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Documents, Part VIII Sec. viIi CONTENTS vIiI–1 PART VIII. GLOSSATORS: MARRIAGE CONTENTS A. GRATIAN OF BOLOGNA, CONCORDANCE OF DISCORDANT CANONS, C.27 q.2 .............VIII–2 B. PETER LOMBARD, FOUR BOOKS OF SENTENCES, 4.26–7 ...................................................VIII–12 C. DECRETALS OF ALEXANDER III (1159–1181) AND INNOCENT III (1198–1216) 1B. Veniens ... (before 1170), ItPont 3:404 .....................................................................................VIII–16 2. Sicut romana (1173 or 1174), 1 Comp. 4.4.5(7) ..........................................................................VIII–16 3. Ex litteris (1175 X 1181), X 4.16.2..............................................................................................VIII–16 4. Licet praeter solitum (1169 X 1179, probably 1176 or1177), X 4.4.3.........................................VIII–17 5. Significasti (1159 X 1181), 1 Comp. 4.4.6(8)..............................................................................VIII–18 6 . Sollicitudini (1166 X 1181), 1 Comp. 4.5.4(6) ............................................................................VIII–19 7 . Veniens ad nos (1176 X 1181), X 4.1.15 .....................................................................................VIII–19 8m. Tuas dutu (1200) .......................................................................................................................VIII–19 9 . Quod nobis (1170 or 1171), X 4.3.1 ............................................................................................VIII–19 10 . Tuae nobis (1206), X 4.2.12.......................................................................................................VIII–19 11 . Cum inhibito (1215), X 4.3.3 .....................................................................................................VIII–20 D. EXTRACTS FROM CIVILIAN GLOSSATORS ON MARRIAGE 1. JI.1.10pr, 10.11 with the Accursian gloss ....................................................................................VIII–21 2. Extracts from the Ordinary Gloss on D.23.2.5–.7........................................................................VIII–22 Notes on Further Civilian Material on Marriage....................................................................VIII–24 E. A NOTE ON SOURCES: NICHOLAS I TO THE BULGARIANS................................................VIII–25 Sec. viIi CONTENTS vIiI–2 A. GRATIAN OF BOLOGNA, CONCORDANCE OF DISCORDANT CANONS CAUSA 27, quaestio 2 (c. 1140) in E. Friedberg (ed), Corpus Juris Canonici (Leipzig, 1879; repr. Graz, 1959) 1:1046, 1062–78 [CD trans.] [Note: Some what follows is clearly legal, some of it only vaguely legal. As you go through these materials you should attempt to place these in their context. Who is the author? For what audience was he writing? What is the value of the material as law? After you have answered the background questions, you should attempt to get “the big picture.” What are Gratian and Peter Lombard saying about the formation of marriage? How do their views differ? Why do they differ? Pay particular attention to the way in which each author uses his authorities. You should make some effort to find out who the authors of the authorities were. How does each go about reconciling inconsistencies? How to the argument of the following rules upon which both agree: (a) espoused parties may choose the monastic life without the consent of their spouses but married parties may not? (b) a bigamist or one who marries a widow cannot become a priest? What role does the problem of marriage of Mary and Joseph play in the controversy? Who had the best of the argument (a) logically? (b) on the basis of authority? (c) on the basis of policy? Did Alexander III buy the Lombard’s view entirely? If not, why not? If so, why so?] CASE 271 A certain man who has taken the vow of chastity espoused [desponsavit] a wife; she, renouncing the previous match, betook herself to another and married him; he seeks after her to whom he was previously espoused. The first question is whether there can be marriage between those who have taken a vow of chastity? Second, is it permitted for one who is espoused to leave the one to whom she is espoused and marry another? [On the first question, Gratian produces a large number of contradictory canons. If there is to be any hope of reconciling them, some sort of distinction must be found. The distinction that Gratian uses for his ultimate resolution is that between simple and solemn vows. The former do not invalidate the marriage; the latter do. (This resolution became that of the classical canon law.)] ... Part 1. Gratian: The second question follows in which we seek to discover whether a girl espoused to another man can renounce the previous match and transfer her