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Thirty Third Distinction
Overview of Questions
1. “A question is raised about the ancients” [Lombard, Sent. IV d.33 ch.1 n.1].
2. About this thirty third distinction I ask first about bigamy, second about repudiation of a wife.
3. About the first I ask two questions: first whether, as concerns the Mosaic Law or the law of nature, bigamy was at some time licit, or whether it was licit for the ancient fathers to have at the same time several wives joined to them in matrimony; second whether, as to the Gospel Law, a bigamist before baptism could be promoted to Holy Orders after baptism, or is irregular.
Question One. Whether Bigamy was at Some Time Licit
4. To the first question [n.2] argument is made that it was not:
Because bigamy is against the law of nature and against the first institution of matrimony. The proof is:
First from the statement in Genesis 2.24, “They were90 two in one flesh,” where it expresses the law of nature about matrimony; therefore, it is not licit and was not licit to have several wives.
Second from a certain interlinear gloss on Genesis 4.19 [Nicolas of Lyra] about Lamech, who “took two wives,” where it is written that he “first introduced bigamy and against the law of nature.”
5. Again, ‘biviry’91, if I may so speak, was never licit, namely that a woman would have two husbands; so not conversely either. The proof of the consequence is that, for conjugal acts, they are judged equal, I Corinthians 7.3-5.
6. To the opposite:
Genesis 16.1-5, 25.1-2, Abraham had Sara and Hagar and Ketura, and about Jacob Genesis 29.18-30.24, who had two wives, and about David II Kings (=II Samuel) 5.13 who had many wives and concubines; but it is not probable that these holy fathers did anything illicit in such union; 
therefore etc 
.
7. Again, in favor of this is Augustine, On the Conjugal Good, ch.25 n.33, “For the just among the ancient it was not a sin that they had use of several women, nor did they do this against nature, since they did it for the sake of begetting; nor was it against the law or against morals, because at that time it was prohibited by no law.”
I. To the Question
8. Here one must see first what is required for strict commutative justice in the contract of matrimony (and this on the part of the contracting parties), and what is added, beyond this, for complete justice in such a contract (and this on the part of the superior). Second, one must see what, in the event, suffices for justice as to the matter that is being asked about, and how it may become sufficient and completely just.
A. What is Required on the Side of the Contracting Parties for Strict Commutative Justice in the Matrimonial Contract
9. About the first I say that in every exchange justice requires, as concerns the exchangers and the things exchanged, equality of value in the things exchanged, as far as possible, for the end for which the exchange is done.
10. Now this exchange in the contract of matrimony is done for two reasons: one the procreation of offspring, the other as a remedy for avoiding fornication.
11. As to the first, the body of a man is of greater value than that of a woman, because the same man can at the same time fertilize more women than the same woman could conceive from men. As concerns this end, therefore, bigamy seems, by strict justice, to be licit, so that a man may exchange his body with the bodies of as many women as he can fertilize, in the way it is possible for a man to fertilize them. Hence it is not against nature in other animals that one male have several females. And yet in the state of innocence, when matrimony was and would have been precisely for this office, bigamy did not exist and would not have existed. For there would have been no necessity for a man to have exchanged his body with several women for procreating several offspring, because there would have been sufficient procreation through the simple exchange of one man with one woman, since neither the man nor the woman would then have been sterile.
12. As concerns the second end [n.10], which is only for the state of fallen nature, namely for avoiding fornication, the body of the man and the woman are of equal value.
13. And so, by strict justice in the state of fallen nature, when considering this contract as it is for both ends, the exchange of one body with one body is required.
14. I add that the completion of justice in this exchange comes only from the authority of the superior who institutes or approves such or such exchange; because although there are things that belong to the inferiors as to owners, yet such or such exchange of them is determined to be just by the legislator, and much more so in the issue at hand, about the mutual exchange of bodies, in relation to the legislator who is God. But he has by rule established, both for the state of innocence and the state of fallen nature, that this exchange of bodies must be done by one with one. In this, therefore, is justice complete.
B. What, in the Event, Suffices for this Justice and How it May Become Sufficient and Completely Just
15. About the second article [n.8] I say that ‘dispensation’ is a declaration of right or a revocation of right; for God was able either to declare his law about this exchange or in some case to revoke it - and reasonably in this case when a greater good came from its revocation than from its observation.
16. But now, when there was necessity for multiplying the human race either simply or for the divine cult, because, to be sure, there were few worshippers of God, it was necessary that the worshippers of God procreate as much as they could, because in the succession of them alone did faith and the divine cult abide. So for that time did God reasonably make dispensation so that one man might exchange his body with several bodies of women, for the greater multiplication of worshippers of God, which multiplication without this would not happen. And thus did he in fact make dispensation, as is presumed about Abraham and certain others of the fathers.
