D. 37 - On holy orders and uxoricide

After the Master has dealt with impediments that make persons something in between wholly eligible and wholly ineligible, here he considers the impediments that make persons wholly ineligible; and this is divided into two parts: in the first, he considers the impediments which make persons wholly ineligible with regard to any other person; in the second part he considers impediments which make persons ineligible with regard to certain persons, but not with respect to all, in Distinction 39, at: after these matters, we must look at disparity of cult. (Sententiae IV, 39.1 (217). 1.)

The first is divided into two: first, he addresses the impediment of holy orders; second, he addresses the impediment of the religious vow, in Distinction 38, at: now let us examine the vow. (Sent. IV, 38.1 (214). 1.)

The first part is divided into two: in the first, he shows how marriage is impeded by holy orders; in the second, how it is impeded by the crime of uxoricide or wife-murder, where he says: we must add to these words, etc. (Sent. IV, 37.2 (213). 1.)

Here there are two questions. First, concerning the impediment of holy orders. Second, concerning uxoricide.

Question 1

Impediment of holy orders

Regarding the first question, two questions arise:

first, whether pre-existing holy orders impedes marriage;

• second, whether holy orders should be allowed to follow pre-existing marriage.
• Article 1

Whether pre-existing holy orders impedes marriage

Obj. 1: To the first question, we proceed thus. It seems that holy orders does not impede matrimony. For nothing is impeded unless by its contrary. But orders is not the contrary of marriage, since both are sacraments. Therefore, it cannot impede it.

Obj. 2: Furthermore, we have the same holy orders as the Eastern church. But holy orders does not impede marriage in the Eastern church. Therefore, neither should it in the western church.

Obj. 3: Furthermore, marriage signifies the union of Christ and the Church. But it is fitting that precisely this be signified among those men who are ministers of Christ, namely, those ordained. Therefore, holy orders does not impede matrimony.

Obj. 4: Furthermore, every level of holy orders is ordained to something spiritual. But holy orders can only impede marriage for a spiritual reason. Therefore, if any level of orders impedes marriage, all levels should impede it, which is false.

Obj. 5: Furthermore, all those ordained can have ecclesiastical benefices, and can enjoy the privilege of clerics, and do so equally. Therefore, if because of this holy orders impedes matrimony, so that those bound to wives cannot have an ecclesiastical benefice, nor enjoy the privileges of clerics, as the jurists say, (See Gregory IX, Decretals, Bk. 3, tit. 3, ch. 7, ‘Ioannes’; ch. 8, ‘Cum decorem’; ch. 9, ‘Ex parte.’) then any orders would impede marriage; which is false, as is apparent from the Decretals of Alexander. (See Alexander III, Append. Conc. Lateranensis, p. 18, ch. 2 (MA 22:348).) And thus no orders, as it seems, should impede marriage.

On the contrary (1), the Decretals say in the same place: if in the subdiaconate and other superior orders, wives are known to have been taken, compel them to send away their wives. (Gregory IX, Decretals, Bk. 3, tit. 3, ch. 1, ‘Si qui.’) And this would not be the case, if it were a valid marriage.

Furthermore (2), no one vowing continence can contract matrimony. But there are certain orders which have a vow of continence attached, as is evident from the text. Therefore, such orders impede matrimony.

