Concubinage

IV. Chastity; concerning which several things must be noted.

1. The obligation of celibacy and perfect chastity. Clerics constituted in major orders are kept from marriage and are held by the obligation of preserving chastity in such a way that those sinning against it are also guilty of sacrilege, saving the prescription of can. 214, § 1¹ (can. 132, § 1). The aforesaid clerics attempt marriage not only illicitly but also invalidly (can. 1072). The obligation of perfect chastity also binds a married man who has been initiated into sacred order with apostolic dispensation.

The said obligation of preserving perfect chastity certainly arises from the solemn vow of chastity, which is plainly made tacitly in the reception of major order, from Boniface VIII,² from John XXII,³ and from the Constitution of Benedict XIV Inter praeteritos, § 41 (St. Alphonsus VI, 808). Likewise it arises from ecclesiastical law, insofar as perfect chastity regards external and mixed acts, so that a major cleric who had entirely been ignorant of or had excluded the vow of chastity would nevertheless, through an external violation of perfect chastity, sin both against chastity and against religion, namely because the ecclesiastical law was passed from the motive of this virtue; in a word, he would become guilty of carnal sacrilege (cf. can. 132, § 1). With respect to merely internal acts, the matter is deservedly called into doubt, since ecclesiastical law more probably cannot, and in fact is not presumed to, regard acts of this kind. Besides, note:

a) Married men, while the wife is living, are kept from receiving orders (can. 987, 2°). A married man who without apostolic dispensation has received major orders, even in good faith, is prohibited from the exercise of those orders (can. 132, § 3).

b) Minor clerics can indeed enter marriage, but unless the marriage was null by force or fear inflicted on them, they fall by the law itself from the clerical state (can. 132, § 2).

c) From can. 188, 5°, any offices of clerics are vacant by the fact itself and without any declaration, even if they have contracted only civil marriage, as they say.

d) With respect to the Eastern Church these things hold: 1° Clerics who contracted marriage before the subdiaconate can receive the remaining orders and continue married life, except Bishops, who are bound to bid farewell altogether to married life. 2° Clerics once initiated into the subdiaconate are prohibited from contracting marriage; not indeed by vow, but by prescription of the Church. Indeed, "the marriage would be not only illicit, but also invalid."

2. Means of preserving chastity; to which can. 133 refers: Clerics should take care not to keep with themselves or in any way frequent women concerning whom there could be suspicion (§ 1). It is lawful for them to cohabit only with those women in whom a natural bond allows nothing evil to be suspected, such as mother, sister, paternal aunt, and the like, or from whom proven honesty of morals joined with more advanced age removes every suspicion (§ 2). Judgment whether keeping or frequenting women in some particular case can be a scandal or bring danger of incontinence belongs to the local Ordinary, whose duty it is to prohibit clerics from this keeping or frequenting (§ 3). The contumacious are presumed concubinarians (§ 4).

3. Penal sanctions. a) Clerics constituted in minor orders, guilty of some delict against the sixth precept of the decalogue, are to be punished according to the gravity of the fault, even by dismissal from the clerical state if the circumstances of the delict advise this, besides the penalties threatened by can. 2357 for some delicts even against laymen (can. 2358).

b) Clerics in sacred orders, whether secular or religious, who are concubinarians, after warning has been issued uselessly, are to be compelled to withdraw from illicit cohabitation and to repair scandal, by suspension from divine things and by privation of the fruits of office, benefice, or dignity, with observance of cann. 2176-2181 concerning the manner of proceeding against concubinary clerics. If they have committed a delict against the sixth precept of the decalogue with minors below the age of sixteen years, or have committed adultery, defloration, bestiality, sodomy, pandering, or incest with blood relatives or relatives by affinity in the first degree, they are to be suspended, declared infamous, deprived of any office, benefice, dignity, or function which they have, and in graver cases deposed. If they have offended otherwise against the sixth precept of the decalogue, they are to be restrained with suitable penalties according to the gravity of the case, not excluding privation of office or benefice, especially if they have care of souls (can. 2359).

c) Clerics constituted in sacred orders, or regulars or nuns after a solemn vow of chastity, and likewise all who presume to contract marriage, even only civilly, with any of the aforesaid persons, incur excommunication latae sententiae simply reserved to the Apostolic See. Besides, clerics, if after warning they have not come to their senses within the time fixed beforehand by the Ordinary according to the diversity of circumstances, are to be degraded (can. 2388, § 1). Finally, as has already been noted, any offices of clerics are vacant by the fact itself and without any declaration, even if they have contracted only civil marriage, as they say (can. 188, 5°).

¹ Can. 214, § 1 establishes: A cleric who, compelled by grave fear, received a sacred order and afterwards, once the fear was removed, did not ratify that same ordination at least tacitly by the exercise of the order, while nevertheless willing by such an act to subject himself to clerical obligations, is to be reduced to the lay state by sentence of the judge, after the coercion and the lack of ratification have been legitimately proved, without any obligations of celibacy and canonical hours.

² C. unic., De voto, III, 15.

³ C. unic., Extravagantes, I, 6.

One must distinguish between concubinaries who are in ordinary circumstances and those who are in danger of death.

I. Concubinaries living in ordinary circumstances.

1. If the concubinage is public, it must be removed either by marriage or by separation; but commonly not through means by which the occasion would become remote, because in that way the danger and scandal can scarcely be removed. If that is permitted in a very rare case, let the scandal, insofar as can be done, be removed by making public the absolute necessity of the occasion and by instituting a truly Christian life.

2. If the concubinage is occult, it can and must be removed either by marriage or by separation or, if inescapable difficulties stand in the way both of marriage and of separation, through means by which the occasion would become remote. It is said:

a) Either by marriage; and indeed this of itself is especially to be urged. Nevertheless, commonly one should not have recourse to secret marriage or marriage of conscience, unless the concubinaries are publicly judged to be joined in marriage (cf. treatise on marriage).

b) Or by separation. If marriage is morally impossible or at least is not chosen, and separation is morally possible, this must be imposed. If separation can be made shortly, the concubinaries should not be absolved before they are separated, unless there is a special reason for immediately imparting absolution (n. 471). If separation cannot be made shortly, let the concubinaries take pains that it be done as soon as possible; and then, unless a special reason is present, absolution should not be granted before they have used means of not relapsing (St. Alphonsus, III, 436). Of these means it will now be said:

c) Or through means by which it would become remote. The means, besides the general ones (n. 474)^†, are:

a) If the concubinaries live in the same house: 1. let each openly declare to the accomplice that he or she no longer wills to lead such a life; 2. if the concubinary turns aside to her at night, let her close the door in such a way that it cannot be opened.

b) If the concubinaries live in different houses: 1. let the concubine not open the door to the concubinary when he comes; 2. let her take care to live with another woman or at least not be found alone; 3. sometimes let it be advised that she change domicile.

II. Concubinaries living in danger of death.

1. If the concubinage is public, one must speak as follows:

a) If the concubinary is now deprived of the senses, let him or her be absolved under condition, and also be given Extreme Unction (cf. nevertheless n. 485).

b) If indeed the person uses the senses, but nevertheless is in extremis, so that there is no time available either for contracting marriage or for effecting separation, the concubinary, having been reduced to penance, must be absolved and fortified with the remaining sacraments. Nevertheless, care must be taken, insofar as will be possible, that the accomplice not show himself or herself, and that the dying person repair the scandal, either by himself or herself or through the priest, by asking pardon before witnesses. If this manner of repairing scandal cannot prudently be used, the very carrying of Viaticum seems to involve sufficient reparation of scandal.

c) If the illness allows delay, the occasion and scandal are to be removed through marriage or separation. If neither marriage nor separation can have place, let the person declare before witnesses as soon as possible that this impossibility is to be made public, and at the same time promise that, if perhaps he or she recovers, he or she will effect separation and will have no further association with the accomplice. In addition, let the means assigned in n. 475 be used.

2. If the concubinage is occult, the procedure is as follows:

a) As was said above under a).

b) As above under b); but reparation of scandal, as is clear, is not required.

c) As above under c); but note that in the case one can sometimes have recourse to marriage of conscience (cf. treatise on marriage).

III. To fornication are referred concubinage and prostitution; likewise, in a certain way, the intercourse of a castrated man and of one who has undergone vasectomy, and onanistic intercourse.

