Many months ago, I made a post on the history of divorce and remarriage in the Latin West during the first millennium. In this post, I presented two Church Fathers, six church councils, and four penitential prescriptions that allow for divorce and remarriage in a variety of circumstances. I have received some feedback from various peoples, and I wanted to take the time to both clarify some points, and to add more evidence of Latin permissions for divorce and remarriage. Specifically, I would like to clarify the current academic assessment of Canon 36 of the Synod of Rome (826), add both the Council of Elvira (c. 300) and the Council of Adge (506) as in favor of divorce and remarriage, add more canons from the Council of Compiègne (757), canons from the Penitential of pseudo-Theodore, in addition to the rulings of two popes: Pope Innocent I and Pope Leo I. In short, I am merely adding A LOT more evidence in the assertion that divorce and remarriage in the Latin West was common in the first millennium Church. There are endless droves of Catholic articles out there that assert both the contrary and that the Orthodox Church has deviated from sacred tradition on this issue. Here I hope to blow both of those notions out of the sky.
Before beginning, let me just acknowledge that the following secondary sources have proven invaluable to me for writing this post. I highly recommend that my readers look at them:
Jo-Ann McNamara and Suzanne F. Wemple, “Marriage and Divorce in the Frankish Kingdom,” in Women in Medieval Society, edited by Susan Mosher Stuard (Philadelphia: University of Pennsylvania Press, 1976), 95-124.
Rachel Stone, Morality and Masculinity in the Carolingian Empire (New York: Cambridge University Press, 2012), 268-274.
Philip Lyndon Reynolds, Marriage in the Western Church: The Christianization of Marriage During the Patristic and Early Medieval Periods (New York: E. J. Brill, 1994), 173-226.
Note: I used more than the listed pages above from Reynolds, but those listed pages are the most pertinent.
The Synod of Rome (826 AD) Reconsidered
First, let us consider the Synod of Rome, AD 826, which says the following:
De his, qui adhibitam sibi uxorem reliquerunt et aliam sociaverunt. Nulli liceat, excepta causa fornicationis, adhibitam uxorem relinquere et deinde aliam copulare; alioquin transgressorem priori convenit sociari coniugio. Sin autem vir et uxor divertere pro sola religiosa inter se consenserint vita, nullatenus sine conscientia episocopi fiat, ut ab eo singulariter proviso constituantur loco. Nam uxore nolente aut altero eorum etiam pro tali re matrimonium non solvatur.
Forma minor: Nullus excepta causa fornicationis uxorem suam dimittat. Si vero vir et uxor pro religion dividi voluerint, cum consensus episcopi hic faciant. Nam si unus voluerit et alius noluerit, etiam pro tali re matrimonium non solvatur.
Concerning those men, who have divorced [their] married wives and marry another. Let no one, except for the cause of fornication, divorce their married wife and then marry another. Otherwise, it is suitable for the transgressor to be married to the former spouse. If however a man and wife consent to divorce between themselves for the sake of a monastic life, in no way shall it be so without the joint knowledge of the bishop, so that they may be stationed by him in a single prepared location. For [if] due to an unwilling wife or her husband, let it not be dissolved for the sake of the marriage.
Smaller form: Let no one divorce his wife except for the cause of fornication. Truly if a man and a wife wish to separate for [pursuing] a religious life, let them do so with the consent of the bishop here. For if one wishes and another does not wish, let the marriage not be dissolved.
Concilia Romanum, canon 36, MGH, Concilia aevi Karolini, 2.1: 582
First, I have had several people make the claim that this canon only allows for divorce on account of fornication. Such an interpretation is simply not plausible. Every academic work that I have consulted on this matter argues that this canon explicitly allows for remarriage after divorce in cases of adultery. The following citations for this are:
Jo-Ann McNamara and Suzanne F. Wemple, “Marriage and Divorce in the Frankish Kingdom,” in Women in Medieval Society, edited by Susan Mosher Stuard (Philadelphia: University of Pennsylvania Press, 1976), 103.
Rachel Stone, Morality and Masculinity in the Carolingian Empire (New York: Cambridge University Press, 2012), 272.
Philip Lyndon Reynolds, Marriage in the Western Church: The Christianization of Marriage During the Patristic and Early Medieval Periods (New York: E. J. Brill, 1994), 187.
In short, there is no reason to understand this canon as permitting only divorce and not both divorce and remarriage. The main verb “licet” applies equally to the infinitive verbs “to divorce” (relinquere) and “to marry” (copulare). To further prove my point, let us look at a church canon that clearly does forbid divorce and remarriage (Council of Paris in 829 AD):
…ut Dominus ait, non sit uxor dimittenda, sed potius sustinenda, et quod hi, qui causa fornicationis dimissis uxoribus suis alias ducunt, Domini sententia adulteri esse notentur,…
As the Lord says, one ought not to divorce [their] wife, but rather support them. And also, those, who having dismissed their wife for the cause of fornication [and] marry another, are denoted by the sentence of the Lord to be adulterers.
As you can see, in this canon, it is made clear through precise Latin prose that remarriage after divorce was strictly forbidden. So to make the argument, that the Synod of Rome (826) actually forbids remarriage after divorce, is just pure nonsense. And again, no academic historian has understood this canon to mean that at all.
Council of Elvira (c. 300 AD)
To claim the Council of Elvira as permitting divorce and remarriage might appear as highly perplexing to some. After all, it is commonly used in Catholic apologetics to assert the indissolubility of marriage. For examples, see this blog and another one. I first encountered the argument that Elvira was modest in McNamara & Wemple’s article (McNamara & Wemple, 97-98). I did not think it was modest, so I initially did not place it in the pool of my evidence. However, I later encountered a more interesting argument put forth by Reynolds, who says that Elvira accepted divorce and remarriage but only for men who could prove their wife’s infidelity. In short, it only forbids divorce and remarriage for women (Reynolds, 181). To us modern people, this double standard sounds absolutely ridiculous (and rightfully so). I ask my readers to recall my previous post, where Ambrosiaster explicitly promotes this double standard. Furthermore, most of the canons I presented in my previous post assumed that only men could initiate divorce. Nevertheless, evidence for divorce & remarriage is still evidence, regardless of its sexist imperfections. Now let us look at the series of canons:
VIII: Item feminae, quae nulla praecedente causa, relinquerint viros suos, & se copulaverint alteris, nec in fine accipiant communionem.
IX: Item femina fidelis, quae adulterum maritum reliquerit fidelem & alterum ducit, prohibeatur ne ducat; si duxerit, non prius accipiat communionem, nisi quem reliquerit, prius de saeculo exierit; nisi forte necessitas infirmitatis dare compulerit.
X: Si ea; quam catechumenus reliquit, duxerit maritum, potest ad fontem lavacri admitti. Hoc & circa feminas catechumenas erit observandum. Quod si fuerit fidelis, quae ducitur, ab eo qui uxorem inculpatam reliquit, & cum scierit illum habere uxorem, quam sine causa reliquit; placuit, huic nec in finem dandam esse communionem.
8: Again, women who, having no prior cause, leave their husband and marry another, shall not receive communion unto death.
9: Again, a Christian woman, who divorces [her] adulterous, Christian husband and marries another, is prohibited [from doing so] lest she marry. If she marries, she may not receive communion as before, unless he that she divorces has departed from [this] world; or unless perhaps a force of weakness compels [one] to give [her communion].
10. If a woman, whom a male catechumen has divorced, takes a husband, she is able to be admitted to the fountain of baptism. And this [rule] ought to be observed concerning female catechumens. But if there is a Christian woman, who is married by a man who divorced a guiltless wide and she knows that he had such a wife whom he divorced without cause, then it is suitable for her not to be given communion unto death.
Concilium Eliberitanum, canons 8-10, Mansi 2: 7.
