Thesis XXIX

Historically it is established that the Church by her own judgment established impediments diriment of the marriage of Christians.

I. We are now considering only the historical matter and the fact alone. Whether the Church did this by right or by wrong will have to be judged in the following Theses. For the moment, since the adversaries, among whom after Marcus Antonius de Dominis John Launoius stands forth as chief, contend that all impediments were first constituted by the secular power and in this way obtained force in the Church, we wish to demonstrate the historical falsity of this opinion, which nevertheless is the foundation of the whole doctrine of the adversaries. But in order that this historical thesis may be demonstrated, certain things must be premised.

1° A twofold function of Ecclesiastical authority or jurisdiction must be distinguished: the one by which it authentically proposes divine doctrine and divine law and commands that the former be believed and the latter observed; the other by which, by force of the power divinely conferred upon it, the Church sanctions positive laws which must be observed. Moreover, since in the present question ecclesiastical jurisdiction is being treated, the question is not properly concerning the first, but concerning the second. For the adversaries do not deny that God can bear laws concerning marriage and establish impediments, nor do they deny that the Church is an authentic witness of divine revelation; but they deny that there has been made by God to the Church the power of bearing laws concerning the bond of marriage, or that she alone has this power. Wherefore the things which the Apostle decreed in 1 Cor. would not now be brought into the middle very opportunely; for in certain things he certainly acted as a witness of revelation and of divine law, while in others he can be seen to have acted otherwise.

2° It must be held not only that the legal Jewish economy was abolished by Christ through the institution of the Church, but also that this was always believed in the Church; and therefore that it was believed that the positive precepts which exist in the law of Moses no longer have, of themselves, the force of obliging. Yet this does not prevent one from being able to appeal to them as to a norm according to which the Church may found her laws; for that which at some time proceeded from God, although only for a definite time, always retains the dignity of a certain norm to which men may conform their actions when they are placed in the same or similar circumstances, so that they may act more perfectly. Therefore if it happens that impediments are found to have been established by the Church which God had already established by positive law through Moses, someone would wrongly infer that these were constituted from divine right and by its command.

3° In order that it be demonstrated that the Church has used her own authority, there is no need to bring forward decrees of the universal Church; rather even decrees of particular Synods which, with none contradicting, established something are sufficient.

4° In order that we may demonstrate what we have proposed in the thesis, it is not necessary that we describe the origin of each single impediment, but it is enough to dwell on some. For if it is established that the Church by her own judgment established certain diriment impediments, what we affirm in the Thesis is already true.

Now indeed the account is the same whether of the power of establishing impediments in particular or of the power of decreeing the form of contracting necessary for the value of the contract (cf. Praenot. n. II). It is permitted to take the beginning from that impediment concerning which, with Bellarmine as witness, there is a question among theologians whether it is of Ecclesiastical right or of divine right; for if it is not of divine right, it is certainly demonstrated that it was constituted by the authority of the Church.

II. Therefore a) It is established that the vow of religious profession is a diriment impediment of marriage. Seeking the antiquity and origin of this impediment, we warn that we are disputing only concerning virgins or women consecrated to God, whose solemnity of consecration to God is certainly more ancient in the Church. The testimonies pertaining here are these. Gelasius I, epistle to the Bishops through Lucania, the Bruttii, and Sicily, ep. 20, says: "We have learned that certain men rashly associate themselves with sacred virgins, and after a purpose dedicated to God mix incestuous and sacrilegious covenants." Moreover an incestuous covenant is not a marriage. Before him Siricius, whose decree 4 from the epistle to Himerius and decree 1 from the Synodical epistle to the Gauls may be compared in the Appendix, and then Innocent I, in the letters given to Victricius, Bishop of Rouen, declares the matter more distinctly. "Those women who have spiritually married Christ and have merited to be veiled by a Priest, if afterward they have married either publicly, or have secretly corrupted themselves, are not to be admitted to penance unless he to whom they had joined themselves has departed from this world. For if in all cases this rule is observed, that whoever, while her husband is living, has married another is held to be an adulteress, and the license of doing penance is not granted to her unless one of them has died, how much more must it be held concerning her who before had joined herself to an immortal spouse, and afterward migrated to human nuptials. But those who, not yet covered with the sacred veil, nevertheless had promised always to remain in the virginal purpose, although they have not been veiled, for these penance is to be done at some time, because their promise was held by the Lord. For if among men a contract of good faith is accustomed to be dissolved by no reason, how much more ought that promise which they contracted with God not to be dissolved without vengeance?" You have the distinction, even if not by name, yet in reality, between solemn vows of religion and non-solemn vows; you have the distinct double class of virgins, namely of the veiled and of those not yet veiled. The Bishop imposed the veil in the public and solemn ceremony of the profession of chastity, which took place at Easter. Read Ambrose, Exhortation of Virginity, c. 7, and the same or another writer, On the Fall of a Virgin, c. 5. Jerome, epist. CXXX, n. 2, calls this veil the virginal flame-colored veil; Optatus, L. II, c. 19, and L. VI, c. 4, calls them mitres or little mitres, "which were made from wool dyed purple, by which the head was veiled, and which were, as he himself says, signs of profession... so that neither he who was betrothing would persist in seeking a thing now devoted to God, nor a ravisher dare to violate it." Cf. also the book of Tertullian, On the Veiling of Virgins, from which it appears that at that age this custom of veiling virgins had not yet been received among all. Therefore Innocent decrees that matrimonial unions of veiled women are adulteries; and when he denies that the fallen woman can be admitted to penance while the spouse lives, he signifies that that union is such that by no reason can it be made honorable, which indeed would happen if it were valid. The same is evinced from the opposition of the veiled virgin with another not veiled; for concerning the vow of the latter alone it is affirmed that it is dissolved with vengeance; for the other is not dissolved.