I answer that, the order of priesthood by its very nature is characterized by a certain congruence with impeding marriage; for those constituted in holy orders handle sacred vessels and sacraments, and therefore it is becoming that they should preserve a physical purity through continence. But that it impedes matrimony stems from the decision of the Church, although differently among the Roman rite than among the Greeks. For among the Greeks, it impedes marriage from being contracted by virtue of orders alone; but among the Roman rite, it impedes by virtue of orders, and also by the vow of continence, which is attached to holy orders; because even if someone does not profess that in words, by the very fact that he receives orders, according to the Western rite of the Church he is understood to have taken that vow. And therefore, among the Greeks and other Eastern churches, holy orders impedes marriage from being contracted, but not the use of a marriage already contracted; for they can avail themselves of a marriage contracted beforehand, although they cannot contract marriage afterward. But in the Western church, it impedes marriage and the use of marriage; unless perhaps a man has received holy orders without his wife’s knowledge and against her will. For by this no prejudice to her rights can be generated. (See Raymond of Peñafort, Summa, Bk. 1, tit. 8, sec. 13 (71b); cf. Glossa ordin. in Decretum, pt. 1, dist. 28, can. 11, ‘Si se cuidam’ (I, 130a); d. 31, can. 13, ‘Quoniam’ (I, 144a); d. 32, can. 7, ‘Si quis’ (I, 150a).) However, on the fact that holy orders are distinguished from non-holy orders now, as in the primitive Church, see above, Distinction 24, Question 2, Article 1, Quaestiuncula 3.

Reply Obj. 1: Although holy orders may not be contrary to marriage as a sacrament, it does have a certain opposition to it by reason of its act, which impedes spiritual acts.

Reply Obj. 2: Now it is clear that this objection proceeds from false premises. For in both churches holy orders impede marriage from being contracted, although both do not have the vow attached to them.

Reply Obj. 3: Those who are established in holy orders signify Christ by nobler acts than those who are joined in marriage, as was evident in the treatise on holy orders. (dist. 23, qu. 2, art. 1, qc. 3.) And therefore the argument does not follow.

Reply Obj. 4: Those who have had minor orders conferred on them are not prohibited from contracting matrimony by virtue of orders, for although those orders are deputed to certain spiritual things, they do not, however, have direct access to handling sacred things, as do those who are in the order of priesthood. But according to the statutes of the Western church, the use of matrimony does impede the exercise of lower orders for the sake of conserving a greater rectitude in the duties of the Church. (See Gregory IX, Decretals, Bk. 3, tit. 3, ch. 1, ‘Si qui’; ch. 2, ‘Sane’; ch. 3, ‘Quod a te.’) And since someone is bound by his benefice to the exercise of orders, and by this very fact enjoys clerical privilege, therefore these things, among the Roman rite, are taken away from married clerics.

And by this the solution to the last objection is clear.

Article 2

Whether holy orders should be allowed to follow pre-existing marriage

Obj. 1: To the second question, we proceed thus. It seems that holy orders cannot be received after marriage. For the stronger prejudices the rights of the less strong. But the spiritual bond is stronger than the corporeal. Therefore, if someone joined in marriage should receive orders, a prejudice would be generated to the wife, that she could not demand the debt, (Married clergy in the Eastern rites must abstain from the marital act when celebrating the sacred mysteries.) since orders is a spiritual bond, and marriage a corporeal one; and thus it seems that someone could not receive holy orders after having consummated his marriage.

Obj. 2: Furthermore, after the marriage has been consummated, one spouse cannot vow continence without the consent of the other spouse. But holy orders has a vow of continence attached to it. Therefore, if a man received holy orders against his wife’s will, the unwilling wife would be forced to keep continence, for it would not be possible to marry another while her husband was living.

Obj. 3: Furthermore, a man cannot even be free for prayer for a time without the consent of his wife, as is shown in 1 Corinthians 7:5. But among those of the Eastern rite, the men who are ordained in holy orders are bound to continence at the time in which they execute their office. Therefore, neither can they be ordained without the consent of their wives, and much less can Roman rite men.

Obj. 4: Furthermore, a husband and wife are judged equals. (See Gratian, Decretals, pt. 2, cause 32, q. 5, can. 20; q. 1, can. 4.) But a Greek priest whose wife has died cannot take another. (See Glossa ordin. in Decretum, pt. 1, d. 32, can. 7, ‘Si quis eorum’ (I, 150a); cf. Raymond of Peñafort, Summa, Bk. 1, tit. 8, sec. 13 (73a).) Therefore, neither can the wife if her husband has died. But her ability to marry after the death of her husband cannot be taken away from her by her husband’s act. Therefore, a man cannot receive orders after matrimony.