LXV: Si cujus clerici uxor fuerit moechata, & scierit eam maritus suus moechari, & non eam statim projecerit, nec in fine accipiat communionem: ne ab his, qui exemplum bonae conversationis esse debent, ab eis videantur scelerum magisteria procedere.
65: If a cleric’s wife has committed adultery, and he knows that his wife has committed adultery, and he does not immediately reject her, he shall not receive communion unto death: lest from these things, those men who ought to be an example of good association, are seen by some to take part in a wicked magisterium.
Concilium Elberitanum, canon 65, Mansi 2: 16
LXIX: Si quis forte habens uxorem semel fuerit lapsus, placuit, eum quinquennium agere de ea re poenitentiam; & sic reconciliari; nisi necessitas infirmitatis coegerit ante tempus dare communionem. Hoc & circa feminas observandum.
LXX: Si cum conscientia mariti uxor fuerit moechata, placuit, nec in fine dandam esse communionem; si vero eam reliquerit, post decem annos accipiat communionem.
69: If perhaps there is any man having a wife has once lapsed [into adultery], then it is suitable that he perform a five year penance about it and thus be reconciled; unless [of course] the necessity of infirmity compels one to give him communion before the time [of penance is up]. This also ought to be observed by women.
70: If with the joint knowledge a husband’s wife commits adultery, it is suitable that the husband not be given communion unto death. But if he divorces her, he may receive communion after ten years.
Alright, so now to break it all down. First, I want to bring attention to some striking details present throughout many of these canons regarding those based on sex. Canons 10 and 69 both have the explicit addition that their prescripts apply to men and women. Meanwhile, the other canons do not have this qualifier. Therefore, none of the other canons should be construed as applying to both sexes unless they otherwise explicitly say so.
Canon 8 penalizes only women for leaving their husbands and marrying another without prior cause. Canon 9 further elaborates on women stating that no Christian woman can divorce her Christian husband and marry another even in cases of adultery. If she does marry, she is barred from communion until the death of her first husband or if she nears her deathbed. Notice the fact that this canon does NOT prescribe that she leave her second husband, thus leaving a certain amount of ambiguity.
Canon 10 says that if male Christian catechumen leaves their non-Christian spouse and marries another woman, he is not to be penalized. In fact, he is still to be received into baptism. It then explicitly states that this portion of the canon applies equally to both men and women (Hoc & circa feminas catechumenas erit observandum). But the canon continues with a further stipulation that ONLY applies to women. It goes on to say that a Christian woman, and only a Christian woman, should be penalized for marrying a man who has dismissed his first wife without cause. The man’s faith in this case, does not matter. Here is where things get interesting. Canon 8 has specified that no woman can leave their husbands without prior cause. Canon 9 then makes it more narrow insofar that a woman cannot even remarry, even if her Christian husband has committed adultery. But again, none of these apply to men. So if a man, regardless of faith, dismisses his first wife with legitimate cause, then the Christian woman is NOT guilty of adultery. In short, men can divorce and remarry under some circumstances, but not women. Now, some Catholics and Protestants will attempt to say this this matter only applies because the marriage between an unbaptized individual and a Christian individual is not a sacramental marriage. While this idea might very well be behind part of the reasoning for these canons, it still does not explain the gap that is left for men. Men can still divorce and remarry, even if he and his first wife had a Christian marriage.
Canon 70 strengthens the above interpretation. It states that if a man knows that his wife has committed adultery and he continues to tolerate it, he is to be barred from communion until the end of his life. If, however, he tolerates it for only a little while and then divorces her, he is to be barred from communion for only ten years. The requirements are much harsher for married priests in Canon 65. If a priest’s wife commits adultery even once, then the priest is required to immediately divorce her. He can under no circumstances attempt to work things out with her, because he ought to avoid even the mere appearance of scandal. Meanwhile for the rest of the populace, if the adultery of a spouse occurs not regularly, but only once, then according to Canon 69, the guilty party is permitted to try to work things out with their spouse whom they have harmed. The guilty party is also barred from communion for five years. Yet, it should be noted that neither the guilty party nor the infringed are under obligation to try to work things out, since it is not demanded, but rather only pleasing or suitable (placuit) that they do so. The infringed can initiate a divorce. However, as already stipulated, if the infringed party is the husband, then he can remarry since he has prior cause.
In short, what I have demonstrated thus far about the Council of Elvira (c. 300 AD) is that it does not in any sense uphold the indissolubility of marriage, sacramental or not. Rather it only restricts the circumstances in which divorce and remarriage occur. Women can only remarry if their first husband is either dead or if he was not a Christian when she divorced him with the further provision that her second husband is not a divorcee, who dismissed his first wife on illegitimate grounds. Meanwhile, a Christian man could divorce a Christian woman and then marry another Christian woman, so long as he had prior cause to divorce his first wife. By all means, this council is sexist, but it also stipulates that a sacramental marriage is not indissoluble.
Council of Agde (506 AD)
The Council of Agde was a Visigothic council that occurred in Southern France on September 10, 506 AD, and was overseen by Saint Caesarius of Arles, a Church Father. It stipulated the following:
XXV: Hi vero saeculares, qui coniugale consortium culpa graviore dimittunt vel etiam dimiserunt et nullas causas discidii probabiliter proponentes, propterea sua matrimonia dimittunt, ut aut illicita aut aliena praesumant, si antequam apud episcopos comprovinciales discidii causas dixerint et prius uxores quam iudicio damnenter abiecerint, a communion ecclesiae et sancto populi coetu, pro eo quod fidem et coniugia maculant, excludantur.
25: But these laymen, who end their marriage on account of a grave fault or even if they have already divorced and proffer no probable cause of discord for the sake of ending their marriage so that they might presume to enter into either an illicit marriage or another marriage, let them be excluded from the communion of the church and the holy company of the people because they defile the faith and marriage; [but only] if they have divorced their former wives before they have given their cause of discord in a tribunal with the provincial bishops.
Concilium Agathense, canon 25, Mansi 8: 329
Concilium Agathense, canon 25, CCSL 148: 204
This canon here is relatively straight forward. If a man wishes to divorce his wife on account of some unspecified grave fault, then he must bring the case before an ecclesiastical tribunal and present his case. If he does not follow this procedure, then he is to be excommunicated. It is implied that the man is permitted to remarry if he is able to prove his case. Furthermore, as Reynolds points out, the canon forbids divorce if the initiate does so in order to contract a new marriage (Reynolds, 184-185). That is to say, the motive for divorce was impure rather than on account of a truly grave fault.
Council of Compiègne Revisited (757 AD)
In my previous post, I offered as evidence Canon 11 of this council which stipulated that if a man’s wife commits adultery with her brother-in-law, then the husband if free to divorce her and marry another. The adulteress and the brother-in-law, however, may not marry. Now I would like to introduce more canons from this council, specifically Canons 16 and 19.
XVI: Si quis vir dimiserit uxorem suam et dederit comiatum pro religionis causa infra monasterium Deo servire aut foras monasterium dederit licentiam velare, sicut diximus propter Deum, vir illius accipiat mulierem legittimam. Similiter et mulier faciat. Georgius consensit.
16: If any man has divorced his wife and has given her permission to serve God in a monastery for the sake of religion or has given her license to veil herself outside the monastery, [then] just as we have said according to God, that man may receive [another] legal wife. And similarly, let it be so for a woman [in the reverse circumstances]. George has agreed [to this stipulation].
Capitularia regum francorum, canon 16, MGH 1: 38
XIX: Si quis leprosus mulierem habeat sanam, si vult ei donare comiatum ut accipiat virum, ipsa femina, si vult, accipiat. Similiter et vir.
19: If any leper has a healthy wife, [and] if he wishes to give her permission so that she may marry [another] many, that woman, if she so wishes, may marry [another man]. And similarly, [let it be so] for a man [in the reverse circumstances].
