, is found among fornicators, or those seeking wandering concubitus, would have a place in such marriages. Certainly a society which can be loosed at the pleasure of the contracting parties cannot be the reason why those associated are bound by a bond of closest friendship, by communication of affections and goods and of life both prosperous and adverse. But matrimony is such that per se it can, and with nature teaching ought, to be the reason of this most inward union of souls, as is manifestly clear even from the history of the whole human race, wherever morals have not been most evidently corrupted. Therefore these two things cannot be combined: matrimonial society and an unlimited power in each spouse singly, or in both, of dissolving the marriage.

III. You will say: this intrinsic dissolubility was permitted by God to the Hebrews; for Deut. XXIV, 1 seqq., men were permitted to give their wives a bill of repudiation and to dismiss them, in such a way that they were able to marry others. Moreover, this lay open to the man because of some foeditas, if he hated her, which are most universal formulas of speaking. Finally, this dismissal was done by the private authority of the man, without any judicial form, and without public authority conferring value upon the act, since the act was valid of itself. Therefore, since nevertheless the marriages of the Hebrews were true marriages, it follows that such dissolubility is not repugnant to the essence of the same.

I answer that in this sufficiently difficult matter there are three things which come into question. 1. Whether in that place of Deuteronomy there is had a true permission of God making that dismissal of which there is speech there licit, or only a toleration. 2. What was permitted or tolerated: whether only the separation and dismissal of the wife from the house of the man, or besides this the dissolution of the conjugal bond. 3. What are the causes on account of which, God permitting or tolerating, it was lawful for the man to dismiss the wife.

1. We take our beginning from the third question and first bring forward the words of the law as the Vulgate has them: if a man has taken a wife and has had her and she has not found favor before his eyes because of some uncleanness, he shall write a bill of repudiation and shall give it in her hand and shall send her away from his house. And when, having gone out, she has married another husband, and he also has hated her and has given her a bill of repudiation and has sent her away from his house, or has certainly died, the former husband will not be able to receive her again as wife, because she is polluted and has become abominable before the Lord, lest you make your land sin. But in the original text it is read thus: if a man has taken a woman and has led her as wife, and it happens that she has not found favor in his eyes, because he has found in her an uncleanness of a thing, עֶרְוַת דָּבָר, and he has written (LXX, καὶ γράψει) for her a bill of cutting off, סֵפֶר כְּרִיתֻת, and has given it into her hand and sent her away from his house, and she, having gone out from his house, has gone and has been with another man ... the former husband, who sent her away, will not be able again to receive her so that she may be to him as wife after she has been polluted, אַחֲרֵי אֲשֶׁר הֻטַּמָּאָה, because it is an abomination before the Lord, and you shall not make the land sin, etc. If you follow the Vulgate, the legislator establishes two things: first, that the man write a bill of repudiation and give it into the hand of the wife; secondly, that the man cannot again receive the dismissed wife if she has been with another. The rest is said hypothetically by Moses. But in the original text all things are said hypothetically except the last of those two; namely, the writing itself of the bill and its putting forth into the hand of the wife pertains to the hypothesis for which the law is established, and this one thing alone is prescribed, that the former man not again receive the woman dismissed by him who has been with another man. From this observation certain learned men infer (cf. Ioan. Buxtorf, de Sponsalibus et Divortiis) that in the law there is not had a permission or mandate concerning the bill of repudiation and the dismissal of the wife, but that the legislator only narrates a fact and does not explicitly disapprove it, and therefore that it can be said at most that this practice was tolerated. But these things have been devised in vain. In Matt. XIX, 7, 8 two things are distinguished: the permission made by Moses of dismissing, and the command of writing the bill of repudiation. Moses, namely, permitted the dismissal of the wife; but, so that this might be done rightly and might be valid, he commanded that a bill of repudiation be written and given to the woman dismissed. With these things posited, let us come to the questions.