17. But as to how justice will be preserved here, considering the contract on the side of the contracting parties, is made clear as follows: because when something is ordered to two ends, a principal one and a less principal one, it is reasonable to use it in the way in which it has more value for the more principal end, although something thereby be taken away from the less principal end. An example: food is of value for pleasure, which is less principal, and for nutrition, which is more principal; food, according to right reason, is to be used in the way in which it is of value for nutrition, although in this it be of less value for pleasure.
18. But this matrimonial contract is for rendering the carnal debt (so that fornication may be avoided) as for the less principal end, and for the good of offspring as for the more principal end. Therefore, according to right reason, the contracting parties should so exchange that the exchange is of more value for procreation, though it be of less value for rendering the debt. But in this way is exchange made of the body of one man for several bodies of women - and just as this is absolutely to be done, so in case of necessity should it necessarily be done, namely when the principal end is most necessary; and then the less principal end is to be neglected as it were.
19. And from this is plain how there is justice on the side of the parties, because each party should, according to right reason, want to dismiss something of its right in exchanging and receiving relative to the less principal end so as to receive the equivalent relative to the more principal end, which each should more desire, although from someone would something need to be exchanged that it would be a detriment for them to remit. And at times is it in some case necessary, when to be sure one is bound to such remission; and it is licit and necessary to carry it out, when this is ordained by a superior; the fact is plain because Sara in Genesis 16.1-4 as it were compelled Abraham to go in to Hagar her handmaid, so that at least thus would he have from the handmaid the son he could not have from her.
20. If you object that this would in modern times be bigamy and illicit, I reply that although it be illicit by reason of the fact it is not now dispensed by the legislator (indeed that part of the law of nature, “they were two in one flesh” was brought back by Christ, Matthew 19.5-6 [d.31 n.29]), however, speaking of justice on the side of the contracting parties and of the contract, it is not licit now, because the principal end is not necessary now, for the reason that many of the faithful devote themselves to generation, whose children are ordained to the cult of God and are religiously educated; and so without such contract is the faith multiplied. Therefore, when the necessity to take something away from the second end by necessity of the first end ceases, the contract must be kept, so that justice there in relation to both ends may be kept; but this is above all that one man have one wife.
21. But if in some event, by war or disaster or disease, a multitude of men were to fall and a multitude of women were to remain, bigamy could now be licit, considering precisely the justice on the part of the exchangers and the exchangings; and also ought women, on their own part, to want to make exchange thus with men, more with fewer, as to the second end, but equal with equal as to the first end, and then ought a woman to want this according to right reason, so that the good of offspring may come about by the commingling of her man with another woman; nor would there be a lack there save only of the completion of justice, which is by divine approval, and approval would perhaps then be given and be specially revealed to the Church.
II. To the Initial Arguments for the First Side
22. To the arguments.
To the first [n.4] I say, as was said above in d.17 [n.19], that something is said to belong to the law of nature in two ways:
In the first way, certainly, that what is a practical truth simply is known simply by the light of nature; and there the highest rank is held by a practical principle known from the terms; the second rank is held by a conclusion demonstratively proven by such principles.
But belonging secondarily to the law of nature is what is regularly consonant with the law of nature stated in the first way.
23. No dispensation happens against the first, and therefore the opposite of it seems to be always a mortal sin.
Dispensation from the second happens in a case where the opposite would seem to be commonly consonant with the law of nature, and precisely in this second way is monogamy of the law of nature and bigamy against it. And in this way do I concede the assertions in Genesis 2 and the gloss on Genesis 4 [n.4].
24. Nor yet does it follow from this that in some case the opposite could not be licit; indeed, it is necessary even as to the exchanging of justice on the side of the parties exchanging and of the things exchanged - when by reason of necessity right reason dictates the exchange must in some way be done, and when there is a divine precept there.
25. I say that the authority “they will be two in one flesh” [n.4] must be taken to mean that they will be ‘one flesh’ by reason of the offspring that is generated from both parents; and so it is not repugnant to the first institution of matrimony to have several wives. Or it can be said etc. [as in n.24].
26. About Lamech however [n.4], it can absolutely be conceded that he sinned mortally, because against a law of nature even if taken in the second way; he sinned, I say, by making a contract with several women not in a case where right reason would dictate that the law was to be revoked, nor where the superior gave dispensation; rather the contract was opposed to both.
27. To the second argument [n.5] I say that, on the part of the contract, justice between the exchanging parties was never to exchange in a way that the more principal end happen less and the less principal end happen more, because the more principal end is more to be willed; but biviry would be more for the less principal end and much less for the more principal end; because the same woman cannot within the same time be impregnated by several men.
III. To the Argument for the Opposite
28. As to the argument for the opposite [n.6], although about some holy fathers it may be assumed that in contracting bigamy they did not sin, because both reasons for contracting bigamy there came together (namely both the necessity because of which contracting matrimony in this way was justly done, and also divine authority giving approval and prescription), yet if some did contract without these reasons or one of them, that they sinned mortally is not unacceptable to me, because I do not reckon that they were confirmed.