The author of the Sermon to a Fallen Virgin (among the works of Ambrose; cf. p. 65, in the Treatise On Penance), c. 5, says: "Someone says, it is better to marry than to burn. This saying pertains to one not promised, to one not yet veiled. But she who has promised herself to Christ and has received the holy veil has already married, has already been joined to an immortal husband. Even if she should wish to marry by the common law of matrimony, she perpetrates adultery; she is made a handmaid of death." Ambrose, in the book On Virginity, c. 3, after he had said that it is disapproved by some that a father has vowed the integrity of his daughter, adds: "In this business even we are called into fault. What fault, pray? because we have prohibited illicit nuptials. Let them therefore call even John the Baptist into the same fault... Or have we brought forward an author of whom we must be ashamed? but recall in your mind what other cause he had of martyrdom. The cause of that suffering certainly was this: It is not lawful for you to have her as wife. If this is said concerning the wife of a man, how much more concerning a consecrated virgin?" (Namely, if it is not lawful to have the wife of another, how much less a consecrated virgin.) "Thanks therefore to the Divinity that here there is no Herod, and would that there were no Herodias."

Jerome, L. I against Jovinian, c. 7: "If a virgin has married, she has not sinned; not that virgin who has once dedicated herself to the worship of God; for if this one has married, she will have condemnation, because she has made void her first faith (1 Tim. V). Virgins who have married after consecration are not so much adulteresses as incestuous women." Basil, in the first canonical Epistle to Amphilochius, established in cn. 6: "Let the fornications of canonesses not be reckoned as marriage, but let their union be entirely torn apart." But in the second epistle, cn. 18, discoursing more fully concerning this matter, he indeed speaks directly concerning the penance to be enjoined on fallen virgins; at the same time, however, he teaches what he thinks concerning their unions. It is indeed permissible to doubt whether Basil brings forward that sentence as his own or as common (cf. in the Appendix); but it is established that he agrees with many. Therefore he says: "If a widow is subjected to a very grave judgment, as one who has made void her faith in Christ, what must be thought by us concerning a virgin who is the bride of Christ and a sacred vessel dedicated to the Lord? It is indeed a great sin for even a maidservant, giving herself to clandestine marriages, to fill the house with dishonor, and by a worse life to do injury to her possessor; but it is far graver for a bride to become an adulteress, and, bringing disgrace upon her union with the spouse, to give herself over to impure pleasures. Therefore a widow is condemned as a corrupted maidservant, but a virgin is subjected to the judgment of an adulteress. Therefore just as we call him who is with another's wife an adulterer, not admitting him to communion before he has ceased from sin, so certainly also concerning him who has a virgin we shall establish. But this must now be established by us beforehand, that she is called a virgin who of her own accord has offered herself to the Lord, and has sent a refusal to nuptials and has embraced the institute of holiness." This, therefore, is the sentence of the Fathers of the fourth century, inculcated at the beginning of the fifth century by Innocent.

III. Moreover, if we consult Synods, among the canons collected from several synods in the Carthaginian Council of the year 398, canon 104 is reported. It indeed is not certain, since it was found in one Urgellian manuscript codex (cf. Mansi, Councils, Tom. IV) and does not seem to cohere sufficiently with the doctrine of Augustine to be cited below, who is said to have subscribed the synod in which the canon was framed; nevertheless this canon, without doubt ancient, has itself thus. "If any widows, however much still placed in lesser years and left by a husband in mature age, have devoted themselves to the Lord and, having cast off lay clothing, have appeared under the testimony of the Bishop and the Church in religious habit, but afterward have passed over to secular nuptials, according to the Apostle they will have condemnation, since they dared to make void the faith of chastity which they had vowed to the Lord. Therefore let such persons remain without the communion of Christians, who also are not to communicate at banquets. For if adulterous wives are liable by guilt to their husbands, how much more will widows who have changed their religious state be marked by the crime of adultery, if they corrupt with lustful pleasure the devotion which they had offered to God of their own accord and not by compulsion, and have made a passage to second nuptials? And these, even if they have suffered violence rushing upon them from someone and afterward, by delight of the flesh and lust, have consented to remain in union with the ravisher or violent man, will be held liable to the condemnation comprehended above." Although religious women of this sort have suffered violence, nevertheless if afterward they consent to the ravisher, they are struck with the same penalty as those who freely passed over to these secular nuptials. But since they themselves are compared to adulteresses, and no discourse is made concerning permission to remain in the union after penance has been completed, but only a most grave penalty is indicated for those persevering in such a union, the Fathers seem to have judged such nuptials null; especially since in that age not a few judged concerning these nuptials thus, as is clear from the testimony of Augustine to be cited shortly. Among the more ancient canons, cf. in the Appendix can. XIII from the Council of Elvira, and can. XVIII of Basil. Nevertheless we do not wish to press the authority of this canon very much.