And so, as concerns the last question, we say that it is not at all certain that a bill of repudiation could be given with impunity from any cause whatever, according to the discretion of the man. Certainly let it be noted first that in the age of Christ there was disagreement concerning this very matter between two schools of the Jews: the school of Hillel affirming that this was lawful from any cause whatever, even the slightest; but the school of Schammai defending that it was lawful only from a grave cause, not indeed of adultery alone, for which the penalty of death had been established, but from other causes which more or less approached it and by which the fidelity owed by the woman was violated. From this we conclude: therefore, in that age this interpretation of the Mosaic law was not certain among the Jews, namely, that from any cause whatever, at the discretion of the man, it was lawful for him to give the wife a bill of repudiation; nor had there ever existed an authentic declaration of this matter, for thus there would not have been place for the question. But although not a few of the doctors of the Hebrews in the later age interpreted the words of Moses in this way, each person will easily grant, I think, that the sentence of Moses is not to be confused with the interpretations of recent doctors, who have imagined very many things most foreign to Moses.

Indeed the very manner of disputing of the school of Hillel shows that that opinion was new, since it demonstrated it by a most inept argument, contending that the words עֶרְוַת דָּבָר, which are in the construct state, and therefore signify one thing, must be taken separately, as if it were said: either עֶרְוָה or דָּבָר (cf. Selden, de Uxore hebraica, l. 3, cc. 18, 20).

Moreover, if the words themselves of Moses are considered, there is nothing which compels so broad an interpretation to be employed. Certainly the question returns to the force of the expression עֶרְוַת דָּבָר, foeditas rei, that is, some foul thing. We concede that adultery alone is not signified; but we contend that it is suitably taken of some matter or dishonest action against the fidelity of marriage. For properly עֶרְוָה is nakedness, hence turpitude. When these things are said of a wife and are drawn to signify the cause why the wife is hated by the man, it is natural to take them concerning moral turpitude against matrimonial fidelity, or concerning turpitude against the end of matrimony, for instance if she is sterile. But although the same expression occurs in the preceding chapter in the sense of physical foulness, it does not therefore follow that it, or it alone, is signified here too; for from the different adjuncts of speech the supposition of a word is varied. The history contained in the Scriptures indeed supplies nothing which would suggest that the practical interpretation of the Hebrews was different; indeed, almost no example of repudiations of this kind occurs, which permits one to suspect that the matter was not so easy (in 1 Paralip. VIII, 8 an example of this matter is exhibited). Whence it is lawful to conclude that there did not likely exist so many causes of repudiations. But the interrogation of the Pharisees, Matt. XIX, does not show that it was the persuasion of the people that it was lawful for a man to dismiss a wife from any cause whatever which had pleased him, nor does it show that the Pharisees themselves judged the same. For in order that, about to test Christ, they should ask that very thing, it was enough that they knew this opinion to be in force among some doctors of their nation; and in order that they should drive Christ into straits, they could also press the arguments of the opposing party. It is therefore sufficiently probable that repudiation had no place except from a grave cause of violated fidelity, as the school of Schammai also interpreted it, or, if you wish, also of sterility, which in a wife is a grave turpitude, even if physical. Nor is it certain that repudiation was lawful to be done without witnesses and the intervention of some public person; and perhaps the bill itself was written by a public person, as Augustine wills, lib. 19, contra Faustum, c. 26, although Selden (l. c., c. 25) denies that this has thus far been ascertained from the commentaries of the Hebrews. And indeed how would another man have been willing to receive her as wife unless the bill of repudiation, which she herself brought, had been certain by some authentic sign? The same can be confirmed by the example of Joseph, who, only in order that he might spare the honor of his wife, whose sanctity he knew while he was ignorant of the cause of her conception, wished to depart secretly from her (cf. the Appendix at the end of Chapter I).

IV. It follows that we must see of what sort this dismissal was, or what was the effect of the bill of repudiation. For there are not a few among the older and more recent Christian interpreters who judge that it was nothing but separation of bed and cohabitation, with the conjugal bond remaining; so that therefore the woman could not marry another, although the man could take another wife, because at that time it was lawful to have several wives. The reasons for this opinion, besides the authority of certain Fathers, which is not very rightly brought forward, are reduced to these two. The first rests upon the nature of the matter itself. They say, namely, that the permission made by Moses was such that it was open to the man to dismiss the wife from any cause whatever; for he says, if the woman has not found favor in his eyes, if he has hated her. But the foeditas on account of which the woman is said not to find favor in the eyes of the man is whatever can displease the man, whether moral or physical. But it could not happen that so broad a power of dissolving the conjugal bond would be made for the man in the people of God. Therefore. The other reason is gathered from the very words of Moses. For he says that the dismissed woman who has married another is polluted and abominable before the Lord. But this pollution is certainly moral, since on account of it the woman is abominable to God. But why is the dismissed woman called polluted if she has married another, unless because, existing as wife of the man by whom she was dismissed, she could not be united to another? Therefore not the bond of marriage, but only the society of cohabitation, was loosed by the bill of repudiation.

