Thesis XVIII

The things which are brought forward with great apparatus by the adversaries do not diminish the force of the demonstrated Catholic Tradition.

I. Nevertheless, not a few things occur which seem to make the matter difficult, and which the adversaries abuse (Launoy, de Regia in Matrim. potest., Tom. I, p. 2; Adam Braun, dissertation Utrum matrimonii vinculum et in casu adulterii alterius coniugum iure divino, an solo iure ecclesiastico, sit insolubile). In order to clear these away, it will help first to note these things. 1. No testimony can be brought forward of any Father or Writer or Synod which has any authority in the Church, concerning which it is permitted to affirm with certainty that it teaches that a man, after dismissing his wife on account of adultery, and while she lives, can marry another wife. 2. In the first centuries of the Church the matter was not defined by authentic magisterium; whence it is no wonder if some erred, and while erring were not held to be heretics. 3. This principle was certain for the Fathers in this matter: that the right of each spouse over the other is equal with regard to this matter; which is sufficiently clear from the testimonies brought forward, to which this testimony of Basil (canonical epistle, can. 9) can be added: "According to the sequence of the sentence, what was pronounced by the Lord applies equally to men and women" (Matt. XIX). Wherefore what is said by them concerning wives must also be transferred to husbands. 4. When penal laws are enacted, not always is whatever is evil in some kind punished, but according to the condition of men, that which seems graver or more easily capable of amendment is struck with a penalty; hence it is not permitted to infer that those things which are left immune from penalty are judged honorable and permitted. If, noting this, you read the canons of Elvira 8, 9, 10 (this last indeed according to the emendation of Mendoza, whose reading we judge at least more probable), and certain canons of Basil which we shall afterwards weigh, you will understand that certain separations of spouses are not therefore approved or permitted, because they are punished by no penalty by Fathers solicitous about the more principal things.

II. These things having been set down beforehand, from the Fathers or writers who are objected to us, a) certain ones, after making mention of the law of Christ, which permits a wife to be dismissed only on account of fornication, do not explicitly add that it is not lawful for men to marry another wife; which nevertheless it is permitted to think that they judged. Thus Nazianzen, Orat. XXXVII, n. 6, who says: "Concerning this question I see that very many are ill-disposed, and that their law is unjust and not consistent with itself. For what cause was there why it should restrain the woman (their law, namely, that is, the law of the Caesars), but, on the contrary, indulge the husband and leave him free? And indeed let the woman who has undertaken a wicked plan against the bed of her husband be bound by the guilt of adultery; but should the man who by adultery has violated the fidelity given to his wife be liable to no punishment? (cf. the law of Constantine the Great in Cod. Theod., Lib. III, Tit. 16, n. 1). I by no means approve this law; I in no way praise this custom. They were men who sanctioned this law.... But God is not thus. For the law gives a bill of repudiation for all causes. But Christ does not permit a man to be separated for all causes, but only from an unchaste and adulterous wife.... Therefore let us indeed cast out the unchaste woman, because she corrupts and adulterates the race; let us bear all other things patiently, moderately, and wisely." Here note that it is not said that Christ gives a bill of repudiation, but that He permits separation in the case of fornication; which, of itself, is less. But that Nazianzen judged the bond not to be dissolved even in this case, although he does not say it here, is clear 1. from his poem de Virginibus, where, recounting the inconveniences of matrimony, he calls a bad wife an odious τυκτὸν κακὸν, οὐδ' ἀπόπεμπτον, that is, an evil taken on and not dismissible, inasmuch as the bond could never be dissolved. It is clear 2. from his sentence concerning divorces which Roman law permitted, in epistle 144 cited above.

b) Certain testimonies of some are brought forward, of whom, nevertheless, other very clear, or sufficiently clear, testimonies exist in favor of the Catholic doctrine; of this sort are Tertullian and Origen. But the testimonies which are objected, if they are accurately weighed, favor not the adversaries, but us. The passage of Tertullian is in IV contra Marcionem, c. 34. Marcion, that he might prove that the author of the evangelical law was other than the Creator, the author of the Old Testament, brought forward the permission of repudiation made by Moses and its abolition by Christ. Tertullian's response returns to this: 1. Christ is not opposed to the Creator, because, abolishing divorce which Moses only had permitted, He restored the primitive law of the Creator, as is clear from Matthew, whose Gospel, nevertheless, Marcion, content with Luke alone, wrongly rejected, as Tertullian had already proved. For thus "He both protected the constitution of Moses as His own, and directed the institution of the Creator, as the Christ of Him." 2. In the very abolition of repudiation, Christ is not contrary to Moses, for Christ Himself also permitted divorce; nor did He prohibit it simply, but only conditionally, that is, if the divorce be made in such a way that another is married. Behold the words which the adversaries object: "For I say that He now made the prohibition of divorce conditionally, if someone dismisses his wife in order to marry another (behold the condition under which divorce is prohibited): He who dismisses, He says, his wife and marries another commits adultery, and he who marries one dismissed by her husband is likewise an adulterer: certainly from the same cause, because it is not lawful for her to be dismissed so that another may be married; for marrying one illicitly dismissed as if she were undismissed, he is an adulterer." It is manifest that Tertullian, in order to show that the author of the Gospel is not opposed to the author of the Law, gathers an argument secondly from this, that Christ Himself also in some way permits divorce, namely of bed and board, provided another is not married: "if He conditionally prohibited dismissing wives, He did not prohibit it entirely; and what He did not prohibit entirely, He permitted. It is another thing when the cause ceases on account of which He prohibited it." Moreover Marcion, who cited Luke alone, supposed repudiation or divorce to be absolutely and entirely prohibited by Christ. To some this argument can seem not sufficient, but first this is false in itself; then there was no need of a demonstrative argument, since the matter had already been accomplished by the prior argument; nor are arguments of this sort rare in Tertullian; and finally it is not lawful for us to change the clear statements of authors because they are not sufficiently approved by us. Moreover if anything is clear in this disputation, it is this: that the prohibition of divorce was made not absolutely, but under a condition, namely if the wife is dismissed so that another may be married; or, what is the same, that it is permitted, provided another is not married. It can be asked what those words signify: for marrying one illicitly dismissed as if undismissed, he is an adulterer. Namely, he had said that he who marries one dismissed is an adulterer, and this on account of the same cause on account of which it is not lawful to dismiss, namely, that another be married; therefore, just as it is not lawful for the one dismissing to marry another, and if he marries, he is an adulterer, so also he adulterates who marries one dismissed, because he illicitly marries one dismissed. But what is that as if undismissed? This form of speaking, to marry one dismissed as if undismissed, seems equivalent to this: to marry one dismissed as if she were undismissed, or insofar as she is undismissed. Moreover here an undismissed woman is not a wife not dismissed; for who would receive as wife to himself the wife of another insofar as she is another's? Rather, she is one who was never dismissed, because she was never a wife; and the sense is: he who illicitly marries one dismissed as if she were loosed is an adulterer. And he proves this by what follows. "For the matrimony which has not been rightly severed remains; to marry while matrimony remains is adultery." These words do not carry this sense: that matrimony does not remain if it is rightly dissolved, as if it could be dissolved by a spouse, so that the one marrying another would not be an adulterer; for this does not cohere with the preceding words, since it is not lawful to dismiss so that another be married. Rather, the legitimate sense is that matrimony remains because it can never be rightly dissolved. Therefore we have that Tertullian does not deny that Christ prohibited divorce, but denies that He prohibited it entirely; and therefore that He conceded it in part, namely conditionally, that is, if another is not married. But this is the Catholic doctrine. Now according to the preceding things those which follow must be understood, where Tertullian argues ad hominem against Marcion: "Or if you altogether deny that divorce is permitted by Christ, how do you dissolve marriages?" And again: "Certainly what does the husband do among you if his wife has committed adultery? Will he have her? But you know that not even your Apostle permits the members of Christ to be joined to a prostitute." By these words we are taught that a husband can, indeed sometimes ought, to separate himself from an adulteress, yet by separation as to bed or even habitation.

