Title IV: On the Betrothed Woman of Two Men

Latin source headnote: One who contracts successively through words of the present with two women is held to adhere to the first. But if he first contracted through words of the future and second through words of the present, he will adhere to the second.

Augustine, On the Pledge of Pact and Consent.

The pledge of pact and of consent is spoken of in two ways. If someone has given a certain woman a pledge of pact, he ought not to take another. If he has taken another, he ought to do penance for the pledge falsified; nevertheless, let him remain with her whom he took. For so great a sacrament ought not to be broken. But if he has given a pledge of consent, it is not lawful for him to take another. But if he has taken another, he will dismiss her and adhere to the prior wife. Now there is a pledge of pact when someone promises a certain woman his pledge that he will take her if she permits him to have intercourse with her, or even in place of consent. But a pledge of consent exists when, even if he does not clasp her hand, he nevertheless consents in heart and mouth to take her, and they mutually grant themselves, one to the other, and mutually receive one another.

Latin source headnote: It sets forth the penance of him who received as wife for himself the betrothed woman of another by words of the present; nor can he ever have her as wife. This is what it says according to the letter.

From Burchard, Book XXX.

You received as wife for yourself her whom another had held as betrothed to him. Dismiss her, because she can never become lawful for you, and do penance for forty days on bread and water, which they call a carina, with the seven following years.

Latin source headnote: Betrothals of the present are not dissolved by a following marriage, even one consummated by carnal union.

Alexander III, to the Archbishop of Salerno.

Although beyond the customary and more than customarily we are impeded by many and various businesses in such a way that it is not easy for us to respond to the consultations of some, nevertheless by that special favor which we have toward your person and by fraternal charity we are compelled to disclose to you by the present letters, however much we are intent upon other things, what we think concerning those things about which your prudence consulted us. You indeed consulted us whether, if lawful consent of the present intervened between a man and a woman, with an oath furnished or not furnished, but carnal union did not follow, it is lawful for the woman to marry another; or, if she married another and carnal union followed, whether she ought to be separated from him. But concerning this we respond to your consultation in this manner: if lawful consent of the present intervenes between a man and a woman under that solemnity which is accustomed to occur, namely, with a priest or even a notary present, as is also still observed in certain places, before suitable witnesses, in such a way indeed that one expressly receives the other by customary words in their mutual consent, each saying, “I receive you as mine,” and, “I receive you as mine,” whether an oath has been interposed or not, it is not lawful for the woman to marry another. And if she has married, even if carnal union followed, she ought to be separated from him and compelled by ecclesiastical rigor to return to the first, although others think otherwise, and otherwise also it has at times been judged by certain of our predecessors. But, etc. (cf. c. 2, On the Conversion of a Spouse III. 32.)

Latin source headnote: He who appeals in a matrimonial cause ought to be prohibited from contracting another marriage while the litigation is pending; and if he contracts, he ought to be separated.

The same, to the Archbishop of Genoa.

Your fraternity consulted us as to what you ought to do concerning those who betroth certain women and, in the course of time, before they take or know them, receive others as wives. Concerning this, indeed, we respond to your consultation in this manner: if a man and a woman receive one another by express mutual consent of the present, neither of them, while the other survives, will be able to pass to other vows, although either can migrate to a monastery. But if mutual consent of the present did not occur between them, but a promise of the future—namely, that each said to the other, “I will receive you as mine,” and, “I will receive you as mine”—if another has betrothed and conducted home that woman, even if between the first persons there was an oath, as we have said, of the future, the second marriage cannot be separated in view of this betrothal, but penance is to be enjoined upon them for violation of the pledge.

But concerning those who before you raise a controversy over a betrothal made by mutual consent of the present and, while an appeal is pending which they interpose to the Apostolic See before sentence or cognizance of the cause, receive others as wives, we judge that this is to be done: if henceforth they consider that they should appeal in such a case, you are publicly to prohibit them more strictly in church from contracting another marriage before decision of the cause. And if they presume to act contrary to the prohibition of the Church thus publicly made, you will be able to annul the marriage so presumptuously contracted. [But concerning those, etc.; cf. c. 9, On the Betrothal of Minors IV. 2.]

Latin source headnote: He who betroths two women through words of the present will have the first betrothed as wife, even if he knew the second first; nor does a contrary custom have force. And this last point is added to the chapter “Although” above under the same title.

Innocent III, to the Bishop of Modena.

Your letters some time ago—(And below:) Concerning the custom which long obtained in the city of Modena, that, if someone swore he would take a certain woman and betrothed her short of carnal union, and if afterward he betrothed another and knew the other, the one first known, not the one first betrothed, would be adjudged to the man. (And below:) But lest a part be base which does not agree with its whole, and because the Church of Modena ought humbly to hold and observe what it sees the See of Blessed Peter and its metropolis follow and teach, in marriages to be contracted henceforth we wish you to observe this: after lawful consent of the present, which suffices in such matters according to the canonical sanctions, has intervened between lawful persons—and, if it alone is lacking, the other things, even when celebrated with intercourse itself, are frustrated—if persons lawfully joined afterward contract in fact with others, what was done first by law cannot be annulled.