Now if it were certain that Moses tolerated (or, if you wish, permitted) that a man by his own authority should dismiss his wife from any cause whatever, we confess that we too would concede to that opinion, namely, that the effect of the bill of repudiation was not the dissolution of the conjugal bond, and this on account of the reason brought forward. But we have already declared that that is not demonstrated from the words of Moses. Nor is it established, as we have indicated, that this was lawful to do without the intervention of a public person. The other argument also seems to us to lack demonstrative force. For, short of adultery of the wife who has married a second time, we seem to ourselves to understand sufficiently that pollution and abomination of which there is speech. And first it must be noted that the verb טָמֵא is not said of moral uncleanness alone, but also of legal uncleanness of men and beasts; cf. Gesenius ad h. v. Likewise, as to the words which the Vulgate renders she has become abominable, if we consult the original text, the words of the text תּוֹעֵבָה הוּא may rather be translated thus: this is an abomination before the Lord (for תּוֹעֵבָה is a substantive, and הוּא or הִיא frequently serves in place of the substantive verb), namely, that the man should again receive the wife whom he repudiated. Certainly it must be noted that the things which are said here concerning the dismissed wife are not said of her in any hypothesis whatever, but only in this one: that she returns to the former husband by whom she was repudiated. For her second nuptials are not reprehended, nor is she herself prohibited from going to a third man after the second man either dismissed her or died; but this alone is here presented as hateful to God, that those who had been separated by repudiation should again be united after the woman had been with another man. Therefore it is an abomination, or, if you wish according to the Vulgate, the woman is abominable to God, not considered absolutely, but relatively, namely, insofar as she returns to the former man after she has married another. And this is what God prohibits. Chrysostom seems to us to have touched upon the reason for this matter, Hom. XVIII on Matthew, n. 4: "The ancient law," he says, "was that he who, from any cause whatever, hated his wife was not prohibited from repudiating her and taking another. Nor, however, did the law command that this be done simply, but after a bill of repudiation had been given to the wife, in such a way that she could not again return to him, so that at least the figure of marriage might remain. For if it had not prescribed this, and if it had been lawful to repudiate her and to receive another and then to bring back the former, great confusion was going to arise, with all frequently receiving the wives of others by alternating turns, and this would plainly have been manifest adultery." Namely, under the appearance of marriage there would have been introduced a certain promiscuous exchange of wives and wandering concubitus. This certainly is wicked, and under this aspect a woman who would undergo these vicissitudes would be abominable before the Lord. But why is she called polluted, since she has been known by another man? We think that, although she was a true wife of this man, she could be called polluted by God. For although God permitted repudiation, nevertheless this "was conceded not by the will of God but by the necessity of sinners (Jerome on Matt. XIX, 3)," that is, God permitted it not from antecedent will but from consequent will, namely, on account of the hardness of heart of the Hebrews. Therefore the thing was something which God, considered in itself, did not approve, in which He saw a certain disorder and a certain defect of true cleanness; and so that God, in the very permission of repudiation, might signify this to the Hebrews, He called that woman polluted who had been known by the second husband. These words indeed in the Hebrew text indicate only the fact, not properly the reason of the law: after she has been polluted, he says, not because she has been polluted.

We judge that the same interpretation must be applied to the words of Jeremiah III, 1. Commonly it is said: if a man has dismissed his wife, and she, departing from him, has taken another man, will he return to her again? Is not that woman polluted and contaminated? Nevertheless it is better to note that in the Hebrew text mention is made not of the woman but of the land: has not that land been profaned by profaning? It perhaps alludes to the words of Moses: lest you make your land sin, l. c.; cf. Jerome, comm. on Jeremiah, l. I, c. 3, v. 1. But as to Malachi II, 16, after it has been said, when you have had hatred (for your wife), dismiss her, says the Lord God of Israel, there is immediately added: but iniquity shall cover his garment. It is lawful from the Hebrew to translate: but he covers his wife with injury, which, whichever dismissal it is, can be true.