3. He teaches that the law of Moses is confirmed by Christ. "Already hence Moses is confirmed by Him (Christ), prohibiting (?) repudiation under the same title under which Christ also does: if there shall have been found in a woman an unchaste matter." (Even if all read thus, we do not understand how he said that Moses prohibited repudiation; for Moses permitted it to a man if he found in the woman an unchaste matter, Deut. XXIV, 1; although he did not properly permit it on account of adultery, for he had commanded an adulteress to be stoned. And besides, if Moses is said to have prohibited repudiation, Tertullian's statements do not cohere, since he proves that Christ confirmed Moses because He permitted a certain divorce in the case of adultery. Should it be read permitting?) "For also in the Gospel of Matthew, he who shall dismiss, He says, his wife except for the cause of adultery, makes her commit adultery, etc. Moreover, except on account of adultery neither does the Creator (that is, God indeed, but as author of the old covenant) separate what He Himself joined, with Moses elsewhere (Deut. XXII, 29) establishing that he who had made a matrimony by violation cannot dismiss his wife for all time; but if a matrimony forced from violence will stand, how much more a voluntary one from agreement?" The passage is somewhat obscure. If the single parts are taken separately, you have the words of Christ recited by Tertullian, and therefore accepted by him in that sense in which he has already interpreted them above. But he says that, since a matrimony entered into on account of violence inflicted was indissoluble by the law of Moses, it is much more equitable that a matrimony contracted from voluntary agreement should not be dissolved. And thus you have that matrimony was indissoluble even in the old law. The argument is not effective; but many things of this sort occur in Tertullian. Note that the work against Marcion was written by Tertullian when already a Montanist, as also the book de Monogamia. This is clear from L. I, c. 29.

As regards Origen, he himself, in the same place cited above on Matthew, namely Tom. XIV, proposes to himself a difficulty from the words of the Lord: "Perhaps some Jewish man says that Jesus Himself, when He said: everyone who shall dismiss his wife, except for the cause of fornication, makes her commit adultery, made a power of repudiating a wife no otherwise than Moses did." But he answers 1. by noting that the foulness (Deut. XXIV, 1) found in the woman, on account of which she could be repudiated according to the law of Moses, could not be adultery, because for this the woman was stoned. 2. He brings forward the sentence of Christ, namely that from the beginning it was not so. 3. He notes that Christ did not grant the faculty of dissolving the marriage except for the crime of fornication. But of what sort is this dissolution of the marriage? If it is also dissolution of the bond, why did he previously reprove those Bishops who permitted it? Why is he called Jewish who was establishing it from the words of Christ? But also the things which follow must be considered. There follows, moreover, 4. an interposed disputation whether on account of other causes, for example on account of poisoning, or the killing of an infant, the plundering of a house, or any other slaughter, a wife can be dismissed or not; and he says each seems absurd, to affirm it, because Christ excepted fornication alone, and to deny it, because those crimes can be judged worse than adultery.

Yet he himself defines nothing. Then he asks why Christ did not use this form: "Let no one repudiate a wife, except for the cause of fornication," but that form: "he who shall dismiss his wife, except for the cause of fornication, makes her commit adultery," noting that certainly he makes the wife commit adultery, that is, exposes her to the danger of adultery, who dismisses a wife not at all guilty of adultery; for while the husband lives, she shall be called an adulteress if she has been with another man. But occasion of marrying again is given to the repudiated woman; he doubts, however, whether one could be excused from this fault who should dismiss his wife on account of poisoning. Then, on occasion of this incidental question, he notes that men, even when they do not dismiss wives, furnish them many causes of adultery, when they do not guard them as they ought, or when they are unwilling to render the debt. These things having been completed, 5. he returns to the former question and resolves it peremptorily with these words: "But just as a wife is an adulteress, even if she seems to have been married to another man while the former one is still alive, so also the one who has seemed to have married a repudiated woman (for it is an apparent, not a true, marriage) is demonstrated by our Savior to be not so much her husband as an adulterer." He speaks universally of a repudiated woman and of him who marries, or rather thinks that he marries, the repudiated woman whom Christ indeed had permitted to be repudiated on account of fornication; but whether it is lawful to repudiate her from other causes, Origen confesses that he does not know. Wherefore certainly when he simply names a repudiated woman, he understands her whom Christ permitted to be dismissed on account of adultery. Therefore the doctrine of Origen is entirely Catholic.

