Canon II.
If a woman shall have married two brothers, let her be cast out [i.e. of communion] until her death. Nevertheless, at the hour of death she may, as an act of mercy, be received to penance, provided she declare that she will break the marriage, should she recover. But if the woman in such a marriage, or the man, die, penance for the survivor shall be very difficult.
Notes.
Ancient Epitome of Canon II.
A woman married to two brothers shall be expelled all her life. But if when near her death she promises that she will loose the marriage should she recover, she shall be admitted to penance. But if one of those coupled together die, only with great difficulty shall penitence be allowed to the one still living.
It will be carefully observed that this canon has no provision for the case of a man marrying two sisters. It is the prohibited degree of brother's wife, not that of wife's sister which is in consideration. Of course those who hold that the affinity is the same in each case will argue from this canon by parity of reasoning, and those who do not accept that position will refuse to do so.
In the Greek text of Balsamon (Vide Beveridge, Synod.) after the first clause is added, "if she will not be persuaded to loose the marriage."
Van Espen.
The meaning of this canon seems to be that which Balsamon sets forth, to wit, that if a woman at the point of death or in extremis promises that if she gets better she will dissolve the marriage, or make a divorce, or abstain from the sacrilegious use of matrimony, then "she may be received to penance as an act of mercy"; and surely she is immediately absolved from the excommunication inflicted upon her when she was cast out and extruded from the Church. For it is certain that according to the discipline of the Fathers he was thought to be loosed from excommunication whoever was admitted to penance, and it is of this that the canon speaks; [123] but he did not obtain perfect reconciliation until his penance was done.
To this performance of penance this woman was to be admitted if she got well and dissolved the marriage according to her promise made when she was in peril of death, as the Greek commentators note; and this too is the sense given by Isidore.
[123] Van Espen gives "fructum poenitentiæ consequatur" as the translation of hexei ten metanoian.
Canon III.
Concerning those who fall into many marriages, the appointed time of penance is well known; but their manner of living and faith shortens the time.
Notes.
Ancient Epitome of Canon III.
The time of polygamists is well known. A zeal for penance may shorten it.
Hefele.
As the Greek commentators have remarked, this canon speaks of those who have been married more than twice. It is not known what were the ancient ordinances of penitence which the synod here refers to. In later times digamists were condemned to one year's penance, and trigamists from two to five years. St. Basil places the trigamists for three years among the "hearers," and then for some time among the consistentes.
Van Espen.
"The appointed time of penance is well known." These words Zonaras notes must refer to a custom, for, says he, "before this synod no canon is found which prescribes the duration of the penance of bigamists [i.e. digamists]." It is for this reason that St. Basil says (in Epist. ad Amphilogium, Can. 4) in speaking of the penance of trigamists "we have received this by custom and not by canon, but from the following of precedent," hence the Fathers received many things by tradition, and observed these as having the force of law.
From the last clause of this canon we see the mind of the Fathers of this synod, which agrees with that of Ancyra and Nice, that; with regard to the granting of indulgences, for in shortening the time of penance, attention must be paid to the penitence, and conversation, or "conversation and faith" of each one separately.
With this agrees Zonaras, whose remarks are worthy of consideration. On this whole subject of the commutation of the primitive penance and of the rise of the modern indulgences of the Roman Church Van Espen has written at length in his excursus De Indulgentiis (Jure Eccles., P. I. i., Tit. vij.) in which he assigns the change to the end of the XI^th century, and remarks that its introduction caused the "no small collapse of penitential discipline." [124]
This canon is found in the Corpus Juris Canonici, Gratian, Decretum, Pars II., Causa xxxi., Quæst. i., c. viij. where for "conversio," (anastrophe) is read "conversatio," and the Greek word is used in this sense in Polybius, and frequently so in the New Testament.
[124] The reader is referred also to Amort, De Origine, progressu, valore ac fructu Indulgentiarum, and to the article "Ablass" in the Kirchen Lexicon of Wetzer and Welte. Also for the English reader to T. L. Green, D.D., Indulgences, Absolutions, and Tax tables, etc. Some of the difficulties which Roman theologians experience in explaining what are called "Plenary Indulgences" are set forth by Dr. Littledale in his Plain Reasons against joining the Church of Rome, in which the matter is discussed in the usual witty, and unscrupulous fashion of that brilliant writer. But while this remark is just, it should also be remarked that after the exaggeration is removed there yet remains a difficulty of the most serious character.