Source: Canon Law concerning the Children of Free Men by Enslaved Women
This passage comes from Gratian’s Decretum, a compilation of canon (religious) law created after 1139. Little is known about the compiler besides his name and his association with the law faculty at the University of Bologna in northern Italy. The compilation is structured using the scholastic method: each section begins with a yes or no question, followed by a list of authoritative statements (canons) that answer the question. If there is any apparent disagreement among the canons, Gratian adds commentary to explain how the canons should be harmonized and the disagreements resolved. In this case, the overarching question (Causa 32) has to do with marriage and adultery. The subquestion (Quaestio 4) has to do with whether it is permitted for a man to have children with an enslaved woman if his wife is infertile, as in the case of Abraham, his slave Hagar, and his wife Sarah in Genesis 16:1-18:15 and 21:1-21. To answer this question, Gratian cites fifteen canons drawn from the writings of Augustine, Ambrose, Jerome, Isidore of Seville, and Pope Gregory I, along with his own commentary. This translation includes only five of the fifteen canons.
Translated from the Latin by Joshua Robinaugh. Emil Friedberg, ed. Corpus iuris canonici (Graz: Akademische Druck- und Verlagsanstalt, 1959), 1126-1131. C.32 q.4 c.2-3, 9-10, 15. This translation CC BY-NC-ND 4.0.
Causa XXXII, Quaestio IV
Gratian: Moreover, it is permitted for someone to seek sons from a slave woman on account of the sterility of the wife. This was demonstrated by the example of Abraham, who on account of the sterility of his wife Sarah went into Hagar the Egyptian for the purpose of receiving sons from her. Likewise, Jacob, when he was not able to have sons from Rachel, stirred up sons out of his slave for himself, not only on account of this sterility, but also on account of a lack of fertility, he was chosen to enter the slave woman Leah, and out of her sons were born. It is inferred from all of these things, that sons may be sought licitly either from a slave woman or from some other woman on account of the sterility of the wife; otherwise, the stain of adultery would have been recorded for Abraham and Jacob. But just as after the death of Sarah, Abraham led Keturah into marriage, lest according to Augustine, Christians might believe it was a sin to lead another into marriage after the death of one’s wife, so, it seems to receive sons from a slave woman with his wife living, lest this might be considered a crime by others… Whence Augustine on John:
Canon II. Just as the work of good to both bad and good is produced in faith, thus the work of bad to both good and bad is produced in faith
Let your spirit hasten back to Abraham, Isaac, and Jacob. In the case of these three we find to beget free people, to beget slaves. In that place where we find the offspring of free women, we likewise find the offspring of slave women. The slave woman signifies nothing good. “Cast out the slave woman and her son,” she said. I. We find a remarkable fact in these generations of free women and slave women: namely, there were 4 types of humans. In these 4 types, the form of the whole Christian population is made up, so that it should not be an amazing thing that in the case of these three it was said: “I am the God of Abraham, and the God of Isaac, and the God of Jacob.” Indeed, among all Christians (pay attention to the brothers), either good people are begat by bad people, or bad people are begat by good people, or good people are begat by good people, or bad people are begat by bad people. More than these four types are not able to be found. II. In that place you find good sons of Jacob born from slave women, and good sons born from free women. Nothing was spoken against birth from the womb of slave women, when they knew his seed in the father, and consequently they possessed power with their brothers. Therefore, just as Jacob did not speak against those sons who had been born from slave women, by which they possessed less power and land of promise than they received with their brothers, they did not speak against the parentage for those of the slave women, but the father’s seed prevailed. Thus, whoever are baptized by means of bad people, seem just as those people born from slave women, but nevertheless, because out of the seed of the word of God, which was figured in Jacob, they would possess the same inheritance with their brothers. Therefore, let whoever who was born by means of good seed be untroubled: so long as he does not imitate the slave woman. If you are born from a slave woman, you should not imitate the bad slave woman having too much pride. For the sons