1. Concubinage is carnal and habitual commerce between the same persons, whether they live in the same house or in different houses. The circumstance of concubinage does not change the species of the sin, so that of itself it need not be opened in confession; nevertheless, it must be manifested to the confessor if he asks.

Concerning penalties, they establish:

Canon 2357, § 2: Those who... publicly live in concubinage... are to be excluded from legitimate ecclesiastical acts until they have given signs of true repentance.

Canon 2359, § 1: Clerics in sacred orders, whether secular or religious, who are concubinarians, after a warning has been uselessly given, are to be compelled to withdraw from illicit cohabitation and to repair scandal by suspension from divine offices, deprivation of the fruits of office, benefice, and dignity.

Question: whether the public power can tolerate concubinage prevailing in colonies, in which, namely, officials both civil and military take an indigenous woman as a concubine, whom, when they return to their homeland, they abandon.

Response. In view both of the very great difficulty of removing that nefarious custom and of those things which will soon be alleged by some in favor of tolerating prostitutes, and which seem to have greater force for colonies than for other regions, the said concubinage can quite probably be tolerated.

Nevertheless Vermeersch rightly writes: "These things... the public power or magistracy ought carefully to guard:

a) That no legitimate wife, nor also any woman converted to the faith, be permitted to be admitted as a concubine, so that in this way due honor may be preserved both for marriage and for religion;

b) That every concubinage of a woman who has not fully matured, and every abduction and artful seduction of any woman whatsoever, be severely repressed.

c) That exterior decency be provided for. It cannot be permitted that these concubines as such be brought forward openly, and be led about as if legitimate wives and be treated with favors. On the contrary, it is necessary that the need of in some way veiling or concealing that shameful commerce contain a tacit reproof of the thing.

d) That those who preserve chaste morals be preferred, as being of themselves better for fulfilling offices, at least other things being equal.

Finally, it is to be wished that in Europe we prepare better cultivators of those regions; and that, by entering into a compact, those who there remain good may be better protected from human respect and from the contagion of vices."¹

2. Prostitution consists in this, that a woman is prepared to grant the use of her body to anyone. A woman given over to prostitution is called a prostitute; the house where - commonly with others - she dwells is called a brothel. Concerning the circumstance of prostitution, what has just been said about concubinage holds.

Prostitution is distinguished: 1. into public and clandestine, according as it is admitted by the public power, or is not admitted and is practiced clandestinely; 2. into brothel prostitution and free prostitution, the latter of which is practiced in streets and frequented places.

The public power cannot tolerate free prostitution, since it offers an occasion of sinning to those not seeking one. Nor can it tolerate brothel prostitution in smaller places. Whether it can do so, with the necessary conditions observed,² in great cities is disputed. Some affirm this, namely so that greater evils may be forestalled, such as pollution, sodomy, bestiality, the seduction of honorable girls, and venereal diseases.³ Others deny it, and judge that, on the one hand, greater evils are not notably diminished by tolerated brothels, while on the other hand sins are notably multiplied thereby. "Through prostitutes," says St. Alphonsus, "... greater evils are not avoided; because in lustful men, from easy and frequent intercourse with prostitutes, libido fixes deeper roots. And therefore, since this vice is increased more by frequency, they do not cease to commit pollutions and abominable sins, at least with the prostitutes themselves; nor for that reason do they abstain from soliciting honorable women. - Conversely, by the permission of prostitutes, innumerable other evils are added besides: namely more girls are prostituted, young men despise their parents, dissipate their goods, neglect scientific studies, stir up quarrels, and reject honorable marriages" (III, 434).

St. Augustine,⁴ whose words St. Thomas adduces (II-II, q. 10, a. 11), is commonly said to favor the milder opinion, to which also the author of the little work On the Governance of Princes⁵ adheres. St. Alphonsus, as is clear from the words cited above, already inclined to the more severe opinion, which today, because circumstances have changed, seems wholly to be followed. For - apart from the fact that brothels, as we have noted, always seem to have multiplied sins rather than diminished them - first, the crimes of which the adversaries speak are, because of the stricter public discipline, more forestalled. Next, brothels can now scarcely be relegated to the "meaner and remote" places of great cities. Moreover, in view of the greater ease of travel and the increased commerce with great cities, houses of prostitutes can easily be, and are, approached from everywhere, even from villages. Finally, the permission of brothels favors that detestable traffic in women and girls which internationally provides brothels of great cities continually with new victims of lust, not rarely unwilling or deceived; this reason alone has already impelled several nations, and even the League of Nations, both to oppose the system, hitherto quite commonly prevailing, of permitting brothels, and to promote "abolitionism," which reproves every connivance in this matter on the part of civil authority.⁶

3. The intercourse of a castrated man and of one who has undergone vasectomy⁷ (an unmarried man with an unmarried woman) is to be reduced to fornication. Onanistic intercourse of an unmarried man with an unmarried woman is pollution in effect, with an affection toward fornication added (n. 51).

¹ De castitate et de vitiis contrariis, n. 213.

² Namely, brothels must be relegated to the meaner and remote regions of the city.

³ Even prostitutes to whom a certificate of health has been granted infect very many with venereal disease.

⁴ "Remove prostitutes from human affairs: you will disturb all things with lusts" (De Ordine, l. 2, c. 4, n. 12; in Migne, Patrologia Latina, t. 32, col. 1000). It should be noted, however, that the aforesaid words do not so clearly express the opinion of St. Augustine. If we consider what the holy Doctor teaches in his Retractations and in his exposition against Faustus, he seems to adhere to the more severe opinion (Marc-Gestermann, Institutiones morales Alphonsianae I, n. 775, note).

⁵ L. 4, c. 14, after the middle.

⁶ Dutch law establishes penalties: 1. against pimps, that is, those who preside over a brothel (Penal Code, art. 250bis); 2. against those who take profit from a woman's lust, or souteneurs, as they are called (Penal Code, art. 452); 3. against those who for pay hand women over to prostitution (vrouwenhandelaars; Penal Code, art. 250ter).

⁷ Those castrated after puberty and those who have undergone vasectomy are capable of seminal emission in the first or second intercourse, namely until the epididymis has been emptied; after that emptying they can indeed preserve erectility and penetrate the vagina, and even ejaculate some liquid, but that liquid is not true semen.

45. Proposition. Concubinage and prostitution is not a special sin, but only a circumstance of sin, not per se necessarily to be declared in confession. - It is proved. For concubinage properly is frequented intercourse of an unmarried man with an unmarried woman. But prostitution is intercourse with a woman ready for every man who comes. Therefore, although concubinage and prostitution are a graver sin on account of the will persevering in sin, it is neither a special sin nor a circumstance of sin per se changing the species. Nevertheless that circumstance must be manifested per accidens: 1. by reason of scandal, when the concubinage or prostitution would be public; 2. for manifesting the state and kind of occasions, and it must always be opened to the confessor asking, as is clear from proposition 58 condemned by Innocent XI. L. 432; G. 421.

46. Note. 1. Prostitution per se does not impede generation, nor does it procure sterility, if no injury of the organs is had from frequent acts of lasciviousness. For prostitutes not rarely conceive, and even sometimes experience abortion, which they scarcely care about, a little mass of matter having been cast out. And this ordinarily has place in the earlier days of conception. Commonly, however, conception of offspring is not had; but a circumstance of this kind does not change the nature of the sin, since it is per accidens, just as if someone were to fornicate with a sterile woman or with an old woman. But that, if offspring is born, it is uncertain of what father it is, and from this is badly educated, this is a circumstance not specifically proper to prostitution, but to fornication, and therefore it is not essentially distinguished from it. Cf. here n. 43. But if uncertainty of offspring of this kind perhaps is greater in prostitution, nevertheless it is known that more and less do not change the species. - Billuart, diss. 6, art. 2, You ask first.

2. Men going to prostitutes use a certain means, lest they be affected by them with syphilitic disease. But by this means an impediment of generation is had, although intercourse on each side remains in species and externally normal, without any withdrawal of the man or woman. An obstacle of this kind is sometimes presented on the part of the woman, who intends only the impediment of conception, since she can in no way avert contagion by this mode. If, therefore, either by intention only, or also in reality itself, an obstacle is placed to generation, then indeed there will be a special circumstance, but an extrinsic one, necessarily to be declared in confession. Debreyne, Moechialogie, part 1, ch. 1, art. 2, Sect. 1.