vows to another. First, we shall see whether they are married, second whether they can depart from each other. That they are married is easily shown by the definition of marriage and by the authority of many. For matrimony or nuptials are joining of man and woman holding firm to an undivided mode of life. Among them [the couple in the hypothetical case], moreover, was a joining which required an undivided mode of life, for there was between them consent which is the efficient cause of matrimony according to the statement of Isidore [of Seville; cf. Etymologies 9.7, a very free quotation; but the statement is a commonplace, ultimately deriving from D.50.17.30.], “consent makes matrimony.” Again John Chrysostom on Matthew [an anonymous author of a collection of homilies on Matthew, Homily 32]: [Canon 1.] Coitus does not make a marriage, but will does. And therefore the separation of body does not dissolve it but [separation] of will. Therefore, he who dismisses his wife and does not take another is still a husband. For even if he is separated in body, nonetheless he is still joined in will. When therefore he 1 Translated below are all that was in C.27 q.2 in what has recently been determined to be the “first recension” of the work. See A. Winroth, The Making of Gratian’s Decretum (Cambridge [UK], 2000), p. 222. Those items, or portions of items, that are from the “second recension” (or beyond) are, if they given, enclosed in curly brackets {}. Sec. viIi GRATIAN OF BOLOGNA, CONCORDANCE OF DISCORDANT CANONS C.27 Q.2 vIiI–3 has taken another woman, than he has fully dismissed [the first]. Therefore he who dismisses [his wife] does not commit adultery, but he who marries another. [Canon 2.] Again, Pope Nicholas [I, Response to the Bulgarians (866), c.3]: According to the laws, consent alone between the parties suffices when the question is whether parties are married. If that alone is lacking, anything else, even if accompanied by coitus, is frustrated. [Gratian:] Since therefore consent, which alone makes marriage, intervened between this couple, it appears that they were married. But it is asked, what sort of consent makes marriage? The consent of cohabitation? The consent of sexual intercourse? Both? If the consent of cohabitation made a marriage, then a brother could contract marriage with his sister. If the consent of sexual intercourse [made a marriage, then] there was no marriage between Mary and Joseph. For Mary had sworn that she would keep herself a virgin. For this reason she said to the angel, “How can this be since I know not man? [Lk. 2:34].” That is to say, since I have determined that I will not be known [by a man]. For if she had not known a man up to that point, it would not have been necessary to ask how she could have a son, but [it was necessary] because she had determined that she would not be known. § 1. If therefore contrary to her determination she had consented to sexual intercourse, who would have been guilty of having violated her vow of virginity in her mind, if not yet in her body. It would be shameful [nefas] to think that of her, but, as Augustine says [a pastiche of quotations and paraphrases from Augustine, principally from his De virginitate]: [Canon 3.] The blessed Mary proposed a vow in her heart that she would preserve her virginity, but she did not express the vow of virginity with her mouth. She subjected herself to divine disposition, when she prposed that she would preserve her virginity unless God revealed something different to her. Committing therefore her virginity to divine disposition she consented to carnal mingling, not that she desired it, but obeying divine inspiration whichever [God should command]. After she had born a son, she and her husband expressed with their lips what she had conceived in her heart. The mutual consent of cohabitation and maintaining an undivided habit of life made them husband and wife (coniuges). The undivided custom is to share with her husband all things that she shared with herself, and he likewise.2 To the undivided custom of life belongs that she could not take time out for prayer for a while nor profess continence without the consent of her husband. Because there was this consent between them, it is apparent that they were husband and wife (coniuges). [There follows a passage [canon 4] that was added later.] ... Gratian: Again, they [the couple in the hypothetical case] are also proved by authority to be married. For Ambrose says in his book on virgins [c. 6]: Canon 5: The conjugal pact not the deflowering of virginity makes a marriage. When the marriage begins, the name marriage is taken. The deflowering of virginity does not make a marriage, but the conjugal pact. Therefore, there is marriage when a virgin is joined [jungitur] to a man, not when
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