Question II

GRATIAN. PART I. That, after the separation, she can marry the man with whom she had previously fornicated was proved above. For her husband is dead to her. From the time when, separated from him by the judgment of the Church, she was released from his law. Hence, according to the Apostle, let her marry whom she wishes, only in the Lord.

§ 1. But it is asked: if, without ecclesiastical judgment and with no reasonable cause for separation proved, he had departed from her, would he be compelled to return to her? Concerning this it was established thus in the Council of Carthage, which Augustine attended, c. 30:

Laypersons who leave, or have already left, marital fellowship without any more grave fault, and who, proposing no probable causes of separation, leave their marriages so that they may presume upon either unlawful or other persons’ unions: if they have cast off their wives before stating the causes of separation before the bishops of the province and before being condemned by judgment, let them be excluded from the communion of the Church and the holy assembly of the people because they stain fidelity and marriages.

Likewise Ambrose on Luke, [on c. 16]. Or is what is wicked against subjects right against an equal? Therefore, you put away your wife as though by right, without a crime, and think this lawful for you because human law does not prohibit it? But divine law prohibits it. You who comply with human beings, fear God. Hear the law of the Lord, which even those who bear laws obey: “Those whom God has joined, let man not separate.”

Likewise Pope Nicholas to Emperor Charles. The Ecclesiastical History composed by Eusebius, bishop of Caesarea, says concerning a certain woman who was accused by her husband regarding chastity: “It was commanded by a law issued by the emperor that first she be freely permitted to arrange her household property over a longer time; then afterward she would answer the objections. All laws—ecclesiastical as well as common and public—command this.”

§ 1. But if these things were established concerning women and secular men, much more are they conceded to ecclesiastical men and priests.

Likewise Pope Nicholas, [in the epistle to King Charles]. PART II. Whether a judgment is to be conducted concerning the marriage covenant or the crime of adultery, no reason permits Theutberga to be able to enter into litigation with Lothair unless she has first been restored for a time to her own power and freely associated with her own blood relatives. Among these things, a place is also to be provided in which no force of a multitude is feared, nor is it difficult to produce witnesses or the other persons who are required in controversies of this kind both by the holy canons and by the venerable Roman laws.

PART III. GRATIAN. In this chapter, although a cause appears to be set forth why it is not lawful for anyone to put away his wife by his own authority, and when this cause ceases the prohibition itself also appears to cease, nevertheless, because the separation itself is a penalty and a penalty is to be inflicted upon no one except through a judge, this is to be understood generally: whether because of the aforesaid cause or when no cause exists, it is not lawful for anyone to put away his wife by his own authority. The same is also to be understood concerning the penalty for homicide or any other penalty. Hence Pope Nicholas writes to Rudolf, archbishop of Bourges:

What else are killers of their spouses without a judgment to be held than murderers—and therefore to be brought to penance—when you do not add that the wives were adulterous or anything of this kind? Marriage is utterly denied to them, except for youths, concerning whom the twenty-fifth decretal rule—or rather indulgence—of blessed Pope Leo is to be observed.

GRATIAN. In this chapter Nicholas appears to permit husbands to kill their wives for the cause of adultery or another crime of this kind. But ecclesiastical discipline commands criminals to be struck by the spiritual sword, not the material one: namely, by that sword with which Peter is commanded to slay and eat. Concerning this sword Christ also says in the Gospel: “I came not to send peace upon the earth, but a sword.” Hence the same Nicholas writes to Archbishop Albinus:

Among these matters Your Holiness endeavored to add the question whether, if anyone’s wife has perpetrated adultery, her husband is permitted to kill her according to worldly law. But God’s holy Church is never bound by worldly laws. It has no sword except the spiritual; it does not kill but gives life.

Likewise Pope Pius. Whoever has killed his own wife outside the law or without cause and certain proof, and has taken another wife, is to lay aside his arms and perform public penance; and if he is contumacious and has remained disobedient to his bishop, let him be anathematized until he consents. The same law will apply to one who has killed his superior.