47. Is it also a sin of scandal to seek fornication from a prostitute ready to sin?

R. "There are not lacking several doctors who say that it is not a sin of scandal, because since such a woman is always in actual or virtual will of sinning, he who furnishes to her an occasion of executing that sin is not judged to cooperate gravely but lightly. Thus Soto, etc. I venerate the authority of such doctors, but I would not dare to depart from the contrary opinion, which I judge must be followed, and which Sanchez, etc., hold. The reason seems to me very powerful, because although the prostitute is in actual will of sinning, nevertheless she certainly brings upon herself a ruin gravely greater by completing that particular sin of fornication. Therefore he who cooperates with her for consummating the sin sins gravely in two ways, both against charity and against chastity." L., l. 2, n. 47.

48. Can prostitutes be permitted?

R. "The first probable opinion affirms; and the Salmanticenses and St. Thomas hold it, and St. Augustine clearly adheres to it. The reason is that, prostitutes removed, worse sins would happen, namely sodomies, bestialities, softnesses, besides the corruption of honorable women. But the second opinion, more probable practically, denies; and Roncaglia, Navarrus, etc., hold this. The reason is that through prostitutes these graver evils are not avoided, because in lustful men, from easy and frequent congress with prostitutes, lust fixes deeper roots; and therefore, since this vice is increased more by frequency, they do not cease to commit pollutions and unspeakable sins, at least with the prostitutes themselves, nor for this reason do they abstain from soliciting honorable women. Conversely, by the permission of prostitutes innumerable other evils are superadded, namely, more girls are prostituted; adolescents esteem their parents lightly; they dissipate goods, neglect studies of the sciences, stir up quarrels, and reject honorable nuptials. For the rest, Father Sarnelli well observes that although in vast cities prostitutes can be permitted, nevertheless in other places they are in no way to be permitted." L. 434.

49. Corollary. In cities in which, for the sake of avoiding a greater evil, it is permitted that prostitutes live, it is lawful to rent a house to them, especially if other tenants are lacking or it would be easy for them to rent other buildings, unless nevertheless the prostitutes would gravely harm honorable neighbors, or because of the site would give greater occasion for sins. G., t. 1, n. 250; L., l. 2, n. 70; Ithurriaga, Cas. 26; St. Thomas, 2.2, q. 10, art. 11.

50. Is it lawful to serve prostitutes or concubinaries?

R. Negatively, per se and ordinarily speaking, both on account of scandal and also on account of the greatest danger of lapse. Therefore those cases which in practice must be excepted will have to be judged from the degree of necessity and from the circumstances of persons removing scandal and proximate danger of sinning.

51. Note. 1. It is lawful for a servant to open the door to a concubine or prostitute, especially when, if he did not open it, there would be another who would open it. L., l. 2, n. 66; Roncaglia, tr. 6, cap. 6, reg. in prax. observ. IV.

2. Laymann, l. 2, tr. 3, cap. 13, n. 5, has these things: "It is lawful for a servant to admit through the door a woman with whom his master is going to sin, to carry a torch before him, to prepare the bed, as Sanchez, Navarrus, Rodriguez, Azor teach, because material cooperation of this kind is sufficiently remote, and without it the sin would nevertheless be committed." Cf. also Struggl, tr. 4, q. 5, n. 37, and Tamburini, Expl. Decal., l. 5, cap. 1, par. 4, n. 18, where he has these things: "The very common reason of service and attendance is a proportionate cause why a servant, son, in one word a subject, doing the following works indifferent in themselves, is excused. First... Second, if by command of the same master, whom he knows is going to commit adultery, he saddles the horse, merely accompanies him, and merely waits before the doors (merely, I say, that is, not so that he may keep watch and render him bolder for sinning), prepares the bed, seasons foods and serves the concubine, and merely accompanies her, leading her to the place where the master is going to sin, and opens the door for her as she is about to enter. Third, if he adorns his mistress, a prostitute, if he carries writings and messages full only of urbanity, if he carries small gifts and foods, and performs other offices which another servant would perform equally." Sporer, de 8 praecepto, c. 1, n. 99, also excuses the servant carrying gifts to a prostitute, "because," he says, "on the one hand they are bound by office and condition to serve and obey their masters; but on the other hand cooperation with sin is merely material and only remote."

Yet others require another very grave reason, because since these gifts are apt for fostering lust, the cooperation seems sufficiently proximate. And because of this very reason it is not lawful for a servant to carry amorous letters to the concubine of his master, unless besides the common reason of service there is present a graver and proportionate reason. For the rest, the servant is not bound to inquire what is contained in the letters.

St. Alphonsus, l. 2, n. 64, 65, 66, 67, for a servant accompanying his master to a brothel or saddling the horse, in order that he be excused, requires fear of grave harm; for a servant opening the door to a prostitute, in order that he be excused, he requires that, if he himself does not open, there be another who would open. But he judges that carrying gifts to a prostitute is intrinsically evil, and that it is never lawful to carry amorous letters to the master's concubine.

3. But it would be altogether illicit for a servant to put his shoulders under, or to carry a ladder for, a master climbing to fornicate, to open the door by force, and similar things; for the cooperation is altogether proximate, and makes the sin easier with the gravest harm of a third party. Yet since these actions are not intrinsically evil, they would still not be illicit if fear of death or mutilation were added. St. Alphonsus, l. 2, n. 66, adds that no other fear excuses the one cooperating, except death. For otherwise, because of fear of loss of resources or of infamy alone, it is not lawful to concur in the dishonoring of a girl to be deflowered. Cf. L., l. 3, n. 571.

52. Is it lawful to have a concubinary maidservant?

R. If the maidservant is publicly concubinary, it is not lawful to retain her by reason of scandal and most evil example. But if she is secretly concubinary, then a distinction must be made. For either her lover also is retained at home, or not. In the first case it is not lawful to retain her, even if other male and female servants cannot easily be found. For thus the master would be receiving sinners, and sinners more safely and conveniently, and consequently he himself would foster the sin of his servants. But in the other case the master is also bound to cast out the maidservant, if it can prudently be hoped that from such expulsion she will return to good fruit. But if it were likely that, expelled from the house, she would become worse (which certainly could easily be presumed), then it is lawful for him to retain such a maidservant, provided she is not pernicious to the family, which can easily happen. The reason is that in the former case he seems to favor the sin of the maidservant, but not likewise in the latter. And this would be all the more lawful if notable harm to the master would follow from that expulsion, if, for example, he would lack due and necessary service. Cf. Tamburini, Expl. Decal., l. 5, cap. 1, par. 4, nn. 21, 22; Elbel, de Act. hum., Conf. 1, Cas. 3.

53. Can a concubinary be absolved before he has dismissed the concubine?

R. 1. If the concubinage has been public, neither the concubinary nor the concubine regularly can be absolved, however much they appear contrite, before public separation, because besides the danger to be fled, satisfaction proportionate to the scandal is necessary; moreover this satisfaction commonly can be obtained by separation alone. It is said regularly, because one placed in extremis, having no one except the concubine who may minister necessary things to him, can be absolved and fortified with the other sacraments, provided he is truly contrite and promises, before those standing by, if the intercourse was public, that he will cast out the concubine as soon as he is able. The same must be said of the concubine placed in the same necessity.

For in such necessity scandal is repaired in the mode in which it can be repaired; for no one is held to the impossible. Bouvier, l. c., art. 2. Indeed, with necessity pressing, not even that promise before those standing by seems necessary, because in these circumstances scandal will easily cease on account of the evident necessity of the matter itself. And this has place a fortiori if there would only be question of absolution to be given secretly, and not also, because of shortness of time, of administering Extreme Unction and Viaticum. And here the doctors observe that the Holy Eucharist is not to be carried to a prostitute dying in a public brothel, on account of public decency and because it is not absolutely necessary. Gury-Dumas, Cas., t. 2, n. 721-723.

