Question VII

GRATIAN. PART I. But now it is asked whether one who has put away his wife for the cause of fornication can take another while she is living. That this cannot be done is attested by Augustine in the book On the Good of Marriage, [c. 7], saying:

When divorce—that is, marital separation—intervenes, the marriage covenant is not abolished, so that even separated persons are spouses to one another; but adultery is committed with those to whom they have been joined after their repudiation.

The same, On Adulterous Marriages, Book II, [cc. 4 and 5]. A wife is lawfully put away on account of the cause of fornication, but the former bond remains. For this reason, whoever takes a woman put away on account of fornication becomes guilty of adultery. But just as, while the sacrament of regeneration remains in that person, whoever is guilty of a crime is excommunicated, so a woman who is separated from her husband will never lack the sacrament of marriage, even if she is not reconciled to her husband. But she will lack it if her husband has died. One guilty of excommunication, however, will for this reason never lack the sacrament of regeneration, even while unreconciled, because God never dies.

The same, on Paul’s Epistle to the Corinthians. The Apostle says: “To those who are in marriage I command—not I, but the Lord—that the wife is not to depart from the husband; but if she has departed, she is to remain unmarried or be reconciled to her husband.” For it can happen that she departs for the cause which the Lord permitted. But if a woman is permitted to put away her husband because of the cause of fornication, what will we answer concerning what he says afterward: “And let the husband not put away the wife”? Why does he not add “except for the cause of fornication,” which the Lord permits, unless because he wishes a similar form to be understood: that if he has put her away—which is permitted for the cause of fornication—he is to remain without a wife or be reconciled to his wife?

And after a few words: § 1. But the Lord permitted a wife to be put away for the cause of fornication. Yet because he permitted it, he did not command it.

The same, On the Lord’s Sermon on the Mount, [Book I, c. 25]. It can happen that a man puts away his wife for the cause of fornication, which the Lord wished to be excepted. But if neither is she permitted to marry while the husband from whom she departed is living, nor is he permitted to take another while the wife whom he put away is living, much less is it right to commit unlawful acts of illicit intercourse with anyone whatever.

Likewise from the Council of Milevis, [c. 17]. It was decided that, according to evangelical and apostolic discipline, neither a man put away by his wife nor a woman put away by her husband is to be joined to another, but let them remain thus or be reconciled to one another. But if they despise this, let them be brought to penance.

Likewise Augustine, Book I On the Lord’s Sermon on the Mount, [c. 25]. To confirm that a wife is not readily put away, the Lord excepted the sole cause of fornication; but he commands all other troubles, if any arise, to be bravely sustained for the sake of marital fidelity and chastity. And he also calls the man who takes a woman released from her husband an adulterer.

Likewise Jerome to the priest Amandus. Cutting off all excuses, the Apostle most openly determined that a woman is an adulteress if she marries another while her husband is living. I do not wish you to put forward to me the violence of an abductor, the provision of a mother, the authority of a father, a crowd of relatives, the snares of servants, or losses to the parents’ household property. For as long as the husband lives—although he is an adulterer, although a sodomite, although covered with every shameful deed and abandoned by his wife because of these crimes—he is reckoned her husband, and she is not permitted to receive another husband. The Apostle does not determine this by his own authority; rather, with Christ speaking in him, he followed the words of Christ, who says in the Gospel: “He who puts away his wife, except for the cause of fornication, causes her to commit adultery; and he who receives a woman put away is an adulterer.” Hence the Apostles also, understanding the grave burden of marriage, say: “If it is so, it is not expedient for a man to receive a wife.” To this the Lord says, “He who is able to receive it, let him receive it,” and immediately, under the example of the three eunuchs, introduces the blessedness of virginity, which is restrained by no law of the flesh.

Likewise from the Council of Elvira, [c. 9]. Let a believing woman who has left a believing adulterous husband and takes another be prohibited from taking him. But if she has taken him, let her not receive communion before the man whom she left has departed from the world, unless perhaps the necessity of illness compels it to be given.

Likewise from the Council of Pope Martin, [that is, from the Capitula of Martin of Braga, c. 80]. If anyone has been joined in many marriages, let him perform penance. But let the penitent’s manner of life and faith determine the period.

Likewise Augustine, On Adulterous Marriages, Book I, [c. 9]. Just as it cannot rightly be said, “If a person does not know, he does not sin”—for there are also sins of the ignorant, although lesser than those of persons who know—so it cannot rightly be said, “If a husband has put away his wife for the cause of fornication and has taken another, he does not commit adultery.” For there is adultery also by those who take other women after leaving their former wives because of fornication, although it is certainly lesser than that of those who put them away not because of fornication.

