Source: Divorce Decree from Genoa
The basis for the legal system in the later Middle Ages was the ius commune (the common law), which was a fusion of the old Roman and Byzantine legal structure and Catholic canon law (religious law) based on the Bible, the writings of Church Fathers, and papal letters. The translation movement of the 12th century, prompted by the desire to find new learning unavailable in Europe, the rediscovery of ancient texts, and the need to understand both, led to the growth of the scholastic movement and universities. These universities, especially the University of Bologna, oversaw the development of legal theory and created a new class of university-educated people. For canon law, one of the most authoritative jurists (legal scholars) of the time was Gratian. Not much is known about Gratian’s life, but his legal textbook, called the Decretum, or Concordia Discordantium Canonum (Concord of Discordant Canons), was incredibly influential. Written sometime in the 12th century, the Decretum was intended to reconcile and harmonize canons, including ones from previous centuries that appeared to contradict one another. Gratian did this by structuring the Decretum according to the scholastic method. This became the authoritative canon law text, with several additions such as the Liber Extra (1234) and the Liber Sextus (1298) that incorporated more recent papal letters.
Marriage, a subject left to civil law during antiquity, came increasingly under the purview of canon law in the Middle Ages.The ecumenical council Lateran IV made marriage a sacrament in 1215. From a canon law perspective, marriage was meant to produce heirs and remove the sin associated with sex. By the time of this source, all that a valid marriage required was for two Christians to take vows in the present tense expressing their consent to be married. However slavery, unlike marriage, was not considered a part of natural or divine law by medieval jurists, but rather a part of human law. In the Middle Ages, slavery was considered socially acceptable, it was based on religious differences, and it was perceived as a universal threat. Gratian was generous to unfree persons when interpreting authoritative Christian texts, holding that unfree persons had the right to marry whom they wanted as long as both partners were aware of the unfree person’s status. He was not alone in these views and may have been influenced by contemporary French philosophers, including Cum Omnia Sacramenta (With all the Sacraments) attributed to Anselm of Laon and De Sacramentis (On the Sacraments) by Hugh of Saint Victor.
This source is a legal document written by the Genoese notary Leonardo de Garibaldo in the city of Genoa in 1311. This particular document is a sententia (an authoritative decree) issued by Peter de Castellario, who was the canon of the church of Santa Maria in Vineis in Genoa and acting as a representative for the archbishop of Genoa. A petition for divorce was brought before the archbishop’s court by a woman named Margarita de Sara. Her reason for seeking this divorce was that she had not known that the person she married, Nicola of Hungary, was a slave before they had exchanged vows.
Translated from the Latin by Colten Cook. Leonardo de Garibaldo (Genova, 1310-1311), ed. M. Calleri, A. Rebosio, and A. Rovere (Genoa: Società ligure di storia patria, 2017), 1:285-286, doc. 173. This translation CC BY-NC-ND 4.0.
The decree of divorce between Margarita and Nicola
In the name of the Lord, amen. Regarding the question of marriage which is brought to the court between Margarita de Sara, who stands in Genoa with Johanne Embrono, on one side, and Nicola of Hungary, who is a slave (sclavus), on the other, a petition was offered by the said Margarita in this manner:
Margarita of Sara who stands in Genoa with Johanne Embrono, proposes before you, the lord vicar of the venerable father, the lord archbishop of Genoa, that she entered into marriage with words in the present tense with Nicola of Hungary, who is a slave, and that Margarita did not know that Nicola himself was a slave. Therefore the said Margarita asks of you, the said lord vicar, to proclaim by way of decree that there is not marriage between the said Margarita and the said Nicola, promulgating a decree of divorce between the two, and to the same Margarita grant permission to enter into marriage with another in the Lord, requesting the aforesaid things by canon law; she similarly asks for the expenses incurred and being incurred [to be paid].
We, Peter de Castellario, canon of the church of Santa Maria in Vineis of Genoa, venerable vicar in Christ of the father, Lord Brother Porchetto, the archbishop of Genoa by the grace of God and of the Apostolic Seat, having seen the said petition, with the lawsuit having been filed concerning the petition itself, an oath concerning perjury and speaking of the truth given by the said parties, with the confessions of the said parties given by the deadline for proving for both parties in the said case, with a certain document shown in front of us by the said Margarita concerning the servitude of the said Nicola and the conclusion having been made by the said parties in the said case in front of us and with all laws and rights and that which the parties wanted to say and put forth in front of us, all these things having been seen, considered, and contemplated carefully and having had a diligent and mature deliberation about these things, with the said parties present and requesting a decree to be brought forth, having invoked the name of God, presiding before the court, we declare in these writings and we proclaim definitely decreeing that there is no marriage nor could there have been between the said Margarita and the aforesaid Nicola, granting the same Margarita permission to enter into marriage with another in the Lord.
Read, reported, and proclaimed in Genoa by the lord vicar himself in the archiepiscopal palace of Genoa, in which his court is overseen, in the year of the birth of our Lord 1311, 9th indiction, the 8th day of February, around terce, with witnesses present: Lord Percivale de Portu, jurist Januyo de Vallentibus, priest Oberto, official of the church of Stanius, and Genoese citizen Oliveto de Turano.
- What evidence did Margarita provide to the court? Was this sufficient evidence for the archbishop’s representative to grant the divorce? What reasoning might he have used?
- If Margarita had known that Nicola was a slave before they got married, it would have been considered a legal marriage. What does this imply about the legal definition of marriage and consent at the time?
- Why did Leonardo de Garibaldo add that Margarita de Sara “stands in Genoa with Johanne Embrono” in this document?
- Margarita de Sara may have come from Saray, the capital of the Mongol state known as the Golden Horde. If so, she likely came to Genoa as a slave and was later freed. How would this contextual information change your interpretation of this document?
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
- Anders Winroth, “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 (Washington, D.C.: Catholic University of America Press, 2006), 97-109.
- Gilchrist, John Gilchrist, “The Medieval Canon Law on Unfree Persons: Gratian and the Decretist Doctrines c.1141-1234,” Studia Gratiana 19 (1976): 271-302.