of Jacob born from slave women possessed the land of promise with their brothers, whence was Ishmael on the other hand, born from a slave woman, expelled from the inheritance? Whence, if not because he was arrogant, [because] they [were] humble? He raised his neck, and wanted to lead his brother away, playing with him. In that place, a great oath happened. At the same time Ishmael and Isaac were playing; Sarah saw them playing. III. But she who begat Abel, and Enoch, and Noah, and Abraham, herself begat Moses , and the following prophets in the time before the advent of God, and she [begat] those herself, and also the apostles, and our martyrs, and all the good Christians. Indeed, she begat all who appeared born at different times, but they are included in a fellowship of one people and the citizens of that same city knew from experience the hardships of that journey, and certain of them now experience it, and others will experience it until the end. Again, she begat Cain, and Ham, and Ishmael, and Esau, likewise she begat Dathan, and similar others in the same people, and she [begat] those, and also Judas the pseudoapostle and Simon Magus, and other pseudo-Christians up to the present times, stubbornly persistent in animal disposition, whether they are intermingled within unity, or whether they differ in open overreaching. IV. But when such people are evangelized by spiritual people, and they are steeped in the sacraments, just as Rebecca gave birth to them by means of herself, like Esau; however, when such are generated among the same people by those who do not innocently proclaim the Gospel, indeed it is not Sarah who gives birth to them by means of herself, but by means of Hagar. Likewise, the good spiritual people, when they are begotten by worldly evangelizing or baptizing, indeed Leah or Rachel gave birth to them by marital law, but by means of the womb of slave women. V. When truly they were begotten by means of good, faithful, spiritual people in the gospel, who either go into the spiritual condition of piety, or do not cease to exert themselves in it, or for that reason they do not create, because they are not able to, they were born into new life and a new covenant just as Isaac out of the womb of Sarah, or Jacob (out of the womb) of Rebecca. Therefore, whether they seemed to be stirred within, or they are [stirred] openly from outside, that is flesh is flesh; whether they continue in the open space in their sterility, or they are brought outside by occasion of temptation just as the wind, that is the husk is a husk and always from their church, which is without a stain or wrinkle, whoever is mixed in the carnal congregation of saints has also been divided from unity. Nevertheless, it must not be despaired concerning anything, whether it may appear within such a person or whether it clearly ought to be opposed outside.
Gratian: Thus, to these things it is responded: On account of the variety of times, various dispensations of the Creator are found. It had been promised to Abraham that all people would be blessed in his seed. He had promised also that he would give the land of his pilgrimage to his seed. Therefore, with the others having been left behind in idolatry, God chose Abraham and his sons as his own people, religiously the multiplication of God’s people was being sought by the fertility of many women, because in the succession of blood there was a succession of faith. Whence in the law it was said: “The cursed sterile woman, who did not leave behind his seed upon the land.” Whence marriage was even ordained for priests, because the succession of office depended on the succession of family. Because in truth, by means of the incarnation of Christ, the grace of faith was broadened everywhere, nor is it now said: “Speak to the house of Judah, and to the house of Israel;” but: “Go, teach all people,” and: “In all people, whoever fears the Lord, and works righteousness, is accepted by him.” The choice of duty was not sought in the succession of birth, but in the perfection of life and the integrity of knowledge, and virginity was preferred to fertility, and the chastity of abstinence was commanded for priests. Therefore, neither Abraham or Jacob committed a sin, because he sought sons from a slave beyond his wife, nor by their example is it allowed for anyone to seek fertility from another person beyond the conjugal debt, since their marriages are equal or preferred to our virginity, and the unlimited enjoyment of the marriage of our time almost imitates the ugliness of the fornication of their time. Whence Ambrose wrote in the book Concerning the Patriarchs:
Canon III. Abraham, who received sons from a slave woman with a living wife, is not guilty of adultery.