PART II. GRATIAN. For there are degrees in fornication, so that, just as an adulterer sins more gravely than a fornicator, so one who takes another without his own wife having been put away commits a graver offense than one who puts away his own and knows another. Likewise, one who has a wife and approaches his neighbor’s spouse sins more gravely than one who, without a wife, violates another’s bed, or one who, being married, approaches an unmarried woman. But incestuous persons surpass all these, and those who sin against nature surpass them. Hence Augustine, On Adulterous Marriages:

“The evil of adultery surpasses fornication, but is surpassed by incest. For it is worse to lie with one’s mother than with another man’s wife. But the worst of all these is what is done against nature, as if a man should wish to use a woman’s member not conceded for this purpose. For if natural use slips beyond measure, it is indeed venial with a wife but condemnable with a prostitute. The use that is against nature is done execrably with a prostitute, but more execrably with a wife. The ordering of the Creator and the order of the creature have such great force that, in matters conceded for use, even when the measure is exceeded, this is far more tolerable than one or a rare excess in those matters that have not been conceded.”

Likewise Ambrose, in the book On the Patriarchs, [Book I, On Abraham, c. 6]. Holy Lot offered the modesty of his daughters. For although that too was shameful impurity, nevertheless intercourse according to nature was a lesser evil than sinning against nature. He preferred the gracious duty of hospitality, inviolable even among barbarous nations, to the modesty of his house.

Likewise Augustine, Confessions, Book III, [c. 8]. Shameful deeds that are against nature are everywhere and always to be repudiated and punished, such as those of the Sodomites. If all nations committed them, they would be held by divine law under the same guilt of crime, for that law did not make human beings so that they would use one another in that manner. Indeed, the very fellowship that we ought to have with God is violated when the same nature, whose author he is, is polluted by the perversity of lust.

The same, Against Jovinian, Book I. Natural use is lawful, as in marriage, and unlawful, as in adultery. But that which is against nature is always unlawful and without doubt more disgraceful and shameful. The holy Apostle reproved it both in women and in men, wishing them to be understood as more condemnable than if they sinned in natural use either by committing adultery or fornication.

Likewise Isidore, [Book II On the Highest Good, c. 39]. PART III. Sin reigns in a person not only from committed fornication but, if that person still takes delight in it and it holds the mind, without doubt it reigns. Fornication of the flesh is adultery; fornication of the mind is servitude to idols. There is also spiritual fornication, concerning which the Lord says: “He who looks upon a woman to desire her has already committed adultery with her in his heart.” Every unclean pollution is called fornication, although each person prostitutes himself by a different pleasure of shamefulness. For from delight in fornicating various shameful deeds are begotten, by which the kingdom of God is closed, so that a person is separated from God.

§ 1. Among the other seven vices, fornication is of the greatest wickedness, because through the uncleanness of the flesh it violates the temple of God. There are also certain women who, like animals, continually serve lust without any discretion; I would not compare them even to dumb beasts. For when cattle have conceived, they no longer grant males access to themselves.

Likewise from the First Epistle of Clement, [to James]. What among all sins is more grave than adultery? For it holds the second place among punishments; those indeed hold the first who stray from God, even if they have lived soberly.

GRATIAN. By these authorities it is most clearly shown that whoever puts away his wife for the cause of fornication will not be able to take another while she is living; and if he has taken one, he will be guilty of adultery.

PART IV. § 1. To these things it is answered thus: These authorities speak of those whose continence carnal weakness does not impede, or of those who, by furnishing the cause of separation, rendered themselves unworthy of union with others. Hence Ambrose on the First Epistle of Paul to the Corinthians, [on c. 7]:

“Let a wife not depart from her husband except for the cause of fornication; but if she has departed, let her either remain unmarried or be reconciled to her husband; and likewise let the husband not put away his wife.” Therefore, he does not add concerning the husband what he set forth concerning the wife, because the husband is permitted to take another.

Likewise Gregory the Younger to Bishop Boniface, [epistle IV]. As to what you proposed—if a woman seized by infirmity has been unable to render the marital due to her husband, what her spouse is to do—it would be good if he remained thus, so that he might devote himself to abstinence. But because this belongs to great persons, let one who cannot contain himself marry instead; nevertheless, let him not withdraw the aid of support from her whom infirmity impedes and no detestable fault excludes.