These canons are quite stunning. In neither of these cases has either party in the marriage committed a wrong. In both canons, the couple can dissolve the marriage by mutual agreement. The egalitarian nature of these canons is rare in the Latin West, unlike in the Greek East, where it was more common (Reynolds, 176). But here divorce and remarriage is only permissible for either the case of the extreme disease of leprosy or for the sake of entering a monastery. In the case of Canon 19, it must be understood that medieval people thought leprosy was highly contagious (which it is not) and that they had no means of adequate treatment. The canon emphasizes the healthiness of the unaffected spouse. In short, the underlying principle of the canon was the concern that the healthy spouse would become ill with leprosy as well. As a means to avoid that, they granted the couple the option to terminate the marriage and for the healthy spouse to marry another, if both parties agreed. What is further implied is that if both parties are lepers, then they cannot divorce and remarry. In the case of Canon 16, it presumes that the spouse who enters the monastery actually wants to enter the monastery. In short, one member of the marriage cannot force their spouse into the monastery and then presume to enter into another marriage. Their has to be a clear religious desire (pro religionis causa). It is also reasonable to assume that the council participants considered sexual activity to be a very important part not only for the consummation of the marriage, but throughout the marriage. This assumption is bolstered by the fact that divorce and remarriage is permitted if the spouse merely takes a vow of chastity (assumes the veil) but does not enter a monastery.
Penitential of pseudo-Theodore of Canterbury (820/2 – 847 AD)
First things first, the authorship and dating of this penitential has undergone significant debate over the past 150 years. The scholarly consensus is now that this penitential is not the work of Theodore of Canterbury (otherwise known as Theodore of Tarsus), although it does make use of the real penitential of Theodore. Furthermore, it is not of Anglo-Saxon origin. Rather, this penitential is most certainly of Frankish origin, dating from 820/2 to 847 AD. For the detailed arguments about this matter, see the introduction to the following modern critical edition of the text:
pseudo-Theodore, Paenitentiale pseudo-Theodori, edited by Carine van Rhijn, CCSL 156B (Turnhout, Belgium: Brepols, 2009)
Now, let us look at some of the canons of pseudo-Theodore. I’ve listed the chapter and canon numbers for the CCSL edition first and in parentheses I have provided the canon numbers for Wasserschleben’s edition, which is available on Google Books:
XIII.7 (6): Qui dimiserit uxorem propriam alienamque in coniugio duxerit, non tamen uxorem alterius sed vacantem quempiam vel virginem, vii annos peniteat.
XIII.13 (12): Si quis legitimam uxorem habens dimiserit et aliam duxerit, vii annos peniteat. Illa vero quam duxit non est illius, ideo non manducet, neque bibat, neque omnino in sermone sit cum illa quam male accepit, neque cum parentibus illius. Ipsi tamen, si consenserint, sint excommunicati. Illa vero excommunicatio talis fiat, ut neque manducent neque bibant cum aliis christianis, neque in sacra oblatione participes existant et a mensa Domini separentur quousque fructum penitentie dignum per confessionem et lacrimas ostendant.
XIII.19 (18): Mulier si adulterata est et vir eius non vult habitare cum ea, dimittere eam potest iuxta sententiam Domini, et aliam ducere. Illa vero, si vult in monasterio intrare, quartam partem suae hereditatis obtineat. Si non vult, nihil habeat.
XIII.24 (23): Si mulier discesserit a vira suo, dispiciens eum, nolens revertere et reconciliari viro, post v annos cum consensu episcopi aliam accipiat uxorem si continens esse non poterit et iii annos peniteat quia iuxta sententiam Domini moechus comprobatur.
XIII.25 (24): Si cuius uxor in captivitatem per vim ducta fuerit et eam redimi non potuerit, post annum potest alteram accipere. Item si in captivitate ducta fuerit et sperans quod debet revertere vir eius, v annos expectet. Similiter autem et mulier si viro talia contingerint. Si igitur vir interim alteram duxit uxorem et prior iterum mulier de captivitate reversa fuerit, eam accipiat posterioremque dimittat. Similiter autem et illa, sicut superius diximus, si viro talia contingerint, faciat.
13.7 (6): He who would dismiss his wife and marry another in union, [that is to say] not the wife of another, but any single maiden, let him make penance for seven years.
13.13 (12): If any living man having a legal wife divorces her and marries another, let him make penance for seven years. But that [first] woman whom he has married is no longer his, therefore let her not eat, drink, nor be anywhere within speaking distance with that [second] woman whom he has married wrongly nor with his parents. But those parents, if they consent [to be with the ex-wife], let them be excommunicated. But that excommunication shall be so great, that they shall not eat nor drink with any other Christians, nor be participants in holy oblation and be separated from the table of the Lord until they show worthy fruit with penance through confession and tears.
13.19 (18): A woman, if she is an adulteress, and her husband does not wish to live with her, he is able to divorce her in accordance with the prescription of the Lord, and marry another. That woman, however, if she wishes to enter into a monastery, let her retain a fourth of her dowry. If she does not wish [to do so], let her have none of it.
13.24 (23): If a woman has divorced her husband, despising him, not wishing to return and be reconciled to the husband, after five years with the consent of the bishop, he may marry another wife if he is unable to be continent. And let him make three years penance because in accordance with the prescription of the Lord, he is known as an adulterer.
13.25 (24): If a man’s wife has been led into captivity through force and he has been unable to redeem her, after one year he is able to marry another. Again, if a woman is led into captivity and her husband hopes that she ought to return, then he should wait for five years. And similarly for a woman if they have seized her husband. If therefore a man has married another wife and the first wife has returned from captivity, let him receive her and divorce the second. And similarly, just as we have said above, in the case of if her husband is seized and he returns, let her do likewise.
“Poenitentiale pseudo-Theodori,” in Die Bussordnungen der abendländischen Kirche, edited by F. W. H. Wasserschleben (Halle, Germany: Graeger, 1851), 581-583 (canons 6, 12, 18, 23-24)
Paenitentiale pseudo-Theodori, Chapter 13 De adulterio, CCSL 156B, 26-29 (canons 7, 13, 19, 24-25)
Canon 7 (I’m using CCSL numbers here) says that a man who divorces his wife and marries another must make penance for seven years. Given that the penance is not lifelong until he divorces the second wife or is shortened if he does divorce his second wife, it is clear that remarriage is permitted. It is surprising, however, that no circumstances are outlined that restrict the reasons for divorce. Meanwhile, Canon 13 repeats this injunction on the man, but then concerns itself with the behavior of the first wife. She is explicitly forbidden from being around the second wife or her former in-laws. If the in-laws allow their beloved ex-daughter-in-law to remain with them, those parents are excommunicated. Canon 13 seems to be intent of making the life of the second marriage as least awkward as possible by forcing the ex-wife entirely out of the picture. In other words, although the man is frowned upon for divorcing and remarrying, his second marriage is viewed as completely legitimate and worth the protection of the church and community.
Canon 19 is fairly straight forward in permitting divorce and remarriage of the husband, if his wife has committed adultery. It also issues stipulations for dividing her dowry. If she chooses to make penance by entering into a monastery, then she may keep a fourth of her dowry, presumably for her to give to her monastery when she enters it. But if she chooses not to make this penance and instead either make no penance or the seven year penance outlined in Canon 18 (17), which I did not translate here, then she is to keep none of her dowry. The loss of a dowry for a medieval woman after divorce was an incredibly harsh sentence.
