Thirty Fifth Distinction

Single Question. Whether Adultery with Someone while the First Husband is Living Impedes Matrimony with the Same Person after the Death of the Husband

1. “Here too one must note” [Lombard, Sent. IV d.35 ch.1 n.1].

2. About this thirty fifth distinction I ask whether adultery with someone while the first husband is living impedes matrimony with the same woman after the death of the husband.

3. That it does not:

II Kings 11 [II Samuel] David commits adultery with Bathsheba and yet, after Uriah was killed, he contracted matrimony with her.

4. Again, Augustine On Nuptials and Concupiscence I ch.10 n.11 (and it is put in Lombard’s text, ibid. ch.4 n.2), “It is possible for a marriage to be made where there was previous adultery.”

5. The opposite:

Gratian, Decretum, p.2 cause 31 q.1 ch.3, “But that”

I. To the Question

6. I reply: there are three crimes, together or separately, that seem to cause difficulty for a contracting of matrimony. And the crimes are: 1) adultery with a married person, 2) machination in the death of a legitimate spouse, 3a) pledging one’s faith to an adulteress herself 3b) or a contract with her in fact 3c) or a promise with an oath about making a contract with her (which last three are reckoned as the same for the issue in hand).

7. About the two first the answer is plain in Gregory IX, Decretals IV tit.7 ch.8, ‘About him who has taken in matrimony a woman whom he has first polluted through adultery’, last chapter.

8. About the third, namely promise with an oath, that it is valid is contained in Gregory IX, Decretals I tit.40 ch.3, ‘About things that are done through fear or force’.

9. About these three I say that the last one does not per se impede contracting matrimony after the death of the husband, as is contained in Decretals [supra n.7], “If anyone, while his wife is alive, promise, after pledge of faith, to marry another, or did in fact contract with her, if he knew the same woman neither before nor after, his legitimate wife still living, then, although on both of them (for the fact that in this they are greatly delinquent) a grave penalty must be enjoined, yet the matrimony that he contracted with her after the death of his wife is not to be destroyed,” and this if both are not aware [of the other’s previous marriage]. So, therefore, matrimony is not impeded by the pledging of faith alone. But this is, as I said, when neither knows about the other that they are in a matrimony; but if they do know as much, then I say it does impede the matrimony, and the contract is null.

10. But the third along with the first does simply impede and destroy a matrimony, for it follows there ibid. [n.7], “[Matrimony] should not be tolerated, if before or after, while his wife lived, he had polluted her in adultery;” the ‘before’ and ‘after’ are referred to the pledge of faith.

11. And this is to be understood when both are conscious that the act is adultery; for if the man alone is conscious, and the wife or woman not conscious, namely because she does not know he has another wife, then if the man afterwards contract with her, on the petition of the man the divorce is not to be made public, as is contained ibid. [n.7], ch.1.

12. But what if the person, being before unaware, ask, after learning of this impediment, for a divorce?

It seems it should be made public, from that chapter [n.11], by this argument in its contrary sense; and in the text is found there that “if the woman not seek divorce, they are not to be separated;” from which is insinuated that if she do ask for it, they are to be separated.

13. But this is doubtful, because such a contract with an unknowing woman is either a matrimony or not. If it is, then there should be no divorce given on the petition of the woman; if it is not, then there should be a divorce given on the petition of the man, because they cannot abide together, since they are not man and wife.

14. I reply: it is not a matrimony because the woman consented to him as to someone able to contract; but he, on his part, is not such as she believed him to be. And when it is said that ‘they cannot abide together’, I concede that he cannot deal with her matrimonially, because on his part it would be fornication; but she can be joined matrimonially with him, because invincible ignorance excuses her.

15. But let it be that the woman, when understanding the impediment, does not seek a divorce, then according to that chapter no divorce is to be made public; therefore, they should abide together - and yet not in marriage, because for you [sc. Scotus himself, n.14] that contract was not a contract of matrimony or marriage; therefore, some should abide together in fornication according to this judgment.

16. I reply: if the woman, knowing the impediment, consent to matrimony, the man is compelled to consent to it, as penalty for his sin, because he knowingly deceived someone who was ignorant; and then there is a new matrimony from a new consent. And this judgment is most just, so that he who deceives someone who was ignorant in the matter of giving power over the body (because he does not intend to give that power or cannot give it) - that he be compelled to fulfill truly afterwards what before he did deceitfully.

17. But you will say: surely they were not able to abide together by virtue of the first contract? Let it be that she, not knowing what act she is conjugally consenting to, and he, knowing that she wants to be his wife, consents with her anew, not making the impediment explicit to her, because perhaps from this would hatred be generated - can they really abide together?

18. I reply: the first consent was not matrimonial, and therefore no act can be licit in virtue of that consent; and so, in order for them to be spouses, a new consent is required.

19. And then to this second consent I say that, if the impediment is not made explicit to the unknowing woman, she does not, in the following carnal union, consent with a new consent, but only renders it in virtue of the first consent, which was null; and therefore, though the person who knows consent again, yet it does not suffice. This is expressly said by a gloss on that chapter [Gloss on the Decretals IV tit.7 ch.1], “She is understood to be continuing in the first consent, which was null,” as is proved about a slave “who is believed to be a free man with whom a contract is made; if he is manumitted afterwards, the wife being ignorant of the fact, the matrimony is not contracted; because after the manumission was carried out, she is, in remaining with him, understood to be giving approval throughout to the first consent, which was erroneous and not a matrimony.”