c) There are also brought forward testimonies of certain men who did not speak clearly; as Theodoret, who (de Graec. Affect. Curat., Serm. IX, De Legibus), after bringing forward the words of Christ according to Matthew, says: "by which words He commands that the other faults of the wife be borne, whether she is talkative, or drunken, or abusive; but if she transgresses the laws of nuptials and impudently aims at another, then finally He commands the union, τὸν ζυγόν, to be dissolved." The same man, moreover, in Lib. V, Haeret. fab., c. 16, opposing the new law to the old in this matter, says: the new law calls repudiation without fornication adultery; "for he," he says, "who dismisses his wife, except for the cause of fornication, makes her commit adultery, and he who marries one dismissed commits adultery." And in the same place, c. 25, he says that "Christ confirmed the law of matrimony, so that by another law He restrains him who wishes to dissolve matrimony except for the cause of fornication: whosoever, He says, dismisses his wife, except on account of fornication, makes her commit adultery." By these words Theodoret seems to judge that marriage can be dissolved on account of fornication. But with regard to the first testimony one can deservedly doubt what sort this dissolution of the union is; for it can be accepted for the separation of society, or of bed and habitation, or of the use of marriage. For this is properly the union, and this also can properly be signified by ζεύγλη, which is a yoke; for since the innocent spouse is free from the obligation of rendering the debt, he is deservedly said to be loosed from a certain yoke, that is, from a burdensome society. Besides, the antithesis also suggests this; for to bear a talkative, drunken, vicious wife is to make use of her conversation and fellowship; therefore to dissolve the union is to be separated as to bed and board. Certainly God commands this separation in certain cases; but divorce properly so called could be said at most to be permitted by God, not commanded. In the other testimonies Theodoret does not indeed expressly affirm in his own words that the bond cannot be dissolved on account of fornication; but he affirms it by the words of Christ brought forward: he who marries one dismissed commits adultery, which he certainly understood and approved. And he teaches the same clearly in the commentary on 1 Cor. VII, 10, 11, which we have cited.

Likewise Asterius, Bishop of Amasea, in the homily on those words, Whether it is lawful for a man to dismiss his wife for any cause whatever, vehemently rebuking those who, as he says, "as garments, changed wives, and immediately on light offense wrote out a bill of repudiation," has these words: "Hold this as fixed and altogether persuaded: excepting death and adultery, matrimony is dissolved from no cause"; where adultery is compared to death, which certainly dissolves the bond. But it is not new that the same thing be predicated of several things, yet not in the same mode, but with a certain signification accommodated to the subject. Therefore although adultery and death are said to dissolve matrimony, it does not follow that the dissolution is the same; for there is a certain proper dissolution of each. That the words of Asterius are to be accepted thus is suggested 1. from the fact that nowhere in that sermon does he affirm that it is lawful for the dismissing spouse to marry another wife; 2. from the fact that he reproves the Roman laws then in force as sanctioning otherwise for adulterous women and for adulterous men, laws which were not solicitous concerning the adultery of the man and gave men power of dismissing adulterous wives, but not wives power of dismissing adulterous men. Cf. what we admonished at the beginning of the Thesis.

To these can be added Hilary of Poitiers, who, on Matt. V, on those words whosoever shall dismiss, etc., says: "Reconciling equity among all, He commands that it remain especially in the peace of marriages, adding many things to the law and taking away nothing. Nor indeed can advancement be argued against. For since the law, by the authority of the bill, had attributed the liberty of giving repudiation, now evangelical faith imposed upon the husband not only the will of peace, but also the guilt of a wife compelled into adultery, if by the necessity of departure she must marry another; prescribing no other cause of ceasing from marriage than that which would pollute the man by association with a prostituted wife." By these last words he seems to assert that divorce is lawful in the case of fornication. But in reality he does not say this; rather he affirms that in the case of fornication it is lawful to dismiss a fornicating wife in such a way that the guilt which she afterwards contracts if she marries another is not imputed to the husband; but if she is dismissed on account of other causes, that guilt is imputed to the husband.

To this perhaps pertains St. Epiphanius, who, haer. LIX, discoursing concerning second nuptials, is said in our matter to speak obscurely; nevertheless, if he is well considered, he indicates the Catholic doctrine sufficiently clearly. For he says: "The matter indeed stands thus, that after the advent of Christ the most holy discipline of God rejects all those who after first nuptials, the wife being dead, have bound themselves to the nuptials of another (namely from the clergy). Among the people, on account of its weakness, this can be tolerated, that those who cannot be content with the first wife, when she is dead, join a second to themselves. Although he who has had only one, by the judgment of the Church, is worthy of greater honor. But he for whom one dead woman is not enough, when on some occasion of fornication and adultery or of another crime he has made divorce with her, if he has married another, or if the woman has married another man, the authority of the sacred letters absolves them from every fault.... Yet not so that one should have two wives at the same time, while the other is surviving, but that, separated from one, he may legitimately, if he pleases, join another to himself." This last sentence of Epiphanius seems obscure to Petavius in his notes on this place. But it seems able to be explained without difficulty. Those words, separated from one, do not signify separation by divorce alone, so that namely she ceases to be his wife, but by death. For a) he begins the sentence by saying, for whom one dead woman is not enough; therefore he speaks in this hypothesis; b) he appeals to the sacred letters; but the testimony which a little later he brings forward confirming the same thing is that of Paul: A woman is bound to the law for as long a time as her husband lives, but if her husband shall have died, she is free, let her marry whom she wishes; c) he absolutely prescribes that, while the former is living, another is not to be received: yet not so that one should have two wives at the same time, while the other (namely) is surviving, but separated from one; but one separated from the former so that he does not receive the second while the former is surviving is one separated by death. Wherefore the occasion of fornication, adultery, of which he makes mention, is proposed by him for this end, that he may signify that it is more equitable that he enter second nuptials who, on account of certain crimes of the wife, had to be separated from her while she was still living, and thus to abstain from the use of marriage. Moreover, what he concedes to the man he also concedes to the woman, if on account of the adultery of the man she has separated herself from him, in these words: or if the woman has married another man. Therefore Epiphanius too is a witness of the Catholic doctrine.