Canon 24 very much resembles Canon 122 of pseudo-Egbert’s penitential, which I proffered in my previous post, but restricts the penance to only three years. The ambiguity of lifelong penance, outlined in pseudo-Egbert, is removed. However, the condemnation of the husband for not ideally staying single remains. Likewise Canon 25 is also similar to Canon 123 in the previously discussed pseudo-Egbert. However, the waiting periods differ drastically. In pseudo-Theodore, if the husband is clearly unable to redeem his wife, then he only has to wait a single year before remarrying. If, however, he expects, presumably through prior arrangements, that she be returned, then he must wait at least five years. If she has not returned after five years, then he can remarry. Pseudo-Egbert does not provide this nuance. Rather is says regardless of whether the husband expects to get his wife back after trying to do so, he must wait a full seven years before remarrying. Nevertheless, both penitentials agree that these stipulations apply to both men and women equally. Therefore, a woman could remarry if she is unable to redeem her captured husband. Furthermore, if the captured spouse somehow returns after the other has already remarried, the remarried party must divorce their second spouse and return to the other. It does not seem that the desires of either party matter in such circumstances. They must return to the first marriage regardless.
Pope Innocent I: The Case of Fortunius & Ursa (410 AD)
The following historical background for this case is detailed in Reynolds’ work, but Migne also presents some notes in the Patrologia Latina (Reynolds, 131-134). This particular case came before Pope Innocent I in 410 AD, brought to him by a woman named Ursa. We know of this case through a letter from Innocent addressed to a Roman civil official by the name of Probus. The circumstances of Ursa were that she was captured by the Visigoths who sacked Rome in 410. Eventually, however, she was able to return to Rome and to her husband. However, her husband, Fortunius, had already remarried another woman by the name of Restituta (Reynolds, 132). Under secular Roman law, if someone is captured by a foreign enemy and taken to territory outside Roman control, then their citizenship was suspended and their estate could be assumed by another. Furthermore, their marriage was automatically dissolved (Reynolds, 131). That is to say, even if they wanted to wait for the return of their spouse, under Roman law, the marriage had already been terminated automatically. Below is Innocent’s letter, which contains the particulars of this case:
Epistola XXXVI. Si maritus cujus uxor in captivitatem fuerat abducta, alteram acceperit, revertente prima, secunda mulier debet excludi.
[Col.0602B] Conturbatio procellae barbaricae facultati legum intulit casum. Nam bene constituto matrimonio inter Fortunium et Ursam captivitatis incursus fecerat naevum, nisi sancta religionis statuta providerent. Cum enim in captivitate praedicta Ursa mulier teneretur; aliud conjugium cum Restituta Fortunius memoratus inisse cognoscitur (34, q. 1 et 2, c. 2; Ivo p. 8, c. 245). Sed favore Domini reversa Ursa nos adiit, et nullo diffitente, uxorem se memorati perdocuit. Quare, domine fili merito illustris, statuimus, fide catholica suffragante, illud esse conjugium, quod erat primitus gratia divina fundatum; [Col.0603A] conventumque secundae mulieris, priore superstite, nec divortio ejecta, nullo pacto posse esse legitimum.
Letter 36. Whether a husband whose wife has been led into captivity and has married another woman should, with the first wife having returned, divorce the second wife.
Innocent to Probus
The confusion of the violent barbarian has brought a legal case before my power. For their attack has wrought a blight upon the good marriage between Fortanius and the captive Ursa, unless they have provided a holy statute of religion. Indeed, the woman Ursa was taken into the aforementioned captivity, Fortunius is known to have entered into another marriage with Restituta. But with the favor of the Lord, the returned Ursa came before us, and with no denial, proclaimed convincingly that she was the wife of times past. By which means, young illustrious lord with merit, we have ruled, having favored the universal faith, that [first] marriage to stand, because it was formerly founded with divine grace, and that covenant with the second woman, as long as the first wife lives or is not divorced, cannot by any agreement be legitimate.
Pope Innocent I to Probus, Epistula 36, Patrologia Latina 20: 602A – 603A
There is a lot to go through here. Since it is only fair, a previous scholar by the name of G. H. Joyce said that this case was a legal case, not an ecclesiastical case, thereby meaning Innocent was operating as a secular legal judge and was bound by secular law. This argument can be seen in Christian Marriage: An Historical and Doctrinal Study printed in 1933. Reynolds, however, rebuts this position insisting that the case was seen before an ecclesiastical court. The reason for this is because Emperor Honorius had ruled in 399 AD that bishops could only hear religious cases and that civil cases must be held before civil courts. Furthermore, under civil law, Ursa would have most certainly lost her case against Fortunius, because Roman law automatically dissolved their marriage once she was captured and taken into foreign territory (Reynolds, 133). This argument is further bolstered by the fact that Innocent makes mention of religious statutes (sancta religionis statuta) and the favoring of the universal faith (fide catholica suffragante) (Reynolds, 133). These statutes would have no standing in this case if it was a secular legal one. In short, this was most certainly a religious case adjudicated by Pope Innocent I.
Now, it is worthy to note that Pope Innocent makes the interesting point of some exceptions in cases of divorce and remarriage. If the first wife died, then of course Fortunius could remarry. Additionally, if Fortunius had divorced his wife in an ecclesiastical court, then he could remarry. In short, Innocent here is saying that he permits divorce and remarriage. The question quickly arises as to under which circumstances would Innocent have granted an ecclesiastical divorce. To this point I will later return.
Now some readers will object to this interpretation based upon Innocent’s Letter to Bishop Victricius of Rouen in 408 AD. In it, he prohibits an adulteress woman from remarrying again while her husband still live. Catholic Answers has this quote proudly posted on their website concerning the issue of marriage. However, it should be noted that this woman is clearly the guilty party in the marriage. Furthermore, the letter says nothing about forbidding that husband from remarrying. Nevertheless, Innocent does forbid remarriage after divorce, even in cases of adultery, for both parties in Letter 6, Chapter 6 (PL 20: 0500B – 0501A) dating from 405 AD. So either Innocent changed his position five years later in the case of Ursa, or he was always extraordinarily strict in giving permission for ecclesiastical divorce. Reynolds speculates that the extraordinary circumstances might have been related to many years of captivity (Reynolds, 134). Again, we cannot know the specifics. What is certain however is that Pope Innocent believed divorce and remarriage was possible, but on what grounds remains uncertain.
Pope Leo I: On the Return of Captive Spouses (458 AD)
Nearly four decades later, Pope Leo I, like Innocent, faced the daunting challenge of barbarian invaders – this time the Huns under the command of Attila. Around 452 AD, the Huns had invaded Northern Italy, and took many captives. The remaining women whose husbands had been taken into captivity eventually remarried. However, many of the men were able to return some years later. Bishop Nicetas of Aquileia is unsure of what to do in these difficult cases. Therefore, he asks Leo for his opinion on the matter. Listed below is a portion of Leo’s reply in a rescript (Reynolds, 134-135). It is important to note that rescripts were not binding judgments. Nicetas was under no obligation to listen to Leo’s advice.
Epistola CLIX. Ad Nicetam episcopum Aquileiensem
Caput I. De feminis quae occasione captivitatis virorum suorum, aliis nupserunt.
Cum ergo per bellicam cladem et per gravissimos hostilitatis incursus, ita quaedam dicatis divisa esse conjugia, ut abductis in [Col.1136B] captivitatem viris feminae eorum remanserint destitutae, quae cum viros proprios aut interemptos putarent, aut numquam a dominatione crederent liberandos, ad aliorum conjugium, solitudine cogente, transierint. Cumque nunc statu rerum, auxiliante Domino, in meliora converso, nonnulli eorum qui putabantur periisse, remeaverint, merito charitas tua videtur ambigere quid de mulieribus, quae aliis junctae sunt viris, a nobis debeat ordinari. Sed quia novimus scriptum, quod a Deo jungitur mulier viro(Prov. XIX, 14), et iterum praeceptum agnovimus ut quod Deus junxit homo non separet(Matth. XIX, 6), necesse est ut legitimarum foedera nuptiarum redintegranda credamus, et remotis malis quae hostilitas intulit, unicuique hoc quod legitime habuit reformetur, [Col.1136C] omnique studio procurandum est ut recipiat unusquisque quod proprium est.