The First Council of Toledo, year 400, cn. 16, decreed: "that a devoted woman sinning is not to be received in the Church, unless first she has desisted and, desisting, has done suitable penance for ten years... but she who has taken a husband is not to be admitted to penance unless, while the man himself is still living, she has begun to live chastely, or after he has died." From this the same thing must be gathered which we gathered from the decree of Innocent. In the Fifth Council of Orleans, year 549, cn. 19, concerning girls who, having entered a monastery, have chosen to remain in it, if afterward they transgress the holy purpose by worldly ambition, it is decreed that "with those with whom they are joined in marriage, they be deprived of the communion of the Church." But "if they shall heal the fault by separation, they are recalled to the grace of communion." Since separation is absolutely commanded, the nuptials are judged null. The Second Synod of Tours, year 567, cn. 20, having first recited the response of Innocent to Victricius which we have already heard, and the testimony of the Apostle, 1 Tim. V, 12, adds: "We therefore, following this which either the Apostle Paul or Pope Innocent established, inserting it in our canons, establish that it is to be observed, that no one presume either to seize or to seek in marriage or to preserve to himself as wife a virgin consecrated to God, who has changed her clothing in honor of Christ; because even Roman law constituted that whoever perhaps has seized a virgin or widow consecrated to God, if afterward they agree with them concerning union, they are struck by capital sentence (Cod. Theod., l. I, De Raptu)... therefore those who shall have wished to persist in this obstinacy and to remain more in the wallowing-place of evil conduct than to separate themselves from a forbidden marriage, are condemned by perpetual excommunication." Behold for you, says Launoius wittily (cited work), an impediment more than diriment established by the Emperor, and the Synod executes the imperial laws. But 1° the Synod says that it follows Paul the Apostle and Pope Innocent; moreover the citation of Roman law is employed for the confirmation of the fittingness of the canon, which that little word even sufficiently indicates. 2° It could not happen that the Bishops by their canon were executing the law of the Emperor; because the law speaks only of ravishers, but the Synod generally of the marriage of these virgins.

Therefore, as is established from the things cited, in not a few Churches already from the fourth century, although not yet universally received, it was constituted that the nuptials of girls or virgins who, having changed clothing or having received the veil or in monasteries, had consecrated themselves to God, are null. The Fathers establish this by appealing to the tradition of the Ancients. Were any civil laws then extant concerning this matter?

IV. Christianus Lupus (in the first prooemial dissertation to Tome IV, on the continence of the Latin Bishops and clerics, c. 10) says that nuptials of this sort were made invalid by an Imperial law, namely of Constantius Augustus, whose law exists in the Theodosian Code, and which Jovian renewed, augmented with capital punishment, to which law the Synod of Tours appealed. Moreover his law (Cod. Theod. L. IX, Tit. 25, De Raptu) has itself thus: "If anyone, I will not say to seize, but even to attempt, for the sake of joining marriage, sacred virgins, or unwilling women (or, perhaps, widows?), he shall be struck by capital sentence." Sozomen opens the cause of the bearing of this law, L. VI, c. 3: "He carried that law for this reason, because certain wicked men, in the reign of Julian the Apostate, had joined such virgins to themselves in marriage, induced to this corruption either by force or by persuasion." Therefore the law had been borne against ravishers or violent corruptors or seducers of virgins; but if religious women, having abandoned their purpose, afterward had wished to marry, they were not prohibited by this law, as Valesius rightly observes. But the Fathers speak of the virgins themselves, who of their own accord make void their first faith bound to God; therefore, even if it were admitted that by that law the nuptials of such men were established as null, that law is wrongly brought forward in our question.

V. But on the contrary, besides the decrees of Innocent, which do not signify that something new is established, we also have conciliar canons more ancient than Constantius decreeing concerning this matter. These directly indeed look to this, that they constitute a mode of penance for the offense; nevertheless they also signify in what place nuptials of this sort were held by the Church. The Council of Elvira, cn. 13, established: "Virgins who have dedicated themselves to God and have betrayed the covenant of virginity and have served the same lust, not understanding what they have lost, it pleased that communion be not given to them even at the end. But if, persuaded once, having fallen into the vices of the lowest body (thus the Synod of Cologne, year 887, cn. 6, reads this clause), such women have done penance for the whole time of their life so that they abstain from intercourse, because they seem rather to have fallen, it pleased that they ought to receive communion at the end." The canon supposes that these fallen virgins ought to abstain from intercourse, that is, that they are to be separated in perpetuity from those to whom they had joined themselves. This indeed of itself is equivalent to a declaration that such nuptials are null. Now observe that the Fathers of Elvira do not first decree this, but rather suppose it; but they decree the penalty. From this you may infer that already by ecclesiastical law it had been provided that such nuptials would be null. For you would be inept if in that age you were to seek civil laws establishing this.

Wherefore already in the third century Cyprian, epist. LX, calls virgins "members dedicated to Christ, and devoted in chaste virtue to the honor of continence forever"; and in epist. LXII, the same virgins dedicated to God, who had once decided to hold their state continently and firmly (or, as he says in On the Habit of Virgins, c. 4, "had dedicated themselves to Christ, and, withdrawing from carnal concupiscence, had vowed themselves to God both in flesh and in spirit"), afterward corrupted from commerce with men, he calls adulteresses of Christ, and commands them to be wholly separated, no hypothesis being made of any marital union which could have existed between them and could be valid: "but if they persist obstinately and do not separate themselves from each other, let them know that with this their impure obstinacy they can never be admitted by us into the Church." Moreover Tertullian also mentions the vow of continence which virgins professed, in On the Veiling of Virgins.

From all these things the law of the Church establishing that a solemn vow of chastity renders null the nuptials which are afterward entered into seems to be most ancient.

VI. Nevertheless 1° Cyprian himself, in the cited epistle, stands opposed when he says: "Intervention must be made quickly for such persons (virgins who were sleeping with men, who nevertheless confessed that they were still intact), so that they may be separated while they can still be separated innocent; because afterward they will not be able to be divided by our intervention after they have coalesced with a most grave conscience... but if by faith they have dedicated themselves to Christ, let them persevere modest and chaste without any fable, and so let them, strong and stable, await the reward of virginity. But if they do not wish, or are not able, to persevere, it is better that they marry than fall into fire by their offenses."