Likewise, if the things which we brought forward above from Chrysostom are weighed, it will be sufficiently clear what is the sense of those things which he has in hom. XIX on 1 Cor. c. 7, namely that on account of the adultery of the wife "the matrimony is now dissolved" and that "the husband is no longer a husband." For it is absurd that by the adultery itself, without need of a free repudiation of the offended spouse, the bond is dissolved. Therefore the sense is: on account of the adultery of the wife the right of asking from her is lost, and since, besides, it is not fitting for the man to be mingled with her, he ceases, as to use, to be a husband, and the use of matrimony is dissolved.

But what must be judged concerning canon 10 of Elvira: "If the one whom a catechumen leaves has married a husband, she can be admitted to the font of washing; this also is to be observed concerning female catechumens. But if she is a faithful woman who is married by him who leaves an inculpable wife, and when she (that faithful woman) knew that he had a wife whom he left without cause, it has pleased that communion be given to such a person at the end (another reading: not even at the end)." The canon is obscure. The addition of the negative particle not even is approved by us, both by the authority of the ancient codex reported by Mendoza and by the very economy of the canon, which requires that some penalty be directly indicated here. But with this reading posited, no difficulty from this part of the canon remains. But what is the meaning of the prior part? Since not one explanation is used by interpreters (cf. Hefele, Historia Concilior., on this canon), we judge that that part of the canon can be accepted in this way. She whom the catechumen is said to leave was an unbeliever when she was left, and married a husband in unbelief; afterwards, however, she seeks baptism. Concerning a marriage of this sort, dissolved before baptism, the Fathers do not wish to give judgment, and they permit the woman married a second time to be baptized. Perhaps there was some reason why it was believed to be lawful for a catechumen to leave his wife, for example because the unbelieving wife then did not wish to cohabit with him, and those who were nearest to baptism claimed for themselves also the privilege of the baptized; concerning which matter those Fathers either did not wish, or did not have occasion, to decree anything. The same Fathers add: this also is to be observed concerning female catechumens. The sense of these words can certainly be this: that just as that woman whom a catechumen leaves, and who has married another, is to be admitted to the washing of baptism, so too the man whom a female catechumen has left, and who has married another, is to be admitted. The matter therefore returns to this: that these Fathers did not wish to give judgment concerning a marriage dissolved in unbelief.

d) There are also brought forward testimonies of those who speak about an entirely different matter. Thus in Gratian, c. 32, q. VII, c. 19: "A certain woman slept with the brother of her husband: it was decreed that adulterers never be joined in marriage; but to him whose wife has been violated, lawful marriages are not to be denied." But this canon speaks of entering matrimony after the death of the other spouse, which was denied to the guilty party as a penalty of crime, as is clear from c. 22 in the same question: "But those who find their wives in adultery, it will not be lawful for either him or her to receive another wife or another husband while both are living. But if the adulteress shall have died, her husband, if he wishes, may marry only in the Lord; but the adulteress never, even if her husband shall have died; nevertheless, through all the days of her life let her perform the lamentations of penance." And thus is to be accepted the canon which immediately follows in the cited place of Gratian, namely: "Have you lain with the sister of your wife? If you have done this, you shall have neither. And if she who was your wife was not conscious of the crime, if she does not wish to contain herself, let her marry in the Lord whom she wishes. But you and the adulteress shall remain without hope of marriage, and so long as you shall have lived, do penance according to the precept of the Priest." This canon is taken from Burchard, L. XIX, c. 5, de Adulterio, who cites it from the Roman penitential; and similar to this canon is canon 21, lib. I, of the Collection of Capitularies of Benedict the Levite, which indeed is nothing other than canon 8 soon to be cited from the Convention of Compiegne. But it is plain that this canon is falsely attributed by Gratian to Pope Zachary, if it is accepted in a sense alien to the common doctrine; for that Pontiff, in the epistle to Pipin and the Bishops of the Franks, asserts the common doctrine in this matter, both in c. 7 and in c. 12, where he appeals to the Milevitan canon, which he cites in just so many words from the African Council.

But canon 8 of the Convention of Compiegne (year 756) stands thus: "If any man has a lawful woman, and his brother has committed adultery with her, that brother, or that woman, who perpetrated the adultery, while they live, shall never have marriage. He whose wife she was, if he wishes, has power to receive another." Namely, after his wife is dead he may receive another, which is denied to the adulterers, who, while they live, must remain without marriage. Canon 381 from lib. III of the same Benedict certainly sheds light on these things: "If two brothers have fornicated with one woman, not knowing each other's fornication, as soon as they have known the adultery, he who has her as wife shall dismiss her. And he indeed, after penance has been done, if his wife has died, can be joined to another; while she lives, by no means. But she will never again be able to be assumed into marriage (by anyone, namely, for it is added) and, subjected to continual penance, at the end of life let her receive the grace of penance." As regards the response of Gregory II, What you have proposed, we have already weighed it in Th. XIII, n. IV.

