Bonaventure

The numbered footnotes below correspond to markers in both the Latin body above and the English translation. The littera runs across the foot of p.686 and the whole of p.687. The four plain-numbered notes are the p.687 footer in Quaracchi's own numbering, unaltered; the two page-qualified `p686` notes are the NOTAE AD LIBR. SENTENTIARUM block at the foot of p.686, labelled that way so as not to collide.

DISTINCTIO XXVIII.

Cap. I. Si consensus de futuro etiam iuramento firmatus faciat coniugium.

Hic quaeri debet, utrum consensus de futuro, addito etiam iuramento, coniugium efficiat, ut «si quis promittat, vel etiam iuret alicui, se usque ad tempus placitum illam ducturam, et illa promittat vel iuret, se illi nupturam; nunquid talis sponsio eos coniuges fecit¹? Si mutato proposito, alter vel uterque ad alienam copulam transit; nunquid ob priorem sponsionem iuramento subnixam secundae foederationis pactum scindetur? — Considera, quia longe aliud est promittere, et aliud facere. Qui promittit nondum facit. Qui ergo promisit, se uxorem ducturum aliquam, nondum eam duxit uxorem; et quae spopondit, se nupturam, nondum nupsit. Quomodo ergo coniuges appellari possunt qui nondum contrahunt, sed in futuro se contracturos iurando promittunt? Item, si ex vi iuramenti ad futurum pertinentis mox efficiuntur coniuges; cur iurant, in futuro se facturos quod in praesenti efficiunt? Item, si ex quo iurant, mox efficiuntur coniuges; tunc hanc rem efficiunt, quam iurant se facturos. Ideo dico, quod coniugium tunc non fuit, sed futurum promittitur. Si vero ille post uxorem duxit, et illa marito nupsit; coniugium utrinque fuit et non potest dissolvi. Praecedens igitur mendacium vel periurium poenitentia est corrigendum, sed coniugium sequens non est dissolvendum. Non autem sic est, quando iuramentum coniugii praesentis consensus attestatione firmatur, quia post talem consensum, si quis alii se copulaverit, etiam si prolem procreaverit, irritum debet fieri, et ipse ad priorem copulam revocari».

Praemissae autem sententiae videtur obviare illud quod leges tradunt: «Si quis, tactis divinis Scripturis, iuraverit mulieri, se eam legitimam uxorem habiturum, vel etiam, si in oratorio tale sacramentum dederit; sit illi legitima uxor, quamvis nulla dos, nulla alia scriptura interposita sit²». — Sed hic ostenditur, quid fieri vel esse debeat, non quid tunc fiat. Non enim per illud iuramentum tunc fit uxor, sed fieri debet, quia iuratum est. — Potest et illo de iuramento hoc dictum¹ intelligi, ubi de praesenti consentiunt ac se invicem suscipiunt. — Praemissae etiam sententiae, qua dictum est, solum consensum facere coniugium, videtur obviare quod Evaristus Papa ait: «Aliter legitimum non fit coniugium, nisi ab his qui super feminam dominationem habere videntur, et a quibus custoditur, uxor petatur et a parentibus sponsetur et legibus dotetur et a sacerdote, ut mos est, benedicatur et a paranymphis custodiatur ac solemniter accipiatur». — Item: «Ita legitima scitote esse connubia, aliter vero praesumta; non coniugia, sed adulteria, vel fornicationes sunt, nisi voluntas propria suffragata fuerit, et vota succurrerint legitima». — Hoc autem non ita intelligendum est, tanquam sine enumeratis non possit esse legitimum coniugium, sed quia sine illis non habet decorem et honestatem debitam.

Cap. II. De his quae pertinent ad substantiam et decorem Sacramenti.

