Thirty Ninth Distinction

Question One. Whether Disparity of Cult Impede Matrimony

1. “After this about disparate cult” [Lombard, Sent. IV d.39 ch.1 n.1].

2. About this thirty ninth distinction I ask whether disparate cult impede matrimony.

3. That it does not:

Genesis 41.45 Joseph accepted the daughter of Potiphar, although however she was a unbeliever and he of a believer.

4. Again, Exodus 2..21, 3.25, Moses accepted the daughter of Jethro, an unbeliever, which is proved from this that when he wanted to return to Egypt Moses circumcised his son, whence she says, “you are a spouse of blood to me.”

5. Further, in Esther 2.18 is contained that Esther married Ahasuerus, who was not a Jew.

6. Again, III Kings [I Kings] 11.1, Solomon accepted the daughter of Pharaoh, women of the Moabites, Ammonites, Idumeans, Sidonians, and Hittites.

7. Further, I Corinthians 7.12, “If any brother have an unbelieving wife, and she consent to live with him, let him not dismiss her;” therefore disparate cult does not destroy a marriage already contracted, nor does it per se contradict matrimony, because then the advice of the Apostle, that the brother stay with the unbeliever, would be counsel of fornication.

8. To the opposite:

Ezra 9 and 10, where a separation from foreign wives is made.

9. Again, II Corinthians 6.14-15, “Do not be yoked with unbelievers; what participation is there of light with darkness, or what part is there of the believer with an unbeliever?”

10. Again, Gratian, Decretum, p.2 cause 28 q.1 ch.9, “Let marriages remain united only of the same religion and faith.”

11. And ibid. ch.15, “Take care, only a baptized woman is to be taken in marriage, because baptism is the first sacrament.”

12. Again Deuteronomy 7.2-4 [Richard of Middleton, Sent. IV princ.1 q.1: “As is contained in Deuteronomy 7, the Lord commanded the sons of Israel not to join in marriage with Amorites, Canaanites, Perizzites, Hivites, and Jebusites”].

I. To the Question

13. Here two things are to be looked at: first how an unbeliever can contract or have a marriage, second how a believer can with an unbeliever.

A. How an Unbeliever Can Contract Marriage

1. The Opinion of Some and Rejection of It

14. About the first it is argued [Richard of Middleton, ad loc.] that an unbeliever cannot, because there cannot be the good of faith there on the unbeliever’s part, because he is not faithful to God; therefore not to his neighbor either.

15. Second because on his part there is not the good of offspring because, as far as is in him, he would educate his offspring in his own rite, and so irreligiously.

16. Third because there is not the good of the sacrament there [cf. d.31 nn.17-18], because an unbeliever, from the fact he does not have the first sacrament, is not capable of the others, as is proved in Gregory IX, Decretals III tit.43 ch.1 [with glosses].

17. These arguments do not move [me].

The first one does not because faith, that is, faithfulness, can be preserved without the faith by which there is belief in God, and this can unbelievers keep with unbelievers and conversely, as is obtained from Augustine, Epistle 47 to Publicola n.2. For this does not follow: he does not want to keep the faith with God by which the Christians are called believers, therefore he does not want to keep faith, that is, faithfulness, with his neighbor. First because this does not follow: he does not want to keep what is more perfect, therefore he does not want to keep what is less perfect; second too, because he cannot attain by natural reason to observance of this faith as he can of that.

18. The second reason does not move, because an unbeliever wants to educate offspring, insofar as he can know by natural reason that offspring are to be educated; therefore you cannot get more [from this reason] save that there is not the perfect good of offspring there, namely, that offspring be educated in the cult of God; and no wonder, because the educator does not know that offspring are to be thus educated.

19. The third reason too does not move, because to no matrimonial contracts preceding the Gospel Law was annexed a sacrament properly speaking; nor would it have been annexed to the contract in the state of innocence, if man had always remained in it, as was said above d.26 nn.51-58; nor yet would anything then have been lacking of the perfection that belongs to the contract of matrimony.

20. A contract, then, of matrimony could exist between unbelievers, though not the sacrament of matrimony, because this sacrament belongs only to the New Law and has its efficacy from the passion of Christ, as do also the other sacraments of the New Law. Hence if Christ had not suffered this sacrament would not have existed, even in the state of innocence if Adam had not fallen; because although God could have conferred grace on the matrimony and the contract in the state of innocence, and have made a sacrament of such contract, yet it would not have been a sacrament as it now is, because now it has efficacy from the passion of Christ, which then it would not have had.