R. 2. If the concubinage has been occult, either the concubine can be dismissed without scandal or another grave harm of reputation or fortune, or not. If the first, some apud St. Alphonsus affirm for the first or second time, provided he sincerely grieves and promises that he will cast her out; the reason is that the penitent is sufficiently disposed. Others altogether deny even for the first time, because he is in proximate occasion, and until he removes it, one cannot prudently be certain of his sufficient disposition. St. Alphonsus also affirms, but when it is morally impossible that the concubine can be dismissed shortly before absolution. "For otherwise absolution must always be deferred, because experience too clearly establishes that, once absolution has been obtained, the occasion is afterwards with difficulty removed, and thus one most easily returns to the vomit." L. 436 and l. 3, n. 682; Billuart, Diss. 6, art. 2, App. 2, You ask third. If the second, he certainly can be absolved, if he sincerely grieves and promises to apply the means which are suggested to him; but it is altogether expedient, says St. Alphonsus, "that absolution at least be deferred until the continence of the penitent is proved by experiment; unless the case were that the penitent (otherwise sufficiently disposed, as is supposed) could no longer return to confess sins; or if there were imminent necessity of communicating, for avoiding positive infamy." L. 435.

54. Corollaries. 1. In the article of death, "if the concubinage is occult, separation will not per se have to be urged under denial of absolution, on account of the scandal which would ordinarily follow if the concubine were dismissed in these circumstances. For thus the intercourse, which is occult, would be publicly manifested. But a promise must be obtained from the dying man of dismissing the maidservant if he recovers; and meanwhile care must be taken that there be at least separation from the dwelling, and that the maidservant not approach him except under urgent necessity." Gury-Dumas, Cas., t. 2, n. 724. - But there will be no further difficulty, whether the concubinage is occult or public, if, as can easily be done at present, marriage is legitimately celebrated.

2. Those who by occasion of exercising a lawful art are in the proximate occasion of sin, if they show signs of true penitence with a purpose of guarding against the occasion as much as they can, by applying due means, are not bound to abandon their art, which cannot be done without grave inconvenience. Hence surgeons are to be absolved who by healing women are in an occasion of sinning. The same must be said of a pastor who in hearing the confessions of women voluntarily pollutes himself. A woman also can be absolved who lives by lodging guests, and sins by occasion of lodging, and therefore falls with different persons, and also falls with some particular person, provided she proposes thereafter to avoid conversing alone with one alone. L. 438, 483; d. 6, n. 455. - "A maidservant vividly solicited by her master is bound to leave his house; for one who freely dwells where he is so dangerously enticed to evil cannot reasonably hope for victory over temptation, except by extraordinary helps of grace, which cannot be hoped for without temerity by him who can freely avoid danger and does not avoid it. Yet these things must be understood if a person of this kind is frail and little devout; for if she were devoted to piety, and cautious, and applied fitting remedies for repelling temptations and resisting passion, then I would not bind her to removing the occasion." L. ibid., 452.

55. Note. "Remedies for those who are found in the proximate occasion especially of base sin are greater prayer, more frequent use of the Sacraments, daily renewal before an image of the Crucified of the promise of sinning no more and of avoiding being alone with one alone, fleeing from the sight of the accomplice, and similar things." L., l. 6, n. 455, 464.

56. What are the penalties laid down by law against concubinaries?

R. As regards Italian and French Civil Law, there is no special penalty. As regards Canon Law, there are none latae sententiae; but all are ferendae sententiae, except suspension incurred ipso facto by bishops if, after they have been admonished by a Provincial Synod, they have not amended. Trent, sess. 24, c. 8, de Ref. Matr.; sess. 25, c. 14, de Reg.; Bouix, l. c., n. 44; L. 442; Billuart, Diss. 6, art. 2, You ask fifth.

Note: "He who only begins intercourse, but does not complete it, nor emits seed, must explain this very thing, because although then there is fornication begun and in affection, nevertheless it is not fornication in reality; but it is an immodest act, and the extreme of immodesty. Much more, he who begins the same intercourse, and then recoils after nature has already been excited, and scatters seed, must explain; because there is already a double malice, namely fornication begun and in affection, and consummated softness, as is clear per se." Sporer 575, 576; Struggl 25; Lugo de Poenit. d. 16, n. 237 seqq.; L. l. 6, n. 916. Concubinage does not differ in species from fornication; it is habitual and continued fornication. Nor does meretriciousness, which only designates the condition of the woman who is prepared to grant the use of her body to all. These conditions are to be explained in Confession, not by reason of a diverse species of sin, but by reason of custom and occasion of several sins.

1438. Definition. - Concubinage properly so called is the frequent and continued lying together of an unmarried man with an unmarried woman, keeping her as if she were a wife, whether in the same house or in another. - I said: properly so called; for if there were frequent and continued lying together with a married man or a married woman, it would be concubinage improperly so called.

1439. Questions. - Query 1° Is he a concubinary, or at least is he held to separation, who rarely has sinned with a domestic woman?

Resp. 1° He is not a concubinary, since that frequent and continued lying together is not present which, as was said in the definition, is required for concubinage.

Resp. 2° He is not held to separation, provided that 1) the danger of relapse without separation either has already become remote or can be rendered remote; 2) on account of special circumstances either on the part of the subject, or on the part of the occasion itself (n. 1430), it cannot be presumed that the danger of relapse, although for now remote, will shortly again become proximate; 3) separation is not necessary for ending or repairing scandal which perhaps has arisen. The reason of the 1st is that the occasion is not, or at least is no longer, proximate; the reason of the 2nd and 3rd is clear from the things said n. 295. 12°; 301; 1432. - In practice, however, on account of the defect of the second condition, separation will often be necessary.

Case. - Lampridius once or twice sinned with his maidservant; he confesses after three months, affirming that he is sorry with his whole heart and that he will employ suitable means for avoiding relapse; but that he cannot cast out the maidservant, who is very useful to him. All these things having been weighed, the confessor absolved him. It is asked: Could Lampridius ... have been absolved? Gury resolves: "Lampridius absolutely could have been absolved, without dismissing the maidservant at once, the circumstances of the case being considered; or some experiment of time could be permitted."

Query 2° Can a concubinary ever be absolved before he has dismissed the concubine; or a concubine, before she has deserted the concubinary?

Resp. Distinguish. For on one side the occasion is either voluntary or necessary; but on the other the concubinage is either public or occult.

If 1) the concubinage is public and the occasion voluntary, Neg., and that although he gives signs of great sorrow. "The reason is both because it would beget scandal to see him who still keeps a concubine at home, or frequents her house, approach the Eucharist; and because a public sinner should not be absolved unless he also publicly does penance, and satisfies for the scandal." Therefore, before he is absolved, he must dismiss the concubine, or, if she lives outside the house, not approach her for some notable time.

If 2) the concubinage is public and the occasion necessary, ordinarily the concubinary will be able to be absolved in one case only; namely, when he lies dangerously ill, and the remedy of Matrimony can be employed. But if there is no place for this remedy, he will indeed be able to be absolved and fortified with the Sacraments of those going forth [from this life], provided nevertheless that a) the presence of the concubine or concubinary is not joined with proximate danger of sinning, or this danger can both be rendered remote and is in fact rendered so; and b) scandal either is not present, or, if it is present, is removed. But scandal is not present if the morally insuperable difficulties which impede the expulsion of the concubine or the desertion of the concubinary are of themselves manifest to the people or altogether presumable by them. But scandal is removed, in the case in which those difficulties were unknown to the people, if the sick person makes them manifest openly to some witnesses. (24) p. 420.

It is clear of itself that here there is question of a sick person in possession of himself; for, if the sick concubinary is found destitute of his senses, he must be absolved under condition, and also anointed with Holy Oil, as is clear from the things said n. 1371. 4°, and will be clear from the things to be said in the Treatise on Extreme Unction, n. 1508. q. 8°.

If 3) the concubinage is occult and the occasion voluntary, namely such as can easily and immediately be removed before absolution, absolution cannot be given, as is clear from the things said n. 1436. q. 1°. R. 2°, and that although the penitent brings extraordinary signs (except the cases concerning which in the cited place); for "experience shows too much that, absolution having been obtained, the occasion is afterward taken away with difficulty, and thus he very easily returns to the vomit." Except, according to the mind of St. Alphonsus, if the concubine lives outside the house. See n. 1436. q. 1°. R. 1°.

If 4) the concubinage is occult and the occasion necessary, one must attend to why it is necessary.

