Questions I and II

GRATIAN. PART I. Both questions are determined by the authority of Pope Leo, who, writing to Nicetas, Bishop of Aquileia, [letter LXXVII, c. 1 and following], says:

Since you say that, through the calamity of war and the most grievous assaults of hostility, certain marriages have been divided in such a way that, when the husbands were led away into captivity, their women remained destitute, believing their own husbands to have been killed or that they would never be freed from an unjust dominion, and, with anxiety compelling them, passed into marriage with others; and since, with the Lord’s help, the condition of affairs has been changed for the better and some of those who were thought to have perished have returned: your charity rightly appears to doubt what ought to be ordained by us concerning the women who are joined to other husbands. But because we know it to be written that a woman is joined to a man by the Lord, and again we acknowledge the precept that a human being is not to separate what the Lord has joined, it is necessary that we believe the bonds of lawful marriages are to be restored and, with those things which hostility introduced removed, that what was lawfully contracted be restored to each one; and it must be procured with every effort that each one receive what is his own.

§ 1. Nor should he who took the person of that husband who was now thought not to exist be judged so blameworthy or regarded as an invader of another’s right. For in this way many things that belonged to those led into captivity could pass into another’s right, and nevertheless it belongs to complete justice that, when those persons return, their own things be restored to them. If this is rightly observed in slaves, or fields, or even houses and possessions, how much more must it be done in restoring married persons?—so that what was disturbed by the calamity of war may be restored by the remedy of peace. And therefore, if husbands returning after a long captivity so persevere in love of their wives that they desire them to return into their fellowship, what necessity introduced must be disregarded and judged blameless, and what fidelity demands must be restored. And below, [c. 4]:

§ 2. But if any women are so captivated by love of the later husbands that they prefer to cleave to them rather than pass back into lawful fellowship, they are deservedly to be censured, so that they are deprived of ecclesiastical communion, because from an excusable matter they chose the defilement of a crime, showing that, on account of their incontinence, what a just remission could have expiated was pleasing to them. Therefore, let the marriages return to their own condition by a voluntary restoration, and let what the condition of necessity extorted in no way be drawn into the reproach of an evil will; because, just as those women who refuse to return to their husbands are to be regarded as impious, so those who return to an affection begun from God are deservedly to be praised.

Likewise Pope Innocent to Probus, [in letter IX]. While a woman named Ursa was held in captivity, we learned that Fontanus contracted another marriage with Restituta. But when, by the Lord’s favor, Ursa returned, she approached us and, with no one denying it, demonstrated fully that she was the wife of the man mentioned. Concerning this, dearly beloved and deservedly illustrious son, we establish, with the Catholic faith supporting us, that the marriage is that which divine grace first founded, and that the union with the second woman, while the first was surviving and had not been cast off by a bill of repudiation, is in no way lawful.

Likewise Jerome to the priest Amandus. I was not sufficiently able to perceive what he wished to mean by saying, “another man having been received by force.” Evidently, after a multitude had been gathered, he seized her against her will. And did the woman who was seized afterward leave the man, but not the ravisher? Let her read the books of Moses, and she will find that, if a woman betrothed to a man was violated in a city and did not cry out, she is punished as an adulteress; but if violated by force in a field, she is innocent, and the violent man is subject to the laws. Therefore, if that sister who, as he says, suffered force so that she was joined to an adulterer wishes to receive the body of Christ and not be reckoned an adulteress, let her do penance, but only on this condition: that from the time of her penance she is not joined to the second man, who is called not a husband but an adulterer. But if this seems hard to her, and she cannot abandon the one once loved nor prefer the Lord to pleasure, let her hear the Apostle crying: “You cannot drink the cup of the Lord and the cup of demons. You cannot partake of the Lord’s table and the table of demons”; and in another place: “What fellowship has light with darkness? What agreement has Christ with Belial?” I speak of a new thing—or rather, not a new but an old one, which is confirmed by the authority of the Old Testament. If she leaves the second man and wishes to be reconciled to the first, she cannot. For it is written in Deuteronomy: “If a man takes a wife and has her, and she does not find favor in his sight on account of some foulness, let him write a bill of repudiation and give it to her and send her from his house. And when, having gone out as an adulteress, she has taken a husband, and he too hates her and gives her a bill of repudiation and sends her from his house, or indeed has died, the former husband will not be able to receive her as wife, because she has been polluted and made abominable before the Lord, lest you cause the land which the Lord your God delivered to you to possess to sin.”