Canon 13 of the same Convention of Compiegne is indeed difficult: "If any man has dismissed his woman, and has given leave for her, for the cause of religion, to serve within a monastery, or has given leave outside the monastery to veil herself, as we have said, on account of God, let that man receive a lawful woman; and let the woman do similarly." For either matrimony only ratified is supposed and the matter concerns profession, or power is given, after the wife is dead, of receiving another; or the canon must be referred among errors. Both canon 25 of the Council of Agde (year 506) and canon 2 of the Council of Vannes (year 461) also concern another matter, which no reason compels to be interpreted otherwise than of simple separation. Cf. Perrone, l. c., p. 365 seq.

e) Likewise the testimony of Basil from the first Canonical Epistle to Amphilochius, can. 9, which is adduced, speaks about an entirely different matter. Namely, distinguishing the law of the Lord from custom, he establishes that according to the law of the Lord it belongs equally to men and women that it is not lawful to depart from matrimony except on account of fornication: "But custom," he says, "does not so have itself." Of what sort, then, is this custom? Namely, that the man can dismiss an adulterous woman; but the woman cannot dismiss an adulterous man. From this custom it followed that "a woman who has left her husband is an adulteress if she goes to another; but the man who has been left by the woman is worthy of pardon, and she who dwells together with him is not condemned." And he says that he does not know whether this very woman who dwells with the dismissed man can be called an adulteress. These things were said by Basil not according to the sentence of the Lord or his own, but according to that custom which Roman laws had introduced, of which Augustine too makes mention (Serm. IX, n. 12, and de Adulter. coniug., L. II, c. 8), which custom Basil himself does not approve. Indeed he expressly teaches that "if the man who departed from his wife (certainly even in the case of adultery, for in this canon speech is deliberately about this) has gone to another, he himself also is an adulterer; because he makes her commit adultery, and she who dwells together with him is an adulteress, because she has drawn another's man to herself." Therefore, according to Basil as author, the bond is not dissolved by a bill of repudiation given by the man even in the case of fornication. Therefore the things which were first said were said by Basil not according to the law of the Lord, but according to the custom of the Roman laws. Namely, when he says: he is worthy of pardon, she is not condemned, the sense is: according to this custom he is held worthy of pardon or is not subjected to penalty. Moreover the Fathers judged that some account had to be taken of this custom when the question concerned imposing penances, of which Basil treats in the same place. In the Morals indeed he openly teaches that it is not lawful for a man, after his wife has been dismissed, to marry another; and that one repudiated cannot be married by another (cf. the testimony cited above). Again the same Basil, epist. can. 2, can. 21, which is usually objected, notes that a man who lives with a wife, but not content with matrimony has intercourse with another unattached woman, is condemned by the canons not as an adulterer, but only as a fornicator, that is, is subjected to the penance due to fornicators, not adulterers. But a wife having intercourse with any other man whatsoever does penance as an adulteress. The reason of this diverse economy was always the same, namely that by Roman law the adultery of the man was not punished as the wife's was punished. "But indeed of these things," Basil adds, "the reason is not easy, but custom has so prevailed!" You see here that the speech is not about the dissolution of the bond, nor about the honesty of dismissal, but only about the distinction of penances which were imposed on adulterous men and women.

But in canon 35 of the same epistle, the speech is only of the hypothesis that a man is dismissed by his wife, and it is established that if the man is dismissed without reason, he is worthy of pardon, that namely he may communicate with the Church; but the wife is worthy of punishment.

Finally in can. 48, in the same place, he says: "She who has been left by her husband (even from the cause of fornication, as is clear from the text which he immediately cites), in my judgment indeed, ought to remain. For if the Lord said: if anyone leaves his wife, except for the cause of fornication, he makes her commit adultery, from the fact that He calls her an adulteress, He precluded conjunction with another for her. For how could the man indeed be guilty as the cause of adultery, but the woman inculpable, who is called an adulteress by the Lord on account of conjunction with another?" Namely, from the fact that the Lord imputes to the man the adultery of the wife if he dismisses her except for the cause of fornication, he makes her commit adultery, but does not impute it when this cause exists, Basil gathers that it is supposed by the Lord that a dismissed wife always commits adultery by marrying another, and that the whole distinction is that if she is dismissed from a just cause, her adultery is not imputed to the man, but it is imputed if she is unjustly dismissed. Basil therefore judged that the bond remains between the dismissed woman and the dismissing man even from the cause of fornication, and because plurality of wives is not permitted, the man cannot marry another wife while the former survives.

f) Certain ones are not quite aptly brought forward, since the testimonies produced do not pertain to them. Thus under the name of Ambrose there is cited Pseudo-Ambrose, whether Hilary or some other person, on 1 Cor. VII, who denies that the man and the woman are bound by the same law, and therefore that a man, after dismissing his wife on account of fornication, can marry another. Of this sort are certain canons or capitula among the Capitula ascribed to Theodorus, Bishop of Canterbury, related by Acherius in his Spicilegium, Tom. I, by which in not a few cases power is made for a spouse of entering matrimony while the prior spouse survives. But 1. it is not certain that Theodore composed the capitula which are inscribed to him (cf. Perrone, l. c., p. 373). 2. It is certain that he is not the author of those capitula which are objected from that collection; for they are wholly opposed to the doctrine established by him in the Synod of Herudford, whose canon we reported above. This canon indeed is the tenth of those which it is certain were proposed by Theodore to the aforesaid Synod, because he had known them to be especially necessary (cf. Migne, P. L., T. XCIX, p. 954); wherefore 3. this collection of capitula is owed to some private man who substituted the name of Theodore, and it is one of those not a few collections which, proceeding from private persons, never obtained public authority (cf. Simon Aloysius Assemani, Bibliotheca Iuris Orientalis, Tom. IV, c. 23).

Of doubtful faith also, indeed of no moment, is the canon attributed to the Second Hibernian Council celebrated under St. Patrick, which see in the Appendix.

