Question I

GRATIAN. PART I. That a prostitute ought not to be taken as wife is proved by many authorities and reasons. For a woman who is proved guilty of adultery ought not to be retained in the fellowship of marriage unless after penance has been completed. Hence John Chrysostom, [that is, the author of the Incomplete Work, homily XXXII], says on Matthew c. 9:

Just as one who puts away a chaste woman is cruel and unjust, so one who retains a prostitute is foolish and unjust. For one who conceals his wife’s crime is a patron of shamefulness.

Likewise Jerome, [in the commentary on Matthew c. 19]. The Lord says in the Gospel: “Whoever puts away his wife, except on account of fornication, and takes another, commits adultery; and he who takes the woman put away commits adultery.” Fornication alone is that which conquers affection for a wife. Indeed, since she has divided one flesh into another and has separated herself from her husband by fornication, she ought not to be retained, lest she also bring her husband under a curse, as Scripture says: “He who retains an adulteress is foolish and impious.” Therefore, wherever there is fornication or suspicion of fornication, the wife is freely put away. And because it could happen that someone might make a false accusation against an innocent woman and, for the sake of a second marital union, impute a crime to the former union, he is commanded to put away the first wife in such a manner that, while the first is living, he does not have a second.

The same, on Paul’s Epistle to the Corinthians, [1 Cor. 6, in the Ordinary Gloss]. Whatever sins a man placed in marriage commits do not defile his own wife; but fornication pollutes even the wife, so that she is no longer lawful for her husband, but adulterous.

Likewise John Chrysostom. If anyone has found his wife adulterous and thereafter has resolved to have her in marriage, let him perform penance for two years because he has been mingled with an adulteress who has not yet been purified of her crime; or let him abstain from marriage with her until the satisfaction of penance for her crime has been fulfilled, because after satisfaction through penance she does not deserve to be called an adulteress. Similarly, if a wife has found her husband adulterous, she is not judged by unequal standards.

PART II. GRATIAN. It is to be understood: unless the woman should wish to depart from adultery. In that case a man can receive his wife without bringing any danger upon her. Hence Pope Pelagius to Melleus the subdeacon:

Concerning Benedict also, whom you reported to have carried off another man’s wife with a criminal spirit and hitherto to presume to detain her in his own company: if this is the truth of the matter, we command Your Experience not to delay in punishing him strictly together with the adulteress herself, to shave them and separate them from one another, and to cause him to migrate without delay to Lucius the defender on the patrimony in the province of Apulia. But as to her, if perhaps her husband wishes to receive her without any deceit, let him receive her under safeguard through your ordinance, provided that he will bring no danger upon her if she commits nothing similar hereafter. But if he is altogether unwilling to receive her, station her by prudent arrangement in some other place in which it is not lawful for her to live wickedly.

Likewise from the Penitential of Theodore. If anyone knows his wife to be an adulteress and is unwilling to put her away but wishes to have her in marriage, let him perform penance for three years, and let him abstain from her for as long as she performs penance.

Likewise Augustine to Pollentius, Book II On Adulterous Marriages, [c. 6]. But as to what seems harsh to you—that after adultery a spouse should be reconciled—if faith is present, it will not be harsh. For why do we still reckon as adulterers those whom we believe to have been washed by baptism or healed by penance? In the old law of God these crimes were cleansed by no sacrifices; in the law of the New Testament they are cleansed without sacrifice. And therefore at that time it was altogether prohibited to receive a wife contaminated by another, although David, a prefigurer of the New Testament, received without hesitation Saul’s daughter, whom the woman’s father had separated from him and given to another. But now, after Christ said to the adulteress, “Neither will I condemn you; go, and from now on sin no more,” who does not understand that a husband ought to forgive what he sees that the Lord of both has forgiven? And that he ought no longer to call adulterous a woman whose crime, after she repented, has been blotted out by God?

The same, On Adulterous Marriages. Even after adulteries have been perpetrated and purged, reconciliation of the marriage will be neither shameful nor difficult where it is not doubted that remission of sins occurs through the keys of the kingdom of heaven—not so that, after divorce from her husband—that is, marital separation—an adulteress may be called back, but so that, after fellowship with Christ, she may not be called an adulteress.