Likewise Stephen V to Astulf. We take care to admonish you with tears and much groaning of heart, son Astulf; but you ought not to be called a son, you who so cruelly perpetrated an unhappy homicide. For you killed your wife, a part of your body joined to you in lawful marriage, without cause for death, when she did not resist you and in no way plotted against your life. You did not find her doing a wicked thing with another man; rather, stirred by the devil, inflamed with impious fury, in the manner of robbers, more cruel than every beast, you most savagely slew her with your sword. And now after her death you add iniquity upon iniquity, an impious robber of your children. You who did not spare their mother made your children orphans, and after her death you wish to bring upon her a cause for death through one man, a murderer and reprobate witness. For neither the Gospel nor any divine or human law condemns or justifies anyone by the testimony of one man, even a suitable witness. How much more, through this wicked and most shameful man, ought she neither to have been condemned while alive nor to be accused by you after her death? First the cause of the crime had to be investigated carefully, and then, if it had been found to be so, she ought to have received the retribution of punishment according to the path of the law. For if it had been true—which may it not be—as the adulterer falsely claimed, after completing seven years of penance you could have put her away for a proved cause if you wished; nevertheless, you ought in no way to have killed her. For God does not will the death of a sinner, but that the sinner be converted to penance and live.

Therefore, let our counsel be pleasing to you, and do that which can appear better and lighter for you: have mercy on your soul, so that you are not a murderer of your very self. Therefore, we ask you, leave this evil world which drew you to so monstrous a criminal deed of sin. Enter a monastery, humble yourself under the hand of an abbot, and, aided by the prayers of many brothers, observe with a suppliant mind all things commanded to you, if perhaps the infinite goodness of God may forgive your sins and refresh your soul before you are tormented by perpetual flames. Know most certainly that this is lighter and better for you.

But if you wish to perform public penance while remaining in your house or in this world—which you should not doubt will be worse, harder, and graver for you—we exhort you to do it as you ought. On all the days during which you must perform penance, do not drink wine or any strong drink; never eat flesh at any time, except at Easter and on the day of the Lord’s Nativity. Perform penance on bread, water, and salt. Persevere at all times in fasts, vigils, prayers, and alms. Never gird yourself with arms, nor presume to litigate in any place. Never take a wife, have no concubine, nor dare to commit adultery. Never wash in a bath; never mingle yourself in the banquets of those rejoicing. In the church, separated from other Christians, place yourself humbly behind the door and doorposts. Commend yourself in supplication to the prayers of those entering and departing. Consider yourself unworthy of communion in the body and blood of the Lord on all the days of your life. Yet on the final day of your departure from life, if you have merited it, we mercifully concede that you receive it only as viaticum, if there is someone to give it. There are also many other things, unhappy man, which according to the great weight of your sin ought to have been added for you more harshly and with sufficient severity. But if, with the Lord’s aid, you do and preserve with a perfect heart all these things mercifully stated to you above, we trust in God’s immense clemency that you will have remission of your sins; and according to the saying of the just and good shepherd, holy Church will release you on earth from this bond of sin, so that by the grace of him who acquired her with his blood you may be released in heaven.

But if you act otherwise and despise so salutary an admonition of holy mother Church, be a judge unto yourself, and you will remain in the snare of the devil by which you are held entangled; your blood will be upon your head. We, estranged from fellowship with you, strive with every solicitude, with God himself aiding, to labor for the salvation of the other children of God and daily to implore the Lord’s mercy more attentively.

Likewise Augustine, On Adulterous Marriages, [Book II, c. 15]. If, as is more truly said, it is not lawful for a Christian man to kill an adulterous spouse, but only to put her away, who is so senseless as to say to him: “Do what is not lawful so that what is not lawful may be lawful for you”? For since each is unlawful according to the law of Christ—both to kill an adulteress and to take another while she is living—one must abstain from both, and an unlawful thing is not to be done in place of an unlawful thing. For if he is going to do what is not lawful, let him now commit adultery and not commit homicide, so that while his wife is living he takes another but does not shed human blood.