Question Two. Whether a Bigamist before Baptism Could after Baptism be Promoted to Holy Orders
29. Proceeding thus to the second [n.3] - argument is made that a bigamist before baptism could after baptism be promoted to Holy Orders.
First, according to Jerome (and it is in Gratian, Decretum, p.1 d.26 ch.1, and is taken from the epistle to Oceanus [Epistle 69 n.3]), “If someone before baptism had a wife who has died, it is not held against him, against whom, as he is straightforwardly new, neither defilement nor anything that was before now stands in the way.”
30. Again, Gratian, Decretum, with Glosses, p.1 d.50 ch.8, and it is contained in the gloss, “if before baptism he killed someone, he can after baptism be promoted;” therefore by similarity about bigamy before baptism.
31. To the opposite:
Gratian, Decretum, p.1 d.26 ch.2, and Augustine is quoted on Titus 1.6 [On Conjugal Good ch.18 n.21], “They have a more acute understanding who judged that neither was he to be ordained who had one wife as a catechumen or pagan, and a second after baptism.”
32. Again, Gratian, Decretum, p.1 d.26 ch.4, and Ambrose is quoted [On Offices I ch.50 n.247], “Repeated marriages before baptism generate impediments to the prerogative of ordination.”
I. To the Question
33. Here two things need to be looked at: first, what is to be maintained; second, for what reason.
A. What is to be Maintained
34. On the first point all agree that a bigamist, whether before baptism or after, is irregular, as is expressly contained in the chapters cited for the opposite [nn.31-32]. And yet a murderer before baptism is not irregular after baptism, as is expressly contained in Gratian, Decretum with Glosses, p.1 d.50 ch.8, where at the words “after baptism” the gloss argues from the opposite sense; therefore, if before baptism someone is conscious in himself of homicide, it is not an obstacle.
35. But as to what is said by some [cf. n.29], that no one contracts irregularity before baptism, because one is then first able to have a privation when one is of a nature to have the possession (as a puppy before the ninth day is not able to be blind); but before baptism one is not capable of Orders. The proof is Gregory IX, Decretals III tit.43 ch.3, ‘About a non-baptized Priest’, that, if he was not baptized, he should be baptized and afterwards ordained. From this it is plain that he received nothing before when he seemed to be ordained a priest, for if he had received Orders he would not have to be re-ordained afterwards, as is contained in Gregory IX, Decretals V tit.29 ch.1, ‘About a Priest Promoted by Leaps’, where he, who without prior Orders receives a later Order, receives the Order afterwards that was passed over, and yet what was received before is not repeated.
36. This reasoning [n.36] is not valid, because although a privation cannot be in something save when the thing is of a nature to have the possession of it, yet an impediment to having the possession at the time when the possession should be present, can precede the time for having the possession, as is plain in the example adduced; because a puppy can have, before the ninth day, some impediment so that it not ever have sight even when sight would belong to it.
37. This indeed is plain about the fetus in the body, which can be prevented from living before it is apt to have life; and yet there will not there be a privation of life, because a privation is only present when the possession is of a nature to be present. And much more can there be impediments in the case of a legislator than in nature, because a legislator’s impediments are voluntary.
38. Now irregularity is not properly a privation of what should be possessed, but is rather a lack of ordering toward it, so that it be understood negatively (but understood privatively this is: irregularity is an impediment preventing one from being capable of Orders at the time at which one would be capable of them). Therefore, irregularity can exist before baptism. Also, let it be that the privation would be unable to be present; still the cause of privation can be present, when possession is not of a nature to be present.
39. And so it is here about irregularity, which is cause for depriving or lacking Orders at the time fitting.
B. For What Cause it Must be Maintained
1. About the Cause of Congruity
40. On the second point [n.33], it is one thing to speak of a cause of congruity and another of a cause of necessity:
One cause of congruity - why, to be sure, course it is fitting for a bigamist to be kept away from Holy Orders - is commonly set down by everyone, namely defect of sacrament. This is touched on by Augustine [n.31] and Ambrose [n.32]. And it is understood as follows: a priest, as vicar of Christ in the Church, or a person representing the person of Christ, ought not to have something that is repugnant to Christ in relation to the Church; but now Christ is the unique spouse of one Church, and the Church is the unique spouse of one spouse Christ; therefore he who has the opposite of this does not rightly signify or represent Christ in the Church. But a bigamist, who had two spouses, or one spouse who was spouse of two men, has something repugnant to the union of Christ and the Church.