If a) it is necessary by reason of scandal or infamy, "commonly speaking he is not to be absolved.... The reason is that in prolonged concubinage it is morally impossible for the matter not to become known to others." I said: COMMONLY speaking; for "if otherwise grave damage of reputation cannot be avoided," in this "very rare case" he will be able to be absolved. "But in that case I say that it is altogether expedient that absolution at least be deferred, until the continence of the penitent is proved by experience; unless the case were that the penitent (otherwise sufficiently disposed, as is supposed) could not return any more; ... or if the necessity of communicating were imminent for avoiding positive infamy." The reason of the resolution is clear from the things said n. 1434. - Hence a priest who (which may it be absent!) would live most miserably in concubinage with a female relative or maidservant without any suspicion on the part of the people, will be able to be absolved if, by casting out the concubine forthwith and without delay in the case of grave illness, or immediately after he has returned home from Spiritual Exercises, that which is occult would become public with great scandal. Nevertheless he would have to resolve to dismiss the concubine as soon as he could do so without the aforesaid scandal. Cf. however n. 1437. 2°. - Resolve the same if in the time of a Mission there were question of dismissing a maidservant, in the case in which dismissal, made precisely at that time and immediately, would cause infamy.

If b) it is necessary by reason of damage in goods of fortune, a distinction must be made. Namely, he will be able to be absolved if there is question of damage which would make the man fall from his proper state, as if, e.g., a maidservant is very poor and a notable wage, e.g. of many years, is owed to her, which the master will not pay if she departs. The reason is that to fall from one's own state is a sacrifice so grave that practically it cannot have the character of a means for liberating the penitent from sins; for it is easier that he effectively cease from sins, while the occasion remains, than that he dismiss it with so intolerable a sacrifice. "But in these cases regularly" (i.e. except the cases just alleged under a) "absolution is also always to be deferred."

If c) it is necessary on account of complete impossibility of removing it, or because it is not possible to withdraw oneself from it without falling into another equal or worse one: recall the things said n. 1429. 4°, and the admonition concerning absolution regularly to be deferred, as in the preceding cases.

Query 3° Would one who was publicly thought to be a concubinary, and was not, be held to dismiss the woman on account of whom such an estimation came upon him?

Resp. 1°. If he gave occasion to the rumor neither by an evil work nor by one less right, he is not held; but it suffices that he make known that an opinion of this kind is false; for then the scandal, as calumniously excited, either will cease or will become Pharisaic.

Resp. 2°. If by a work either evil or less right he gave occasion to the opinion, separation, if it can be done without grave damage, must be enjoined; because anyone is held by natural right to remove scandal; but he will be able to accomplish this with difficulty without separation, since he gave cause to the scandal. If separation cannot be done without grave detriment, he is not held to it; since charity, by force of which he must remove scandal, does not oblige with so great an inconvenience; therefore it suffices that he strive to remove the scandal by exemplary life and by making known the truth.

Query 4° What if provision can be made for the salvation of the concubinaries through Matrimony?

Resp. 1° This remedy is expedient when either 1) the concubinary or the concubine labors under a certainly lethal disease; or 2) no unhappy outcome from such a Matrimony can be feared.

Resp. 2° That remedy ought to be employed in that twofold case, if it is necessary for legitimating offspring. - See the things to be said in the Treatise on Matrimony, n. 1539. q. 4°.

V. The case of scandal through concubinage frequently occurs and presents a special difficulty in practice.⁵ It is scandal by which the accomplices not only mutually scandalize themselves, but truly also others if the concubinage, as it is apt to happen, is now public.

⁵ There may be consulted: St. Alphonsus, Th. M., l. III, n. 432, 436, 437, 441; Segneri, Instructio confessorii, c. 5 and 6; Berardi, op. De Occasionariis, n. 139-141; Aertnijs, Theol. Moralis, II, l. VI, n. 316-321; Noldin, on the sixth precept, n. 16.

Concubinage is repeated intercourse with the same woman, whom someone keeps after the manner of a wife in his own or another's house. Commonly it is exercised between unmarried persons; nevertheless it can be found in adultery and in other species of lust.

Besides the public scandal which they are wont to furnish, concubinarians are placed in great danger of damnation, because they have a firm purpose, at least virtual, of persevering in sin, and therefore with greatest difficulty can return to true penance and free themselves from the bonds of the accomplice. To this, therefore, by the pastor, or also by the confessor, an opportune and efficacious remedy of serious warning and cure is to be provided.

Among remedies: 1. before all things marriage is to be counseled, when it is morally possible and an unhappy outcome is not feared: for this radically cuts off the occasion of sin and sometimes is the only remedy. This is chiefly to be urged: when the concubinarians cohabit, as if the concubine is supported by the paramour in the same house and in another way scarcely can procure support for herself; likewise when the concubinarians pursue one another with a great ardor of true love, especially if the concubinage is long-standing or has been apparently legitimized or confirmed by civil marriage; most of all in danger of death of either party.⁶

⁶ Nevertheless secret marriage, or as they say, marriage of conscience, is rarely to be permitted, except in the case of lethal sickness, or in the case where the concubinarians are publicly thought to be spouses. Generally it is to be avoided because of the danger either of divorce, or of scandal if offspring should be born, or of onanism lest scandal arise.

But let it be noted that, in a case of necessity on account of grave evil, if a canonical impediment obstructs the celebration of marriage, and there is not time for recourse to the Holy See, the Ordinary can dispense from all impediments of ecclesiastical law, except the presbyterate and affinity in the direct line, and, if the Ordinary cannot be approached, even the pastor or also the confessor can dispense (can. 1043-1044). Thus, theologians say: if from delay of the marriage great scandal and great infamy would be feared; if delay would be the cause that the marriage would no longer be contracted and therefore either the concubine would be left pregnant, or the offspring would not be legitimized, or the concubinarians would remain in perpetual concubinage; most of all if the marriage urged in order to consult for the eternal salvation of a dying counterpart.

2. When the possibility or opportunity of marriage is lacking, or when the delay of it for some time stands, separation is to be urged, which, where it can be done, is a necessary remedy for removing the proximate and free occasion.

Separation will be easier if the concubine is supported in a different house, and the concubinarian frequents her not from love of the person but from desire of pleasure. In this case, besides the general remedy against the occasion and danger of sin, it must generally be required that the concubine's partner no longer enter the house of the concubine nor have any intercourse with her. But the concubine can refuse to open the door to the partner arriving, always cohabit with some person so that she is never found alone, or also change domicile. But if they cohabit, separation will be more difficult, but for that reason the more to be urged; but if it is impossible and the occasion is necessary, for example from very great harm, during this time opportune remedies are to be employed by which the formal danger may be warded off and the occasion may become remote from proximate.

3. When even separation is lacking, several helps are numbered as to be employed. And indeed, if the concubinarians dwell in the same house, they generally ought to avoid being alone, man with woman, at least for a long time, or also by a firm declaration and serious reproach to forestall future sin, to flee every familiarity, even, insofar as possible, the sight of the accomplice, not to think about him or her, to finish truly necessary business swiftly, and other similar things; and to exercise mortification and live more piously in prayer and frequentation of the sacraments.

Especially let the concubine, particularly if she stays with the concubinarian under the title of maidservant, openly declare that she is unwilling any longer to lead such a life, and from the beginning resist him in every way, and at night shut and secure the door of the chamber so that the master cannot open it. The same principles otherwise hold concerning a male servant with respect to a mistress. And if the maidservant afterward is cast out of the house by the master and has nowhere to turn nor the means by which she may be supported, let the pastor or confessor take care that she be placed in some refuge founded for endangered girls or in another honorable house.

VI. Especially as regards the absolution of concubinarians and their admission to the sacraments:

A. In public concubinage: 1. If the occasion is voluntary, they are not to be absolved before they have separated themselves, because otherwise they are in proximate danger of breaking their purpose, and a public sinner ought not to be absolved unless he has done penance publicly and has satisfied for the scandal. Hence before he is absolved, the concubine's partner should dismiss the concubine, or, if she dwells outside the house, he ought for some notable time not to have gone to her; but the concubine ought to depart from the house of the concubinarian, or, if she does not cohabit, it is necessary that for some notable time she have broken off intercourse with him.

2. If the occasion is necessary, absolution is to be deferred until the penitent has contained himself for a notable time and has satisfied for the public scandal. This can be done: by making known the necessity of the occasion if it is not known; by publicly showing signs of conversion through frequentation of church and a more pious life or other similar things; and, if it can be done, by entering marriage with the accomplice. And if the shameful intercourse has now long ceased, and scandal, while the reputation of concubinage remains, cannot be taken away immediately, but nevertheless the penitent is prepared to take it away as soon as possible and in a better manner, he will be able to be absolved before the scandal has been repaired, provided that he promises that he will not publicly approach Holy Communion, at least in the place where he is known.