PART IV. GRATIAN. In the foregoing authorities, all are prohibited from killing their adulterous spouses; but after seven years of penance they are permitted to put them away. But if they have killed them, they are commanded to remain perpetually without hope of marriage, unless perhaps mercy is extended to them to contract marriages because of a lapse of youthful incontinence. Clerics, moreover, are conceded permission, if their wives have sinned, to keep them in custody without the severity of death and to compel them to fasts, but not to afflict them as far as death. Hence it is read in the First Council of Toledo, [c. 7]:

It was decided that, if the wives of any clerics have sinned, lest perhaps they have greater license to sin, their husbands are to receive this power: short of death, to guard and bind them in their own house, compelling them to salutary, not deadly, fasts, so that poor clerics may render help to one another if they do not have servants. But let them not take food with the wives themselves who had sinned, unless perhaps, after performing penance, they return to the fear of God.

PART V. GRATIAN. But now it is asked why it was established by the sacred canons that penitents are recalled to their former status after seven years. Concerning these matters Isidore writes thus to Bishop Masona, [in the preface to the book On the Highest Good]:

This very thing—that the censure of the canons commanded a penitent to return to the former status after seven years—the holy Fathers established not by the choice of their own judgment but rather from the judgment of divine justice. For it is read that Miriam, the prophetess and sister of Aaron, when she incurred the offense of detraction against Moses, was immediately covered with the mark of leprosy; and when Moses sought that she be cleansed, the Lord commanded her to go outside the camp for seven days and, after cleansing, to be admitted into the camp again. Therefore, Miriam, sister of Aaron, is understood as the flesh of a priest. When it is given to pride and stained by the most filthy contagions of thoughts, it is to be cast outside the camp for seven days—that is, outside the college of holy Church for seven years—so that after cleansing from vices it may receive the merit of its place or former dignity.

And after a few words: § 1. But at the end of the epistle I thought this was to be added: whenever a discordant judgment is found in the acts of councils, the judgment of that council whose authority is earlier or more powerful is rather to be maintained.

GRATIAN. Although this appears to have been said specifically concerning priests, it nevertheless ought to be understood generally concerning all penitents. For in imitation of that dominical judgment, David, reproved for adultery and homicide, is read to have offered to God a fast of one week in satisfaction for the shameful deed he had committed. Hence it has also been adopted by ecclesiastical custom that penance for major crimes is concluded within a period of seven years, unless either excellence of office or the magnitude of crimes exceeding common custom—such as when, contrary to the nature of human society, we immodestly adhere to parents, children, or other persons of this kind; or when, after abandoning natural use, we fornicate against nature in the manner of the Sodomites; or when we descend even to intercourse with brute animals—compels one to exceed the aforesaid period.

PART VI. § 1. Concerning penitents it is also asked whether marriages are generally conceded to them after penance has been completed. For by canonical authority penitents are generally prohibited from returning to secular military service or contracting marriages. Hence Pope Siricius, [epistle I to Bishop Himerius, c. 5]:

Concerning those persons Your Love not unfittingly believed that the Apostolic See should be consulted who, after performing penance, returned like dogs and swine to their former vomit and wallowing places and sought again the belt of military service, theatrical pleasures, new marriages, and prohibited intercourse. Children begotten after absolution betrayed the continence they had professed. Concerning these persons, because they now have no aid from performing penance, we judged that this should be decreed: let them be joined to the faithful within the church in prayer alone; let them be present at the sacred celebrations of the mysteries, although they do not deserve it; but let them be separated from the banquet of the Lord’s table, so that, corrected at least by this strictness, they may both chastise their errors in themselves and give an example to others, so that they may be drawn back from obscene desires. Nevertheless, because they fell through carnal frailty, when they begin to set out toward the Lord we wish them to be aided by the gift of viaticum through the grace of communion. We judge that this same form is to be observed also concerning women who bound themselves to such pollutions after penance.

GRATIAN. But because, from fear of dissolving their marriage, some delay approaching penance, or because of a lapse of youth which they fear, neglect to receive the remedy of penance, by canonical authority they are permitted either to retain marriages already contracted or to contract others. Hence Pope Leo writes to Galerius, bishop of Tripoli:

We have heard from certain persons that in your dioceses and the territories of Christians assemblies withdraw themselves from the yoke of penance on a slight ground, saying: “If we perform penance, we must abandon marital union.” In this they err and depart from the path of truth, because every worshiper of Christ’s name ought earnestly to undertake and complete penance for all unlawful things, as the Lord says: “Perform penance, for the kingdom of heaven will draw near.” But it is lawful for none of the orthodox to dissolve the lawful marriage of anyone undertaking penance.