2. About the Cause of Necessity
a. Opinion of Others
α. First and Second Opinion and the Weighing of Them
41. But when asking about the cause of necessity, why this man is necessarily excluded from Orders, there is a threefold opinion:
One that by baptism sin is destroyed and its consequences, and this properly [Gratian, Decretum with Glosses, p.1 d.26 ch.3]; but bigamy is not a sin nor a consequence of sin properly.
42. And hereby is response made to the case of homicide committed before baptism [n.30], that the case is not similar; for homicide is a consequence of sin or a sin, especially if he commit sin in killing. But what if he kill justly, as a judge does? This homicide, therefore, is not destroyed as concerns the irregularity. One glossator concedes this [Gratian, Decretum with Glosses, p.1 d.50 ch.8], but irrationally, because then the condition of the sinner would be better in a like act than the condition of the non-sinner.
43. Therefore others say [Gratian, Decretum with Glosses, p.1 d.26 ch.3; supra n.30] that this homicide is a sin in this way, that it would be a sin unless it were excused by other circumstances, and so it does not of itself depart from the genus of an act of sin.
44. But why then does baptism not take away the penalties of this mortality [sc. judicial killing], penalties that follow original sin?
I reply because they are not consequences of sin properly.
45. The whole argument stands, therefore, on this, that baptism destroys every sin and what would be a sin by the nature of the act (unless circumstances were to prevent it), and the consequences of it; but it does not taken away that which is in neither way a sin proper,a or a consequence. And of such sort is bigamy.
a.a [Note by Scotus] By ‘sin proper’ I mean what is either a sin in its kind or is a proper act [sc. of sin] formally.
46. On the contrary: let it be that the bigamist sin in bigamy, as by contracting illicitly (for example with his sister), it follows that this contract, since it is a sin or a consequence of sin or annexed to a sin, will be destroyed.
47. Again, in that chapter [n.31], Augustine says that “if a woman catechumen is corrupted, she cannot after baptism be consecrated among the virgins of God;” and yet it is possible that the corruption was a sin before baptism; therefore the sin is destroyed as to the proper penalties corresponding to it.
48. Again, if irregularity were necessarily in bigamy for this reason (that it is not a sin nor a consequence of sin), the Church could not take this irregularity away, because it cannot bestow on bigamy what is of itself a sin or a consequence of sin.
β. Third Opinion
49. There is a third opinion, that just as some ill repute is consequent to an act from the nature of the act, and another precisely consequent to an act by statute of the Church, and just as the Church cannot take the first away, nor can a sacrament of the Church (as baptism), but can take away the second, so also in the case of irregularity.
Bigamy, not by statue of the Church but by defect of signification, introduces irregularity, because a bigamist does not represent the Christ as he is spouse of the Church in the way a priest should represent Christ or, at any rate, should not have anything repugnant to that representation. But homicide does not introduce irregularity save by statute of the Church; therefore, it is taken away by the first sacrament of the Church, and the other is not.
50. And that the ill repute follows bigamy by the genus of the act they prove [Glossator on Gregory IX, Decretals with Glosses I tit.21 ch.3] by the fact that someone ordained in the Church is constituted in a preeminence and in a rank preeminent over others, and this sacrament of matrimony, as they say and say well [n.49], signifies Christ the spouse of the Church, and Christ is one spouse of one spouse only. Therefore he who has what is contrary to this signification is unsuited in the Church for having any preeminent rank, because he ought to signify the union of Christ and the Church, which union is one of one only.
51. Hence that is the reason why the canonists [Raymond of Penafort, Henry of Segusia] make the denial, that a bigamist cannot be ordained nor moved into Holy Orders because, on account of defect of sacrament, he is, by nature of the act of bigamy, unsuited.
52. But this does not seem to be sufficient, because if by the nature of the act the bigamist suffers ill repute, and therefore the Church cannot make dispensation for him as to the irregularity, then, by similarity, since no Church can ordain a murderer when he is notorious without him being of ill report, the Church would not be able to make dispensation as to the irregularity perpetrated by or consequent to homicide - just as neither can it, for that reason, make dispensation as to bigamy.
53. On the contrary: if the irregularity were from something prior to a statute of the Church, the Church could not then make dispensation - the opposite of which is stated in Gratian, Decretum, p.1 d.34 ch.18, where Martin concedes that a Lector, who had married a widow, can be ordained a sub-deacon but no higher. And the gloss says there [Gratian, Decretum with Glosses, p.1 d.34 ch.18 ch.1] that “the Pope makes dispensation against the Apostle (namely Paul in I Timothy 3.2, ‘a husband of one wife etc.’),” and Innocent is said to hold the opposite, that “it is not licit to make dispensation for a bigamist” [Gregory IX, Decretals I tit.21 ch.4], and Martin says the same [Decretum, p.1 d.50 ch.8]; yet Pope Lucius made dispensation for Archbishop Panormitanus, who was a bigamist [Gratian, Decretum with Glosses, p.1 d.24 ch.18; reported by several doctors, Albert, Thomas Aquinas, Roger Marston].