PART V. GRATIAN. But that saying of Ambrose is said to have been inserted by falsifiers. That saying of Gregory is found to be utterly opposed to the sacred canons—indeed, to evangelical and apostolic teaching. But certain persons, desiring to preserve the judgment of Ambrose, judge that it is to be understood not of just any fornication, so that a man might lawfully put away his wife on account of any fornication and take another while the woman put away is living, but only of incestuous fornication: namely, when someone’s wife has publicly handed herself over to be defiled by the father and son, the husband’s brother or maternal uncle, or someone similar. Because she has rendered herself permanently unlawful for her husband by passing through union with a blood relative into the first, second, or third degree of affinity, she is lawfully put away and another is brought in while she lives. If anyone here contends that it is no more lawful for a man than for a woman—if the husband fornicates with someone in the same manner—let that person know that “man” was used by Ambrose not for sex but for strength of mind, and understand that “woman” likewise was named not for the sex of the body but for softness of mind. But because no authority permits another wife to be brought in while a wife is living, that saying of Ambrose is understood, in the aforesaid kind of fornication, not to mean that one can take another while the woman put away is living, but that after the death of the female fornicator or male fornicator—each of whom, as was said above, is called “woman” because of the corruption of lust—the one who is clean from fornication, whether man or woman, can be joined to another; but adulterers, if they survive, will in no way be able to be joined to others. Thus also is understood what is read in a chapter of a certain Council:

A certain woman slept with her husband’s brother. It was decreed that the adulterers are never to be joined in marriage; but lawful marriages are not to be denied to the man whose wife was violated. The passage of the Council of Mainz is also understood thus:

If anyone has taken a widow as wife and afterward has fornicated with his stepdaughter or with two sisters; or if any woman has fornicated with two brothers or with a father and son; if anyone has polluted his brother’s widow, his granddaughter, stepmother, daughter-in-law, female cousin, maternal uncle’s daughter or his widow, or stepdaughter—we command them to be separated and never thereafter joined in marriage.

Likewise. One who has slept with two sisters, one of whom was previously his wife, is to have neither of them; nor are the adulterers themselves ever to be joined in marriage.

Likewise that saying of Gregory. But those who discover their wives in adultery will not be permitted—neither the man nor the woman—to receive another wife or another husband for as long as both live. But if the adulteress has died, her husband, if he wishes, may marry, only in the Lord; the adulteress, however, may never marry, even if her husband has died. Yet on all the days of her life let her discharge the lamentations of the most severe penance.

Likewise from a decree of Pope Zachary. Did you lie with your wife’s sister? If you did, you are to have neither. And if the woman who was your wife was unaware of the crime, if she is unwilling to contain herself, let her marry whom she wishes in the Lord. But you and the adulteress are to remain without hope of marriage and, for as long as you live, perform penance according to the priest’s precept.

Likewise from the Council of Tribur. If anyone has slept with his stepmother, neither can come to marriage; but her husband can, if he wishes, receive another if he cannot contain himself.

§ 1. The same is to be observed concerning one who has slept with his stepdaughter or with his wife’s sister.

GRATIAN. Although what is set down at the end of the Council of Mainz is understood by some to have been said not of those lawfully joined but of fornicators—namely, that the fornicators are to depart from one another and remain without hope of marriage—that saying of Gregory to Boniface was permitted for a time to the English, to whom blessed Gregory permitted marriages to be contracted in the fourth and fifth generation. Otherwise it would be empty, since Augustine says in the Sermon on the Mount: “If someone has a sterile wife, etc.”

Likewise Nicholas to Charles, archbishop of Mainz. PART VI. The marriages of those who contracted marriage while healthy, and madness, frenzy, or some infirmity befell one of the two, cannot be dissolved because of this infirmity. The same is to be known concerning those who are blinded by enemies, mutilated in their members, or castrated by barbarians.

Likewise Pope Fabian. Neither a mad man nor a mad woman can contract marriage; but if it has been contracted, let them not be separated.

PART VII. GRATIAN. Therefore, as is gathered from the foregoing, it is not lawful for this man to take another after putting away his wife. For a certain marital bond remains between them which is not dissolved even by the separation itself. Hence Augustine says in the book On the Good of Marriage, [c. 7]:

The social bond has such great force that, although it is bound together for the sake of procreation, it is not dissolved by the failure of that very purpose of procreation. For a man could put away a sterile wife and take one from whom he might have children, and nevertheless it is not lawful.

Likewise, [c. 15]. § 1. The bond of nuptials remains even if offspring, for whose sake it was entered, does not follow because of manifest sterility, so that, even when the spouses already know that they will not have children, it is nevertheless not lawful for them to separate even for the sake of children and to join themselves to others. But if they do this, they commit adultery with those to whom they have joined themselves, while the marriage itself remains. Certainly, among the ancient fathers it was right, with the wife’s consent, to employ another woman from whom common children would be born—through the union and seed of the one, but under the right and power of the other. Whether it is right even now I would not rashly say.

The same, in the same work. The rights of nuptials once entered remain among the living to such a degree that, even when separated, they are spouses to one another rather than to those to whom they have adhered.

And afterward: § 1. A certain marital bond remains among the living which neither separation nor union with another can take away; just as an apostate soul, departing as it were from marriage with Christ, does not lose the sacrament of faith which it received in the washing of regeneration even after faith has been lost. For without doubt it would be restored to one returning if that person had lost it in departing. But one who has departed has this for an accumulation of punishment, not for the merit of a reward.