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 29) has to do with legal condition, including the condition of freedom or servitude. The subquestion (Questio 2) has to do with marriages between people of free and unfree condition, specifically whether a free woman who marries an unfree man without being aware of his condition can annul the marriage when she finds out that he is unfree. To answer this question, Gratian cites eight canons drawn from papal letters and the decisions of regional church councils, along with his own commentary.

Translated from the Latin by Joshua Robinaugh. Emil Friedberg, ed. Corpus iuris canonici (Graz: Akademische Druck- und Verlagsanstalt, 1959), 1092-1095. C.29 q.2. This translation CC BY-NC-ND 4.0.

Causa XXIX, Questio II

Gratian, Part I: The second question concerning condition[1] has been proposed: whether it is permitted for a woman to send away him, whom she first believed to be free (liberum), and if afterwards she discovers him to be unfree (servum). That indeed it is not permitted for a woman to abandon an unfree man, it seems to be able to be proven with many reasons. Namely in Jesus Christ there is neither Jew, nor Greek, nor unfree, nor free: therefore, not in a marriage of Christians. For is ruled by the same law in the faith of Christ. In fact, it is told to all in the same way by the apostle, “Whoever is willing to be married, let him be married in the Lord.” And again, “let the woman (mulier) be married to whom she wants; only in God.” It is not taught that a freeborn woman should be married to a freeborn man, an unfree woman to an unfree man; but let any of them be married to whomever she wants, provided that (it is) in the Lord.

Canon I. It is permitted for unfree people (servi) to contract marriage.

Pope Julius, canon 4.

There is one father to all of us in the heavens, and everyone, the rich and the poor, the free (liber) and the unfree (servus), will equally be returned judgement on behalf of themselves and their souls. Wherefore everyone, regardless of condition, we do not doubt to have one law according to the Lord. Moreover, if all people have one law, therefore just as the freeborn (ingenuus) cannot be sent away, thus neither can the the unfree (servus) be able to be sent away later once joined by marriage.

Canon II. It is not permitted for a husband to send away a woman who is suspected to be unfree in marriage.

Pope Zacharias

If any free man (liber) accepts a slave woman (ancillam) in marriage, he does not have permission to send her away if they were joined by the consent of both, except in the case of fornication; but hereafter one law will exist for all, both for the man and the woman.

Canon III. Between patron (patronum) and freed woman (libertam), it is established that marriage is legitimate

Pope Julius

If anyone presents his slave woman with freedom, and unites with her in marriage, it was doubted among certain people whether weddings of this kind seem to be legitimate or not. And so, we determine such marriages to be legal, settling/making explicit a long standing tradition. In fact, if all weddings were to take place out of love, nothing could be impious and contrary to the laws in such union. Therefore how will we judge the aforementioned weddings to be prevented?

Gratian, Part 2: To these things may be responded thus: let it not be denied that a freeborn woman is able to be married to a unfree man, but it is said, if he is not known to be of unfree condition, he can be sent away by the free woman, when his servitude has been discovered. On the other hand, that of the apostle and Pope Julius must be understood concerning those, whose condition was known to both. However, the condition of this one was not known to the woman; therefore let her not be forced to stay with him by the previous authorities , but it is clear that it is her choice to stay or to leave.

Whence in the Council at Vermeria, at which King Pippin was present, it was established in canon 6.

Canon IV. Concerning him, who leads an unfree woman as his wife, whom he thinks to be a free woman.

 If any freeborn man accepts the slave of another as his wife, and thinks that she is freeborn, if afterwards the same woman has been revealed to be in servitude, if he is able to redeem her from servitude, let him do it; if he is not able to, if he wishes to, let him receive another. On the other hand, if he knew the unfree woman and praised her,[2] afterwards let him keep (her) as legitimate. Even a freeborn woman ought to do the same concerning the slave of another.

Canon V. It is not permitted for a woman to send away one whom she married, knowing him to be an unfree man.

From the same, Canon 8.

If a freeborn woman accepts an unfree man, knowing that he is  unfree, let her keep him, because we all have one father in the heavens. There is one law for man and woman.

Canon VI. One is not able to be sent away by reason of servitude who after a controversy of status asserts themselves to be in freedom.