54. But a certain gloss [Gratian, Decretum with Glosses, p.1 d.34 ch.17] agrees in this way, namely that in the primitive Church the Order of sub-deacon was not a sacred Order; and therefore did Martin concede that a bigamist can be made a sub-deacon but did not make dispensation higher up.
55. This gloss of someone called Nicholas Furiosus is opposed in some books [Gratian, Decretum with Glosses, p.1 d.50 ch.16].
56. At any rate the Church finally holds this, that dispensation should not be made for a bigamist for either the diaconate or the priesthood.
57. Nor is the deed of Lucius concerning Archbishop Panormitanus disapproved of on this account, as if he did what he could not do, but that he did what was not fitting save for great cause.
b. Scotus’ own Response
58. I say therefore that the cause is only the institution of the Church. Nor is there here any other foundation than Paul; and the Church has it here only from Paul, who was one prelate only in the Church. Hence I say that the cause for irregularity in homicide and bigamy comes from a merely positive statute of the Church, and I take ‘Church’ here for the statutes of the Apostles and letters. For no man is so unsuited by any act of his own that he not be able to be restored to a worthy rank through penance, because any man is capable of this rank and of preeminence in the Church, and capable of the character, even a child, as was said above [Ord. IV d.6 n.200, d.7 n.68].
59. But why is the penalty for perpetrating a homicide regularly remitted in baptism, but the penalty that by statute of the Church follows bigamy not remitted? The cause is only the statute of the Church wanting this penalty to be so remitted and that one not. But this ordination by the Church is reasonable by the fact that a murderer is unsuitable for Orders only because of the horror of shed blood, because of which horror David was forbidden to build a temple for the Lord, II Kings [II Samuel] 7.2-13. But this horror is taken away by baptism, because the supposition is that from a wolf is made a lamb, just as also Paul was a persecutor before baptism, afterwards was made sheep and pastor.
Therefore the cause of the unsuitability ceases in baptism; therefore ought the effect to cease.
60. And that this is the cause is plain, for homicide too (done deliberately or in self-defense, with the moderation of guiltless defense [Gregory IX, Decretals V tit.12 ch.18]) does not, after baptism, make anyone unworthy to receive Orders, because there is no presumption of cruelty.
61. But unsuitability for Orders in a bigamist does not cease in baptism, because always there remains the defect of sacrament, that is, of signification, that is required in a priest representing the person of Christ in the Church; therefore, the effect there is not taken away, save later by special dispensation.
II. To the Initial Arguments
62. To the first argument [n.29]: either Jerome is denied, as the canonists [e.g. Raymond of Penafort] do commonly deny him, holding to Augustine [n.31], or that ‘crimes do not stand in the way’ can be expounded as to the receiving of grace, but they do stand in the way as to holding a rank of dignity in the Church; and this distinction is taken from the chapter from Ambrose [n.32].a
a.a [Note by Scotus] I say that one must deny Jerome if he spoke contrary to Augustine, because although Jerome may be compared to an ox, because he is senior or older, and Augustine to a calf, because junior, yet Augustine more set his foot where the other did not stay; and therefore where he contradicts Augustine, by the Church is Augustine held to. Or Jerome can be glossed: ‘is not held against him etc .’ is true as to the crime, but it does not follow that it not be held against him as to the penalty of irregularity, however much he has been regenerated through baptism; or it will not be held against him if there is necessity in the Church.
63. To the second [n.30] I say that this irregularity and that are not alike, and the cause is stated in the main solution [nn.52-58-59].
Question Three. Whether in the Mosaic Law it was Licit to Repudiate a Wife
64. About repudiation I ask whether in the Mosaic Law it was licit for a man to repudiate his wife.
65. That it was: Deuteronomy 24.1, “When a man has taken a wife, and married her, and it come to pass that she find no favor in his eyes, because he has found some uncleanness in her, then let him write her a bill of divorcement, and give it in her hand, and send her out of his house.”
66. Again, Malachi 2.16, “When you hate her [your wife], put her away, says the Lord the God of Israel.”
67. Again, Gregory IX, Decretals V tit.41 ch.1, ‘On the rules of right’, “Everything is dissolved by the same causes by which it is born;” but matrimony is born through mutual consent; therefore can it be dissolved by mutual dissent.
68. Again, Gratian, Decretum, p.1 d.34 ch.1, ‘If anyone his wife’, “If a wife has committed adultery against a husband established in clerical office, he must, after giving her a repudiation, dismiss her.” Therefore, the repudiation of a wife is licit also in the Gospel Law.
69. The opposite: it seems to be against the law of nature which Adam promulgated, Genesis 2.24, “A man will cleave to his wife;” from which Christ concludes, Matthew 19.6, “What then God has joined, let not man put asunder.”a
a.a [Note by Scotus] It is against the law of nature that man separate what has been joined by God, as Christ supposes in the Gospel when he says, “What God has joined...”