Obj. 5: Furthermore, as much as marriage is opposed to orders, so much is orders opposed to marriage. But pre-existing holy orders impedes marriage. Therefore, the reverse is also true.

On the contrary (1), religious are bound to continence just like those who are in holy orders. But after marriage someone can enter religious life if his wife permits or if she has died. Therefore, he may also receive orders.

Furthermore (2), someone can become a slave to men after marriage. Therefore, he may also become a slave to God through the reception of holy orders.

I answer that, marriage does not impede the reception of holy orders, for if a married man undertakes holy orders, even if his wife contradicts it, nevertheless he receives the character of orders, but he lacks the faculty of the exercise of orders. If, however, with the permission of his wife, or after her death, he receives holy orders, he receives orders and their exercise.

Reply Obj. 1: The bond of orders overrules the bond of matrimony as regards the rendering of the debt, by reason of which it creates a certain tension with marriage on the part of the one who receives orders. For he cannot request the debt, nor is his wife bound to render it to him. But nevertheless the marriage is not overrulled on the part of the other spouse, for the husband is bound to render the debt to his wife, if he cannot induce her to remain continent.

Reply Obj. 2: If the wife should know, and the man should receive holy orders with her consent, she is bound to vow perpetual continence. But she is not bound to enter religious life, if she does not fear for her own chastity because of the fact that her husband has taken a solemn vow, although it would be otherwise if he had taken a simple vow. If, however, he has received holy orders without her consent, she is not bound; for by this fact none of her rights are prejudiced.

Reply Obj. 3: It seems more probable (although certain people have said the contrary) that even the Greeks do not undertake holy orders without the consent of their wives, since at least at the time of their ministry, their wives would be cheated of the rendering of the debt, (See Gratian, Decretals, pt. 1, d. 31, can. 13.) and they are not able to be cheated of this according to the order of the law, if their husbands received orders without their consent or knowledge.

Reply Obj. 4: As is said, (See Glossa ordin. in Decretum, pt. 1, d. 28, can. 11, ‘Si se cuiquam’ (I, 130a).) among the Greeks, by the very fact that the woman consents that her husband receives orders, she obliges herself never to marry another for the rest of her life; for the signification of marriage would not be preserved, which is particularly required in the marriage of a priest. If, however, he is ordained without her consent, she does not seem to be bound by this.

Reply Obj. 5: Marriage has our consent as its cause; however, orders does not, but it rather has a sacramental cause determined by God. And therefore marriage can be impeded by pre-existing orders, such that it is not a valid marriage; but orders cannot be impeded by marriage such that it is not a true ordination; for the power of the sacraments is immutable, but the act of a man may be impeded.

Question 2

The impediment of uxoricide

Here uxoricide, or wife-murder, is to be considered. Concerning this, two questions arise:

first, whether in any case it could be licit to kill one’s wife;

• second, whether uxoricide impedes matrimony.
• Article 1

Whether in any case it could be licit to kill one’s wife

Obj. 1: To the first question, we proceed thus. It seems that it would be licit for a man, apprehending his wife in the act of adultery, to kill her. For divine law commanded that adulterous women be stoned. (Leviticus 20:10; Deuteronomy 22:22; cf. John 8:5.) But the person who carries out the divine law does not sin. Therefore, neither does someone sin by killing his own wife, if she be an adulterer.

Obj. 2: Furthermore, what is permitted to the law, is permitted to the one to whom the law entrusts it. But it is permitted for the law to kill an adulterous woman, or any person who is condemned to death. Since, therefore, the law (See Digests, Bk. 48, tit. 5, leg. 39, ‘Si adulterium.’) has committed to a man the killing of a wife caught in the act of adultery, it seems that it permits him to do this.

Obj. 3: Furthermore, a man has greater power over an adulterous wife than he has over the one who committed adultery with her. But if a man struck a cleric whom he found with his wife, he is not excommunicated. (Gregory IX, Decretals, Bk. 5, tit. 39, ch. 3, ‘Si vero.’) Therefore, it seems that it is also permitted to kill one’s own wife when one catches her in adultery.