But 1° that they cannot be divided does not arise from the fact that the union is valid; otherwise Cyprian would not affirm that they can never be admitted into the Church unless they are separated. Rather it is from the difficulty of abstaining which those experience who give their effort to these illicit matters. 2° But what is added, that it is better to marry, is said not to virgins already dedicated to God, but to those still about to dedicate themselves; namely those who cannot persevere, or do not have the intention of persevering and are placed in danger of incontinence, it is better that they marry than that, vowing continence to God and afterward violating it, they fall into fire.

2° Augustine stands more opposed, who, On the Good of Widowhood, cc. 9, 10, says: "Since, as the Lord says, not all receive this word, therefore let her who can receive it receive it, and let her who does not contain herself marry; let her who has not received deliberate, let her who has undertaken persevere. For in the conjugal bond, if chastity is preserved, condemnation is not feared; but in widowed and virginal continence, the excellence of a greater gift is sought, and when it has been sought and chosen and offered by the debt of a vow, now not only to enter nuptials, but even if one does not marry, to wish to marry is damnable... not because the nuptials themselves, even of such women, are judged to be condemned; but the fraud of purpose is condemned, the faith of the vow broken is condemned... finally such women are condemned not because they afterward entered conjugal faith, but because they made void the first faith of continence... Therefore those who say that the nuptials of such women are not nuptials but rather adulteries, do not seem to me to consider sufficiently sharply and diligently what they say; for the likeness of truth deceives them. For because those who do not marry by Christian holiness are said to choose the marriage of Christ, hence certain persons argue, saying: if a woman who marries another while her husband is living is an adulteress, therefore while Christ is living, she who had chosen marriage with him, if she marries a man, is an adulteress. Those who say this are indeed moved sharply, but they pay little attention how great an absurdity of things follows this argumentation"; the absurdities follow. He proceeds: "But through this less considered opinion, by which they think that the marriages of women fallen from a holy purpose, if they have married, are not marriages, a not small evil happens: that wives are separated from husbands, as if they were adulteresses and not wives; and when they wish to restore them, once separated, to continence, they make their husbands true adulterers, when, while their wives are living, they have taken another. Wherefore I cannot indeed say that women fallen from a better purpose, if they have married, are adulteries, not marriages; but plainly I would not hesitate to say that falls and ruins from the holier chastity which is vowed to the Lord are worse than adulteries."

From these words of Augustine you have, first, in what sense formerly the unions of religious women with men were said to be adulteries, namely because the nuptials were null; and Augustine therefore abstains from this manner of speaking. Moreover this manner of speaking was not only that of certain persons, but rather common, as is clear from the testimonies brought forward. But what is to be said concerning the sentence of Augustine? A suitable response is that by this opinion of Augustine only this is proved: that in his age it had not yet been universally received or established by a universal law that such nuptials are null, which we do not contend. But it is not proved that this had not been admitted in many places. This alone we contend, that in not a few places it had been established; which indeed, as we warned, the very testimony of Augustine confirms. But what is reported from Epiphanius (Haer. LXI, c. 7), Basil (first canonical epistle, cn. 7), and Leo (epistle to Rusticus, response 14), pertains to monks, concerning whom we do not have testimonies so clear, nor do we dispute.

VII. Therefore it is established that in the first centuries of the Church this sentence flourished in the Church: that the nuptials of girls after virginity solemnly consecrated to God are not merely illicit, but also null; that there indeed existed some who thought otherwise; but that this does not derogate from the antiquity of the law, but only from its full universality, which, in a matter not yet constituted by a certain canon for the universal Church, everyone sees can have place. This being posited, no difficulty arises from Bernard (On Precept and Dispensation, c. 17), who does not wish to pass judgment on the sentence of Augustine which we have reported, and on the manner in which Gregory the Great acted toward a certain monk Venantius.

It is established, further, that in a business of this sort Emperors or Kings vindicated no part for themselves; for no secular laws concerning this matter had been issued before the cited decrees of the Church. Wrongly, therefore, did Launoius derive this impediment from the imperial law cited by the Synod of Tours.

The whole question therefore returns to this: whether it was constituted by divine or ecclesiastical or apostolic right. But from the very fact that this law was not immediately admitted by all and that discipline was once varied, it is sufficiently established that this impediment was introduced by the authority of the Church; especially since not every vow of chastity induced this effect, as is clear from the words of Innocent.

VIII. Certain impediments of affinity and consanguinity, and others, the Church decreed by her own authority. Certainly b) the Council of Elvira, c. 61, established: "If anyone after the death of his wife shall have taken her sister, and she shall be faithful, it pleased that he abstain from communion for five years." At least the prohibition of this matter is contained in this canon. Concerning this canon Francis Mendoza says (On Confirming the Council of Elvira to Clement VIII): "The first decree of the Church, as I think, committed to letters, by which it was constituted that matrimony is impeded by affinity, seems to be this one of the Spanish bishops, the ancient Roman law being abrogated, by which it was lawful to contract marriage with the sister of one's deceased wife." This decree indeed agrees with the Mosaic law, Lev. XVIII, 18, in a certain respect, insofar as there a man is prohibited from receiving in rivalry the sister of his wife while she is still living.

The Council of Neocaesarea, year 314, c. 2, decrees something more concerning the same matter. "A woman, if she has married two brothers, is to be expelled until death. But at death, on account of humanity, if she shall say that, when she recovers, she will dissolve the marriage, she will have penance." If penance is not given except under the promise of separation or dissolution of the marriage, either it is supposed that the marriage itself was in reality null, or by this very canon it is implicitly proclaimed; but the adversaries wish it indeed to be supposed invalid, but by force of another law.