Nevertheless the necessity of the occasion is not easily to be admitted except for a very grave cause. For the affection by which concubinarians adhere to their pleasures causes them either to oppose specious pretexts to separation or to exaggerate them; therefore let the confessor diligently examine how much the obstacles alleged are worth, so that he may discern the truth.

B. In occult concubinage: 1. If the occasion is voluntary, the accomplices regularly are not to be absolved before they have in reality separated themselves; otherwise, as experience establishes, they are in proximate danger of breaking and not carrying out their promises. This also holds if they do not dwell in the same house, because in the case the occasion properly is not interrupted, but morally continuous, and because the concubine is had after the manner of a wife, and because of continuous frequentation.

Exception is made if there is a grave and urgent reason of avoiding a greater evil, namely: a) danger of death so urgent that time or means of separation is lacking; b) or difficulty of returning for a long time; or c) danger of infamy from non-reception of the sacrament; d) or great danger of alienation from the sacrament. In these cases nevertheless the penitent is to be warned that he will not obtain absolution any longer unless he has stood by his promises; but if he has been warned uselessly, he is to be held formally as a relapser.

2. If the occasion is necessary: a) regularly the penitent can be absolved, provided he is duly disposed and is prepared to employ efficacious means, necessary or prescribed, so that the occasion may become remote from proximate; unless sometimes it is more opportune to defer, with his consent, so that he may resist more promptly and efficaciously and employ the means.

b) But if he is a relapser and, warned several times, has neglected the prescribed remedies and has relapsed in the same way, absolution is to be deferred: both because he is doubtfully disposed, and so that he may better apprehend the gravity of the sin and be compelled to amendment. Unless perhaps he offers extraordinary signs of disposition, or is prepared to employ new and more efficacious special means.

Nevertheless let the occasion not easily be believed necessary, as they sometimes use as a pretext, by reason of avoiding scandal or infamy; indeed, on the contrary: 1. if the people have not yet noticed the familiarity, dismissal of the concubine will not produce a greater mark than if a maidservant is dismissed from the house; 2. on the contrary, in long-standing concubinage it is often morally impossible that the matter not become known to others; hence separation will impede infamy and scandal.

C. In the article of death: 1. When the dying person is now deprived of the senses, generally he ought to be absolved under condition: if you are capable, and also, at least if it can be done without scandal or secretly, anointed with Holy Oil; because it can seem somewhat probable that perhaps he is disposed, and it cannot be affirmed that he is dying in manifest mortal sin; unless nevertheless not so long before the deprivation of the senses he contemptuously refused the sacraments. See the little work Concerning Various Categories of Penitents, c. 2, q. 6.

2. When he uses the senses and time and manner are at hand, first scandal and the occasion of relapse are to be taken away, insofar as he can; and therefore:

a) if he is able to join the accomplice to himself by marriage, let the sick person execute this as quickly as possible;

b) if marriage is impossible, separation is to be required; for example, in public concubinage the concubinarian ought, if it can be done, to cast out the concubine and, insofar as there is need, to hire another honorable woman who may minister necessary things to him; the concubine ought, if infirmity and condition permit, to try to be received into a public hospital.

3. When even separation is impossible, whether physically or morally, for example because infamy is to be feared, the confessor ought to try to remove the danger insofar as it can be done; for this end, besides the general remedies, these will be able to help: let the accomplice and the image of him or her be removed from the chamber, or at least let the sick person, by himself or through the confessor, ask pardon from the accomplice for the scandal given to him or her and ask that person to do penance. Moreover, publicly the concubinarian, even before witnesses, ought to declare the impossibility of separation, to be made known as soon as possible, and at the same time promise that he will remove the scandal as soon as possible and, if perhaps he recovers, will effect separation and will have no further intercourse with the accomplice.

And then he will be able to be absolved: absolutely if he certainly seems disposed, under condition if only doubtfully; and in addition to be fortified with the other sacraments.

But let it be noted: a) In the case of public concubinage, the sacraments are not to be brought publicly unless after the scandal has already been sufficiently repaired publicly; otherwise they are to be brought secretly.

b) These rules are indubitable, and therefore are altogether to be observed; nor is it understood how, as has been asserted to us, certain pastors or confessors do not observe them.

VII. Observation. - In the case in which someone is publicly thought to be a concubinarian and is not, separation is not to be urged, if no active scandal, or less right action, has given occasion to the rumor; but it suffices that he make known that an opinion of this kind is false. Then scandal will either cease, or will become pharisaical scandal of malice alone. On the contrary, if by an evil or less right work he has given occasion, separation will be urged as long as it can be done without grave harm: for the natural law obliges one to take away scandal if it is possible; but if it cannot be done, by the practice of Christian life and by the spreading of the truth the scandal will gradually be taken away.

Since marriages with persons of the lowest rank were prohibited to Roman matrons of a certain more eminent dignity, so that those unions were not reckoned by the law except as concubinage, Callistus, that he might provide for their salvation, conceded that marriages of women of this sort were valid, whomever they had chosen as husband, whether slave or free, although they were not married according to Roman laws. You see here the independent right of the Church putting itself forth.

Canon XVII. If someone having a faithful wife also has a concubine, let him not communicate. But he who does not have a wife and has a concubine in place of a wife is not to be repelled from communion, only that he be content with the union of one woman, either wife or concubine, as it shall please him. But living otherwise, let him be cast out until he ceases and returns through penance.

Concubine here is to be taken in the more honorable sense, namely a true wife, although held in a less worthy place. Cf. Canon XV of the Convention of Mainz in the year 851 below, and Thesis XV, IX.

Decree IV. Not every woman joined to a man is the wife of the man, because neither is every son heir of the father. Now the covenants of nuptials are legitimate among freeborn women and among equals, the Lord Himself establishing this very thing much earlier than the beginning of Roman right existed. Therefore a wife is one thing, a concubine another, just as a maidservant is one thing, a free woman another. For this reason also the Apostle, for manifesting the distinction of these persons, places testimony from Genesis, where it is said to Abraham: "Cast out the maidservant," etc. Hence, since the society of nuptials was so constituted from the beginning that, besides the conjunction of the sexes, it had in itself the sacrament of Christ and the Church, there is no doubt that that woman does not pertain to marriage in whom it is taught that there was no nuptial mystery. Therefore if a cleric of any place has given his daughter in marriage to one having a concubine, it is not to be received as if he had given her to a married man, unless perhaps that woman is seen both to have been made freeborn, and legitimately endowed, and honored with public nuptials.

The opinion of Leo in this place, which can seem difficult, depends wholly on the principle to which he himself appeals, namely, that the society of nuptials was so instituted from the beginning by God that it had in itself the sacrament of Christ and the Church. But the society of a man with a concubine does not have this sacrament, that is, it does not represent the union of Christ with the Church. For the union of Christ with the Church is a perpetual union, elevating the Church to participation in the dignity and goods of Christ; on the contrary, the union of a man with a concubine is a dissoluble union, because the man uses the woman for pleasure alone, having her as a maidservant and generally choosing her from his maidservants left in their own condition of servitude. Such a society surely is not marriage. But historically the union of a man with a maidservant, who had not been made freeborn and legitimately endowed and honored with public nuptials, returned to this, or seemed to Leo to return to this: namely, pure concubinage was presumed. The same was the opinion of Ambrose on Luke VIII, 8, saying, "Where there is an unequal union, there the law of God (enacted, that is, in the institution of marriage, Gen. II, 24, of which he made mention in the preceding number) is not." Cf. Hincmar of Rheims, Letter XXII. Now since the doctrine handed down above was sufficient for Leo for dispatching the singular question proposed to him, he did not wish to turn aside elsewhere and linger in solving questions which could arise, for example, whether the union of a free man with a female slave can ever be a legitimate marriage and sacrament; for the question proposed to him had been about a concubine, not about the marriage of a free man with a female slave or maidservant. Cf. Thesis XV, IX.

Decree V. Women joined to men by paternal judgment are without fault, if the women who were held by the men were not in marriage (if, namely, the men to whom daughters are joined by paternal judgment had indeed had another woman, but not associated by the covenant of marriage), because a married woman is one thing, a concubine another.