Obj. 4: Furthermore, it is for the man to correct his own wife. But correction is given by the infliction of just penalties. Therefore, since the just penalty for adultery is death, because it is a capital crime, (See Institutes, Bk. 4, tit. 18, sec. 4, ‘Item lex.’) it seems that it is permitted for a man to kill an adulterous wife.

On the contrary (1), it says in the text that the Church of God, which is never constrained by secular laws, has no sword except the spiritual one. (See Gratian, Decretals, pt. 2, cause 33, q. 2, can. 6.) Therefore, it seems that for someone who wants to be in the Church, there is not a licit use of the law that permits uxoricide.

Furthermore (2), a husband and wife are judged equals. (Gratian, Decretals, pt. 2, cause 32, q. 1, can. 4; cf. q. 5, can. 20.) But it is not permitted for a wife to kill her husband when she has caught him in adultery. Therefore, no more is it permitted to the husband to kill his wife.

I answer that, for a man to kill his wife happens in two ways. In one way through civil judgment, and in this way there is no doubt that without sinning, from a zeal for justice, not motivated by the desire for revenge or hatred, a man can accuse an adulterous wife criminally in a secular court, and request the death penalty established by law; just as also he can accuse someone of homicide, or of another crime. Nevertheless, such an accusation cannot be made in ecclesiastical courts; for the Church does not have a physical sword, as it says in the text. In another way, he can slay her himself, without her having been convicted in court. And to kill her this way, outside the act of adultery, no matter how certainly he may know her to be adulterous, is not allowed either by civil laws or by the law of conscience. But civil law counts it almost licit to kill her if she was caught in the very act (See Digests, Bk. 48, tit. 5, leg. 39, ‘Si adulterium.’)—not as though commanding it, but by not inflicting the penalty for homicide, because of the extreme provocation which a man has to kill his wife in such a situation. But in this the Church is not bound by human laws such that, because he is not liable to punishment inflicted by a secular judgment, the Church in consequence would not judge him liable to eternal punishment or to a punishment inflicted by an ecclesiastical judgment. And therefore, in no case is it permitted for a man to kill his wife by his own authority.

Reply Obj. 1: The law has not committed the infliction of that penalty to private persons, but to public persons, who hold the office deputed for this; moreover, a husband is not the judge of his wife, and therefore he cannot kill her, but only accuse her before the judge.

Reply Obj. 2: Civil law has not committed the execution of a wife to her husband as though commanding it (for if it were so, he would not be sinning, as neither does the minister of the court sin by executing a thief condemned to death), but it has permitted it, by not applying the penalty; for which reason civil law has also set forth certain obstacles by which men might be deterred from uxoricide. (Ibid.)

Reply Obj. 3: From this fact it is not proved that it is allowed simply speaking, but only as regards immunity from a particular penalty; for excommunication is also a certain penalty.

Reply Obj. 4: There are two kinds of community. One is the domestic, like a family, and another is the political, like a city or kingdom. Therefore, the man who rules the second kind of community, such as a king or judge, can inflict a penalty both in order to correct a person and to expel for the purification of the community that he cares for. But that man who rules in the first kind of community, like the father of a family, can only inflict corrective punishment, which does not extend beyond the boundaries of reform, whereas the death penalty does cross these limits. And therefore, a husband, who is set over his wife in this way, cannot kill her, but only chastise her in other ways.

Article 2

Whether uxoricide impedes matrimony

Obj. 1: To the second question, we proceed thus. (Parallel: above, d. 35, expos. text.; Quodl. V, q. 8, a. 1, ad 1.) It seems that uxoricide does not impede matrimony. For adultery is more directly opposed to marriage than homicide. But adultery does not impede marriage. Therefore, neither does the homicide of one’s wife.

Obj. 2: Furthermore, it is a graver sin to kill one’s mother than to kill one’s wife, for it is never permitted to strike one’s mother, but it is permitted to strike one’s wife. But killing one’s mother does not impede marriage. Therefore, neither does killing one’s wife.

