I. To the Question

A. Opinion of Others Explicating the Positive Certain Conclusion

9. Here the conclusion is certain.

10. Some say [Bonaventure, Thomas Aquinas, Richard of Middleton, Alexander of Hales] that it is not licit to contract because a person who receives sacred Orders is made simply illegitimate for contracting matrimony, and this either by the Church or immediately by Christ (though it not be read in Scripture).

11. But the second alternative does not seem probable, because they were not bound in the primitive Church, unless perhaps you say that it was never licit after reception of Holy Orders to contract matrimony, though sometimes it would be licit to use a matrimony already contracted, as now among the Greeks.

12. But what is the reason for this illegitimacy?

The response of some [Bonaventure, Thomas Aquinas, Richard of Middleton]: it is because of the vow annexed to Holy Orders (and how that vow make it illegitimate will be stated in the following distinction [d.38 nn.26-28]).

13. But against this: either the vow is annexed thus, that he who receives [Holy Orders] makes a vow; or only because the vow is as it were annexed by precept of the Church, because the receiver is bound so to keep it as if he vowed.

14. Not in the first way, because no one who vows vows something he does not want; but this man, receiving Holy Orders, has explicitly in his will not to be continent; therefore, he does not vow that continence.

15. If you say that he does vow in fact because, in receiving Orders, he does what the ancient Latin fathers vowed (and he is receiving such sign [Orders]) - on the contrary: no one is bound by a vow to a vow made by another, especially if he has a contrary vow. Or as follows: no one can vow a vow of continence according to the Latin Church for some other person; therefore, neither were the first fathers able to vow for him who is ordained later.

16. Again, the Orientals receive the same sign [Orders], and yet without vow of chastity.

17. If in the second way [n.13], then he who contracts [matrimony] does simply contract it. Proof: Gregory IX, Decretals IV tit.16 ch.2, ‘About matrimony contracted against the interdict of the Church’: “Although one ought not to pass over to second vows against the interdict of the Church, yet it is not acceptable that, for this reason, the sacrament of matrimony be dissolved; some penitence, however, should be imposed on them, because he did it against the Church’s prohibition.

18. Therefore, if the vow of continence is only annexed to Holy Orders by precept of the Church, it follows that the Church has not simply made it illegitimate to contract [matrimony]. For it is universally established in law that what prohibits something being done does not make it illegitimate; but there is need that it contain this sort of judgment: ‘if he has made a contract, let it be broken off’, or: ‘if they have been united, they are in no way to be tolerated’.

B. Scotus’ own Opinion

19. I say, therefore, that neither is it because of a vow properly speaking of continence annexed to Holy Orders, nor is it because of a vow annexed by precept of the Church commanding such a one not to contract, that this person cannot contract, but it is from the fact that the Church makes such person simply illegitimate.

20. And this indeed was established reasonably, whether it was had from Christ or not, because such person is deputed to a sacred ministry that requires purity of mind and perspicuity of intellect and fervor of affection and bodily purity, to all which things continence disposes, and to the opposites of which frequency of the carnal act disposes.

21. Nor ought anyone to say that in this the Church is prejudicing him in his right, because the Church does not commonly compel any to reception of Holy Orders, and has made it sufficiently public that, after such Orders have been received, the receiver is unsuited for contracting;     therefore if he comes voluntarily, he voluntarily incurs this unsuitability.

22. Hence from the fact that the Church prescribes continence to him when the bishop asks in the conferring of Orders “if chaste and pure etc     .” [from the ordination rite in the old Pontifical Books] and gives him Orders in public, if he do not complain, he is from then on a person illegitimate for contracting matrimony, and nothing happens if he does contract. Statement of this illegitimacy is contained in Gratian, Decretum, p.1 d.27 ch.8 “For priests,” and Gregory IX, Decretals III tit.34 ch.10, ‘About vow etc.’ But if there could be found another reason on the part of the contract why he who is at the top as regard Holy Orders cannot contract, it would please me, but it would be difficult to find it.