On the contrary, the opinion affirming that the bond of marriage was dissolved by the bill of repudiation is strongly recommended by these reasons. 1. The second man can give a bill of repudiation; but a bill of repudiation could be given not to an adulteress, but to a wife or betrothed woman. 2. A dismissed woman, if afterwards she has married another, is prohibited, not indeed from marrying another when this second husband has died, but from returning to the former husband. But if the first bond remained, there was no sufficient reason why this should be prohibited; for this prohibition was in conflict with the obligation of the woman herself toward the man, which remaining, reconciliation could not be impeded. It was moreover in conflict with the law of honesty; for thus the woman was exposed to the danger of adultery, and it is not honest to impede that this danger be removed. 3. Besides, in Lev. XXI a special law is enacted concerning the marriage of priests and of the high priest, so that to them is forbidden what is lawful to others, or that is commanded to which others are not bound. Namely, the high priest is commanded to marry a virgin; he is forbidden to marry a widow, a repudiated woman, a defiled woman, a harlot (v. 14). The reason of this law is a special reason: because the oil of unction has been poured upon his head, because his hands have been consecrated in the priesthood (v. 10). A reason is brought analogically for the other priests (v. 6). Therefore the law also is special, not common to all Hebrews. And certainly no one from the people was prohibited from marrying a corrupted woman, a widow, a harlot. Therefore also the prohibition against marrying a repudiated woman pertained only to the high priest and the other priests; it was permitted to the rest to marry a repudiated woman as wife. But if this is so, then the bond of the repudiated woman with the former man was dissolved. And indeed, in truth, if it had been lawful for no one to marry a repudiated woman, why in the law of the priests, by which things peculiar to them are prescribed, would it have been decreed that a repudiated woman was not to be married by them? Did they not already know that they were bound to this, because they were from the people of the Hebrews? 4. The Hebrews interpreted the law in this way; for in the age of Christ there was indeed a dispute about the causes of dismissal, but in this all agreed, that a woman dismissed by a bill of repudiation could marry another. Cf. Josephus, Archaeol., l. 4, c. 8. 5. Christ Himself, Matt. XIX, opposes the permission of the bill of repudiation, considered simply, to the primitive institution, affirming that it did not exist from the beginning. But the mere permission of dismissal without dissolution of the bond is not opposed to the primitive institution; for even now this is lawful for Christians, among whom the primitive institution has been recalled entire. Therefore let it be certain that the bond was loosed by the bill of repudiation.

In this matter the opinions of the Fathers seem divided. Jerome indeed, on Malachi, c. II, 16, seems to judge that not every dismissal among the Hebrews was without fault, except the cause of fornication; nevertheless it is not established whether the things which he says he wishes to refer only to Christians, or also to the Hebrews who were before Christ. Equally ambiguous is what he says on Matt. XIX, 8. Ambrose also, on Luke, lib. VIII, n. 70, rather supposes that dissolution of the bond was permitted to the Jews, which he denies to Christians. But Augustine, who, lib. XIX, contra Faustum, c. 20, expounds at length the economy of the institution of the bill of repudiation, speaking of the same in l. 1, de Sermone Domini in monte, c. 14, says that "however hard the man was who wished to dismiss his wife, when he thought that, once the bill of repudiation had been given, she could now without danger marry another, he would easily be appeased." Therefore Augustine thought that the marriage was loosed. But when he says, de Bono coniugali, c. 8, that in that permission of Moses there appears a reproach of divorce rather than an approval, he is speaking of the approval of God according to antecedent will, which certainly was lacking; indeed, according to that will there was a reproach, for repudiation had been permitted only from the cause of men, namely, on account of their hardness. Basil indeed, can. 9, Epist. CXCVIII, and can. 21, Epist. seq., referring the words of Jeremiah from c. III, 1, calls the dismissed woman who has married another, of whom there is speech there, an adulteress. But it is manifest that the holy Doctor is not interpreting the law of Moses data opera, but incidentally referring the words of Jeremiah, which, taken separately, could agree with the matter which Basil was then treating. Cyril of Alexandria, on Malachi II, 14, 16, from the fact that the law permitted a bill of repudiation to be given, denies that it follows that those who give it are without fault, who give it for the purpose of being coupled with others. Perhaps he places the sin in this, that men repudiating their wives are not led by a good intention.

