Question I

GRATIAN. PART I. A woman polluted by adultery is prohibited from being taken in marriage by the authority of Pope Leo, in which it is said:

Let no one take in marriage a woman whom he previously polluted by adultery. But Augustine testifies to the contrary, writing to Valerius in On Marriage and Concupiscence, [Book I, c. 10]:

Finally, after the man with whom there was a true marriage has died, a marriage can be made with the woman with whom adultery preceded.

Likewise in the book On the Good of Marriage, [c. 14]. § 1. It is manifest that lawful marriages can be made from persons lawfully joined, when an honorable agreement follows.

GRATIAN. This last authority speaks of concubines, asserting that concubines can pass to the honorable agreement of marriage. The first authority of Augustine speaks of a repudiated woman. When someone takes her in marriage while her husband is living, he commits adultery; this adultery has some pardon when his union with her is believed to be lawful.

§ 1. But that saying of Pope Leo is to be understood of a woman who had not been repudiated by her husband, whose husband was living and rendering her the marital due. Hence at the Council held at Altheim in the presence of King Conrad it was established in c. 6:

By common decree, in accordance with the institutions of the canons, we determine and adjudge that, if anyone has fornicated with another man’s wife while he was living, after the husband has died the unlawful approach to her is to be closed to him by synodal judgment, nor is the woman whom he previously polluted by adultery thereafter to be joined to him in marriage. For we do not will, nor does it accord with the Christian religion, that anyone take in marriage a woman whom he previously polluted through adultery.

GRATIAN. Here it must be understood: unless penance has first been completed, and if he contrived nothing toward the husband’s death, or if, while the husband was living, he did not give the adulteress his pledge that he would take her as his wife if he survived her husband. Hence it is read in the Council of Tribur:

It was reported to the ears of the holy priests that a certain man had violated another man’s wife by illicit intercourse and, moreover, while her husband was living, had given the adulteress an oath that, after the death of her lawful husband, if he survived him, he would take her as wife—which was also done. Therefore, we prohibit and anathematize such a marriage.

Likewise in the same Council. If anyone is accused of having committed adultery with another man’s spouse while the husband was living, and, when he died soon afterward, is known to have taken the same woman, let him in every respect be subjected to public penance. Concerning him, after penance, the aforesaid rule will also be observed if it is expedient, unless perhaps that same man—or the woman—is reported to have killed the husband who had died, or kinship or any other criminal action impedes them. But if this has been proved, let them remain perpetually with penance, without any hope of marriage.

Likewise from the Council at Verberie. If any woman has conspired with others toward her husband’s death, and the husband himself, in defending himself, has killed one of them, if that man can prove that she was guilty of the conspiracy, he can, as it seems to us, put away that wife and, if he wishes, take another. But let the woman who plotted against him remain subject to penance without hope of marriage.]

Likewise from the Council of Elvira, [c. 72]. If any widow has committed adultery and afterward had the same man as her husband, it was decided that, after a period of five years and the performance of lawful penance, she is to be reconciled to communion.

PART II. GRATIAN. But it is objected: David committed adultery with Bathsheba and contrived the death of Uriah, and nevertheless afterward took the same Bathsheba as wife. But in the Old Testament many things were permitted because of weakness which have been eliminated in the perfection of the Gospel. Thus, anyone was permitted to give a bill of repudiation, lest innocent blood be shed through hatred. The Lord later prohibited this in the Gospel, saying that a wife is not to be put away by her husband except for the cause of fornication. Certain things were permitted on account of weakness and as a sacrament of future things. Thus the Lord permitted the children of Israel to offer to him in sacrifice animals which in Egypt they had been accustomed to sacrifice to demons, preferring that they be offered to himself rather than to idols, and so that they might be sacraments of future things for them. So also Bathsheba was permitted to be taken as wife, not more on account of his weakness than as a signification of future things.

§ 1. But there is another reason why the wife of the deceased cannot marry this man. For men and women are generally prohibited from contracting marriages repeatedly. Hence priests ought not to be present at the wedding feast of second marriages, as is read in the Council of Neocaesarea, [cc. 3 and 7]:

Concerning those who repeatedly take wives and those women who marry more often, a definite period has indeed been established for them, but their manner of life and faith shorten the period.