In huius enim Sacramenti celebratione, sicut in aliis, quaedam sunt pertinentia ad substantiam Sacramenti, ut consensus de praesenti, qui solus sufficit ad contrahendum matrimonium; quaedam vero pertinentia ad decorem et solemnitatem Sacramenti, ut parentum traditio, sacerdotum benedictio et huiusmodi; sine quibus legitime fit coniugium, quantum ad virtutem, non quantum ad honestatem Sacramenti. Sine his ergo non quasi legitimi coniuges, sed quasi adulteri vel fornicatores conveniunt, ut illi qui clanculo nubunt; et utique fornicatores essent, nisi eis suffragaretur voluntas verbis expressa de praesenti, quae legitimum inter eos facit matrimonium. Nam et consensus occultus de praesenti, per verba expressus, coniugium facit; licet non sit ibi honestus contractus, sed matrimonium non sanxit consensus, qui in occulto fuit². Si enim alter alterum dimiserit, non cogitur iudicio Ecclesiae redire et commanere quasi cum coniuge, quia non potest probari testibus contractus, qui in occulto est factus. Quodsi ipsi qui in occulto sibi consenserunt, eundem consensum voluntarie in manifesto profiteantur; tunc utique propria voluntas suffragatur, et legitima vota succurrunt ad sanciendum coniugium, quod prius occulte fuerat contractum. Voluntas igitur verbis expressa in occulto ad hoc suffragatur, ut fiat coniugium; manifeste vero expressa suffragatur, ut sanciat et roboret, ac liberum sit Ecclesiae de hoc iudicare, si expedierit.

Cap. III. Utrum consensus ille, qui facit matrimonium, sit de carnali copula, an de cohabitatione, an de alio.

Hic quaeritur, «cum consensus de praesenti matrimonium faciat, cuius rei consensus sit ille, an carnalis copulae, an cohabitationis, an utriusque. Si cohabitationis consensus matrimonium facit, tunc frater cum sorore, pater cum filia potest contrahere matrimonium; si carnalis copulae, tunc inter Mariam et Ioseph non fuit coniugium. Proposuerat enim Maria in virginitate manere, nisi Deus aliter facere iuberet, secundum quod videtur Angelo dixisse: Quomodo fiet istud, quoniam virum non cognosco? id est, me non cognituram proposui. Neque enim, quia tunc virum non cognoscebat, necesse erat inquiri, quomodo posset habere filium; sed quia se nunquam cognituram proposuerat³». Dicit enim Beda, «quod in virginitate manere disposuerat». «Si igitur contra suum propositum post consensit in carnalem copulam, videtur facta voti rea mente, etsi non opere, violati».

Cap. IV. Quare de latere viri formata est mulier.

Dicamus igitur, quod consensus cohabitationis, vel carnalis copulae non facit coniugium, sed consensus coniugalis societatis, verbis secundum praesens tempus expressus, ut cum vir dicit: ego accipio te in meam, non dominam, non ancillam, sed coniugem. Quia enim non ancilla, vel domina datur, ideo nec de summo nec de imo a principio formata est, sed de latere viri⁴, ob coniugalem societatem. Si de summo fieret, ut de capite, videretur ad dominationem creata; si vero de imo, ut de pedibus, videretur ad servitutem subiicienda; sed quia nec in dominam nec in ancillam assumitur, facta est de medio, id est de latere, quia ad coniugalem societatem assumitur. Cum igitur sic conveniunt, ut dicat vir: accipio te in meam coniugem, et dicat mulier: accipio te in meum virum; his verbis, vel aliis idem significantibus exprimitur consensus non copulae carnalis, vel cohabitationis corporalis, sed coniugalis societatis; ex qua oportet eos cohabitare, nisi forte causa religionis pari voto corporaliter separentur, vel ad tempus, vel usque in finem.

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DISTINCTION XXVIII.

Chapter I. Whether consent regarding the future, even confirmed by an oath, makes a marriage.

Here it must be asked whether consent regarding the future, with an oath also added, effects a marriage, as «if someone should promise, or even swear to another, that he will take her [as wife] by an appointed time, and she should promise or swear that she will marry him; has such a pledge made them spouses¹? If, the intention being changed, one or both pass over to another union; will the pact of the second covenant be torn up on account of the earlier pledge supported by an oath? — Consider, because it is one thing to promise, and quite another to do. He who promises does not yet do. He therefore who has promised that he will take some woman as wife has not yet taken her as wife; and she who has pledged that she will marry has not yet married. How then can those be called spouses who do not yet contract, but promise by swearing that they will contract in the future? Likewise, if by force of an oath pertaining to the future they are straightway made spouses; why do they swear that they will do in the future what they effect in the present? Likewise, if from the fact that they swear they are straightway made spouses; then they effect that very thing which they swear they will do. Therefore I say that there was then no marriage, but that a future one is promised. But if he afterward took a wife, and she married a husband; there was a marriage on both sides and it cannot be dissolved. The preceding lie, therefore, or perjury is to be corrected by penance, but the marriage that follows is not to be dissolved. It is not so, however, when the oath of marriage is confirmed by the attestation of consent regarding the present, because after such a consent, if anyone joins himself to another, even if he begets offspring, it must be made void, and he himself be recalled to the former union».