Sarah said to Abraham, “Behold, God closed me, that I may not bear children; therefore, go into my slave woman for the purpose of having a son out of her.” And thus, it was done. But first consider, that Abraham was before the Law of Moses, and before the Gospel. Adultery was not yet seen as forbidden. The penalty for sin is from the time of the law which restrained the sin, nor is any condemnation of guilt before the law, but from the law. Therefore, Abraham was not forfeit to the law, but preceded the law. God had praised this union in Paradise, He did not pronounce it adultery. I. You have the first defense of Abraham. The second one is that he subordinated the marriage bed to the concubinage (contubernio) of a slave woman, not being set on fire with any passion for wandering lust, and not having been captured by the beauty of a wanton form, but rather with the eagerness of seeking posterity, and of the propagation of offspring. Yet, after the flood there was a scarcity of the offspring of people; it was even of obligation, lest he seem not pay back the debt of nature. Finally, the daughters had Lot for this purpose of seeking holy posterity, lest humanity fail, and therefore the grace of public service cloaks the private sin.
Canon IX. Sons are not to be sought from a slave woman.
Gratian: Thus, the sermon of Saint Ambrose concerning S. John, which began thus: “We said with the higher Sunday.”
Some may say: “I do not have a wife, and therefore I join a slave woman to me.” Listen, what the scripture tells Abraham: “Cast out the slave woman and her son; indeed, the son of the slave woman will not be an heir with the son of the free woman.” Consequently, if the son of the slave woman is not an heir, therefore neither is the son. But why is such a union sought, out of which the son can be accepted as heir neither of succession nor of blood? Indeed, he is not able to have a share of inheritance who does not have privilege of birth. Why, I say, is such companionship sought, out of which sons are born not as witnesses of matrimony, but of adultery? Why are they undertaking of false things of this sort, which are shames, not honors, to the father? The scripture says: “the sons of adulterers, etc.” Consequently, your woman, if she is gifted with great manners, so that she deserves partnership, earns the name of wife. Apply freedom and the title of wife to your concubine, lest you be an adulterer rather than a husband.
Canon X. Adulteries are not to be committed for the purpose of producing sons.
Gratian: Thus, Augustine to Claudius against Julian, lib. V.
Thus, adulteries are not to be committed even for the purpose of producing sons, just as thefts are not to be committed even for the purpose of feeding the pious poor; because it must still be done not by perpetrating thefts, but rightly by using the riches of inequality.
... Gratian: But why such ones are not called children, or may follow that of their parents, who are born from a free man and a slave woman, Isidore defined [in] Etymologies lib. IX.
Canon XV. Whoever are from free men, and how they ought to follow the condition of parents.
Whoever had been born of legal marriage is said to be a free man. On the other hand, sons from a free man and a slave woman are of the servile condition. Indeed, whoever is born always assumes the inferior role. But, the sons of free-born concubines are called natural sons, whom a nature alone begets, not the integrity of marriage. I. In truth these people, who are not from lawful marriage, follow the mother rather than the father.
- According to Gratian, who was drawing on the writings of Ambrose and Augustine, why was it ok for Abraham and Jacob to have children by enslaved women but not for men of their own time (the twelfth century for Gratian, the fourth and fifth centuries for Ambrose and Augustine)?
- This source discusses the status of the children of free men with enslaved women. What would be the status of the children of free women with enslaved men? Why doesn’t Gratian address that question?
- Gratian, drawing on Augustine, says that there are four kinds of people in the world. Who are they? Why are there four kinds? What does slavery, both literal and metaphorical, have to do with this worldview?
Related Primary Sources
- Canon Law concerning Slave Marriage to Free People
- Concerning Persons and Divisions of Persons
- Demandes de Libertat: Enslaved Mothers Suing for Freedom in Late Medieval Iberia
Related Secondary Sources
- Blumenthal, Debra. “Masters, Slave Women and Their Children. A Child Custody Dispute in 15th-Century Valencia.” In Mediterranean Slavery Revisited (500-1800)/Neue Perspektiven auf mediterrane Sklaverei (500-1800), ed. Stefan Hanß and Juliane Schiel, 229-256. Zurich: Chronos, 2014.
- Harper, Kyle. Slavery in the Late Roman World, A.D. 275-425. Cambridge: Cambridge University Press, 2011.
- McKee, Sally. “Inherited Status and Slavery in Renaissance Italy and Venetian Crete.” Past and Present 182 (2004): 31-54.
- Wet, Chris de. Preaching Bondage: John Chrysostom and the Discourse of Slavery in Early Christianity. Berkeley: University of California Press, 2015.