Therefore by what law was this union invalidated? No law of Emperors existed in that age. Launoius indeed brings forward the law Etsi licitum, issued by Constantine and Constans Augusti and Julian Caesar in the year 355 (it exists in Cod. Theod. L. III, Tit. 12), which other laws of Honorius and Justinian afterward followed; but all these are later than these canons and later than Basil, who had already not only disapproved nuptials of this sort, but had taught that they are disapproved by the Church and held null, epist. CLX, to Diodorus of Tarsus, in these words: "First, therefore, that which is greatest in matters of this sort, we can object our custom, as having the force of law, because the rules were handed down to us by holy men. But that custom is of this sort: that if anyone, overcome at some time by the vice of impurity, falls into an illicit union of two sisters, neither is it to be judged a marriage, nor are they to be admitted at all into the assembly of the Church before they are separated from each other. Wherefore, even if nothing else could be said, the custom itself would be sufficient for the custody of good." Then he dissolves the sophisms of him who was defending that this is lawful because it was not prohibited in the law of Moses; first warning this with Basil: "whatever things the law says, it says to those who are in the law." Cf. the words of Zacharias R. P. to be cited shortly. Now receive the words of Pius VI in the letters given in the year 1782 to the Archbishop of Trier. "Here especially it can be observed that the impediment itself of affinity in those first centuries (namely, as he says, when the Church was enduring most grave persecutions from Princes) was declared as diriment by ecclesiastical law, as we have from the epistle of St. Basil to Diodorus and from the Council of Neocaesarea, c. 2."

From these things, moreover, we reason thus: the Fathers of the Church prohibited and decreed that marriage of this sort was null even when it was lawful by civil laws, and they judged that there was in themselves the power of prohibiting and invalidating it; therefore by her own judgment the Church constituted this impediment and judged this authority to belong to herself. Moreover the canons of the Council of Neocaesarea were anciently received by the universal Church. You see that we do not assert that the universal Church introduced this impediment in that age, and that it was observed everywhere; this now has nothing to do with our matter. It is enough for us that the Fathers of the Church judged that a right of this sort belongs to Ecclesiastical authority and that Ecclesiastical authority used this right. These two things are established from the Synod of Neocaesarea and from Basil's testimony. But since this Synod was particular, there is nothing wondrous if that custom of which Basil speaks did not then obtain among all.

IX. c) The Council of Epaone in the kingdom of Burgundy, year 517, cn. 30, forbids several incestuous unions and reserves no pardon for them unless they shall have healed the adultery by separation. Among these are reckoned if anyone should take the widow of his brother, if anyone the sister of his wife, if anyone a stepmother; if anyone is joined to the widow of a maternal uncle, which pertain to affinity. Then also, as regards consanguinity: if anyone should associate himself with a female cousin or niece; to which these words are immediately added by the Council: "that, as we prohibit from the present time, so those (marriages of this sort) which were established earlier we do not dissolve." And they conclude: "Certainly those to whom illicit union is interdicted will have the liberty of entering a better marriage." By these words they signify that they so prohibit those nuptials as to invalidate them, namely so that no bond exists between those contracting thus.

Launoius says with others that the Fathers relied upon the law of Theodosius the Elder, who "forbade paternal cousins and maternal cousins to come together among themselves under the name of marriage," as Ambrose testifies, epist. LX to Paternus, n. 8. It is objected to them that this law was abrogated by Arcadius, law Celebrandis, which exists in the Code of Justinian, L. V, Tit. 4, c. 17. Concerning this, see the things which Gothofredus disputes on the Theodosian Code, L. III, Tit. 12, law Manente, where he demonstrates that there is no reason why doubt should be entertained concerning that law Celebrandis; cf. besides the things we say in the Appendix. But, they say, in either hypothesis, whether it was abrogated or otherwise, the authority of the secular Prince over the matrimonial contract is plain. For if, after the empire of Theodosius the Elder, marriages among paternal cousins or maternal cousins had validity, this must be said to have happened by the authority of Arcadius and Justinian, who abrogated that law. But if these marriages were prohibited, that must be traced back to the law of Theodosius the Elder still in force. This is the same as if you were to say that at the same time two contrary laws could have force. Therefore to those arguing so ineptly, Cardinal Gerdil, in the cited work, skillfully replies with this dilemma. Either the law of Theodosius was revoked, or it was not. If it was not revoked at least until Justinian, as the adversaries themselves confess, it flourished. Therefore if this law had force in Gaul, marriages contracted against that law would have been held null. And nevertheless such marriages were being contracted there, and the Fathers of Epaone, prohibiting those marriages for the future, held those contracted earlier ratified. Therefore those Fathers had no account of the secular law. But if the law was revoked, therefore by force of civil authority those marriages were lawful; and nevertheless the Fathers of Epaone prohibit and invalidate them for the future; therefore again they had no account of secular power. Was there some law of the Goths or Burgundians which the Fathers followed? But one of two things: either the law of that nation prohibited unions of this sort, or permitted them. If it permitted them, the Fathers, invalidating the same, do not follow the law. If it prohibited them, the Fathers, holding ratified those hitherto entered into, contradict the law. Namely, in this fact there stands forth the authority of the Church, which by her own right bears laws concerning the matrimonial contract. The Synod of Auxerre, year 578, cn. 31, established the same thing a little afterward, and later, in the year 721, Gregory II in the Roman Council, and Zacharias in the year 743 in the Roman Council (cf. Appendix), with no mention made of imperial laws, but only of the Mosaic law. But hear the same Zacharias in the epistle to Pepin and to the bishops and nobles of the Gauls, c. 22: "Concerning those who have married two brothers or have taken two sisters, it is contained in the Council of Neocaesarea, c. 2, etc. But we, with divine grace assisting, confirming much more according to the decrees of the preceding Pontiffs, say that so long as generation has known itself, according to the rite and norm of Christianity and of the religion of the Romans, marriages are not to be coupled." You see here that the authority of the Roman See alone exercises force, and that Zacharias makes mention only of his predecessors. Moreover one would like to inquire this of Launoius. Since that law of Theodosius was abrogated by Arcadius, or certainly by Justinian, who inserted the law Celebrandis into his code, did this diriment impediment continue to have force in the Church, or did it cease, so that it was lawful for the faithful to contract such nuptials? If it continued, therefore the marriages of Christians were not bound by that impediment by force of imperial law. If it ceased, since afterward it certainly again had force, just as now it has force, and no other imperial law occurs, but only ecclesiastical law, of which sort, for example, are the canons of Gregory II and Zacharias already cited, the consequence finally is that the Church established impediments by her own judgment.