In the biblical apparatus containing several Dissertations collected by a certain Discalced Carmelite in the year 1705, there exists in Tom. 3 a Disputation De ritibus nuptiarum penes Iudaeos; and there, a. 8, there is vehemently defended the opinion denying that it was permitted to the Jews, by a permission which would take away sin, to dismiss their wives through a bill of repudiation in such a way that the conjugal bond would be loosed; and the principal reason for this denial is the authority of St. Thomas, who is said to have denied it. This indeed is proved both by several testimonies of his brought forward, and from his principle, namely, that, according to Thomas, the dissolution of matrimony is repugnant to the law of nature. But 1. St. Thomas recounts both opinions in this question, and calls the one which we defend probable; indeed he also defends it, having solved the contrary arguments against it. He only says that the other opinion is more common, and shows that he himself is borne more toward it. Cf. in 4, D. XXXIII, and 1a 2ae, q. CV, a. 4, ad 5. But as to what they say, that Thomas from his customary modesty calls the opposite opinion probable, we do not understand what this regards; for neither do we believe that the holy Doctor, on account of modesty, wished to assert as probable that which did not seem probable to him. Therefore, even if we wished to settle the question by the authority of St. Thomas alone, we would have nothing certain here.

But 2. that principle of St. Thomas is brought forward wrongly. For the distinction of the precepts of natural law into first and second must be kept before the eyes, which we gave in Thesis XIV, n. 1, not from our own store, but from St. Thomas himself. Therefore, when Thomas, in lib. 3, contr. Gentes, c. 123, produces several arguments by which he proves that the dissolubility of marriage is not congruent with the law of nature, we say that he speaks of the second precepts of the law of nature, by which that which is more fitting is proposed. And we demonstrate this evidently from the fact that he judged it probable that power of dissolving marriage had been made to the Jews by God; which certainly he would not have judged if he had thought it to be against the primary precepts of the law of nature, from which not even God can dispense. Therefore what Thomas teaches l. c. is that which we also with him shall teach in the following part.

What, then, finally do we have? That the opinion which denies that it was permitted by God to the Jews through a bill of repudiation to dismiss their wives in such a way that the bond was loosed, was in the age of Thomas the more common among the Theologians, and pleased him more. But these things are not yet sufficient for a Theologian for the full solution of the question. On the contrary, the opinion which we defend, several Theologians of the first rank defended either as certain or as more probable: Sanchez, de Matr., l. 10, D. 1, n. 7, with several authors also cited; Bellarmine, de Matr., l. 1, c. 17; Bonfrerius on c. 24 of Deuteronomy; Cornelius a Lapide, ibid.; indeed also from the Thomists, Gonet in Tom. 5 of the Clypeus, D. 5, and Cajetan on Deuteronomy c. 24. Therefore proper arguments must be brought forward, taken from the accurate analysis of the text and the nature of the matter, which we have tried to furnish according to our powers.

You will nevertheless say: Paul expressly teaches that in the Old Testament a woman was bound to the law of the man as long as he lived, so that accordingly she would be called an adulteress if she had been with another man. For he assumes this from the law (namely, of Moses) to prove that the law has dominion in a man for as long a time as he lives, Rom. VII, 1-3. Therefore, according to the law of Moses, a wife also who had been dismissed remained bound to the man dismissing her as long as he lived.

I answer first. This obligation of the woman toward the man is again predicated by the Apostle in almost the same words, 1 Cor. VII, 39, and he hands it down among the precepts proper to the Christian economy, in such a way that this precept also seems to be proper to the same economy. Wherefore one might perhaps suspect that the law to which he appeals (Rom. VII) is rather the Christian law.

I answer secondly. The parenthetical words, for I speak to those knowing the law, may be interpreted thus: I speak, namely, to those knowing the force of law, whatever law it may be, which force of law is this, namely, that law has dominion over a man as long as he lives. Moreover, he declares this by the example of a wife bound to her husband; nevertheless he could borrow this example also from Christian law, since in this place, if you receive that interpretation, he was not treating of the Mosaic law.