Obj. 3: Furthermore, someone who kills the wife of another because of adultery sins more than someone who kills his own wife, inasmuch as he has less motive, and her correction is less his business. But someone who kills the wife of another is not impeded from marriage. Therefore, neither is someone who kills his own wife.

Obj. 4: Furthermore, an effect is removed by the removal of its cause. But the sin of homicide can be removed by penance. Therefore, so can the impediment to marriage which is caused by it; and thus it seems that after the completion of penance the man is not prohibited from contracting marriage.

On the contrary (1), the canon states: someone who kills his own spouse is to be directed to the sacrament of penance, and marriage is completely denied to him. (Gratian, Decretals, pt. 2, cause 33, q. 2, can. 5.)

Furthermore (2), in that matter in which someone sins, he should also be punished. But the man who slays his wife sins against marriage. Therefore, he should be punished by being deprived of marriage.

I answer that, uxoricide impedes marriage by the statute of the Church. (See Gratian, Decretals, pt. 2, cause 31, q. 1, can. 5; cause 33, q. 2, can. 5.) But sometimes it impedes marriage from being contracted, yet does not annul the contract; for example, when a man kills his wife because of adultery or because of hatred, if his continence is feared for, he can nevertheless be granted a dispensation by the Church, so that he may contract marriage licitly. (Gratian, Decretals, pt. 2, cause 33, q. 2, can. 5.) Sometimes it also voids the contract, as when someone kills his wife so that he may marry the one with whom he committed adultery: for then a person becomes simply ineligible for contracting marriage with that woman, so that if he does in fact contract marriage with her, it is invalidated. (See Gregory IX, Decretals, Bk. 4, tit. 7, ch. 3, ‘Super hoc’; ch. 6, ‘Significasti.’) But the person is not made simply ineligible with respect to other women; therefore, if he has contracted with another woman, although he sins against the statutes of the Church by doing it, nonetheless the marriage contracted is not invalidated on this account.

Reply Obj. 1: Homicide and adultery in certain cases impede marriage from being contracted and void the contract, as is here said of uxoricide, and as was said of adultery above in Distinction 35. Or it may be said that uxoricide is against the substance of the union, but adultery is against the good of fidelity owed it. And thus adultery is not more against marriage than uxoricide; and so the argument proceeds from false premises.

Reply Obj. 2: Simply speaking, it is a graver sin to kill one’s mother than one’s wife, and more against nature; for a man naturally reveres his mother, and therefore, he is less inclined to kill her, and more prone to killing his wife; and for the repression of this proneness the marriage of a wife-killer is forbidden by the Church.

Reply Obj. 3: Such a person does not sin against marriage as the man does who kills his wife; therefore, it is not the same.

Reply Obj. 4: It is not necessary that when guilt is blotted out, all penalty is blotted out as well, as is evident from the case of irregularity. For penance has not restored one to one’s original dignity, although it may restore one to a pristine state of grace, as was said above in Distinction 14.

Exposition of the Text

“A virgin wife.” (Sententiae. IV, 37.1 (212). 2, Humbert of Silva Candida, legate of Leo IX, Responsio contra libellum Nicetae abbatis, n32.) This is understood as a hypothesis; that is, if a man about to advance to the priesthood desires to return to the clerical state.

“The holy Church of God is never bound by worldly laws, and has no sword apart from the spiritual one.” (Sententiae IV, 37.2 (213). 2, Nicholas I, Epistola 26 (ad Carolum, Moguntinum archiepiscopum, vel Albinum archiepiscopum).) Against this is what Bernard says to Eugene, that the Church has both swords. And it should be said that the Church has only the spiritual sword with regard to what must be done by her own hand; but she also has the temporal sword as regards command over it: for at her bidding it must be unsheathed, as Bernard says. (Bernard of Clairvaux, De consideratione, Bk. 4, par. 7 (Bernardi Opera, ed. Leclercq and Rochais, 3:454).)