PART III. GRATIAN. But if, under the compulsion of unavoidable necessity, a husband has fled into another province and his wife refuses to follow him, let her remain unmarried while he lives. Hence in the Council at Verberie:

If anyone, under the compulsion of unavoidable necessity, has fled into another duchy or province, and his wife, although she is able and has the means, refuses to follow him out of love for her relatives or her property, let her always remain unmarried for the whole time that her husband, whom she did not follow, lives.

PART IV. GRATIAN. But what is said of married women on the authority of Pope Leo is also to be understood of virgins: if they marry another’s husband without knowledge of the fact, they are not held guilty. Hence Augustine in the book On Faith and Works, [c. 7]:

If a virgin unknowingly marries another woman’s husband, then, if she always remains ignorant of this, she will never thereby be an adulteress. But if she comes to know it, she begins to be one from the time when she knowingly lies with another woman’s husband; just as, in the law of estates, each person is most rightly called a possessor in good faith for as long as he does not know that he possesses another’s property. But when he has learned this and has not withdrawn from another’s possession, he is then declared to be in bad faith; then he will justly be called unjust.

PART V. GRATIAN. Thus ignorance also excuses a man who unknowingly slept with his wife’s sister. Hence it is read in the Council of Tribur:

In the wife’s absence, the wife’s sister went into the husband’s bed, and he, thinking her to be his wife, slept with her. Concerning this, it was determined that, if he proves by a true assurance that he committed this crime unknowingly, he shall indeed perform whatever penance is adjudged to him, but shall be permitted to retain his lawful marriage. The woman, however, shall be afflicted with a worthy punishment and perpetually deprived of marriage.

Likewise Hermas in the book of the Shepherd, Mandate IV. I said to the shepherd: Lord, if anyone has a wife faithful in the Lord and finds her in adultery, does the husband sin if he lies with her? And he said to me: As long as he does not know her sin, the husband living with her is without fault. But if the husband knows that his wife has sinned and the woman has not done penance but persists in her fornication, and the husband has intercourse with her, he will be guilty of her sin and a participant in her adultery. And I said to him: What, then, if the woman persists in her vice? And he said: Let the husband put her away, and let the husband remain by himself. But if he puts away his wife and takes another, he too commits adultery. And I said to him: What if the woman who was put away has done penance and wishes to return to her husband; will she not be received by her husband? And he said to me: Indeed she will. If her husband does not receive her, he sins and brings a great sin upon himself; rather, he ought to receive the sinful woman who has done penance. Therefore, a husband ought not to take another after putting away his wife. This act is alike in man and woman.]

PART VI. GRATIAN. Concerning those who simply commit fornication, or with two sisters, or with a mother and daughter, or with a father and son, the same is to be understood: marriages are not to be denied to those who acted unknowingly, but are to be perpetually prohibited to those who acted knowingly. Hence it is read in the same Council:

If anyone has committed fornication with two sisters, and one sister did not know that her sister had previously been violated by the same man, or did not understand herself to be the sister of her whom he had previously violated, then, if he has worthily repented and has not been able to remain continent, marriages shall not be denied to them after seven years. But if they were not ignorant, let them abstain from marriage until death.

If anyone has committed fornication with a mother and daughter, the mother being ignorant concerning the daughter and the daughter concerning the mother, let him never take a wife; but let the women, if they wish, take husbands. But if the women themselves knew this, let them remain perpetually without husbands.

A certain man committed fornication with a certain woman; and afterward his son, not knowing his father’s deed, violated the same woman. When the father learned this, he made confession concerning himself and his son. They established that it was better that lawful marriages be permitted to those who had fallen in this way, together with worthy penance, than that they perhaps sin more grievously. But let the woman with whom they committed fornication remain without hope of marriage.