III. From the things said, one will also be able to form a judgment concerning the testimonies of certain others. There is no need that we be anxious about all. We concede that some erred or spoke incautiously when the matter was not yet defined and not so easy; which is sufficiently clear from the testimonies cited under letter f). Among these we do not deny that even some Bishops and Synods are to be counted. Thus we say that the Fathers of the Synod of Vermeria erred, year 753, can. 9: "If anyone, necessity compelling, has fled into another duchy or province, or has followed his lord (signore), to whom he could not lie in faith, and his wife, when she is strong and able, out of love of parents or of her own things, has been unwilling to follow him, let her remain always unmarried for all time, so long as her husband, whom she did not follow, lives. For that man of hers, who, necessity compelling, has fled into another place, if he cannot sustain himself, can receive another wife with penance" (cf. in Appendix). Namely, those Fathers accommodated themselves to the custom of the Frankish people, which Christianity had not yet been able fully to extirpate, in which matter they are not to be praised. Witnesses of this custom are the formulas of repudiation according to secular laws used by the Franks, which, among others, the monk Marculf exhibits, who flourished, as it seems, toward the end of the eighth century in Gaul (cf. ibid.). Note nevertheless that the response of Stephen III, brought into Gaul two years later, which we cited above, was opposed to the sentence of the Synod of Vermeria. Thus before these men Pollentius had erred, against whom Augustine disputes; those Bishops of whom Origen speaks had erred. Nor is there reason why anyone should wonder that such disagreement once existed; for this was common to several dogmas before they were solemnly defined. But it is only necessary, in this practice and variety of opinions, to discern what descends from apostolic tradition and has been revealed, from that which human opinions introduced. But the former is easily discerned. For what has always and more commonly been retained and believed in the Churches; what is conformable to decrees of discipline and morals issued by the authority by which the universal Church is ruled and obliged, and has the same reason and foundation as they, and finally has obtained full consent, certainly must be judged to have been handed down. But such is the sentence concerning the indissolubility of Christian matrimony even in the case of adultery. Accordingly the disagreement which existed, which was only practical, was a certain wandering away from revealed truth, and must be set down to human causes, which were both ignorance of revelation and an undue συγκατάβασις of certain persons toward the morals of barbarians rebellious to Christian purity and severity.

IV. But against this very conclusion the adversaries seek an argument from the practice and doctrine of the Greeks. For they say that the Greek Fathers permit dissolution of marriage in the case of adultery of a spouse, that the imperial laws permitting and sanctioning repudiation in several cases were also received and approved by Bishops and commended by the use of the faithful through several centuries, nor did the Roman See itself reprove them. From this it follows, they say, that if each Church, Latin and Greek, be taken as one, it is false that the sentence which we defend was more common in the Church and contained in dogmatic apostolic tradition; rather the matter is one of discipline, which is accustomed to vary in different Churches.

But 1. who are those Greek Fathers who permit repudiation with dissolution of the bond? The Fathers of the fourth century, surely, are wholly alien from this sentence; indeed they oppose it. For, as we have already seen, Basil denies it, and Nazianzen, Asterius, and Chrysostom deny that Roman laws have any force in this matter for Christians, and oppose to them the law of the Gospel; cf. their testimonies already cited above. Is it permitted to think that in the age of these Fathers there was another sentence of the Greek Church than that which had settled in their minds? Therefore the Church of the East, no otherwise than that of the West (cf. the testimonies of Jerome and Ambrose cited above), believed in the fourth century that the bond of matrimony could not be dissolved even in the case of fornication, and that imperial laws obtained no force in this matter for Christians.

Should it be said with the more recent Greeks (cf. Arcudius, Concordia, etc., b. VII, c. 13) that there existed a twofold cause of separation, one light, which did not permit dissolution of the bond, and that this was multiple, and was called by the one word μικροψυχία, and another grave, namely adultery; but that the Fathers spoke of the former, not of this latter, when they deny that the bond is dissolved? This interpretation can be confirmed by the doctrine of Chrysostom saying, l. c. from hom. XVII, that he who dismisses a wife, even if he does not marry another, makes her commit adultery; which indeed he would not have said if he had spoken of dismissal on account of the adultery of the wife, for that is opposed to the sentence of Christ. Therefore Chrysostom was speaking of dismissal on account of other light causes; and so also must other Fathers be understood who, while denying that dismissal is lawful, except the cause of fornication or adultery. Chrysostom seems to have made mention of light causes in the same place, saying that God did not permit the wife to furnish an occasion of μικροψυχία. But although according to the Roman laws there indeed existed other causes of repudiation besides the adultery of the wife, nevertheless those causes were not light in themselves. Cf. the law of Constantine. But the Fathers do not speak only of some causes which either the law permitted or the abuse of men introduced, but of all causes, or, what returns to the same thing, they speak specifically of the gravest cause, that is, adultery; and while making words concerning this, they deny that the Roman laws, which permitted it, have force for the faithful. Therefore that distinction is altogether empty for understanding the doctrine of the Fathers. But μικροψυχία in Chrysostom, no otherwise than among the other ancient writers, is not some light cause of separation, but pusillanimity, dejection of soul. Namely, Chrysostom says that Christ did not permit that the wife furnish the man a cause why he himself be cast down in spirit and loathe the marriage, and so dismiss the wife. But although in this place, hom. 17 on Matthew, he says that the man dismissing his wife makes her commit adultery, without mention having been made of the exception of which Christ makes mention, nevertheless he sufficiently signified that exception, since a little before he had recited the words of Christ containing that exception. Moreover what he himself thought concerning dissolution of marriage in the case of adultery is manifestly clear from his words cited from the book de libello repudii, in which he speaks most clearly; but places less explicit must be declared by the more explicit places.