Canon XIV. At the suggestion of the council, our most glorious Lord (King Reccared) ordered this to be inserted in the canons, that it is not lawful for Jews to have Christian wives or concubines.

For he responded to the inquiry "concerning those who after penance take wives or join concubines to themselves." Rather they could have appealed to Canon XXI of the second Council of Arles, A.D. 451, above.

Canon VII. If a slave has had his own female slave as concubine, if it so pleases, he can, after dismissing her, accept his peer, a female slave of his lord; but it is better to keep his own female slave.

The discourse is about a slave who has female slaves (concerning slaves among the Germans or Franks, cf. Du Cange, Lexicon, at the word servus): if he has his own female slave, not as wife but as concubine, he can indeed cast her away; but the Fathers advise that he keep her, of course as wife. If we take concubine as distinguished from wife, all things stand correctly. Cf. Response IV of Leo to Rusticus, above.

Canon XXXVII. It is lawful for no one to have two wives at one time, or a wife and a concubine ... For just as Christ observes the Church chaste, so the husband ought to guard chaste marriage.

From the fourth Sylloge of Canons. Canon XXXIV. If anyone, having obtained a concubine, does not wish either to dismiss her or to have her blessed and to have her rightly with the sacrament, it is not fitting that those things which are offered by him to the Church be received.

Capitulum XII. If anyone has had a concubine who was not legitimately betrothed, and afterward has led a girl duly betrothed, after the concubine has been cast aside, let him have her whom he legitimately betrothed. Concerning this Pope Leo defined thus in his decrees, saying: "There is no doubt that that woman does not pertain to matrimony," etc.

Capitulum XV. Concerning him who has a wife: if he has had a concubine, let him not communicate. But as to him who does not have a wife and has a concubine in place of a wife, let him not be driven from communion; only let him be content with the conjunction of one woman, either wife or concubine, as it shall have pleased him. But if he lives otherwise, let him be cast out until he ceases or returns to penance.

It is Canon XVII of the Council of Toledo, A.D. 400 (see above), to be understood in the same manner in which we have interpreted it. Indeed, from the repetition of this canon made in the ninth century, the interpretation handed down of the Spanish canon is confirmed. But it is clear that in this century in Germany, as formerly in Spain, women joined by legitimate marriage were distinguished into wives and concubines.

Response I. You ask whether, after a wife has been dismissed whom someone had led after legitimate betrothal, because afterward he imposed an evil name on her, it is lawful for him, without a decree of a general synod, either to accept another against the evangelical authority, or, while she survives, to have a concubine in place of a wife. To these things, supported by apostolic authority, we resist altogether according to the evangelical sanction, and we neither concede the coupling of another wife to those who do such things while the one dismissed survives, nor do we grant license of having a concubine.

Response II. Concerning this: if a betrothed woman, with the betrothed man not knowing, is corrupted, and afterward, a dowry having been made, that same betrothed man has lain with the same woman in marital fashion: whether, after no time has been intercepted (other reading: interposed), it is lawful for him to dismiss her as corrupted by another and thus lead another, as if that woman had not been a wife, or to hold a concubine in place of her. We do not consent to this either, that those who are joined by the legitimate covenant of nuptials and are made one body through some space of time should make a divorce. But what before, at the beginning of the conjunction, they voluntarily kept silent by receiving the corrupted woman, afterward, with time intercepted, by enduring it, even if not voluntarily, let them unwillingly preserve; also let them in every way abstain from concubines.

He adds after a few words. This also, together with them (namely, with the Fathers), we likewise command: that no one leave his own wife and, while she is living, presume to associate another to himself; nor is it lawful for him to have two wives at one time, or a wife and a concubine.

Canon IV. Concerning married priests or concubinaries, unless they have ceased, we command by prescribing that they be moved from the altar and at the same time segregated from the choir. But if even then they have not ceased, let them be kept far from the thresholds of the church, and let them not enjoy even that lay communion. We establish the same also concerning deacons.

Married priests are called concubinaries because the discourse is about marriage which they entered after sacred order had been received, and no marriage of this sort was any longer held valid. For this reason they are commanded to cease, that is, to separate themselves from the concubines. Already here it appears clearly enough that marriages of this sort were held to be null. Cf. Canon X of the Council of Toledo, A.D. 655, and Canon VII of Orleans, A.D. 538, and Canon II of Carthage, A.D. 390.

Canon VII. From presbyter down to subdeacon, if they have led a wife or retained a concubine, let them go out from the clergy and lose every ecclesiastical benefice, and remain in the Church with the laity. But if they have been disobedient, let them incur the sentence concerning the incestuous.

Canon XXI. We utterly forbid priests, deacons, subdeacons, and monks to have concubines or to contract marriages; we also judge that marriages contracted by persons of this sort are to be disjoined and that the persons ought to be reduced to penance, according to the definition of the sacred canons.

You see that the Fathers of this ecumenical Council appeal to preceding canons, not establish a new matter. Cf. Canon VII of the Council of Girona and the Fourth Council of Troyes, and the places cited there. Certainly the decrees of the Pontiffs of the eleventh century had regard to this, especially those of Gregory VII against concubinary clerics, who were so called because they were unequal to contracting legitimate nuptials. Therefore although in this First Lateran Council, and also more clearly in the Second, a universal law was enacted invalidating these nuptials, nevertheless that law was not simply new. Hence it is clear how ineptly it was said that Boniface VIII was the first to assert that a vow of chastity emitted in ordination renders nuptials null (from the Syllabus of Pius IX, prop. 22). For, 1. long before Boniface the nuptials of bishops, priests, deacons, and subdeacons were null by the constitution of the Church; 2. what seems more probable to Sanchez (Book VII, disp. 27, n. 10), this obligation of continence was and is from a vow, either expressed or tacit, in the very reception of the order, which the Church annexed to the order; 3. but although someone freely receiving an order should not wish actually to emit a vow, nevertheless he would be obliged to continence, and his subsequent nuptials would be null. These things also held good before Boniface. Of what matter, therefore, is Boniface the author? He first authentically declared that "the solemnity of a vow was introduced by the sole constitution of the Church (c. un. de Voto in 6)." With this principle supposed, the same Pontiff, to the question proposed to him, namely what vow ought to be called solemn and efficacious for diriming marriage, answers (ibid.): "that vow alone ought to be called solemn, as regards diriming a marriage after it has been contracted, which shall have been solemnized by reception of sacred order or by an express or tacit profession made to one of the religions approved by the Apostolic See." In this response the law of this impediment diriming the nuptials of those who are bound by such vows is not affirmed for the first time, nor first established; but it is only affirmed that these vows alone are solemn with regard to the effect of diriming a subsequent marriage. But all these things are ineptly confused in that proposition.

THIS is the concubinage of a man with an unmarried woman, whom one keeps at home as his own. So commonly the Doctors, cited by Farinaccius, tom. 4. quaest. 138. For concubinage in civil law these conditions are required. First, that the woman and the man cohabit together: Second, that it be in his own house: Third, that they consort frequently: Fourth, that the woman be unmarried: Fifth, that she be one only: Sixth, that she be kept as a wife.

But in canon law it is thus described: It is the concubinage of a man with an unmarried woman, whom one retains either in his own house or elsewhere; and to whom he has recourse frequently and by custom, whether he keeps her as a concubine, or as a servant, or in any other manner whatsoever.

IT is however a grave sin, or rather a state of sin. Whence such men are not to be absolved before they have cast the woman out of the house; or if they keep her elsewhere, one must first see whether they have withdrawn from that state, as Fagundez notes, lib. 6. cap. 2.

PENALTIES are imposed by the Council of Trent, sess. 24. de reform. cap. 8. decreeing a threefold admonition, after which they are to be excommunicated, and if they persist obstinately for a year, they are to be punished at the judgment of the Bishop: But the woman, if admonished and not departing, is to be expelled from the city, or even from the diocese.

THESE penalties are imposed on public concubinaries. These are they whose concubinage is notorious, either by sentence, or by confession lawfully made, or by the evidence of the fact, which cannot be concealed by any evasion, as Fagundez notes, num. 7. with D. Bonaventure in 4. dist. 13. quaest. 4. ad argumenta.