I answer thirdly. If you wish τὸν νόμον, Rom. VII, 1, to be the law of Moses, which we too more gladly admit, note that the Apostle speaks in the hypothesis that the woman has a husband: she who is under a man, he says, while the man lives, is bound to the law, certainly of marriage, since it was not lawful for her to give a bill of repudiation. But we deny that a dismissed woman is under a man, which you also cannot affirm, unless you suppose what must be proved by you, that the bond endured after that dismissal.

There is also another response which we once gave, and which now we think by no means necessary. Namely, we noted that such a law concerning the obligation of the woman toward the man is not found in so many words in the whole law. But it exists according to the sense. Where, then? I do not know whether you may find another place besides Gen. II, 23, 24, where the law of the institution of matrimony is set forth. Now if the Apostle had regard to this place, what do you have? Namely, that by the law of institution the wife is indissolubly bound to the man and the man to the wife. We freely grant this; indeed, in its place below we shall prove it. But this is not what is now being treated. Rather, it is asked whether some dispensation from this law (and when we say dispensation, we certainly suppose the prior law) was conceded to the Hebrews, by which men could dismiss their wives with dissolution of the bond. We prove this from the place of Deuteronomy, where Christ Himself testifies that something had been permitted otherwise than had been instituted from the beginning. Nor does the Apostle deny what we contend, since he only cites the law of institution as uniquely valid in his age, since it had been recalled by Christ.

V. Therefore there remains the question whether such an economy of Moses was a true permission, by which the matter became licit, or only a toleration, leaving to that action its malice. But certainly that question has already been prejudged from the preceding question. For if the effect of the bill of repudiation was the dissolution of the bond, so that the dismissed woman could marry another, and could not, after the death of the man to whom she had married the second time, return to the former man, there was need of the intervention of a divine dispensation by which the dissolution of the bond, which from the beginning had been established as indissoluble, would be permitted. For mere toleration would have operated nothing on the part of the thing; it would have freed the one dismissing only from penalty, not from conjugal obligation toward the dismissed woman. But with divine permission existing, the matter became licit.

Besides, as St. Thomas argues in 4, Dist. 33, q. 2, a. 2, ql. 3, ad 4: "If the Jews, by repudiating their wives, had sinned, this at least ought to have been indicated to them through the law (for the law is holy, and through it comes knowledge of sin) or through the prophets (Isai. LVIII, 1: Announce to my people their crimes); for otherwise they would seem too despised if those things which are necessary to salvation, which they did not know, had never been announced to them. Which cannot be said, since the justice of the law observed in its own time (certainly from grace) merited eternal life."

And so one may judge that it was permitted to Jewish men to repudiate their wives from a grave cause, with some public authority intervening. But this is a different dismissal from that which we disapproved above.

VI. But intrinsic dissolubility from certain causes only, by which the proper goods of matrimony are not impeded, which is governed by certain laws guarding against the more serious inconveniences and rendering the act more difficult and rare, and which takes place with the consent of an independent authority, is not repugnant to the primary law of nature. The first argument for this doctrine can be taken from the permission of repudiation made to the Hebrews by God, since repudiation looked to this, that the bond of matrimony be loosed. For in this hypothesis it was truly the man who dismissed the wife, commanding her by the bill of repudiation to be free. The form prescribed by the law was indeed kept, but the dismissal and repudiation was done by the authority of the man; and therefore it was an intrinsic dissolution. Moreover, in that law there certainly were not more precautions than those which we have posited in the enunciation of our assertion. Therefore, since God permitted to all Hebrew men the power of giving a bill of repudiation, and nevertheless did not destroy the essence of matrimony in His own people, it follows that some power of dissolution, or intrinsic dissolubility, is not repugnant to the laws of nature, at least the primary ones. And because, per se, with regard to the power over the body of the other by which the conjugal bond is constituted, the right in each spouse is equal, hence what is lawful to the man ought also, per se, to be lawful to the woman; although the dignity of headship which belongs to the man brings it about that this right is more congruent to the man.