Caput II. An culpabilis sit qui locum captivi mariti assumpsit.
Nec tamen culpabilis judicetur, et tamquam alieni juris pervasor habeatur, qui personam ejus mariti, qui jam non esse existimabatur, assumpsit. [Col.1137A] Sic enim multa quae ad eos qui in captivitatem ducti sunt pertinebant in jus alienum transire potuerunt, et tamen plenum justitiae est ut eisdem reversis propria reformentur. Quod si in mancipiis vel in agris, aut etiam in domibus ac possessionibus rite servatur, quanto magis in conjugiorum redintegratione faciendum est, ut quod bellica necessitate turbatum est pacis remedio reformetur?
Caput III. Restituendam esse uxorem primo marito.
Et ideo, si viri post longam captivitatem reversi ita in dilectione suarum conjugum perseverent, ut eas cupiant in suum redire consortium, omittendum est et inculpabile judicandum quod necessitas intulit, et restituendum quod fides poscit.
Letter 159. To Bishop Nicetas of Aquileia.
Chapter 1. Concerning women who on the occasion of the capture of their husbands have married another man.
Therefore, when through the destruction of war and through the onset of the most grave hostilities, that, as you say, some marriages are dissolved, so that the women, whose husbands have been led into captivity, remain destitute and think that when their husbands have been slain or believe that they will never be freed from domination, therefore on account of being driven into loneliness enter into another marriage. Now whenever the state of things, with the help of the Lord, changes for the better, and some of them, who were thought to have perished, have returned, your charity is seen with deserved ambiguity with respect to the women who are joined to another man. Let [this case] be ruled by us. Because we have known the scriptures, which [say] that “a woman is joined to a man by God” (Proverbs 19:14), and again because we have known the prescription as “what God has joined let no man separate” (Matthew 19:6), [then] it is necessary that we believe the union of the legitimate marriage ought to be reintegrated, and once the evil enemy who attacked has withdrawn, what had lawfully been shall be reformed, and with every desire ought to be procured so that everyone will receive what is theirs.
Chapter 2. Whether there is culpability for he who assumed that the [first] husband was captured.
Nevertheless, the man who took the place of her husband, reckoning that the latter did not exist, should not be judged as culpable or as the invader of another’s right. For in this way many things which belonged to those who were taken into captivity may have passed into the rights of others. But it is altogether just that when they return, their property should be restored to them. Now if this is rightly observed in the matter of slaves or of land, or even of homes and possessions, how more more should this be done when it comes to the re-establishment of a marriage, so that what the adversities of war have disrupted should be restored by the remedy of peace.
Chapter 3. Whether the wife ought to be restored to her first husband.
And therefore, if men who have returned after long captivity so persevere in the love of their wives that they want them to come back to their partnership, then that which misfortune brought about should be set aside and what fidelity demands should be restored.
Note: Chapters 2 and 3 are translations found in Reynolds, Marriage in the Western Church, 135-137.
Pope Leo I to Bishop Nicetas of Aquileia, Epistula 159, Patrologia Latina 54: 1136A – 1137A
Here Pope Leo advises that if the first husband returns from captivity AND desires that he be reunited with his wife, who has since married another man, that the wife therefore leave her second husband and return to her first husband. Furthermore, no one party is held culpable for this situation. In fact, the second husband is explicitly excused from the matter. Also noteworthy is that if the husband returns AND does NOT desire to reclaim his wife, then the wife is under NO obligation to leave her second husband. One last thing worth pointing out here is that Leo did believe the woman’s second marriage was okay based upon two qualifications in the case of her first husband’s capture and enslavement. These two qualifications were either she believed her first husband to be dead OR she believed that, although he was still alive, he would never be able to return. Therefore, it is abundantly clear that Pope Leo I did not hold marriage to be indissoluble, as many Catholics and Protestants do today.
This addendum has turned out to be quite longer than the original post that I made back in September. Yet I think that it is sufficient to show that the tradition of divorce and remarriage in the Latin West was a strong and vibrant one during the first millennium. The Council of Rome (826) most certainly allowed for both divorce and remarriage under the guidance of Pope Eugenius II. Furthermore, the Council of Elvira (c. 300) allowed remarriage for husbands only. Women, however, faced a sexist double standard, which was not uncommon for permissions of remarriage in the Latin West. Equality for divorce and remarriage was much more common in the Greek East. This equality is best demonstrated in the Latin West in the penitential of pseudo-Theodore and the additional canons of the Council of Compiègne (757). I have also provided evidence of two more popes, Innocent I and Leo I (a Church Father), explicitly allowing divorce and remarriage. I have also shown that Saint Caesarius of Arles, another Church Father, oversaw a council that ruled divorce and remarriage to be permissible. To sum up the totality of these past two posts on the Latin West’s tradition: four Church Fathers, three popes, eight councils, and two penitentials all sanctioned divorce and remarriage in a variety of circumstances. Divorce and remarriage in the Latin West was most certainly a part of sacred tradition.
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“I think that it is sufficient to show that the tradition of divorce and remarriage in the Latin West was a strong and vibrant one during the first millennium” NO. NO. NO!
While I would still need to check your references and read them in their context, there are so many obvious errors.
1) You seem to imply that divorce in the early Church has the same meaning as the modern notion of divorce. If you do, then you are gravely mistaken. Every first-year theology student should even know that, especially if you know Latin. It means “to separate” i.e. separation from bed and board, not the dissolving of the marriage. However, throughout my response I will use divorce in the modern sense of the word.
2) This is old, the Council of Verberie (752) and Compiègne (757) erred in some cases. This is possible since they are not ecumenical councils. This does not mean non-ecumenical councils are not important.
3) Although I skimmed through some of them, I found some disturbing translations/interpretations.
This is my translation of Canon X of the Council of Arles: “Concerning those who apprehend their wives in adultery, and the same persons are faithful youths and are forbidden from marrying again, be it resolved that, as much as is able, they be counseled not to take other wives even if their own adulterous wives are still living.” All this means is to counsel them not to marry, as much as possible. This has nothing to do with the husbands’ ability or inability to control their passions. I would even say that the counseling is precisely that; to encourage them to grow in virtue, to increase in purity of heart, to pray without ceasing, to seek nothing but God’s glory. In short, to live a life like that of the angels (Matt 23:30) here on earth.
Your interpretation of Canon IX of the Council of Elvira is a grossly misleading. The following is an accurate translation; “A faithful woman who has left an adulterous husband and is marrying another who is faithful, let her be prohibited from marrying; if she has married, let her not receive communion until the man she has left shall have departed this life, unless illness should make this an imperative necessity”
Your interpretation of the Synod of Rome, AD 826 does not support divorce! It supports the traditional doctrine of forfeiting marriage for a higher good viz. religious life. Also, a lot of these statements are used to show that annulments are part of the Catholic tradition.
I wonder why you didn’t mention Second Council of Mileve (416), the Council of Hereford (673), or the Council of Friuli on this issue because they are strongly opposed to divorce and remarriage. The Council of Trent was the culmination of this issue, but it was already there in the above Councils.
I am still learning Latin, but I can tell that some of your translations are not correct, like the one on the Council of Elvira I pointed above. I can ask some guys I know who are fluent in Latin (such as the guys over at the Smithy) to check your translations.