Likewise Ambrose, [Book II, On Cain and Abel, c. 4]. When wickedness is renounced, virtue is immediately taken on. For departure from malice works an entrance of virtue, and by the same endeavor by which crime is excluded, innocence is joined.

Likewise Gregory, [homily XXIX on the Gospels]. Before the merciful judge, indeed, not even one who returns to truth after lying will be held deceitful, because almighty God, when he willingly receives our penance, himself conceals by his judgment that in which we erred.

GRATIAN. But if she has chosen to persevere in adultery, the husband will be held a patron of shamefulness and guilty of pandering unless he wishes to bring an accusation of adultery against her. Hence in Book VIII of the Code, under the title On Adultery and Illicit Intercourse, Emperors Severus and Antoninus say: “Those who have detained in marriage a wife apprehended in adultery contract the crime of pandering, not those who held a wife suspected of adultery.”

§ 1. This does not obtain for women. For they are not permitted to bring charges of adultery against their husbands. Hence in the same book and title the same Emperor says: “The Julian law declares that women do not have an accusation of adultery in a public trial, although they may wish to complain of a violated marriage. Although it conferred upon males, by the right of a husband, the faculty of accusing, it did not confer the same privilege upon women.”

§ 2. Therefore, if, as is gathered from these authorities, no one is permitted to retain an adulteress, much less will it be lawful to take in marriage a woman for whose chastity no hope is held. For fidelity and the sacrament ought to be preserved between spouses; when these are absent, they are called not spouses but adulterers. Hence Augustine writes against Julian in Book I:

The truth of marriage does not lie solely, as you rave, in the mingling of male and female, although without it marriage cannot procreate children. Rather, there are other things properly pertaining to marriage by which marriages are distinguished from adulteries, such as fidelity to the marital bed, care for procreating children in an ordered manner, and—the greatest difference—the good use of an evil, that is, the good use of the concupiscence of the flesh, which good adulterers use badly.

GRATIAN. These are the goods by which marriages are commended and distinguished from unlawful use.

PART III. But, to the contrary, Ambrose appears to disapprove marriages, saying:

Marriages fill the earth; virginity fills paradise. But this also must be considered—at least according to the Hebrew truth—that Scripture, after the works of each day had been completed on the first, third, fourth, fifth, and sixth day, said: “And God saw that it was good,” but on the second day omitted this altogether, leaving us the understanding that the double number, which divides from unity and prefigures the covenants of marriage, is not good. Hence also in Noah’s ark all the animals whatsoever that enter two by two are unclean. The odd number is clean, although in the double number another sacrament is also understood: that second marriage is not approved even among beasts and unclean birds. For the unclean enter two by two, but the clean by sevens, so that after the flood Noah would have something in an odd number that he could immediately offer to God.

GRATIAN. But this refers to an exhortation, not to the necessity of observing virginity. Hence the same Ambrose says, [in the book Exhortation to Virgins]:

Integrity of body is to be sought by us. I advise it as counsel; I do not command it by authority. For virginity alone is that which can be advised but cannot be commanded; it is a matter more of a vow than of a precept.

PART IV. GRATIAN. Since, therefore, as we have said, there is no hope of fidelity in a prostitute and no certainty of chastity, it is evident that she is not to be taken in marriage.

§ 1. But it is objected: although Rahab of Jericho was a prostitute, she was nevertheless joined in marriage to a prince of the tribe of Judah, from whom Christ also afterward deigned to be born. Hosea also, the first of the twelve Prophets, at the Lord’s command bought a prostitute for a cor of barley and associated her with himself in marriage. But it is one thing to take a prostitute, or to retain an adulteress, whom you adorn with chastity and modesty by your manner of life; it is another to have one of them whom you are able by no agreement to recall from the wantonness of her flesh. For the latter is utterly prohibited; the former is read to have been done laudably. Hence Jerome on Hosea, Book I, [on c. 1]:

The prophet Hosea is not to be blamed if he converted the prostitute whom he took to chastity; rather, he is to be praised because he made a good woman from an evil one. For one who remains good is not polluted if he is associated with an evil person; rather, one who is evil is turned to good if that person follows the examples of the good. From this we understand that the Prophet, when joined to a prostitute, did not lose chastity, but that the prostitute assumed the chastity which she did not have before.