And below: § 1. It is expedient for you to instruct them by addressing them with sacred discourses, so that they may be snatched from the darkness of error and, while joined in lawful unions, take care to perform penance for all unlawful things.

Likewise Leo IV. If one established in youth has performed penance because either fear of death or danger of captivity pressed him, and afterward, fearing a lapse of youthful incontinence, has chosen union with a wife lest he incur the crime of fornication, he appears to have done a venial thing if he has known no woman at all besides his spouse. Yet in this we do not establish a rule, but estimate what is more tolerable.

Likewise Pope Nicholas to Rathold, bishop of the holy church of Strasbourg. PART VII. We have learned that the bearer of these presents is a matricide. We command him to remain under the yoke of penance in such a manner that for one year he does not enter the church, but, standing before the doors of the basilica, perseveres in praying and beseeching God that he may be snatched from so great a crime. But when the circuit of the year has been completed, let him have permission to enter the church; only let him stand among the hearers and not yet receive communion. But when the courses of three years have been completed, let the grace of holy communion be conceded to him; yet let him not offer oblations unless the courses of another seven years have first been completed.

§ 1. During all these years and times, let him not eat flesh or presume to drink wine, except on feast days and Sundays and from Easter until Pentecost. And wherever he wishes to go, let him be conveyed by no vehicle, but let him journey on foot. Let him not take arms except against pagans. Let him fast three days each week until evening. Let him not be separated from his own lawful spouse, lest he fall into the abyss of fornication, which we desire not to happen. But if the end of his life approaches before the course of three years, let him become a participant in the body and blood of our Lord Jesus Christ; but if not, let it be done as established above. Nevertheless, if you see his manner of life and the fountain of tears spring forth in all flourishing actions and excellent works, let watchful solicitude appear more humane toward him and let him be shown gentle to all.

Likewise. PART VIII. If anyone has fornicated with two sisters or with those persons concerning whom holy Scripture prohibits it, if he has performed worthy penance and has been unable to sustain the continence of chastity, let him be permitted to receive a lawful wife in marriage. The same applies also to a woman who has fallen through such a crime, lest she be brought to the abyss of fornication. But we establish this solely concerning laymen and laywomen.

The same. If anyone has fornicated with his spiritual mother, he is struck, as you know, with the blows of anathema. Likewise, moreover, we decree that he also be struck who has perpetrated the crime of fornication with her whom he received from the sacred font of baptism, or with her whom he held before the bishop when she was anointed with sacred chrism; nevertheless, if he has a lawful wife, let him not dismiss her.

PART IX. GRATIAN. § 1. For a judge ought not by his own authority to separate those whom God has joined. Although Isidore understands this otherwise, saying:

“What God has joined, let no human being separate.” You ask how? You understand: violently, without law, without reason—what God has joined, let no human being separate. For a human being does not separate those whom punishment condemns, whom guilt accuses, whom crime constrains.

GRATIAN. But this is understood to have been said concerning those whom secular judges strike with the severity of the laws for their crimes, whom they either punish with death or order to be deported.

Likewise from the Sixth Council of Toledo, [c. 8]. PART X. It is a judgment of the ancient and most holy father Pope Leo that, if one who is situated in the age of youth, while fearing the occurrence of death, comes to the remedy of penance, and if perhaps, being married, he is incontinent, lest he afterward fall into adultery, he should return to his former marriage until, with the maturity of time, he can attain the state of continence. We judge this in an equal manner concerning women as concerning men. This indeed was not commanded generally and canonically, but it is established that it was granted to you on account of human frailty, only on this condition: if the one who is not subjected to the laws of penance departs from this life before one of them, by consent, has returned to continence, the survivor is not permitted again to pass to the embraces of a wife. But if the life of the one who did not accept the penitent’s absolution survives, let him marry if he cannot contain himself, and let him enjoy the companionship of another wife. It is clear that this was decreed by us equally for both sexes, namely in such a way that in all these matters the priest’s direction is awaited, so that, according as he shall perceive a suitable age, he may give the law of absolution from penance.