Title VII: On One Who Took as Wife Her Whom He Polluted by Adultery

Latin source headnote: If someone, while his wife is living, contracts with a second woman who is ignorant of this, after the first wife has died he will not, at his own petition, be separated from the second.

Alexander III, to the Abbot of Saint Albans.

It was proposed to us that a certain man O., while having a wife, joined to himself another woman who was ignorant of a matter of this kind, from whom he had several sons; but after the first wife died, he endeavors to withdraw from the second, asserting that while his wife was living it was not lawful for him to join her to himself. Although it is held in the canons that no one is to join in marriage her whom he had first polluted by adultery, and especially her to whom he had pledged faith while his wife was living, or who had plotted the death of the wife, nevertheless, because the aforesaid woman was ignorant that he had another wife living, and it is not worthy that the aforesaid man, who knowingly acted contrary to the canons, should carry away profit from his own fraud, we respond to your consultation in this manner: unless the aforesaid woman seeks judicial separation, they are not in any way to be separated at the petition of the man, since he would appear to carry away advantage from his own offense.

Latin source headnote: If, while the first wife is living and has not been known carnally, someone knowingly contracts with a second and knows her, even after the first has died he cannot have the second; it is otherwise if the first was not a lawful wife.

The same, to the Abbot of Fountains.

O. of Anjou signified to us, through his brother W., that he, a parishioner of the church of York, was seized by W. de Romar., who has been taken from this light, and was held by him so long in iron chains and prison that he compelled him to swear that he would take the woman H. as wife. But when he had escaped the chains and prison, he took another as wife, from whom he begot sons. Afterward, the same O., having been drawn into a suit by the aforesaid H. before our venerable brother the Archbishop of York, legate of the Apostolic See, was compelled by him to affirm by oath that he would not approach her whom he had voluntarily taken as wife until the suit was terminated by ecclesiastical judgment. But because, before the case was lawfully heard, the aforementioned H. closed her last day, the aforesaid O. does not dare to return to her from whom he had sons. It is for this reason that, by commanding through apostolic writings, We order your discretion that, after the truth of the matter has been diligently investigated and ascertained, if it is established to you that so great a force was brought to bear upon the same O. that he swore to take the aforesaid H. as wife, and that he did not consent voluntarily to the first woman, nor after furnishing the oath did he know her carnally, on account of this you do not fail to grant him the free faculty, with appeal removed, of returning to the other whom he afterward took as wife. Otherwise, forbidding him under threat of anathema to return to the second, give him license to take another, if he wishes, as wife.

Latin source headnote: A man cannot contract with her whom he knew while his wife was living if she plotted the death of the wife.

The same, to the Bishop of Baranum.

Concerning this indeed, which through your letters you asked concerning the bearer of the present letters, whether it is lawful for someone to contract marriage with her whom, while his other wife was living, he joined to himself in a de facto marriage, we respond to your solicitude in this manner: if the adulteress plotted anything toward the death of the wife, whether that man pledged faith or not that, after the latter had died, he would take the former as wife, according to the canons he is perpetually prohibited from her consortium, and this prohibition is to be perpetually observed.

Latin source headnote: He who, while his wife was living, even though separated from him as to the marriage bed, took a second wife who was aware of the matter will, after the first has died, be separated from the second; but he will be able to contract with another.

Clement III.

From the intimation of your letters we received that T., bearer of the present letters, your parishioner, formerly cast off his wife, who had been caught in adultery, with the assent of your predecessor, and that she afterward received the monastic habit; but the said T., before she died, brought in another woman, and lived with her for twelve years, and received several sons from her. But because the above-mentioned woman died and you considered that the Apostolic See should be consulted as to what ought to be done concerning the second union, we therefore respond to your fraternity, by the counsel of our brothers, that you ought without delay to separate them from one another; but the same man, after penance for the adultery has been enjoined upon him, will be able to take another as wife.

Latin source headnote: He who, while his lawful wife is living, contracts adulterously with a second woman will, even after the first has died, be separated from the second, even if he cohabited with her for a long time and received sons from her.

The same.