And indeed, suppose that enough provision has now been made for the children with regard to education and sustenance; suppose that the wife is sterile; you will with difficulty prove (says Bellarmine, de Matrim., c. 4) that dissolution is repugnant to the essence of matrimony; indeed, there is nothing which, with the law of nature alone considered, demonstrates that it is repugnant. For this demonstration is sought from the ends of such a union. Suppose, besides, that one spouse commits adultery; since with natural horror the spouse shrinks back from the contract and familiarity of the party who has violated fidelity so greatly, does the primary law of nature, especially if as yet there are no children, deny to the other, offended party the right of separating himself and contracting other nuptials, so that contrary to his wish he remains unmarried and, through the fault of the other, is deprived of the good of offspring and of the bridle of concupiscence? It can indeed be demanded that this power be restrained within certain limits, and be governed by certain laws independent of the discretion of individuals; and in this matter we judge that nothing more can be demanded than what we set forth from the beginning in the enunciation of this part. But with these things posited, you cannot prove that intrinsic dissolubility in cases of this kind is repugnant to the essence of matrimony by the law of nature, unless you prove that any dissolubility whatever is repugnant to the same; which, however, is false. For whatever argument you fashion, it will return to this: that either from the ends of matrimony, or from the nature itself of the obligation of the spouses undertaken from the beginning, you demonstrate that this dissolubility is repugnant to the primary law of nature. Now from the ends you cannot demonstrate this, as we have seen. But if you argue from the nature of the obligation, since this is always the same, you will bring it about that any dissolution whatever is against the primary law of nature, because it is opposed to that obligation. But if you concede that some dissolution of the same can be combined with the nature of that obligation, then how do you prove that this dissolubility also, of which we speak, is repugnant to the primary law of nature? Moreover, that the conjugal bond suffers some dissolution is certain from the permission made to the Jews.

This which we defend is certainly the opinion of Augustine, who judges that full indissolubility is proper to Christian marriage because it is a sacrament; indeed, he places in that the reality of the sacrament (but Augustine speaks of indissolubility especially intrinsic; for a certain extrinsic indissolubility belongs to Christian marriages, as we shall see afterwards). Therefore Augustine did not recognize that indissolubility in marriage considered by the law of nature alone.

VII. Nevertheless this intrinsic dissolubility, of which we have just spoken, is opposed to the secondary rights of nature. For that which is per se congruous and more fitting for the essence of matrimony, so that the opposite is more or less unbecoming, is prescribed by the secondary rights of nature. Moreover, it is certainly congruous and most fitting for matrimony that it be intrinsically altogether indissoluble. Certainly it is abhorrent from matrimony that a spouse, while he is bound, should think of entering another marriage; for by this very fact that mutual friendship is diminished, which nevertheless follows spontaneously from so close and natural a communication, by which one gives himself to the other. But unless the union is indissoluble, that could and would follow not only from the fault of man, but per se. Besides, the wife is, by a certain fixed reason, the flesh of the man, and the man also the flesh of the woman; for they are one flesh. But no one ever hated his own flesh, but nourishes and cherishes it (Ephes. V, 2); therefore nature shrinks back from divorce as from hatred of one's own flesh, with some distinction indeed, according as spouse and flesh properly differ. Again, by the indissolubility of matrimony, provision is more certainly made per se for the good of the offspring and the modesty of the wife is more honorably cared for; thus the communion of life, the union of souls, the state of the family, and the necessity of affinities is firmer and holier. Finally, in this way the distinction of families is more certain and peace between diverse families is safer, and thus better provision is made for the good of human society. But if it sometimes happens that it is becoming that the bond be loosed, this need not be done by the power of the spouses, but can be done by the authority of a superior, and therefore extrinsically. Wherefore this indissolubility was deservedly sanctioned by the law of institution.

Certain inconveniences are usually objected, which have a place when the indissolubility of matrimony is posited after hatred or weariness has succeeded love. But 1. these do not outweigh those things which would arise from dissolubility. 2. These are inconveniences of individual persons; but those which arise from dissolubility are opposed more or less to matrimony itself and to the end intended by nature through it. 3. These do not exist per se, but from the evil will of men, who, since they are free, can impede those things from which they take their origin; but the former would arise per se from dissolubility. Moreover, compare the things which we shall discuss data opera on this argument in Th. XXIII.

According to the things just said, we understand that proposition 67 in the Syllabus of Pius IX was rightly condemned: "By the law of nature the bond of matrimony is not indissoluble, and in various cases divorce properly so called can be sanctioned by civil authority."