21. Also, these reasons [nn.14-16], if they were valid, would prove that there could not be a contract with heretics, and yet it is not denied that a Catholic can contract with a heretic.

2. Doubts and their Solution

22. But there are two doubts that cause difficulty.

One, how can an unbeliever give his body to another, since he does not do this relying on the approval of the Divine Law because he does not know it, and no one can simply give, or at least not licitly give, save in virtue of the approval of the superior lord?

23. A second doubt is: since matrimony essentially includes indissolubility, how does an unbeliever contract matrimony since, however, it is dissoluble afterwards? For if one of the spouses be converted to the faith without the other, he can depart. And this reason the Master touches on in the text [Lombard, Sent. IV d.39 ch.5 nn.3-4, ch.6 n.2], saying that a matrimony of this sort is not ratified though it is legitimate.

24. But to the first of these [n.22] it can be said that God, after the fall, licensed everyone generally for such exchange, not only because of the first end, namely because of the duty, but also because of the second, namely as a remedy [cf. d.32 n.8, d.26 n.77]. And then those who use this exchange, although they do not attend to what the exchange has licensed (because they do not know the Law of God), do not sin; just as in the case of other licenses, though one may not know that one has been licensed, yet provided one not know that what one is doing is illicit, one does not sin. It is probable too that, from the beginning, by virtue of the divine license or precept, the use of contracting became fixed even among unbelievers, who received it in accord with a certain custom derived from their fathers. And though the first unbelievers did not want to follow the fathers in the faith which is in God, yet they did imitate them in this [sc. matrimonial contracts]; and no wonder, because this is of the law of nature secondarily, as was said above [d.26 nn.13, 31]; and so it was very consonant with the minds of individuals. Let it also be that they would not have transferred [the contract] licitly in any way, yet they would have transferred it, by the fact that the superior Lord conceded the transferring of it to everyone, not only to believers but also unbelievers. Thus, therefore, on the part of the superior Lord, the transfer was perhaps licit, and at least some transfer was - and on the side of the contracting parties it was firm and just, though not complete, yet not unjust, if they observed the conditions that natural reason dictated were to be observed.

25. To the second doubt [n.23]: the matrimonies were ratified, unless anywhere a stronger bond were to supervene, with which bond this matrimony could not stand. Of this sort is a new obligation to God through reception of the faith, when the other spouse not want to remain without impediment to the faith of the former, to which faith one is more bound than to the conjugal bond. The matrimony, then, while the same conditions in the extremes remained, was ratified; but it was not ratified for the time when a stronger bond supervened, to which the observance of this [matrimonial] bond would be repugnant.

B. How a Believer Could Contract a Marriage with an Unbeliever

26. About the second article [n.13].

It is one thing for a matrimony to exist between certain persons, or for a contract to be made simply and absolutely, and another thing for it to exist licitly and honestly.

27. In the first way it is necessary to say that between a believer and an unbeliever there can be a matrimony, and also in the second way.

28. Both are proved from the saying of the Apostle [I Corinthians 7.12] that a believing man may not dismiss an unbelieving wife who agrees to live with him. For if there were not a matrimony, the Apostle would be persuading to fornication; likewise, if this were not done licitly and honestly, the Apostles would not counsel it.

29. In this way, then, is it plain how there can be a matrimony between a believer and an unbeliever. And the five reasons brought forward for the first article [nn.14-16, 2223] can be brought forward against it; but their solution is plain above [nn.17-19, 24-25].

30. Can it really be contracted then [sc. a matrimony between believer and unbeliever]?

31. I reply that it can, as far as is of divine right, because from that right is no more found that the contract be null than that an obligation from a prior contract be null, because (without supposing a new impediment) he who can belong to another can give himself to another.

31. But by the positive law of the Church simply it cannot, because the Church delegitimizes a believer, not simply, but in respect of an unbeliever, as is plain in the authority brought forward for the opposite in Gratian, Decretum, p.2 cause 28 [n.10]. And the Church has ordained this rationally, because this cannot be done honorably or fittingly.