20. In another way can it be said: if she was married without knowing, while the legitimate wife of the one who marries her still lives, this judgment is true [sc. that there was no contract of matrimony]; and in this case does the gloss speak, because this is the case in the text [n.11], that “a certain man, having a wife, joined another to himself, she unaware of the fact;” therefore he took the second wife while the first was living. And then indeed is it true that there was no contract, because he was then bound to another, though she believed him free from matrimony.

21. But if only two things, namely adultery and pledging of faith, are performed with a married woman who does not know, and if after the death of her husband, and also of the wife of the adulterer himself, he marry her, what is the case with the law?

22. It seems from this chapter that there is simply a matrimony, even if the defect is never made express to the unknowing person, nor does she, after the defect is made express to her, consent anew. And the reason is that from that chapter [n.11] is collected that the Church does not, because of the two concurrent factors, simply make those persons illegitimate, but does so in a certain respect, namely if a deceived person protest.

23. But the first judgment seems more certain, because if after she knows of the impediment and protests, a divorce will be made (from that chapter); therefore, there was not a matrimony before.

24. Third I say that whether the first crime go along with the second, or the third does [n.6], it impedes and destroys a matrimony, as is plain in Gregory IX, Decretals III tit.33 ch.1, ‘On the conversion of infidels’. Indeed, the second alone seems to impede it, from that chapter; for it speaks there of “Saracens who while they were in captivity killed the husbands of certain Christian women by the traps and machinations of those women;” and the judgment is that “if they have come, through the women, to the Christian faith and have adhered to them (supply: in matrimony), they are not to be tolerated, since the Church does not wish to compensate such a loss with such a gain.”

25. Here there is no touching on adultery of a Saracen with a Christian woman, nor about pledging of faith, but only of machination in the death of a legitimate husband, and this with the knowledge of the wife; nor does the gloss [Gloss on Decretals ad loc., n.24] add there to the case this pledging of faith or adultery; but the machination must be understood along with the effect [sc. the actual killing], as ‘if there be both affection and effecting’ (as the gloss says on the word ‘they have procured’).

26. But what if, the wife unknowing, this man alone kills the husband, can he really marry her afterwards?

Response under that title, second section [of the Decretals, n.24]: if it be done without intention of marrying her, as that he kills him in a just war, not so that he may marry, it does not impede matrimony; but if he kill so that he may marry, it is not found expressly that he could not afterwards marry her, provided however the woman not know, because, in the case of a just war, the chapter says there that “since (supply: the women) did not procure the death of their deceased husbands, matrimony between these sort of persons (namely the killer and the wife of the one killed) can licitly be contracted.”

27. And the proof is through the argument place of the similar and the lesser; because if a man does not consent to the death of the legitimate husband, but the wife kills him, she can afterwards be married by another who is ignorant of this crime, Gratian, Decretum, p.2 d.33 ch.5, “Killers”.

28. This is also confirmed by Gregory IX, Decretals IV tit.1 ch.23: “When there is a prohibitory edict about contracting matrimony, whoever is not prohibited is by consequence admitted.”

29. But let it be that the woman is first ignorant, then later, after hearing of the killing of her husband, approves it, is this really an impediment?

30. It seems that it is, because [Gloss on the Decretals III tit.35 ch.1] “in sorceries the approval is pulled back and compared to a command [sc. approval of the killing after the fact is compared to a command to do it before the fact].”

31. The gloss however holds the opposite in the aforesaid chapter, at the end, because of the chapter now added to it. And from the same chapter can be concluded that a simple promise is not equivalent to any of the three things enumerated in the third member [n.6]; therefore not bare espousals either.

32. It is thus plain, therefore, that of these three [n.6], the third alone never so impedes matrimony that it destroys it. The first too alone never impedes, as is plain from the authority of Augustine adduced in the arguments [n.4]. The second alone sometimes impedes and sometimes does not; but always, when it is with the third, it does impede.

33. And does it really always when it is with the first?

I reply as follows: above, in this chapter, Gregory IX, Decretals IV tit.7 ch.6, the third with the first always impedes. The whole reason is the ordination of the Church, because this is the first case where a contract is impeded precisely by statue of the Church, making the persons illegitimate for contracting matrimony. But the reason inducing the Church so to ordain is the repression of homicide and of adultery, which would frequently happen if such persons could legitimately contract.

II. To the Initial Arguments

34. To the first argument [n.3]: this law [sc. the canon law of the Church] was not established for that time; however, David would have acted more justly if he had stoned her. Nor did he have to dismiss the thing because of his own guilt without exacting justice on the other.

35. And if you say ‘no, because then he would have stoned himself, because he was partner in the crime’ - to the contrary:

Either you do not excuse him by this, or you must say that a partner in crime is not bound to inflict the same public penalty that he would be bound to inflict if he were not a partner.

But if you excuse him from not punishing her by the fact he remitted for her the penalty of the Law, we do not have this from Scripture, but that it was a private sin and therefore he did not have to punish it with a public penalty. This seems a more reasonable response. And then the fact he took her to wife after the grave sins of adultery and homicide - the last was not an impediment [n.26].

36. To Augustine [n.4] the answer is plain [sc. from the whole preceding discussion about when adultery impedes matrimony and when it does not].