70. Again, a contract of matrimony is essentially the giving of power over one’s body irrevocably to another in exchange for power over their body; therefore, no leasing or giving for a time can be matrimony. But if it were licit for a repudiation to be made, there is in the contract a giving only for a time; because if it had been for perpetuity, then the repudiated woman would have remained as wife, and in that case she would be dismissed illicitly. It follows, therefore, that if repudiation was licit in the Mosaic Law, that there was no matrimony there.
71. Again, it was never licit for a woman to repudiate a man; therefore not conversely either, since they are judged as equal in respect of things that belong to the marriage.
I. To the Question
A. First Opinion
72. Here is it said that in the Mosaic Law it was licit to repudiate a wife, and that he who marries a repudiated wife sinned mortally, because he went to someone impure, for she was only repudiated, as it seems, because she was impure. This sin, however, was not punished in the Law but was permitted because of homicide, lest men would kill their wives. And therefore, to avoid a greater evil, this lesser evil was permitted in the Law.a
a.a [Note by Scotus] I reply: when it is said that it is probable a woman is repudiated because she is unclean, this is true if she was repudiated by two men, but not if by one only. And so then he sinned mortally by marrying her.
73. The proof of this is:
First by the authority of Christ condemning repudiation, Matthew 19.9, “I say to you that whoever shall put away his wife, except it be for fornication, and shall marry another, commits adultery: and he that shall marry her that is put away, commits adultery.”
74. This is also proved by the reason that Christ brought forward for himself, which is that from the beginning God joined male and female in matrimony, as he proves from the word of Adam, and he adds, “What God has joined, let not man put asunder” [Matthew 19-4-6].
75. It is proved also, third, from his response to the question of the Pharisees [Matthew 19.7-8], “They say to him, ‘Why then did Moses command to give her a bill of divorce, and to put her away?’ He says to them: ‘Because Moses by reason of the hardness of your heart permitted you to put away your wives: but from the beginning it was not so’.” The interlinear gloss on “Moses.. .permitted” says “not God.” And the gloss says that “it was the council of man, not the command of God” [Nicolas of Lyra]. And the Master in this distinction [Lombard, Sent. IV d.33 ch.3] says that this was permitted by Moses “not to concede separation but to remove murder.”
76. And Augustine On the Lord’s Sermon on the Mount I ch.14 n.39, “He who commanded to give a bill of repudiation did not command the wife to be dismissed; but let him who has dismissed her, he says, give her a bill of repudiation, so that the thinking about the bill would temper his rash anger in dismissing his wife.” This can be understood from something that Ambrose prescribed to the Emperor Theodosius for a certain cruelty impetuously effected by Theodosius’ command: Ambrose wanted him to pass a law that no minister should carry out his cruel commands for thirty days, if perchance within that time his anger would quieten and temper his judgment. Hence too Plato said to a certain person [Archytas of Tarentum], as Jerome reports [On Joel 1.5; Epistle 79 to Salvina, n.9; also in Valerius Maximus, Memorable Deeds and Words IV ch.1 ex.1]: “I would punish if I was not angry.” And Augustine adds, ibid., “He who sought a delay in the dismissal did signify, as far as he could to harsh men, that he did not wish separation.”
77. Also Gregory IX, Decretals V tit.19 ch.8], ‘On Divorce’, “Repudiation of a wife is condemned by Truth in the Gospel.”
B. Second Opinion
1. Exposition of the Opinion
78. Another opinion says that the giving of a bill [of divorce] and repudiation of a wife was licit for the time of the Mosaic Law; because Moses announced the Law of God, and therefore those whom he as legislator joined together and announced it, God too joined together; and those whom he separated God too separated; and God can separate those who are matrimonially joined together.
79. Again, according to Augustine, Letter 40 to Jerome ch.3 n.3 (and it is in Gratian, Decretum, p.1 d.9 ch.7), “If useful lies were admitted into the Sacred Scriptures, what would remain of authority in them?” As if he were to say, “Nothing.” And the reason is that whatever authority be brought forward to repulse a heretic, the heretic will reply that it was spoken as a lie, a jocose or officious lie, just like that one too somewhere else [cf. Ord. IV d.3 n.178]. Therefore, by similarity, if a heretic not have anything in Scripture, he will not have authority by any prescriptive authority in Scripture.
80. Likewise about advice; if any advice given in Scripture were not healthy or useful to keep, there would be no authority of observance in Scripture; therefore, by similarity, if there were any concession in Scripture about anything illicit, as this one [about repudiation], it follows that no concession of Scripture will have authority to show that the thing conceded is licit. For as concession is related to what is licit, so precept is related to what must necessarily be done, or warning or advice to what is useful. For just as a precept is not about anything that is not necessarily to be done, so neither is a concession about anything save what can licitly be done.