NOTORIOUS also is that concubinary whom Farinaccius calls, num. 8. loco cit. who keeps in his house a woman suspected and defamed of incontinence, and, when admonished, does not cast her out; but the Saintly Doctor wills that of itself this is not enough; however the Holy Council of Trent, sess. 25. de reform. cap. 14. declares as public concubinaries those Clerics who keep women of this kind suspected of incontinence, and condemns them to penalties.

IT is asked, moreover, what penalties are due in canon law to Clerics who are public concubinaries.

THE FIRST opinion is, that they are suspended by the very fact by law, and become irregular, if while under the same suspension they celebrate, or exercise an act of sacred Order. So Toletus, lib. 1. sum. cap. 47. Sylvester, verb. Concubinarius, Navarrus, man. cap. 25. Julius Clarus, §. fornicatio, Azor, lib. 6. cap. 7. quaestio 5. and others, cited by Fagundez, in 6. praecept. lib. 6. cap. 2. num. 9.

THE SECOND opinion denies that they are suspended by the law itself, nor become irregular, if etc.; yet they can be suspended by the Bishop, if thrice admonished they do not withdraw. So Suarez, de censuris, disp. 31. sect. 4. and Tom. 3. de sacram. disp. 18. sect. 1. Sayrus, de censur. lib. 4. cap. 16. Rodriguez, tom. 1. cap. 67. Medina, lib. 1. cap. 11. Enriquez, lib. 9. de excom. cap. 25. §. 13. ad marg. litt. P. and others, whom Fagundez follows, n. 10. and Bassaeus, V. Concubin. num. 5.

THE opinion of D. Bonaventure, in confessionali, c. 5. particul. 50. et 52. is, that they are suspended by the law itself, until they do penance. He proves it from cap. Vestra de cohabit. Cler. and from cap. Quaesitum, under the same title. He holds the same more clearly in 4. dist. 13. quaest. 4.

AND indeed in cap. Vestra, it is concluded: Without doubt hold it certain, that from Clerics and Priests, even though fornicators, as long as they are tolerated and have not the evidence of the deed, the divine mysteries may lawfully be heard, and the Sacraments received. This text the Saintly Doctor urges, in 4. dist. 13. quaest. 4. ad argumenta, and other Doctors of our opinion, among whom add Maiolus, de irregul. lib. 5. cap. 37. Firminus, V. Concubinarius, num. 5. and V. Clericus, num. 13. Vivaldus, in candelabro, tit. de suspen. num. 19. Vega, in sum. 2. part. cap. 108. casu 3. Rebuffus, in concordatis, tit. de public. concubinariis, in the first, third, and ninth penalty, Villadiego, de irregul. cap. 3. Guido Papa, decis. 558. Farinaccius, in 4. quaest. 138. de delictis carnis, num. 55. Innocent, Hostiensis, Butrio, the Archdeacon, in cap. Vestra, in cohabit. Clericorum, et mulierum, where with D. Bonaventure they understand the text of the Decree in the same way, Decianus, in tract. crim. lib. 5. cap. 21. n. 10. Vivius, opin. 123. Ludovicus Lopez, 2. part. Instruct. cap. 23.

Fagundez answers, that these are condemned in cap. Vestra in the same way as in cap. Clerici, where they are not suspended, but it is commanded that suspension be imposed by the Bishops, and as in cap. Quaesitum, where they are not suspended, but the faithful are only charged not to receive the Sacraments from them, because they are scandalous; for the Pontiff says: It has been asked concerning clerics fallen into fornication, whether their offices are to be attended. Truly, although anyone is held to be suspended on account of a mortal sin as regards himself, he ought nevertheless not to be shunned in the divine offices: unless a sin of this kind be notorious, by sentence, or by confession made in law, or by the evidence of the fact, which cannot be concealed by any evasion.

Therefore Fagundez says, that no suspension is imposed on these; for, he says, public concubinaries are equated with occult ones, and as the occult one is improperly suspended, insofar as he is unworthy, so also the public one.

BUT these are trifles, as the Saintly Doctor saw; for the law does not equate them, but lays down an exclusive rule of true suspension, unless they are notorious.

SECONDLY, from the Concil. Trid. sess. 25. cap. 14. where concerning these it says: As regards the ordinaries, and also delegates of the Apostolic See, it shall be at their judgment whether they be suspended, and if, being thus suspended, they do not expel them, etc. let them be deprived of whatsoever ecclesiastical benefices, portions, pensions, and offices, etc.

Fagundez says, num. 10. that these words serve his purpose excellently, as if the Council commanded the Bishops to suspend them, but not to declare them suspended. But the words of the Council have another sense, namely, that they remain suspended, according to the ancient laws, until they be absolved by the Bishops, by the Bishops, etc.; which words are clear. It is confirmed, for in sess. 24. cap. 14. the Council confirms the ancient laws, saying: The other penalties of the law remain in their force. Nor let Fagundez say that these are to be imposed by mandate in those words, sess. 25. cap. 14. otherwise, let them be punished with the penalties imposed by the sacred Canons, or the statutes of the Churches. For these words speak of temporal penalties, deprivations of distributions, etc. as I said.

Fagundez answers, n. 12. that those laws have been abrogated by custom.

But on the contrary, for they are confirmed by the Holy Council, notwithstanding any custom whatever. It is confirmed evidently from the declaration of the Most Eminent Cardinals, the Interpreters of the Holy Council, to whom alone it is permitted to interpret the Council, but not to Fagundez or other Doctors of the opposing opinion; there, however, they decide: Concubinary Clerics are even today, if they be notorious, suspended by the law itself from the divine offices, just as they are also in the old law.

This declaration utterly overturns every solution of the adversaries.

What the Canons understand concerning public concubinaries, they understand also concerning public fornicators, as the Saintly Doctor notes, in the places cited, and it is had in the canons alleged, as Toletus notes, lib. 1. cap. 47. Sylvester, V. concubinarius, Fagundez, num. 15. Now a public fornicator is one who, wandering about, abuses now this woman, now that.

The difficulty is: whether in our opinion, which Fagundez confesses to be very probable, numero 9. under the name of Cleric there are also understood those constituted in Minor Orders; and indeed the Canon Vestra names Clerics separately from priests: Therefore it includes all, as the Saintly Doctor relates, loco cit. in 4. Farinaccius agrees, loco cit. Diaz, cap. 79. and others. They seem, however, not to be included, because it speaks in relation to the exercise of solemn Order, and this is not in the Minor Orders, and accordingly irregularity is not incurred. So Fagundez, num. 16.

Fagundez also notes, num. 17. that these are not excommunicated by the law itself, for in those laws no mention is made of excommunication.

In civil law no certain penalty is established for these, as Fagundez notes, num. 19. yet the administration of their goods may be interdicted to them by secular judges, just as the same faculty is impeded to women living luxuriously; it is clear from the leg mulier, ff. de curatore furioso. The reason is, because one who lives luxuriously is called a prodigal in morals, the Gloss, in leg. si quis cum iure, ff. de usucap.

Hence many have said that it is a crime of the spiritual forum only. So Clarus, quaest. 37. Portius, consil. 21. Tuschus, de visitatione, lib. 2. cap. 21. Ancharanus, ad cap. Cum sit, de foro compet. the Abbot, ibi num. 25. Soncinus, num. 24. Aretinus, num. 15.

Others, however, distinguish: as regards penalties, at present, the secular judge alone is Judge for secular persons; but for future amendment, Bishops and others can discharge that function.

It is proved from cap. penult. de cohabit. cler. et mulier. and the Council of Trent, sess. 24. cap. 8. and sess. 25. cap. 14. and in the former place it speaks of secular persons, and for their emendation it commands that a threefold admonition be prefixed, which is called the competent admonition, as the Saintly Doctor observes, in Confess. loco cit. See Fagundez, num. 20.

Some have said falsely, that the concubines of Clerics cannot be punished by the secular forum. For why should these secular women not be punished for a secular crime, or enjoy a forum?

There are some saying that concubines are not forbidden, but approved by civil law, leg. 3. ff. de concubinis, from Genes. 21. et 22. Iud. 19. 3. Reg. 11. where holy men kept concubines.

But these were wives, though they had a lesser dignity than the others, as the Saintly Doctor proves, 4. dist. 33. q. 1. and I shall show in the 3. part. Tract. de matrim. see what I have said of these, tom. 4. disp. 17. quaest. 10. sect. 30.