4) You mentioned St. Jerome on your first post, but you left out his Epistle 55 where is explicitly against divorce and remarriage. You also left out so many Fathers that are against divorce and remarriage. I can think one, of the top of my head:
“The question which you have asked seems to me to do honour to chastity and to demand a kind reply. Chastity is something to which I see the majority of men poorly disposed and their laws concerning it unequal and irregular. For why was it that they restrained the woman but indulged the man? The woman who practices evil against her husband’s bed commits adultery, and the penalties of the laws for this are severe, but if the husband commits fornication against his wife, he is not held to account? I do not accept this legislation, I do not approve this custom. Men were the lawmakers and because of this their legislation is against women, since they have also placed children also under the authority of their fathers, leaving the weaker sex uncared. But God does not do this, for He says: ‘Honour your father and your mother that it may be well with you,’ 1 which is the first commandment with promise. And ‘He who curses father or mother, let him die.’ 2 In like manner He honoured good and punished evil. And, the blessing of a father strengthens the houses of children, but the curse of a mother uproots foundations. 3 Observe the equality of the legislation. There is one creator of man and woman, one the maker, one is the creator of man and woman, one is the maker of both, one the image, one the law, one the death, one the resurrection. Coming from man and woman one debt is owed by children to both parents. How then do you demand Chastity when you do not observe it? How demand what you did not give? How, though you are equally a body, do you legislate unequally? If you look to the worse: yes, the woman sinned but so did Adam. 4 The serpent deceived both. One was not found to be weaker and the other stronger. But do you think of the better? Christ saves both by His sufferings. He was made flesh for the man? He was also for the woman. Did He die for the man? By His death the woman also is saved. He is called of the seed of David 5 and so perhaps you think the man honoured? But He is born of a Virgin, and this is for the woman. The two, He says, shall be one Flesh, so let the one flesh have equal honour. And Paul legislates for chastity by His example. How, and in what way? This sacrament is great but I speak of Christ and the Church. 6 Good it is for the wife to reverence Christ through her man: and good it is for the husband not to disgrace the Church through his woman. Let the wife, he says, have reverence her husband, for so she does Christ, but also let the husband honour his wife, for so it is with Christ and the Church. Now let us give further consideration to this saying: Churn milk and it will be butter. 7 Examine this and perhaps you may find something more nourishing in it. For it seems to me that the Word here seems to deprecate second marriage. If there are two Christs, let there be two husbands and two wives, but if Christ is One, one Head of the Church, let there be also one flesh, and let a second be rejected. And if a second is prevented what shall be said of a third? The first is law, the second indulgence, the third transgression. And anything beyond this is pig like, which does not even have many examples of its wickedness. The [civil] law grants divorce for every cause, but Christ not for every cause, but He indulges separation only from the whore and in all other things He calls to endurance. And it is so with the whore because she corrupts the children, but in everything else let us be strong and endure, or rather endure and be strong you who have received the yoke of marriage” Saint Gregory Nazianzus, Oration 9
5) Divorce and remarriage are primarily against the natural law, thus grave sins. So, if the Church taught that then we’re in big trouble. But as Christ promised that the “gates of hell will not prevail,” then the Church hasn’t taught error. Therefore, divorce and remarriage weren’t taught in the early Church.
There is so much that can be said, which I will do in the near future since I have been interested on the topic of marriage ever since the holy nun Sister Lucia said the “final Confrontation between the Lord and Satan will be over Family and Marriage.” Of course, I want to be on the side of Christ. Thank you for both of your posts, as they will contribute to my research.
P.S. You said that there was a double standard in the West when it came to women? Are you sure about that?
“Perhaps some think that it is unlawful for women to commit fornication before marriage, but lawful for men. What is worse, these exceedingly grave evils that are worthy of punishment are committed by many men without any fear of the Lord, and in fact they have become so habitual on the part of many that they are considered common and slight, no longer regarded as serious sins. Now, in the Catholic faith, whatever is not lawful for women is equally unlawful for men. Man and woman were redeemed together for one price, the precious blood of Christ; they are called to one faith and are assembled in one body of the Church. They receive the sacrament of baptism together, approach the altar to receive the Body and Blood of Christ at the same time, and the same precepts are given to both sexes. Since this is true, with what boldness, or with what kind of a conscience, do men think that they may do alone with impunity what is unlawful for both men and women? Those who dare to do this should know for certain that if they do not quickly amend their lives and perform fruitful penance, if they are suddenly snatched from this life an eternal fire will torture them without any remedy” St Caesarius of Arles, Sermon 43.
Hi Tomás Palamás,
Thank you very much for the spirited and kind reply. I appreciate the feedback that you’ve given me. I’ll try to address each of your points as best as I can, although at the moment, I am a bit strapped for time.
1.) There is a distinction in concepts between mere separation and a dissolution of the marriage – this much I acknowledge. Nevertheless, the numerous verbs used to describe either case vary quite widely and often overlap. That is why in most, if not all of my examples, I chose canons that were quite explicit on the matter.
2.) I can certainly accept the idea that you feel that the Councils of Verberie (752) and Compiègne (757) had erred. But my primary purpose in this blog post was not so much to assert that they got the matter right (although I think they roughly did), but rather to argue that there is a history of divorce and remarriage, which these two councils testify to.
3.) I’m not certain what major differences there are in our respective translations of Canon 10 from the Council of Arles (314). It seems more of a matter of interpretation of the text. You obviously focus on the part that council be given to avoid marriage and that it implies that remarriage is completely forbidden. But I would ask you this: Do you not think there is a big difference between being advised and being forbidden? Other councils that are traditionally understood as being anti-remarriage have no problem explicitly forbidding remarriage in clear language.
As for my translation of Canon 9 of the Council of Elvira, my translation is actually more accurate than yours. In the line “quae adulterum maritum relinquerit fidelem & alterum ducit” you’ve placed the adjective “fidelem” on the other side of “&” or “et” and have thereby applied it to “alterum.” I could be wrong, but I am not aware of that manner of translation being the usual. The “et” really demarcates a new accusative here. Aside from that, the differences in translation are minor. More importantly, however, is that you haven’t really made an argument as to why my interpretation of Elvira is misleading. I suggest reading Reynolds on this as well, since, as I said above, I originally did not think Elvira proposed circumstances for divorce and remarriage. I found Reynolds arguments, however, thoroughly convincing.
As for the Synod of Rome (826), I think you need to address the detailed arguments that I made above. The main verb of “liceat,” which is qualified by the exception clause, clearly applies to both “relinquere” and “copulare.” Therefore, the exception clause applies to both infinitive verbs, or so I would suggest. I am not along in understanding this canon as permitting divorce. Although, I should add that either Stone or Reynolds hold that the canon possesses some amount of ambiguity, if I recall correctly. I am not as inclined towards their softer certainty for the reasons regarding the verbs above. I also don’t have the books on hand, and I am too strapped for time to go get them from the library again at the moment. But I’ve provided the citations to both works and their page numbers above, so you can let me know which one is more soft on the matter. I know for certain, however, that McNamara and Wemple see canon as unequivocal support for divorce and remarriage. I am more inclined towards McNamara and Wemple’s position.
As for the anti-divorce & remarriage councils you mention, the reason why I left them out was because my purpose for making these two blog posts was to simply bring attention to a history of canon law that is simply overlooked in popular polemics online and seemingly in the theological literature even. Historians, however, don’t seem to have missed these cases, and to their credit.
4.) I am sorry that I missed Letter 55 of Jerome, although do note I did include Letter 77. As I said in my first blog post on this subject, I think it is important to keep in mind any changes in St. Jerome’s position on the matter.
As you say, I did leave out a large number of Fathers who have argued against divorce and remarriage. But again, my purpose of these two blog posts was to bring attention to a forgotten history of the permissibility of divorce and remarriage in numerous canons, penitentials, and church fathers. My purpose was not to give an all-encompassing history of divorce in the Latin West. Reynolds, whose book I’ve listed above, has already done that nearly 25 years ago. If you want a more in-depth history of the subject that treats those who permit divorce & remarriage and those who are against it, then I suggest reading Reynolds. This blog is but a blog, not a replacement for academic literature.
As for St. Gregory Nazianzus, I am not going to address the quote you provided on account that I do not know Greek.