X. d) The Second Synod of Macon, year 585, cn. 16, declared marriages contracted by widows of clerics invalid. "This also seemed right to us to dispose: that she who had been the wife of a subdeacon or exorcist or acolyte, after he has died, should not dare to associate herself to a second marriage. But if she shall do this, let her be separated and handed over to God in monasteries of girls, so that she may remain there until the end of her life." The Synod of Auxerre, a little earlier, namely in the year 578, had forbidden the same thing, cn. 22, with respect to the widow of a presbyter, deacon, and subdeacon (cf. Natalis Alexander, H. E. sec. VI). Moreover Zacharias R. P. in the year 743, in the Roman Council, established the same thing, cn. 5: "Let no one presume to join to himself in a nefarious marriage a presbytera, deaconess, nun, or monkess, or even a spiritual co-mother. For he who has perpetrated a work of this sort should know that he is bound by the bond of anathema." Now nefarious nuptials are null nuptials. The same Gregory II had established a little before in the Roman Council, cann. 1, 4. No civil law preceded either the Bishops of Gaul or the Roman Pontiff which constituted this; nor do I see by what right an authority which seeks only civil good could constitute this, that the nuptials of those women who have been left by presbyters or deacons, entered into after the death of these men, should be null. This law still flourishes, at least most probably. Cf. Ballerini, Moral Theological Work, V, 6, n. 814, 2°.

XI. e) As regards the impediment of abduction, it is indeed established that marriage between the abductor and the abducted woman was forbidden by imperial law (l. un. C. De Raptu); but it is likewise established that this law was tempered by the authority of the Church, which permits marriage either if betrothal preceded (Gregory II, Roman Council, cn. 11) or if after the abduction the abducted girl consented (Innocent III, final epistle De Raptoribus).

XII. f) As to the impediment of disparity of worship, theologians with Bellarmine (De Matrim. L. I, c. 23) judge that it was established by no law, but by universal custom, which after the eleventh century obtained the force and authority of law. But who will deny that this custom is ecclesiastical and had force from the consent of the Church? But Launoius finds a civil origin for this impediment. For the Emperors Valentinian and Valens, in the year 365, carried a law which exists in Cod. Theod. L. III, tit. 14, l. 1, by which it is prescribed that "no one of the provincials, of whatever order or place he shall have been, is to have marriage with a barbarian wife, nor is a provincial woman to be coupled to any of the gentiles." Likewise the Emperors Valentinian, Theodosius, and Arcadius, in the year 388, carried a law "that no Jew take a Christian woman in marriage, nor should a Christian be allotted a Jewish woman in marriage. But if he shall have done this, they wish adultery to be imputed."

But 1° as regards the former law, Gothofredus observes in the same place that gentiles and barbarians are here taken promiscuously and are not so called with respect to faith, but with respect to the Romans, and that they are those who from various nations, following the fortune of the Romans, had betaken themselves to the Roman empire, of which sort were the Alemanni, Sarmatians, Goths, who served in the Roman army. Moreover from these men it was to be feared lest, with affinities contracted with Romans and supported by these, they might attempt something against the security of the Roman Empire.

As regards the other law which prohibits nuptials on account of disparity of worship, Christians already knew that they could not give Christian girls except to Christians, as Augustine says, epist. 255 to Rusticus. Gothofredus suspects that Theodosius carried this law at the persuasion of Acholius, Bishop of Thessalonica; for it was given at Thessalonica.

Moreover, if you say that these imperial laws were by their own force invalidating unions, it will have to be said that the Church had no account of these laws; for only after the thousandth year did this invalidating force obtain commonly in the Church.

XIII. g) We find the impediment of crime sanctioned in the Synod of Tribur, year 895, in Germany, can. 51, by which it is established that "if anyone has fornicated with another's wife while he is living, then when he dies, by synodal judgment, the illicit approach is closed to him, nor is she further joined to him in marriage whom he previously polluted by adultery." Launoius says that the Fathers of Tribur established this by the authority of Arnulph the Emperor. From where, then, does Launoius gather this? Because, namely, at the beginning of the Synod the Fathers asked of the Emperor with what zeal or with what kindness he would deign to defend the Church of Christ. Namely, to request from a Prince the owed office of defense is to receive authority from the same! But Launoius insists that already before the Fathers of Tribur, Nicholas I signified that this impediment depends on civil law. For in epist. 48, speaking of Waldrada, the concubine of King Lothair, he says that, even if Theutberga, his legitimate wife, should die, by no laws and no rules could Lothair ever be permitted to take Waldrada, the adulteress, as wife without danger to himself. Behold, Nicholas appeals to laws, not to canons. What an inept interpreter! He did not see, of course, that if this depended on secular laws, it would have been open to Lothair, as King, to disregard or abrogate them, for according to Launoius himself the power over marriages belonged to him.

