Iohn de Magistris, did not exist; there is a Martin de Magistris, but he
was not a canonist, but a Doctor of Divinity. It is true, Harding
maintained, that de Magistris did write at one point that simple
fornication was no mortal sin, yet in its context this did not mean that
he did not believe that it was not mortal sin. At the place where Martin
de Magistris so argued that fornication was not a sin, he was but merely
giving the nonequation of the sic et nonof scholastic writing, that is,
‘but only wrote of the matter after the Scholastical manner’ as Harding
put it.^39 Martin de Magistris had argued, Harding added, that to deny
that fornication was not mortal sin was not heresy per se, but he never
asserted that fornication itself was not mortal sin, only that a denial of
the point was not heresy.
In the Defense of the ApologyJewel cited Gratian (who was himself
citing the first Council of Toledo) that ‘Is qui non habet Vxorem, et pro
Vxore Concubinam habet, a Communione non repellatur [He who does
not have a wife, and has a concubine in place of a wife, let him not be
thrown out of the communion.].’ But Jewel had not quoted all of
Gratian, who was citing the canons of the Council of Toledo with respect
to the having of common law wives, of people who had married without
consent of parents and thus without dowry, but who nonetheless lived
with each other as husband and wife. ‘Concubina autem hic intelligitur,
quae cessantibus legalibus instrumentis unita est, et coniugalia affectu
asciscitur. Hanc coniugem facit affectus, concubinam vero lex
nominat.’^40 Such arrangements were to be solemnized by the church, and
when this was done, the couple was to be considered married from their
first union, their children to be considered as lawfully born. In this sense,
concubines were wives, for affection had made them so, and thus the
civil law in this sense considered concubines wives. Otherwise, having a
concubine was adjudged a sin. Harding, to drive the point home, noted
that St Augustine was quoted in the Decrees to the very effect that having
concubines without the intent of affection was sin. Harding treats of
several other passages cited by Jewel to damn Rome with asserting that
fornication was not a sin, and probably the most twisted of these is
Jewel’s citation of St Augustine that he did not know whether fornication
was forbidden for single men to commit with single women. Harding
responded that Jewel had given the wrong citation for the place he
alleged, but then went on to quote the putative offending passage from
St Augustine. The saint’s point had been that it seemed that fornication
134 JOHN JEWEL AND THE ENGLISH NATIONAL CHURCH
(^39) Thomas Harding, A Detection of Sundrie Foule Errours, Lies, Slanders, Corruptions,
and other false dealings(Louvain: John Fowler, 1568), f. 394b.
(^40) ‘This, however, is understood as regards the concubine, who is wed by the laws
faltering instrumentality, and is accepted as married on account of due affection. Affection
makes this union, the law certainly calling her a concubine.’ Ibid., ff. 396b–97a.
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