5.) I am wary of any natural law theory arguments as I find them as unpersuasive or wholly limited as either David Bentley Hart or Stanley S. Harakas have argued. See: https://www.firstthings.com/article/2013/03/is-ought-and-natures-laws and Stanley S. Harakas, “Eastern Orthodox Perspectives on Natural Law,” Selected Papers from the Annual Meeting (American Society of Christian Ethics), Eighteenth Annual Meeting (1977): 41-56.
Reply to P.S.: I’ve stated that there are three positions in the Latin West, a thesis that I get from Reynolds’ book. These positions are: Divorce & remarriage is permissible for both sexes, divorce & remarriage is impermissible for both sexes, and lastly divorce & remarriage is permissible for men only. Of the two positions that permit divorce & remarriage, position #3 was the most common in the Latin West. I am not saying, however, that the other two positions were not present, for indeed they were.
Again, I appreciate your detailed reply. I welcome any opportunity to be corrected in either my arguments or my translations. It is nice to debate and to discuss with another Latinist, although I must forewarn you, with the exception of maybe classicists, one never stops learning Latin.
Thank you for the reply and I apologize for not replying anytime sooner.
(Note: I’m not responding to any of your responses according to number)
(1) I have reread the canons of Council of Elvira as well as Reynolds interpretation. Reynolds misses the point. Those canons are speaking about the Pauline Privilege, I’ll leave it up to you to figure it out (it doesn’t take long).
(2) I’m not sure why you left out Chapter 4 of Pope St. Leo the Great’s Letter:
“Excommunicandas esse mulieres ad primum maritum redire nolentes – But if some of the wives have been so captivated by the love of their second husbands that they prefer to remain with the latter rather than to go back to the legitimate union, then they are justly to be condemned, even to the point that they be ex-communicated. They have chosen to contaminate with a crime a matter held excusable, thereby manifesting their predilection for immorality which a just punishment can perhaps atone for…”
It clearly does not allow divorce. But you might say that it’s a double standard in favor of the man but the Latin Fathers, such as St. Caesarius of Arles, clearly show that there is no such thing as double standard in the marital bond. Therefore, your conclusion “…if the husband returns AND does NOT desire to reclaim his wife, then the wife is under NO obligation to leave her second husband” does not follow. Thus, even in such extreme scenario the marriage is still indissoluble.
The reason why women (men) could remarry, in the first place, was because they (probably their family and their priest or bishop as well) had moral certitude that their husbands (wives) were dead. This shows the belief in the indissolubility of marriage i.e. death could only dissolve it just as St. Basil said, “She who, after her husband departed and disappeared, lived with another man before she was convinced of her husband’s death is an adulteress” (Letter 199).
(3) The only difficulty from everything you posted and from Reynolds is the letter to Probus. But consider the following:
First by Anthony J. Bevilacqua:
“This last sentence of the letter to Probus has raised some difficulties. Some have interpreted it to mean that if a divorce on the grounds of adultery had been obtained, the man could have legally married. The sentence, first of all, must be interpreted in context with the other statements of the Pontiff in which he is very clear on the absolute indissolubility of marriage. While various explanations have been given for the phrase inquestion,73 the most acceptable seems to be that which claims that the Pope in judging this case was acting as legal arbitrator. Probus was the civil official to whom the Pontiff was communicating his decision. The Emperor Constantine I had permitted parties in a civil suit to bring their cases to a bishop for arbitration. The bishop’s decision, in such cases, was final and civil officials were obliged to carry out the decision communicated to them. This privilege was confirmed in 398 by a constitution of Arcadius and Honorius and again in 408 by Honorius and Theodosius II. In the case of Ursa, described above, Innocent I stated that in the eyes of the Church the first marriage was still intact because of her laws against second marriages and the first marriage was valid also in the eyes of the State because no divorce had been obtained. In other words, whether as ecclesiastical judge or as civil arbitrator, his decision was the same.74 The letter of Innocent I to Exsuperius, quoted above, was later cited in 754 by Pope Stephen III (IV) (768-772) as proof of his teaching that no husband may divorce his wife and contract a second marriage.75” (History of the Indissolubility of Marriage)
73 Delpini, op. cit., p. S3.
74 Joyce, op. cit., p. 320.
75 stephanus III ad monasterium Brittanacum, c. S.
Second, by William Kelly S.J. in his “Pope Gregory II On Divorce and Remarriage”.
Third, by Juraj Kamas:
“One of the possible explanations is that if the papal decision had to have effect also on the civil forum and to be executed by the civil officials, it had to contain the civil reasons for the decision. Another interpretation solves the problematic phrase by arguing that it is an additional argument against Fortunius, who had not presented any basis for lawful divorce. «The implication that Innocent would have acted differently if he had shown cause for divorce goes beyond a proper reading of the document». In whatever way Innocent’s words are explained, Innocent’s orthodoxy is amply evident from his letter to Victricius of Rouen, in which he clearly states that only death is the end of marriage, and so remarriage during the lifetime of a previous partner is clearly excluded.
Another Roman Pontiff who declared his mind on this subject was St. Leo I (440-461). His reply was stimulated by the inquiry of Bishop Nicetas of Aquileia to the Holy See about a case similar to that of Ursa. Some marriages were disrupted during war, because the husbands had been carried into captivity. The prolonged absence of these men had led their wives to believe that their husbands were killed or would never be released from their captivity. Those wives entered another union. However, a difficult and complicated situation arose when some of those who were considered dead had returned home. In his answer, based on two Scriptural texts, Pope Leo the Great first emphasized that «the unions of their lawful marriages should be restored and […] each should have what he lawfully had». Therefore if the husband is in fact alive, the second union cannot be a real marriage. Thus remarried women should terminate their second unions and go back to their legal husbands. The pope added that those women and their illegal husbands were not to be judged guilty. If some of those women would not return to their lawful husbands and continued to live with their second husbands, they were to be excommunicated
The accounts of Pope Innocent’s and Leo’s judgments indicate that the bishop of Rome heard divorce cases, which were decided according to both religious and civil effects. His decision was final and usually it was communicated to the civil authorities for its execution” (The Separation of the Spouses with the Bond Remaining, pp. 67-8).
Fourth, Kristina Sessa, who although doesn’t seem to side with an interpretation, says:
“Precisely what Innocent meant by invoking divorce has long perplexed scholars, especially because elsewhere he categorically condemned it. There are at least two possible explanations. First, he might have wished to underline Ursa’s castitas and good character by emphasizing that her husband had not divorced her for adultery or other less serious faults. Adultery was the only reason for separation that early church fathers accepted and that Constantine allowed as a legitimate causa repudii for husbands who wanted to divorce unilaterally. Second, Innocent’s reference to divorce also could refer to a common (albeit legally unnecessary) practice of divorcing a kidnapped spouse before remarriage. Regardless of Innocent’s precise reasoning for invoking divorce, its rhetorical function would have been identical: the absence of evidence for legal separation in this particular case constituted yet another reason for Probus to uphold the first marriage between Fortunius and Ursa. Innocent thus demonstrated knowledge of two different ways of resolving the problem of captivity and remarriage: a traditional Roman method involving postliminium and divorce, which severed their marriage and freed Fortunius to remarry; and a new Christian method based on the “Catholic faith,” which held that the first marriage was still valid, and the second null and void.82 What he argued for, however, was not the justice of the latter option over the venality of the former. Rather, Innocent proposed a synergistic solution. He urged the dominus to see compatibility between the Christian injunctions on the divine sanction of marriage and the absence of divorce and to conclude from this reasoning that the marriage between Ursa and Fortunius had never been severed. The bishop also underscored to Probus his careful investigation of the matter. No one, he assured, could be found to deny Ursa’s claim to be Fortunius’ first wife. Innocent thus took it upon himself to do the dominus’ household business, although in a manner that distinctly highlighted his own status as a counselor. He conducted an investigation into a domestic dispute between two dependents, and he considered two different sets of legal options. Most significantly, Innocent reached a resolution that showcased his familiarity with Roman family law and found common ground between the traditional civil and the emerging ecclesiastical legal systems.” (The Formation of Papal Authority in Late Antique Italy, pg. 144).