But there seems to run counter to the aforesaid opinion that which the laws hand down: «If anyone, having touched the divine Scriptures, swears to a woman that he will have her as his lawful wife, or even if in an oratory he gives such a pledge; let her be his lawful wife, although no dowry, no other writing has been interposed²». — But here it is shown what ought to be done or to be, not what is then done. For it is not by that oath that she then becomes a wife, but it must come about, because it has been sworn. — This too can be understood of that oath¹, where they consent with regard to the present and receive one another in turn. — It seems, moreover, to run counter to that opinion by which it is said that consent alone makes marriage, that Pope Evaristus says: «A marriage is not lawfully made otherwise than when the wife is sought from those who are seen to have dominion over the woman and by whom she is guarded, and is betrothed by her parents and endowed according to the laws, and is blessed by the priest as is the custom, and is guarded by the groomsmen and solemnly received». Likewise: «Know that unions are lawful in this way, but otherwise presumed; they are not marriages, but adulteries or fornications, unless proper will has given its support, and lawful vows have come to their aid». — But this is not to be understood as though, without the things enumerated, there could not be a lawful marriage, but rather that without them it does not have the propriety and honorableness that is due.

Chapter II. On the things that pertain to the substance and to the propriety of the Sacrament.

For in the celebration of this Sacrament, as in others, certain things pertain to the substance of the Sacrament, as the consent regarding the present, which alone suffices to contract marriage; but certain things pertain to the propriety and solemnity of the Sacrament, as the handing-over by the parents, the blessing of priests, and the like; without which marriage is lawfully made as regards its force, though not as regards the honorableness of the Sacrament. Without these, then, they come together not as lawful spouses, but as adulterers or fornicators, like those who marry clandestinely; and indeed they would be fornicators, were it not that the will, expressed in words regarding the present, comes to their aid, which makes lawful marriage between them. For even a hidden consent regarding the present, expressed in words, makes marriage; although there is no honorable contract in it, yet the consent that was secret did not ratify the marriage². For if one abandons the other, he is not compelled by the judgment of the Church to return and dwell together as with a spouse, because the contract, which was made in secret, cannot be proven by witnesses. But if those who consented to one another in secret should freely profess that same consent openly, then indeed their own will gives its support, and lawful vows come to the aid of ratifying the marriage that had before been secretly contracted. The will, therefore, expressed in words in secret gives support to this, that marriage come about; but expressed openly it gives support that it be ratified and strengthened, and that it be free for the Church to judge of this, if it should be expedient.

Chapter III. Whether that consent which makes marriage is of carnal union, or of cohabitation, or of something else.

Here it is asked, «since consent regarding the present makes marriage, of what thing is that consent — of carnal union, or of cohabitation, or of both. If the consent of cohabitation makes marriage, then a brother with his sister, a father with his daughter, could contract marriage; if the consent of carnal union, then between Mary and Joseph there was no marriage. For Mary had resolved to remain in virginity, unless God should command otherwise, according to what she seems to have said to the Angel: How shall this be, since I do not know a man? that is, I have resolved that I shall not know one. For it was not because she did not then know a man that it was necessary to ask how she could have a son; but because she had resolved that she would never know one³». For Bede says, «that she had determined to remain in virginity». «If, therefore, contrary to her resolve, she afterward consented to carnal union, she would seem to have become guilty in mind of the violation of her vow, even if not in deed».

Chapter IV. Why the woman was formed from the side of the man.

Let us say, then, that the consent of cohabitation, or of carnal union, does not make marriage, but the consent of conjugal society, expressed in words according to the present time, as when the man says: I take you as mine, not as mistress, not as handmaid, but as spouse. For because she is given neither as handmaid nor as mistress, therefore she was formed from the beginning neither from the top nor from the bottom, but from the side of the man⁴, for the sake of conjugal society. For if she had been made from the top, as from the head, she would seem to have been created for dominion; but if from the bottom, as from the feet, she would seem to have been made subject to servitude; but because she is taken neither as mistress nor as handmaid, she was made from the middle, that is, from the side, because she is taken up into conjugal society. When, therefore, they come together in this way, that the man says: I take you as my spouse, and the woman says: I take you as my husband; by these words, or by others signifying the same thing, is expressed the consent not of carnal union, nor of bodily cohabitation, but of conjugal society; from which it is fitting that they dwell together, unless perhaps, for the sake of religion, by equal vow they be bodily separated, either for a time, or even to the end.

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