And for this are some of the reasons brought valid that were forward for the first article. For it is not honorable that a believer contract with someone where the complete good of the offspring, which is education to the true cult of God, is lacking [n.18]; nor is it honorable that a believer contract with a matrimonial contract to which the sacrament of the Christian faith is not annexed [n.17]; nor is it honorable that a believer contract matrimony where there not be the good of the sacrament, that is, indissolubility, because the marriage of Christians is of a nature to have this good [n.19].

32. Nor yet does the Church delegitimize such an unbelieving person because he is not in the bosom of the Church, but the fault is the cause of delegitimization, not the person in whom is the fault. But in the first person, who is in the bosom of the Church, there is a delegitimization from contracting with an unbeliever. Hence every believer is delegitimate with respect to any unbeliever.

33. But if you ask why then does the Apostle [n.7] urge that a matrimony contracted between unbelievers is to be observed after the conversion of one of them (for if it be honorably kept because of some good end previously contracted, then it could honestly be contracted for the same end)? - I reply: the cause of the Apostle is plain there; “the unbelieving man,” he says, “will be saved by the believing woman.” Therefore, to keep a matrimony previously contracted is an occasion for bringing an unbelieving spouse to a believing one. Hence evidently, when that cause ceases, they ought not even to remain together, as that if he does not consent to live with her who has been converted, or not without injury to the Creator, namely by blaspheming or inciting the converted one to unbelief; for so singular a familiarity with someone of a contrary sect is to be avoided, save for a greater good.

34. To the issue at hand: to contract anew with an unbeliever is not a probable occasion for expecting so great a good, namely the unbeliever’s conversion, because someone who loves marriage much would do many and great things to reach it which, once the object desired is attained, he would not be going to do; and therefore, if this person does not want at the beginning to be converted so as to be able to have a marriage with a Christian woman, it is not probable that she would afterwards gain him, but rather the reverse, that he would seem to draw her away. And therefore does the reason for so much familiarity with an unbeliever cease, and the reason for fleeing that familiarity remain. And therefore did the same Apostle, who advised the converted man to remain with a non-converted woman, dissuade a believer from contracting with an unbeliever (as was argued for the opposite [n.9]).

II. To the Initial Arguments

35. To the arguments

I reply to the first two authorities [nn.3-4]: this positive law delegitimizing believer with respect to unbeliever did not then exist.

36. If you argue that nevertheless the natural reason then existed that is now the reason for delegitimizing - I reply: in the cases that the argument is about [n.34], it was perhaps probable that the believer would win over the unbeliever, or there was a necessity to flee something more unacceptable, with sure confidence in divine aid that the believer would not be subverted by the unbeliever; and so would it be licit today had not delegitimization by the Church been added on. Hence it is not necessary for an ordinance of the Church to be founded on necessary natural reason, but enough that it is founded on probable natural reason.

37. To the next [n.5]: union with foreign women was not prohibited in the time of the Mosaic Law save with the Canaanites, because God wanted that people to be totally exterminated, and therefore Esther did not illicitly marry Ahasuerus.

38. To the point about Solomon [n.6], I concede that he, as very bad and very ungrateful to God, not only sinned in that he accepted foreign women against the Law, even from peoples specifically prohibited in the Law, but also in the multitude of women he accepted; since indeed he had according to one text [III Kings (I Kings) 11.3] seventy wives as queens [other texts have seven hundred], and three hundred concubines, although however the Law specifically said about the king in Deuteronomy 17.17, “He will not have many wives who may seduce his mind;” which Moses perhaps specifically said because of the king’s [?or Solomon’s] foreseen malice so that, if he not be held in check, he would at least be confounded, so that others not imitate him. And what is worse, Solomon was joined with them in most ardent love, to such an extent that he made idols or temples for them for worshipping their own gods. Hence not without cause did Moses add there, “who may seduce his mind.” And all these things are made worse by Solomon’s singular ingratitude for the eminent wisdom at once conceded to him by God, so that this authority [n.6] requires no response save detestation. For I believe that if all his wives had been Jews he would have sinned mortally.

39. To the final one [n.7] the answer is plain from the second article of the solution [nn.26-34], how it is licit to keep a matrimony contracted with an unbeliever, not however to contract one, because there is not the same reason on both sides.