81. Again, a just law should not directly give occasion to sin mortally; but this concession seemed to be an occasion directly for the Jews to dismiss their wives; for if it had not been written down, they would no more have dismissed them than the fathers before the Law of Moses did; therefore, either that dismissal was not mortal sin, or the Law was not just.
2. Weighing of the Opinion
82. The way in which this opinion can be held acceptable is this: complete justice does not exist in this exchange or contract of matrimony save by divine ratification, though there is found before it what suffices for justice on the side of the exchange and the exchanging parties; and whenever such justice can be found in the exchange, it is reasonable that it ought to be ratified. But just as the exchange of the body of one man in return for exchange with the bodies of several women is something just when such exchange is necessary for procreation of offspring - and so then God justly made dispensation for bigamy, indeed approved it, on account of a greater good resulting than would, on the other side, result by exchange of one woman with one man; and the exchanging parties should, according to right reason, want so to exchange - thus in the issue at hand can God, for avoiding a greater evil than is the good of indissolubility of marriage, make dispensation that a contract may be made for a time, until the woman displease the man.
83. And in this is justice in some way preserved, because the parties should want thus to exchange, not only for attaining a greater good but also for avoiding a greater evil; and uxoricide is a greater evil than is the good of indissolubility; because the former is the evil of penalty for a killed wife and the grave evil of guilt for the killer. It would also be an evil for the whole republic, because an occasion for continuous discord and fighting, on account of the anger of the wife’s parents against the killer; and in this there would be a continuing dissipation of the family, because, with the man being killed by his adversaries or by the law, the family and the education of the offspring would be destroyed.
84. So it could, therefore, be said that, just as God made dispensation for bigamy on account of a greater good, so could he make dispensation in the repudiation of wives for the [Hebrew] nation on account of avoiding a greater evil.
85. And according to this can it be said that, since the good wine of matrimony is indissolubility and perpetual obligation, no matrimony of the Jews was perfect, because the contracts were always under a condition on account of the bill of repudiation. But in the matrimony of the New Law this good does exist, namely indissoluble union; and, in addition to this, something else, namely the signification of the union of Christ and the Church, which is the union of one with one. Now in the matrimony of the law of nature, as with Abraham, the first perfection or the first good existed, namely indissolubility, but not the second, which is to have one wife only. But in the Mosaic Law, when there was repudiation and one man had several wives, neither perfection of matrimony existed, because neither was there union of one with one nor was the union simply indissoluble; but this was done by divine dispensation.
C. To the Arguments for the First Opinion
86. And then as to what was adduced for the first opinion [nn.73-77], it can be replied that Christ promulgated that for the time of his own Law, namely the Gospel Law, so that, just as he brought back matrimony in the way it was instituted in the law of nature (namely, so it be of one man with one woman, although, however, bigamy was licit in the Mosaic Law), so he brought back a matrimony simply perfect, that is, indissoluble, for his Law, the way it was instituted in the law of nature. And thus does he make invalid for his Law the contract that was licit for the Mosaic Law, which was the leasing of bodies for the procreation of offspring for a time - namely until the woman would be lacking favor in the eyes of the man. It is just as Christ also emptied out many other imperfections licit under Moses, by bringing back the things that were, for perfection, going to be permanent in his Law. And therefore it was, from when the Gospel was promulgated, damnable to have several wives or to dismiss one and marry another; but it was not damnable before. Thus would they say about this opinion.
87. And so from then on, according to this opinion, the Jews were bound not to have two wives but one only, and in no way to be separated from her.
88. As to Christ’s proof [n.75], it is plain he is speaking for the law of nature; and in this did he sufficiently refute the Pharisees, because they were not sufficiently observing matrimony as it was in the law of nature, and he showed that he himself was rationally establishing inseparability for his own Law, because this is consonant with first institution in the law of nature.
89. As to what is added about the response of Christ to the Pharisees, “for the hardness of your heart God permitted you to put away your wives” (which many [Lombard, William of Auxerre, Bonaventure, Thomas Aquinas, Peter of Tarentaise] consider was only permission, not concession [n.75]), I say that Christ “permitted” it, by which he means that Moses did not prescribe this, nor even advise or approve it but, as if it was licit by a certain necessity, did not prohibit it. Nor is this permission deceptive as to something illicit; for that would be to say nothing other than that Moses would permit them to go to damnation, not by showing them that this would be a way of damnation, but rather by insinuating the opposite; and this no legislator can justly do, even in human laws, which leave many evils unavenged, according to Augustine On Free Choice I ch.6 n.42. And if the legislator not punish every evil, and thus permit it because he does not punish it, yet in no way does he in his law concede it. Hence unjust would be the human law that would write down something that was against that law [of nature].