§ 1. A priest, moreover, ought not to be present at the wedding feast of a second marriage, especially since he is commanded to assign penance for second marriages. What priest will there be who, for the sake of the banquet, consents to those marriages?

Likewise John Chrysostom, [that is, the author of the Incomplete Work on Matthew, homily XXXII]. For this reason even the Apostles commanded recourse to second marriages because of human incontinence. For although it is lawful to receive a second spouse according to the Apostle’s precept, according to the reckoning of truth it is truly fornication. But because it is committed publicly and lawfully by God’s permission, it becomes honorable fornication. Therefore he said well that Moses permitted this; he did not command it. For it is one thing to command and another to permit. For what we unwillingly permit we command, because we cannot completely prohibit the evil wills of human beings.

Likewise Jerome, On Virgins. Just as he concedes marriage to virgins because of the danger of fornication and renders excusable that which is not sought for its own sake, so because of the same danger of fornication he concedes second marriages to widows. For it is better, although it be a second and a third husband, to know one man than many; that is, it is more tolerable to have been prostituted to one man than to many. Indeed, even that Samaritan woman in the Gospel, saying that she had a sixth husband, is reproved by the Lord because he is not her husband. For where there is a number of husbands, there a husband, who properly is one, ceases to exist. One rib at the beginning was turned into one wife. “And the two,” he says, “shall be in one flesh”—not three or four, otherwise they are not two but many. Lamech, the first bloodthirsty man and murderer, divided one flesh among two wives; fratricide and second marriage were destroyed by the same punishment of the flood. Vengeance was taken sevenfold for the one and seventy-sevenfold for the other. As far as they differ in number, so far also in crime.

§ 1. How holy second marriage is, is shown by this: a twice-married man cannot be elected to the clergy. And the same Apostle says to Timothy: “Let a widow be selected who is not less than sixty years old and who was the wife of one husband.” Here there is a common precept concerning those widows who are fed by the Church’s alms, and therefore an age is prescribed, so that only those who can no longer work may receive the food of the poor. At the same time consider that a woman who had two husbands, even if she is old, decrepit, and needy, does not deserve to receive the Church’s contributions. But if the bread of alms is taken away from her, how much more that bread which descended from heaven, of which whoever shall eat unworthily will be guilty of violating the body and blood of the Lord? Although some interpret these testimonies I set down above, in which widows are conceded permission to marry again if they wish, as concerning those widows whom the faith of Christ found in this state after they had lost their husbands.

PART III. GRATIAN. But that he said this as an exhortation to widowed continence, not in condemnation of second and subsequent marriages—which are established to be lawful by the authorities of many—is given to be understood from his own words. For he says to Pammachius, [in the Apology against Jovinian]:

Let my detractors, I ask, open their ears and see that I have conceded second and third marriages in the Lord. I who did not condemn second and third marriages—could I have condemned a first marriage?

The same: § 1. I do not condemn the twice-married—indeed, not even the thrice-married, and, if it can be said, those married eight times.

The same: § 2. I now proclaim in a free voice that second marriage is not condemned in the Church—indeed, neither is third marriage—and that it is lawful to marry a fifth and sixth and subsequent husband just as it is to marry a second.

Likewise Augustine, Book II Against the Adversary of the Law and the Prophets, [c. 11]. God joined male and female in nuptial chastity for the sake of propagating the race, and showed that second marriages, which are permitted also in the New Testament, are lawful.

The same, on the First Epistle to the Corinthians. “But if her husband shall have fallen asleep.” He does not say first, second, or fourth, nor is it for us to define what the Apostle does not define. Hence I ought neither to condemn any marriages nor to remove from them the modesty associated with their number. But the Lord did not condemn the woman who had had seven husbands, nor does he say that she cannot exist in the resurrection, but only: “They shall neither marry nor be given in marriage.” Hence, contrary to the sense of human modesty, I do not dare to say that they may marry as often as they wish, nor do I from my own heart condemn marriages of any number whatever. What is said to a once-married woman is said to every widow: “She will be happier if she remains thus.”