2. As regards the imperial laws, the adversaries insist in many ways. For first, the fact that Christian Emperors enacted these laws by which divorce was permitted is an indication that they judged the same thing not to be forbidden by the law of Christ. Then, the fact that Bishops and especially Roman Pontiffs did not reprove these laws is an argument that they did not believe that they were opposed to the law of Christ. Finally, the constant practice and observation of the same laws in the Greek Church persuades the same thing; of which common observation already in the fourth century St. Asterius, bishop of Amasea, l. c., is a suitable witness. But for an accurate response, the several points must here be distinguished. Indeed a) if this fact alone is considered, namely that Christian Emperors enacted laws permitting and sanctioning divorce, we ought in no way to be moved by this matter. For it must be held 1. that the Roman laws even under Christian Emperors preserved not a few elements of the old pagan legislation, of which they were a continuation, and which they could transform only gradually and imperceptibly. It must be held 2. that under the first Christian Emperors the Roman empire still had very many pagans, for whom it was lawful for Emperors to enact laws concerning marriages; and from this it easily followed that Christian Emperors did not wish laws of this sort to be banished from their code, and in them they preserved that custom which had prevailed among pagans, of sanctioning divorces, moderated indeed by the Christian sense, whose efficacy could not be restrained on every side. It must be held 3. that the Greek Christian Emperors generally were not only too tenacious of their prerogatives, but exceeded measure altogether and wished to assert for themselves those rights which are proper to the Church, from which it was ready to follow that not a few things would be established besides and against the doctrine of the Church. It must be held 4. that Emperors of any sort are not witnesses and teachers of revealed truth, and for that reason one appeals to them unsuitably in a theological question concerning the doctrine of the Scriptures and tradition. These things are quite enough and more than enough for a peremptory exception against the imperial laws, if account is had of the sole fact of the laws enacted.

But b) if together with them are joined the Bishops and the Roman Pontiffs themselves, who did not disapprove those laws, appeal to these laws in a question concerning revealed doctrine is not unsuitable. This indeed we admit; but we deny what is affirmed by the adversaries, that is, that the Bishops and the Roman Pontiff did not reprove these laws for Christians. Certainly what the sense of the Greek Bishops was concerning them can be gathered from the cited words of Nazianzen, Chrysostom, Asterius, Basil, who either directly reject those laws or openly proclaim the law of Christ. What the Latin Fathers judged concerning the same laws is clear likewise from the cited testimonies of Jerome, Augustine, and Ambrose, who oppose the law of Christ to civil laws and affirm that the law of Christ has force for Christians. It is clear from the canon, likewise cited, of the Milevitan Council, in which the Fathers judged this also, that the Emperor was to be asked to enact a law which would efficaciously guard the exercise of divine right against the contumacious; which is the office and duty of the Christian civil power. As regards the Roman Pontiffs, none of them certainly approved those imperial laws for Christians. Several, with the beginning drawn from Innocent I, whose testimony we cited above, taught the indissolubility of matrimony even in the case of adultery as the law of the Gospel, by which they sufficiently signified that they were handing down and prescribing this not for the Western Church alone, but for the universal Church; for the law of Christ has force equally for all the faithful. Moreover Eugene IV, following the sentence of his predecessors, signified to the Greeks in the Florentine Synod that the Roman Church by no means approves the practice of the Greeks. Thus the profession of faith proposed to the Easterners by Urban VIII and confirmed by Benedict XIV in the Constitution Nuper ad nos, among the other dogmas of faith, also asserted this: "that the bond of the sacrament of matrimony is indissoluble; and although on account of adultery, heresy, or other causes, separation of bed and cohabitation can be made between spouses, nevertheless it is not lawful for them to contract another matrimony." Likewise Clement VIII, in the Instruction concerning the rites of the Greeks living among the Latins, commanded the Bishops that they in no way permit divorces as to the bond to be made between Greek spouses. Now moreover the principle preached frequently by the Greek Fathers, especially in the Arian controversies, and defended by the Roman See, was known: that Emperors have no right in ecclesiastical matters, and that their laws enacted concerning sacred matters, of which sort are the sacraments, obtain no force. Wherefore it was not lawful for the faithful to be ignorant what force the imperial laws had in this question concerning dissolution of the conjugal bond. Therefore, although it cannot be proved historically from the middle age that the Roman Pontiffs several times raised their voice against the Greeks themselves and openly reproved the custom and laws of the Greeks, nevertheless 1. perhaps certain monuments have perished; 2. they sufficiently signified that they reprobated it, when they taught that imperial laws in ecclesiastical and sacred matters have no force unless they are adopted by the Church herself, and at the same time taught that by the law of the Gospel matrimony is indissoluble even in the case of adultery. But just as Eugene IV seems to have supposed that that practice of the Greeks proceeded not from a heretical mind but from ignorance, and therefore judged that this did not obstruct their union with the Latin Church, so it is permitted to judge that his predecessors likewise judged, when they directed their mind to this practice of the Greeks, and that, in the afflicted circumstances of that Church, they prudently abstained from a direct and explicit rebuke, from which they hoped for no fruit.

c) Therefore if finally the laws themselves that had been enacted and their observation for not a few centuries among Greek Christians are considered in themselves, and account is had of this practice both in the Emperors enacting these laws and in the subjects living according to them, and also of the connivance of the Bishops from a certain age thereafter, we affirm that these things have altogether no force for proving or declaring Catholic tradition, since they are a most manifest prevarication. For it was a prevarication of the Christian Emperors, who wished to enact laws in sacred matters. It was a prevarication of the Bishops, who, especially after the Synod of Chalcedon, little by little began to fail in due reverence toward the Roman See, and to look up to their new Patriarch of the royal City, and to reverence more than is fitting the Emperors who vindicated their prerogatives, and with a servile spirit to concede to them those rights which, as rebels, they denied to their legitimate Pastor, the Roman Pontiff.