Lastly, William A. Jurgens who I believe deals definitively with this issue. It is too lengthy to post but check it out here. Reynold doesn’t satisfy the challenge given by Jurgens. In a nutshell, stop “reading more into it than is actually there” which isn’t directed at you but at Reynolds.
The reason I posted all these references (which I could have posted more) is because you concluded based off one book that “Yet I think that it is sufficient to show that the tradition of divorce and remarriage in the Latin West was a strong and vibrant one during the first millennium” without consulting other sources. This is grave mistake, more so because you’re trying to prove something that was historically true. What Jurgens says in the link I posted is absolutely true.
Although I enjoy Reynold’s book, it’s far from being comprehensive. The one that comes closest to being comprehensive is “Holy Matrimony” by Oscar D. Watkins but even then, there are many other important books on the subject.
(4) Concerning the natural law, David Bentley Hart and Stanley S. Harakas are not the only ones since almost all non-Catholic Christians and for that matter all secular persons reject it. I was surprised when I found and met some Orthodox, both lay and priests, that accept and defend the natural law e.g. this priest. After reading some of the Fathers I could see why. For example, I was meditating on this commentary on Psalm 1:
“The first psalm, then, is both moral and general in scope, instructing not any particular person but people in general. Now, if it mentions law (v. 2), it does not oblige us to think only of the written law but of the innate natural law, which is not coercive, as the Manichees say, but instructing the person prepared to learn. So do not allow the identity in terms to give rise to misunderstanding: law that is natural and linked to nature is referred to, which is not temporary, like a person’s having a sense of humor, having two feet, going grey in old age. It is implanted in all people and in every individual person; it is not temporary or subject to alteration, being also called a natural law because by it we can learn and distinguish what is for the better, like knowing that God exists, that it is good to respect parents and not to harm others. It is nature, in fact, that teaches each person this as if giving orders not to do to another what one would not want to suffer from someone else. So when you read And on his law he will meditate day and night (v. 2), it is clear that he means this law by which we distinguish what is bad and what is good. Even if he employs the term involving similarity of name, no harm is done to the thought, since the person meditating on the one law or the other is definitely acting properly” (Diodore of Tarsus, Commentary on the Psalms).
Thanks for the links, but I have seen those before. See the response to David Bentley Hart:
It’s interesting that you chose position #3. As I mentioned in (2), I would say all the Latin Fathers, except maybe Ambrosiaster, will show that such inequality is contrary to the teaching of the Church. Pope Innocent III summarizes it well:
“You wish to know why men who are communicants do not remain with their adulterous wives, while wives, on the other hand, seem to retain cohabitation with their adulterous husbands. On this matter the Christian religion condemns adultery equally in both sexes. It is difficult for wives to accuse their husbands of adultery and they have no recourse against hidden sins. Men, however, are accustomed to bring charges against their wives with greater frequency and because of this, communion is denied to the wives once their crime is exposed. But since the commission of the crime by the husbands is hidden, it would not be expedient to keep them away from communion on mere suspicion. I grant that if their crime were detected, they would certainly be punished. Though the causes be the same, while proof is lacking, the penalty for the crime cannot be carried out” (Ad Exsuperium Episcopum Tolosanum, c. 4.).
Laudetur Jesus Christus et Maria Immaculata!
Hi Tomás Palamás,
I am glad to hear from you again. I have a number of points that I am ready to reply to right away, however, I would prefer to reply to your rebuttal as a whole. Unfortunately, I am far away from my home at the moment and am of limited time and resources. Therefore, I will not be able to give an answer probably for the next 1 to 3 months. In the meantime, if you happen to see me posting new blog posts or answering other comments, do know it is not because I am ignoring you. Rather it is because I need more time and resources, which I currently lack, to dedicate to your very thoughtful reply.
Been a long time can you continue this thanks.
It has been so long that I’ve very much forgotten what I was going to say. I can’t really afford to spend much time on this matter, so I would suggest taking a look at the sources listed in both the comments and the two blog posts. In any case, I will attempt to quickly answer some of Palamas’ counters.
1. Regarding Pauline Privilege – the idea that a marriage between two unbaptised persons can be dissolved and a new marriage can later take place – this is clearly not what is being discussed at Elvira. I’ve already addressed it in the article itself. The language of the canons with its specificity towards the sexes and their faith status precludes a typical pauline privilege principle.
2. Chapter 4 of Leo’s letter is rather irrelevant. It is only stating what would happen if a husband who has returned from captivity decides to take back his wife but she resists. The point still stands that the situation is in the power for the husband to decide.
3. Regarding Bevilacqua’s contention that Pope Innocent I was acting as a legal arbiter, Reynolds already addressed that argument in his book. According to Reynolds, bishops had their authority revoked on these types of cases at the time in question. Roman law had changed, once again. The same principle applies to Kelly’s objection. In short, it was legally impossible for Innocent to be acting in a legal capacity rather than an ecclesiastical capacity. He was certainly acting in an ecclesiastical capacity. That Innocent ignored Roman law on captivity resulting in divorce in his ruling only substantiates that he was operating in an ecclesiastical capacity. Sessa it seems is suggesting something similar.
As for Jurgens, I don’t find his argument convincing. First, he proposes a scenario where Probus brought up the issue of legal divorce without evidence. Second, even if Probus did do so, Innocent was acting in an ecclesiastical capacity. Third, Jurgens seems entirely unaware that under Roman law, the divorce was automatic upon Ursa’s captivity, so he doesn’t realize that his contention of Probus bringing up the subject is meaningless. It is clear from the case that Innocent is ignoring Roman law in favor of church law. Any mention of divorce clearly refers to ecclesiastical divorce, because a secular divorce had in fact already happened upon Ursa’s captivity.
No problem, I understand. I am busy as well (doing research in Financial Mathematics and helping around in my parish), this is just a hobby of mine.
I forgot to add something in my (4) where I linked a video to an Orthodox priest. I didn’t mean to say that he defends the natural law but that he is against contraception, something that many Orthodox priests and/or bishops permit. Although the priests says that the Fathers were against contraception, which is true, I would say that they were simply defending the natural law. Of course, they were more effective in doing so because unlike pagan philosophers they had Revelation.
May God’s divine grace be with you always. Laudetur Jesus Christus et Maria Immaculata!
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Can you continue this please thanks
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Many thanks. I haven’t gotten around to looking more into the Leo letter yet. I wanted to focus more on cranking out my Tychonius post first, as it was taking much longer than I initially anticipated.
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Some good stuff there, but I think you are pushing the issue with Letter 159. Nowhere does it say that Leo approved of women re-marrying that were not certain that their husbands were dead (because how can he know their thoughts?) Further, nowhere does it say that the marriage of a woman whose former husband wants her back is still accepted. I think you made an argument from silence here and it detracts from some of the clearer statements from the later councils.
The same is true of Pope Innocent, who essentially argued that the second marriage was invalid due to the sacramental reality of the first. It actually detracts from the argument you are making.
Otherwise, great work!
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Perhaps in the case of Leo, you’re right that it is more of an argument from silence. I ought to take a look further at the letter and see if there is anything else I can find.
As for Innocent, the fundamental problem is that the court case is clearly an ecclesiastical one. He clearly lists the exception clause for divorce & remarriage and intends for it to work as such. While he does affirm the sacramental value of Ursa’s marriage, he does so within the context that he disagrees with secular Roman law, which has declared the first marriage null and void. Innocent believes that slave capture should not automatically render a divorce in a marriage. At the same time, he openly states that there are other grounds for divorce and remarriage that he finds acceptable. What those grounds are, however, we don’t know.
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He does not explicitly state he disagrees with the Roman law on X and Y grounds, he merely states that the law is wrong and the Church is right…something the RCC would readily affirm. 😉
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