Gregory (Book VI, Letter I to Bishop Fortunatus)

The bringer, compelled to this, came with her mother in the year preceding the present one on account of this matter, your fraternity[3] knew more prudently, certainly because of her husband, your cleric, on account of this, that she had been accused of servile condition, it had been considered to remove (her) from his partnership, and they claim that you, placed here, promised that if she could prove herself free with God helping, you would restore her as his wife. Therefore, let your fraternity learn, that with God the author of freedom revealing, she has been proved free, and no servile stain has been found in her. Therefore, with these things have been learned, we want her to be restored to her husband without any delay, nor, furthermore, let her very same husband seek out arguments for pretexts for himself, by which he can cast her out. For if this is not carried out by you at all (which we do not believe), and by chance he delays to accept her, you should learn that we will correct this by means of strict vindicta.[4]

Gratian. When it is said: “knowing him to be unfree,” it is given to understand, that she did not know him to be unfree, she is not forced to stay with him. Therefore, because she has suffered deceit in both person and condition, she is not forced to stay with him by whose fraud she has been deceived; however, if she accepts a free man, and he, to supply cause for divorce, makes himself a slave to someone, he can neither send away his wife, nor can she be reduced to servitude on account of the bond of marriage.

From the Council of Tribur

Canon VII. Let the husband not cunningly depart from her, whom he accepted at a time of freedom, on the pretext of changed condition.

It was brought to the holy synod, insofar as a certain freeborn man accepted a freeborn wife, and after the procreation of children by pretext of divorce he made himself the slave of a certain person, it was asked whether he necessarily ought to keep the woman, and if he kept her, whether she also ought to be subjected to servitude according to secular law. It was judged, that the wife ought not to be sent away at all, nor yet on account of the law of Christ ought the wife to be reduced to servitude, provided that he did not make himself a slave by consent of his wife, whom she accepted as a free husband.

 Gratian. Likewise, it is asked, if a slave accepted the slave woman of someone else, whether there could be a marriage between them?

Concerning these things, it was established thus in the Council of Clermont

Canon VIII. The legitimate marriage of unfree people may not be dissolved by the authority of their lord.

It is stated to us, insofar as a certain legitimate marriage of unfree people permitted to stand (potestatiua) may be dissolved by a certain presumption, not having paid close attention to that gospel: “What God has joined, let man not divide.” Whence it seems to us, that the marriage of unfree people may not be dissolved, even if they have separate masters, but remain in one marriage, let them serve their own masters. And this must be observed in these, where the union was legal and by the consent of lords.

[1] i.e. slave or free.

[2] Had sexual intercourse with her.

[3] Bishop Fortunatus.

[4] Ceremonial act where a person contends that they were wrongfully enslaved and claims to be free

Discussion Questions

  1. Under what circumstances may a free person legally be married to an unfree person? Additionally, under what circumstances may a free person “send away” or divorce an unfree person they have married? Does the gender of the spouse who is unfree make a difference to the outcome?
  2. According to God, are unfree and free people accountable to the same law? How does the answer to this question affect the legal opinions presented in the canons?
  3. One of the purposes of Gratian’s Decretum was to create a “harmony of discordant canons.” Does he harmonize any disagreements between the canons with his own commentary? If so, how does he do this?

Related Primary Sources

Related Secondary Sources

  • Gilchrist, John. “The Medieval Canon Law on Unfree Persons: Gratian and the Decretist Doctrines c.1141-1234.” Studia Gratiana 19 (1976): 271-302.
  • Landau, Peter. “Hadrians IV. Dekretale “Dignum Est” (X.4.9.1) und die Eheschliessung Unfreier in der Diskussion von Kanonisten und Theologen des 12. und 13. Jahrhunderts.” Studia Gratiana 12 (1967): 511-553. [In German]
  • Winroth, Anders. “Neither Slave nor Free: Theology and Law in Gratian’s Thoughts on the Definition of Marriage and Unfree Persons.” In Medieval Church Law and the Origins of the Western Legal Tradition: A Tribute to Kenneth Pennington, edited by Wolfgang Müller and Mary Sommar, 97-109. Washington, D.C.: Catholic University of America Press, 2006.

Themes

Law, Religion