Nevertheless, when the doctrine had to be proposed expressly by the Greeks by Synodal authority, no decree sanctioning this crime was issued. Certainly in the Trullan Synod, whose canons thereafter always obtained force in the East, the African canons first having been received, that Milevitan canon also, which we gave above, was received. Then when the Greeks themselves of their own accord were going to compose a canon in the same Synod, the Bishops had enough shame to abstain from sanctioning this disgrace by their own authority; indeed rather, though timidly, they sufficiently signified the Catholic doctrine. This is plain from the Trullan canon 87, where only these things are established indefinitely: "she who has left her husband is an adulteress if she has come to another ... if she is seen thus to have departed from her husband beside reason, he indeed is worthy of pardon, but she of penalty. But pardon will be given to him so that he may communicate with the Church"; concerning permission of another marriage, at least expressly, nothing. They add further indefinitely: "but he who leaves the wife legitimately given to himself and marries another, by the sentence of the Lord is liable to the judgment of adultery." Then penance is established for such men for a fixed time, after which they are held worthy of communion. This canon sufficiently indicates the mind of the authors. They did not wish openly to contradict the imperial laws, but neither manifestly to favor them by sanctioning a false doctrine. Wherefore the connivance of the Greek Bishops for so long a time toward that practice must be attributed rather to their pusillanimity and defect of episcopal virtue than to error or their erroneous magisterium (if we consider them universally). Nor otherwise did Aristenus, earlier than Balsamon or his contemporary, who nevertheless wrote before him, abbreviate that canon, saying: "she who goes from her husband to another is an adulteress, and he who goes from his wife to another, according to the word of the Lord, is likewise an adulterer" (Migne, P. G., Tom. 137, p. 813). But since one syntagma was constituted from the imperial laws and ecclesiastical canons (the Nomocanon), so that thereafter all had force equally, what wonder is it if, this prevarication being posited, it was no longer whole for the Bishops to abolish that immoral practice of dissolving marriage? The outcome of that most servile obedience toward the imperial laws and of aversion from the Roman See was finally full departure from the unity of the Church. But because not truth but error paves the way to this departure, it is clear what can be gathered from that practice, and similar practices flourishing from the sixth century in the Greek Church, for affirming Catholic dogma and Catholic discipline. And concerning this matter enough.

V. Finally, against the demonstration handed down in the preceding Thesis, it could be objected that not all that was to be demonstrated has been demonstrated; for the proposed matter was that the indissolubility also of matrimony only ratified was to be demonstrated, concerning which, however, nothing was specially said. I answer that there was in reality no need that anything be specially said. For if the universal proposition is true: Christian matrimony can never by any reason be dissolved by the spouses themselves, then, because ratified matrimony is certainly Christian matrimony, that which had to be demonstrated necessarily follows. And this will be more evident, if there is need, if no exception is ever made for ratified matrimony; but this nowhere appears, nor did anyone ever teach that the spouses indeed cannot dissolve consummated matrimony by their own authority, but can do so if it is only ratified. "If between a man and a woman lawful consent concerning the present has intervened ... whether an oath has been interposed or not, it is not lawful for the woman to marry another; and if she has married, even if carnal copula has followed, she must be separated from him, and compelled by ecclesiastical constraint to return to the first," said Alexander III, c. Licet, de Sponsa duorum, adding: "although it has sometimes been judged otherwise by some of our predecessors." But why? Perhaps because, judging thus, they thought that they were dissolving a ratified matrimony.

VI. But did not the same Alexander III (Ex publico, de Convers. coniug.), teaching that a ratified matrimony not yet consummated can be dissolved, admonish that the words of Christ, it is not lawful for a man to dismiss his wife, according to the interpretation of the sacred utterance, are to be understood of those whose matrimony has been consummated by carnal copula? We think that this is not the necessary sense of the Pontiff's words, namely that Christ there speaks of consummated matrimony alone, whence it would be consequent that the intrinsic indissolubility of ratified matrimony could not be gathered from them. Rather, since the Pontiff then had to answer that question to which extrinsic indissolubility also pertained, namely by reason of religious profession, he seems to have wished to say this: that if the words of Christ are taken concerning indissolubility in every mode, they are to be understood of consummated matrimony, according to the interpretation of the sacred utterance, that is, according to that interpretation which is to be applied to the sacred utterance, which, namely, the sense of the Church supplies, by which we are taught that ratified matrimony can be dissolved extrinsically. Namely, if any and every indissolubility is considered, the words of Christ are to be accepted concerning consummated matrimony, and indeed Christian matrimony, as we shall explain a little later. But if only intrinsic indissolubility is considered, the Roman Pontiff affirms nothing in this special question. But the response is manifest from the things demonstrated. Certainly that interpretation by which the words of Christ are accepted concerning the intrinsic indissolubility also of ratified matrimony contains no doctrine against the universal doctrine of the Fathers, nor does it exclude extrinsic dissolubility, of which God is the author, and it coheres with the intention of Christ answering, who speaks directly in the question proposed to Him by the Pharisees concerning intrinsic dissolubility. Moreover that interpretation seems to be recommended by the Tridentine Council. For can. 7, teaching that the bond of matrimony cannot be dissolved, says that this is according to Evangelical and Apostolic doctrine. Now the Council does not speak only of consummated matrimony, both because it says simply the bond of matrimony, and because the doctrine is Catholic: nor can ratified matrimony be dissolved on account of adultery by another spouse. But it says that this is Evangelical doctrine. What place of the Gospel, then, to which it appeals, except this one, whether in Matthew or in Mark or Luke? Therefore Christ in that discourse was speaking about the intrinsic indissolubility also of ratified matrimony. And certainly all confess that ratified matrimony also is intrinsically indissoluble, that is, that by the power of the spouses themselves it cannot be dissolved even in the case of adultery. Therefore a law exists commanding this. Moreover the law of nature does not suffice; therefore it will be the law of Christ, that is, of the institution restored by Christ; but unless this is in those places, it is nowhere. And indeed the divine conjunction of the spouses is made in the contract itself, as the very words and prayers which the Church uses sufficiently signify; but that conjunction is common to ratified and consummated matrimony. Moreover Christ denies that man can separate what God has joined; therefore that prohibition of Christ has force for any matrimony.

We brought forward in Th. VII, among the authorities of the Latins, the words of Innocent I from epist. 9, saying that "the union of a second woman, while the former survives and has not been cast out by divorce, can in no way be legitimate." If divorce is made, then, will the other marriage be legitimate, while the former woman is still living? That this is not the sentence of Innocent is certainly clear from his other epistle, whose words we gave in the same place. The whole sense is that a woman cannot be cast out by divorce by which the bond is dissolved; and therefore while the former spouse lives and has not been cast out by divorce, which indeed cannot happen, the other marriage cannot be legitimate. Namely, if the former could be cast out by divorce, the other marriage could also be legitimate; but because the former cannot be done, and therefore never happens, this other cannot be made.