Therefore already in the ninth century this impediment flourished in the Church, and Launoius was able to find no law of the ancient Emperors which confirmed it. Therefore the Church established it by her own judgment.

XIV. h) Gregory the Great, in his epistle to Augustine (Epistles L. XI, ep. LXIV, response 6), permits the English to be joined in the third or fourth generation, the second being interdicted. For he speaks thus. "A certain earthly law (namely that law Celebrandis of which we have already spoken) permits in the Roman republic that either the son and daughter of a brother, or of a sister, or of two full brothers, or of two sisters, be mingled. But by experience we have learned that from such a union offspring cannot increase. And the sacred law (Lev. XVIII) prohibits uncovering the turpitude of kinship. Whence it is necessary that now the third or fourth generation of the faithful should licitly be joined to itself. For the second, of which we spoke, must in every way abstain from itself." You hear the Roman Pontiff not very much solicitous what the earthly law had granted, indeed rejecting it. Moreover Gregory established a decree of this sort by his own authority, and without the consent of secular princes in England being asked or awaited.

Therefore. But that this was a dispensation from a law already in force in the Church, Gregory himself signifies in the epistle to Felix, Bishop of Messina (LXIV, ep. XVII, n. 2): "But as to what I wrote to Augustine, Bishop of the nation of the English, concerning the union of consanguinity, know that I wrote this specially to him and to the nation of the English, which had recently come to the faith, lest fearing harsher things it should recede from the good which it had begun, and not generally to the others. Whence also the whole Roman city was witness to me, nor with that intention did I command these things to be written to them, that after they have been solidly rooted in faith by a firm root, if they are found within their own consanguinity, they should not be separated, or that they should be joined within the line of affinity, that is, up to the seventh generation." Now he who can dispense in a law, no one's consent being asked, can himself properly found the law; because that is an act proper to legislation. Therefore.

Certain learned men doubt the genuineness of the epistle cited to Augustine, among whom is Sebastian Berardi (Genuine Canons of Gratian, p. 72, c. 59, sect. 7), whose arguments, however, being rather intrinsic, are of very little value, and he falsely supposes that Augustine found no Christians in England. He who doubts concerning this epistle also doubts concerning the cited epistle to Felix of Messina. But 1° the genuineness of this other epistle is proved by the testimony of John the Deacon, who recites a part of it, L. II, c. 37. Hincmar also often makes mention of it, especially in the little work On the Divorce of Lothair, Interrog. 12, near the end. Zacharias the Pontiff manifestly alludes to it in the place cited below. This epistle of Gregory is also found in several manuscripts. These and other things the editor of the works of Gregory has in the notes to that epistle in the Venetian edition. Now 2° from these things it follows that the former epistle to Augustine is also the work of Gregory. The same Hincmar expressly mentions this, epist. 36, n. 15 (ed. Migne), and the same John the Deacon in the same cited place, and Zacharias R. P. in the epistle to Theodore, Bishop of Pavia (cf. Mansi, Councils, Tom. XII, among the epistles of Zacharias, epist. 18). Bede, a witness most suitable in this matter, recites the same, Book I, History of the English, c. 27, and it exists in several manuscript codices. But in the Excerpts of Egbert, Archbishop of York, from the year 735 to 771, exc. 137, there is reported the response of Gregory to Bishop Felix which exists in his epistle to him (cf. ibid. the editor's notes and Natalis Alexander, H. E. sec. VI, c. IV, a. 16). But, they say, Boniface, the Apostle of the Germans, who was an Englishman, seems to have been ignorant of it in the eighth century; for thus he writes, epist. 15, to Nothelm, Bishop of Canterbury: "I beseech you that you take care to direct to me a copy of that epistle in which, as they say, the questions of Augustine, Pontiff and first Preacher of the English, and the responses of St. Gregory the Pope are contained, that in the third generation of propinquity it is lawful for the faithful to be joined in marriages, and that you study to investigate with scrupulous diligence whether that above-mentioned writing is proved to be of our Father Gregory or not, because, in the archive of the Roman Church, as the archivists affirm, when sought with the other copies of the above-mentioned Pontiff, it was not found." But Boniface could speak doubtfully for this very reason, although he had previously held it as certainly Gregory's, because namely it was not found at Rome. And although someone might wonder that it was not found at Rome, it would have been more wondrous that Bede, a century later, should have supposed that fiction to Gregory, and that Zacharias R. P. should have made mention of Gregory's epistle to Felix, which necessarily supposes that former epistle. Pius VI appealed to this dispensation of Gregory the Great in the letters given in the year 1782 to the Archbishop of Trier. Cf. the things we shall say concerning this matter in the Appendix.

But what certain men say, that the concession of Gregory the Great pertains to unions entered into by the English in infidelity before baptism, is refuted by the very words of the Pontiff, which establish a norm for future marriages, and it is refuted by the declaration of the same concession made by Zacharias in the cited epistle to the Bishop of Pavia. Then Gregory the Great speaks of nuptials contracted in infidelity immediately in the response following that concession.