90. And as to what is added there, that “for the hardness of your heart etc.” [n.75], it does not prove that it was illicit; for frequently the hardness of subordinates is a reason that something be relaxed for them that otherwise would not be relaxed, and that would be useful for them not to be relaxed - provided however they were tractable. It is like a prelate, when seeing a college prone to something whose opposite would be more honorably something to observe, although he could usefully establish the opposite if the subordinates were easy to sway, yet he can very well not establish it; or if it is established, he can well relax it, and honorably, lest, with it standing in place, they multiply their sins more.
91. As to the glosses:
The first [n.75] seems it should be denied, because Moses, as legislator, was only the herald of God. But he who wants to give exposition of them can say: Moses permitted it, not God immediately prescribing it to Moses among the other precepts. Hence never in the first four books of the Law is it found that God prescribed this to Moses or to anyone. Therefore. this is more precisely of Moses (as also are all the things that are in Deuteronomy and are not elsewhere) than are the things that elsewhere God spoke to Moses. And this is the fitting reason, that the relaxations, as pertaining to human working out, God did not want to place in Scripture as if they were put forward by himself the way they were put forward by his servants. Hence too the alleviation of the labor of Moses, who sat all day judging the people, was not expressed by God immediately per se, but Jethro [Exodus 18.13-27], the kinsman of Moses, expressed it, as pertaining to human working out.
92. As to the other gloss [n.75], it is easy to see that it says nothing against this opinion. For it is true it was not the precept of God, namely ‘to dismiss her’, but that if he dismiss her he give her a bill of divorce; but it was ‘the counsel of man’, not as of a man, but as of a herald of the divine Law.
93. As to the remark of Augustine [n.76], I concede that, by the delay which [Moses] imposed in the writing of a bill, he did insinuate that the dismissal was absolutely displeasing to him; not only therefore was he who did not dismiss her doing better then than he who did dismiss her, but he who dismissed her was doing badly, though not so badly that he sinned mortally against matrimony, as he would have done if he had not had license from the Law.
94. To the point about divorce [n.77], the answer is plain in [the solution of] the first [argument; n.86]; for it is true that Christ condemned divorce for the time of his own Law.
II. To the Initial Arguments that are for the First Opinion
95. To the initial arguments [nn.69-71] for the first side [n.72].
To the first argument [n.69], the answer is plain from the solution [nn.86-88]. And when it is said that it is against the law of nature that “what God has joined etc.,” I say that it is not against the law of nature, because not against the principles of the law of nature, nor against the conclusions deduced immediately from the principles, that such a contract, according to this opinion, be made for a time; nor is it simply against the education of offspring. For God could have ordained otherwise as to the education of offspring, but not as acceptably as now. However, it then was against a certain good that is consonant with the law of nature, namely against indissolubility; and against such a good can God give dispensation, to avoid a greater evil.
96. To the second [n.70] I concede that matrimony simply is a perpetual obligation. But matrimony in a certain respect can be an obligation firm for a time, though not perpetual; and thus do I concede that in the Mosaic Law there was not any ‘matrimony simply’, unless perhaps some wanted, beyond the perfection of the Law, to obligate themselves perpetually, which was not necessary insofar as they had contracted a marriage under that Law.
97. Or it could be said that, if there was matrimony perfect or simply, and so an indissoluble obligation, it is a true matrimony, unless the Legislator were to revoke or dispense from it - and he did dispense from it when the woman was too displeasing to her man, inasmuch as uxoricide was feared - as was said above about a non-consummated ratified matrimony, that it is dissolved through entry into Religion [supra d.31 n.22]. And yet it was a matrimony simply, and not just a leasing for a time. But the Legislator in such a case makes dispensation for pursuit of a greater good; but here [sc. in the Mosaic Law] for avoiding a greater evil.
98. To the third [n.71] the case is not alike, because the reason for dispensing is not alike; for it is not as great an evil if a woman hate a man as the converse is, because sex itself holds back a woman from exterior revenge more than it holds back a man, just as was it also conceded to one man, for the good of offspring, to have several wives. But this was not conceded to the woman, because it would be against the good of offspring if one woman had several men. And so, in neither of these cases, is it alike for a man and a woman.
III. To the Initial Arguments that are for the Second Opinion
99. He who wants to hold the first opinion can easily reply to the arguments to the contrary:
To the authorities of Deuteronomy and Malachi [nn.65-66], that they are permissions of a lesser evil, but yet of mortal sin, lest a graver mortal sin come about.
100. As to the second [n.67], that rule is true precisely of dissoluble obligations, of which sort this obligation is not. It could also be said to the minor that this obligation is born from the wills of the contracting parties as from the instrumental cause but principally from divine approval; and the rule ought not to be understood of instrumental causes. Hence does God prove inseparability from the principal cause, Matthew 19.6, “What therefore God has joined etc .”92