Question VI

GRATIAN. PART I. It is now asked upon whose accusation or testimony a union between blood relatives is to be dissolved. Pope Fabian decreed as follows concerning these matters:

Let no one accuse the blood relatives of strangers or reckon their consanguinity in a synod; rather, let the relatives to whose knowledge it pertains do so, that is, father and mother, sister and brother, paternal uncle, maternal uncle, paternal aunt, maternal aunt, and their offspring. But if the entire line of descent has failed, let the bishop inquire canonically from the older and more truthful persons to whom the same relationship is known; and if the relationship is found, let the persons be separated.

A decree of Pope Celestine sent to the Church of Florence. It appears to us that the second woman, whom he took contrary to the Church’s prohibition, is not his wife, even if he had not betrothed the first. For the authority of both divine and human law proclaims that what is done contrary to the Church’s prohibition and order is not to be regarded as ratified, since it is disordered. Therefore, because the woman whom he irregularly brought in is not his wife while the prohibition stands against it, he must be compelled to receive the woman whom he swore to marry and betrothed and from whom he begot offspring, so that the sanctity of the oath is not treated as worthless, the fidelity mutually promised is observed, the offspring is nourished and educated in the worship of God, and others cannot thereby take an occasion for perjuring themselves and deceiving others.

§ 1. But that parents, brothers, and blood relatives of either sex are admitted to give testimony for joining or dissolving the marriages of their own relatives is approved both by ancient custom and by the laws. For this reason parents are admitted especially, and, if the parents are lacking, those nearer, because each person labors to know one’s own genealogy both from witnesses and charters and also from the recitation of ancestors. For who ought to be received more than those who know better and whose interest is involved, such that, if they were not present and did not furnish consent, no marriage is made according to the laws?

§ 2. But what is read—“A father shall not be received in the cause of his son, nor a son in the cause of his father”—is true in criminal causes and contracts. But in joining and disjoining a marriage they are fittingly received on account of the prerogative of marriage itself and because it is a matter receiving favor.]

Likewise Urban to Richerius, Bishop of Genoa. We notify you that, after two or three of the nearer relatives of the wife—whether now deceased or still living—of the man who is accused have affirmed this relationship by oath, or if three or two of the older Genoese to whom this relationship is known, who are of good repute and truthful testimony, have affirmed the consanguinity in the aforesaid manner with love, fear, payment, and every evil zeal removed, the marriages are to be dissolved without any delay. But if relatives or strangers testify to the relationship by words alone and refuse or are unable to prove it by oath, the marriage is by no means to be dissolved. Rather, an appropriate penance is to be imposed upon them for the infamy or the stain of sin, if perhaps they have contracted any in this matter.

Likewise from the Council of Pope Urban held in Apulia. If two or three men have affirmed consanguinity by oath, or if the persons themselves have perhaps confessed, let the marriages be dissolved. But if neither occurs, let the bishops adjure them by baptism, by faith in Christ, and by the judgment of Christ, in true obedience, to make manifest whether they recognize themselves to be blood relatives, as report has it. If they deny it, they are to be left to themselves; yet in such a way that, if they have something else in their conscience, they should know themselves separated from the thresholds of the church, from the body and blood of the Lord, and from the communion of the faithful, and made infamous, until they desist from the crime of incest. If they have separated themselves by the judgment of the bishops, those who are young shall not be prohibited from contracting other marriages.

PART II. GRATIAN. Behold, upon whose accusation or testimony unions between blood relatives are to be dissolved. The form of oath to be exacted from an accuser is found in the Roman Order. It is as follows:

Concerning that kinship which is said to exist between N. and this spouse of his, N., whatever you know concerning it or have heard from your neighbors or your older relatives, you shall conceal from your bishop—or from his envoy whom he has ordered to investigate it—by no device, nor on account of fear, love, reward, or consanguinity, whenever he questions you concerning it. So may God and the relics of these saints help you.

That oath which this man swore concerning that kinship which is reckoned between the son and his spouse N., you will observe it insofar as you know. So may God help you.

PART III. GRATIAN. This is not the oath of separation but the synodal oath instituted by Pope Eutychian. For he says:

A bishop sitting in a synod, after an appropriate address, ought to call into the midst seven men from the people of that parish—or more, as he sees expedient—who are more mature, more honorable, and more truthful. When the relics of the saints have been brought forth, he must bind each of them by an oath such as this: From this time forward, whatever you know, have heard, or afterward will inquire into which has been done or will be done in this parish contrary to God’s will and right Christianity, if it occurs in your days, provided only that it comes to your knowledge in any way—if you know or have been informed that it is a synodal cause and pertains to the ministry of the bishop—you shall in no way conceal it on account of love, fear, payment, or kinship from the bishop or from his envoy whom he has ordered to investigate it, whenever he questions you concerning it. So may God and those relics of the saints help you. This oath which this man swore concerning a synodal cause, you will observe it for your own part in this way, insofar as you know or have heard, or will inquire from this day forward. So may God help you.

PART IV. GRATIAN. The former oath was taken from this one, with its beginning slightly altered. Moreover, Pope Innocent II prescribes the oath of separation to Otto, Bishop of Lucca, saying:

Concerning that kinship about which you wished to consult us and because of which an appeal was also made to our hearing, we received writings from other brothers, who indeed narrated the cause itself in diverse ways. At first the reckoners of that kinship are said to have disagreed both in the degrees and in the names of the persons, but afterward to have agreed in one of them. Yet in cases of this kind the quality of the persons who wish to assert something against anyone must be considered with the greatest care. They must also furnish an oath that they say this against those who are at issue neither from favor nor for payment nor from hatred of anyone, but rather because they believe it to be true in this way and to have heard it thus from their ancestors. In all these matters no variation or contradiction ought to be found.

PART V. GRATIAN. But those who are separated from one another will furnish an oath of this kind.

From this day forward, by no device will you associate yourself with this female blood relative of yours, either in marriage or in adultery; nor will you eat and drink with her at one table or remain under one roof, except in a church or another public place where no evil suspicion can exist, so that there, before suitable witnesses, you may speak together for a certain necessity. Nor will you take another spouse unless perhaps, after penance has been performed, permission has been given to you by your bishop or his envoy. So may God help you.

PART VI. GRATIAN. But no one is permitted to put away his wife on the occasion of consanguinity and take another unless the cause has first been proved. Hence Alexander II to William of Mosterico:

We have learned from the report of many that you wish to cast away your own wife and adhere to another, alleging the occasion of consanguinity. Hence, forbidding this by apostolic authority, we command you that you in no way presume to put away the wife whom you now have or to take another until you have examined a just cause before a council of religious bishops.

PART VII. GRATIAN. But one who is to receive back the woman whom he unjustly put away will swear in this manner:

From this day forward you will keep this spouse N., whom you had unjustly put away, as a husband ought to have his spouse in affection and due discipline. You will not separate her from yourself by any evil device, nor will you take another while she is living. So may God help you.

GRATIAN. But the fact that among certain persons marriages are dissolved by the testimony of one person is held ratified by no reason. For the Lord said, “Every word shall stand in the mouth of two or three witnesses.” Likewise, since it is said in the Council of Lérida, [c. 20]: “Every controversy which arises concerning ecclesiastical matters shall be terminated according to divine law under two or three witnesses, as the Lord says: ‘Let not one stand against another, but in the mouth of two or three witnesses let every word stand’”; and likewise since it is said elsewhere, “Nothing shall be believed on the testimony of any one person, however practiced”: it appears most evidently that marriages are not to be dissolved by the assertion of one person.