While I., bearer of the present letters, had a lawful wife named A., he committed adultery with M., which he disclosed to you in public confession, as your letters demonstrated to us. And when he had been called into court concerning this, he abjured the adulteress M. herself in court, and afterward, putting aside and contemning the oath, while the lawful wife was living, he presumed to contract a marriage of whatever kind with her and to cohabit for a long time with the adulteress. At last, after the aforesaid A. was taken from the present light, the aforementioned I. nevertheless remained for a decade with the aforesaid adulteress, from whom he also begot ten sons. Therefore, because you consult whether the aforesaid John and that woman can remain together or, if they ought to be separated, whether it is lawful for them to hasten to other nuptials, we consequently give this response to your consultation: let them be separated altogether, and, after fitting penance has been enjoined upon them, let perpetual continence be prescribed, especially since they have both advanced in their days and, having so long persisted publicly in adultery and perjury with certain knowledge, have disturbed the Church with grave scandal. For you know that Pope Leo established that no one is to take in marriage her whom he polluted by adultery, and that in this case matters proceeded further than if faith alone had been furnished to the adulteress that, when the lawful wife had died, he would take her as wife, since, even while that first wife was living, as if matrimonially, the adulterer presumed to adhere to the adulteress and rashly to violate his oath. Both Pope Gregory and the Synod of Tribur detest such a marriage, in which even no sacred bond of an oath intervened, and commanded each person joined in this manner to be subjected to public penance and to remain perpetually without any hope of marriage. Nor certainly does the fact that they cohabited with one another for a decade and received ten sons furnish any support to the same I. and M. so that they might remain together, since the multiplicity of offspring thus received aggravates their crime the more, and length of time does not diminish sin but increases it. It will nevertheless belong to your solicitude that each provide for his or her sons who have been begotten and, according to the resources that are available to them, supply the things necessary for their sustenance.

Latin source headnote: If someone, after his wife has died, contracts with her whom he knew while his wife was living without a pledge of faith, the marriage holds, provided neither plotted the death of the deceased wife.

Innocent III, to the Bishop of Spoleto.

You signified to us that, when P., a citizen of Spoleto, had lawfully taken a certain woman as wife, having abandoned her he adhered to a certain prostitute, and, when he could not be recalled from her cohabitation to his lawful marriage bed, you promulgated a sentence of excommunication against him. But when in the meantime his wife had entered the way of all flesh, he betrothed the prostitute to whom he had adhered. We, therefore, respond to your inquiry according to canonical form in this manner: unless either of them plotted the death of the deceased wife, or while she was living pledged faith to the other concerning contracting marriage, you are to adjudge the above-mentioned marriage lawful, being about to impart to the excommunicated man the gift of absolution, if he seeks it, according to the form of the Church. [Given at Rome, at Saint Peter’s, on the eighth day before the Kalends of May. 1198.]

Latin source headnote: If someone, while the first wife is living, takes a second wife who is ignorant of this matter, after the first has died he lawfully remains with the second when new consent intervenes.

The same, to the Chapter of Messina.

Coming to our presence, the layman G., bearer of the present letters, showed to us by humble intimation that, when formerly in the city of Limoges he had joined a certain woman matrimonially to himself, and had cohabited with her for two years, afterward withdrawing from her through levity of mind, he came to Messina, where he solemnly joined to himself the woman M., who was entirely ignorant that the same G. had another wife, from whom he is known to have received two sons. But when penance had been enjoined upon him that he return to his lawful wife, and on account of this he had returned to his homeland, finding that his wife had paid the debt of the flesh, he returned to the city of Messina and cohabited with the above-mentioned M. as with a lawful wife. But now, humbly and devoutly doing the penance imposed upon him for the former transgression, he petitioned from us license to cohabit with the same M. Although the aforesaid G., while his lawful wife was living, could not join the aforesaid M. to himself as wife, nevertheless, because, after his wife died, as one released from her law, he could anew consent matrimonially to the same M., provided he had not pledged faith to the adulteress or [had not] plotted the death of his wife, we [through apostolic writings] order your discretion that, if it is so, you grant the same G. license to adhere to the above-mentioned M. with conjugal affection, with the obstacle of any contradiction and appeal removed, not permitting him to be unduly troubled concerning this by anyone.

Latin source headnote: One contracting with a second woman while the first is living, whom, however, he knew neither before nor after the contract, can, after the first has died, contract with the second.

Gregory IX, to Brother R.

If someone, while his wife was living, with faith pledged promised that he would take another woman, or contracted in fact with her, if neither before nor afterward, while his lawful wife survived, he knew that woman, although penance is to be enjoined upon each of them for the fact that they gravely transgressed in this, nevertheless the marriage which he contracted with her is not to be dissolved after the death of the wife. But it ought not to be tolerated if, either before or afterward, while his wife lived, he had polluted the other woman by adultery.