XV. i) At the beginning of the tenth century a grave dissension flared up in the Greek Church because Emperor Leo the Wise had entered into fourth nuptials. For the Patriarch of Constantinople, with other metropolitans, did not wish to approve those nuptials, because they were against the discipline of the Church. Leo wrote to all the Patriarchs that they should wish to define the matter. Then, with Nicholas Mysticus, Patriarch of Constantinople, cast into exile and deprived of authority, he substituted Euthymius, who approved the nuptials. But while the dissension still continued, Nicholas, finally restored by Leo himself, gave letters to the Roman Pontiff, persuading and imploring him not to wish to approve so great a crime. Finally under Constantine Porphyrogenitus, son of Leo, peace was entered into among the Greek Bishops on this condition, that Leo indeed be absolved, just as his son was asking, but for the future those nuptials be prohibited. Now indeed from this fact it is clear that at that age Emperors and Bishops judged that judgment in a cause of marriage belonged not to civil authority, but to ecclesiastical authority, and in reality the Church alone bore the sentence in this matter and ended the cause.

l) In the same century, namely in the year 912, Henry surnamed the Fowler was compelled by Sigismund, Bishop of Halberstadt, to dismiss the woman whom he had joined to himself in marriage, who as a widow had entered a monastery and had received the veil. Again in the year 949, Fulbert, Bishop of Cambrai, with parents and friends begging and threatening in vain, declared that a certain incestuous marriage was to be dissolved, which was to be contracted with the daughter of Isaac, Count of Cambrai.

XVI. m) Near the end of the eleventh century and the beginning of the following, when Philip I, King of the Gauls, while his wife was living, had joined another, that is, Bertrada, to himself, by the authority of Urban II he was compelled to dismiss her. But when the former wife had died, Ivo, Bishop of Chartres, asked or persuaded the Roman Pontiff Paschal II that he should wish to dispense Philip to lead Bertrada (cf. Ivo's epist. 144); but the dispensation was denied. Wherefore Bertrada is said "as a wanton adulterous concubine to have adhered to the king until death." Moreover in cases of this sort there was no dealing with impediments from divine right. Why, then, did secular lords and kings not vindicate for themselves or for secular judges the cognizance of these causes? Why did no doubt arise concerning the authority of the Church?

n) When Robert, King of the Franks, had taken Bertha, his blood-relative, as wife, with the Bishops of the Kingdom consenting, Gregory V, having convoked a council at Rome in the year 998, compelled the King to dismiss the woman whom he had taken and subjected each to penance. Therefore at that age Kings did not judge that marriage was subject to civil authority and that the right of establishing impediments and dispensing in them belonged to themselves; but both the laity and the whole clergy referred this power to the Church alone.

XVII. o) At the beginning of the thirteenth century Otto IV wished to take as wife the daughter of the deceased Philip, who had contended with him concerning the empire. She was joined to Otto in the fifth degree of consanguinity, which was then held as a diriment impediment. Therefore dispensation was demanded from Innocent III, who granted it only after much entreaty. Now indeed here there was question of an impediment not of divine right but of human right. The Kings and Emperors of Germany were most keen defenders of their own authority, and the nobles of the age defended it even against the very rights of the Church. How did it happen that it came into no one's mind that the power of establishing impediments and therefore also of dispensing from them resides by original and immutable right with the Princes of civil society? Why did Innocent, who granted this by no means gladly, not free himself from this care by responding to Otto that he himself or the civil magistrate could dispense in this matter? Therefore it was certain in that age to all, even to Princes, who were not ignorant of their own rights, that the power belongs to the Church by her own right.

XVIII. p) In the Council held at Tribur already cited, canon 39 has itself thus: "If one of two (a Frank and a Bavarian woman) should contrive to divide one flesh into two and to disjoin the nuptial bond, saying that they had not contracted the rights of marriage according to the law of his nation and therefore could be separated, by canonical institution we define, and by our judgment and the judgment of all the orthodox we establish, that whatever is imperfect in law be perfected and that the right of marriage in no way be dissolved." Therefore these Fathers were persuaded that the value of marriage depends not on civil laws but on the canons of the Church, and that this was the sentence of all the orthodox: that civil laws are to be emended according to ecclesiastical canons; and the Fathers of Tribur used their own authority against civil laws. Therefore.

XIX. q) In the Council of Trent it was asked by the Orators of the Kingdom of the Gauls that, under certain conditions, marriages contracted by children without the consent of parents be invalidated. It was especially dear to them to obtain this. Already in the Kingdom of the Gauls nuptials of this sort had been prohibited by royal authority, and after the Council also, as much as civil authority could strive, it rejected them. We ask: why did secular Kings not invalidate those nuptials? Why did the Tridentine Fathers refuse to accommodate the Princes of the age, and instead condemn by anathema those who would affirm that such marriages are invalid? It is manifest that the certain and common sentence in that age was that the authority of bearing laws concerning the value of the matrimonial contract is only in the possession of the Church, and that the Church herself used this authority when she decreed that those marriages were ratified and valid.

XX. We judge that the monuments brought forward thus far are sufficient for the demonstration of the fact, namely that the Church in every age by her own judgment decreed concerning those things which pertain to the marriage of Christians and the value of its contract. Already from the beginning of the nascent Church her providence manifests itself concerning the marriages of the faithful. Hence it is that Ignatius the martyr says to Polycarp, c. 5: "It is fitting that bridegrooms and brides make marriage by the sentence of the Bishop, so that the nuptials may be according to the Lord and not according to cupidity." And Tertullian (On Monogamy, c. 11) is a witness that in his age he who wished to enter marriage asked it from the bishop or the presbyter, and they gave wives and husbands to them. But what perhaps ought to have been placed first must not be passed over: that at the beginning of the third century Callistus, Roman Pontiff, granted Christian women capacity for marriages which by civil law were decreed null; just as learned men gather from the words of the author of Philosoph. L. IX, c. 12 (cf. de Rossi, Bullet. Archeol., year 4, p. 27 ff., and Appendix here, sec. III).