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Medieval Sourcebook:
Oldradus de Ponte, No.35 (Consilium)
(1478 Printed Edition: fol. 38va-b)


Oldradus de Ponte was a jurist working in the papal curia from 1310 till his death after 1337. He was the first of the medieval jurists to write a large number of consilia. His collection of consilia and questiones written in the style of consilia, created in the mid-fourteenth century (probably not by Oldradus himself) helped establish the consilium as the most important genre of later medieval jurisprudential writing.

Although many of the items in the collection were actual consilia, i.e., they were written to resolve court-cases or as preliminaries to legislation or administrative decisions, they were "anonymized" for pedagogical reasons, to provide jurists with models for the writing of consilia, and to provide law-students with problems for classroom discussion and debate. The issues raised in Oldradus's consilia and questiones range from quotidian legal disputes, to matters of high politics, to more fanciful questions.

Given its detail and narrowly-focused argumentation, item No.35 in Oldradus's collection appears to be an anonymized consilium. The issue in this consilium is the validity of a marriage contract made under duress. The case concerns a woman who was kidnapped, held captive and raped over a period of twelve days. During that time, the villain of the piece compelled the woman, "per uim et metum mortis", to pronounce the words of a marriage ceremony, after which he endeavored to consummate the putative marriage by "carnalis copula". After twelve days, she escaped and repudiated the "marriage". The question then was whether the woman's claim of having been compelled by violence and threat rendered null and void her performance in the outward formalities of a marriage contract (to which she admitted). The acceptance of Alexander III's consent theory of marriage as canonical in the twelfth century created the foundation for such a case. But the determination had to be made on the basis of credibility, for the issue really was did the woman consent to the marriage or not. In this respect at least, the facts were in her favor.


Oldradus's No.35 (Consilium):
Latin Text and English Translation

Factum tale est: quidam Iohannes nomine laicus Traceocen. dioc. ad nuptias cuiusdam Margarite aspirans quamquam ipse sciret ipsam nolle cum eo matrimonium contrahere associatis sibi quibusdam ipsam rapauit uiolenter ipsamque inuitam et penitus renitentem per uim et metum mortis qui cadere poterat inconstantem compulit in quorundam presentia ad contrahendum matrimonium per uerba de presenti cum eodem. Et postmodum eam quam inuitam et renitentem tenebat inclusam cognouit carnaliter eodem metu super durante ac post carnalem copulam per xii. dies uel circa ipsam uiolenter tenuit in domo reclusam in sua renitentia semper per durantem. Que Margarita quamprimum facultas affuit aufugit ab eo et statim publice extitit protestata quod numquam consenserat in eundem in aliquo actu ad matrimonium pertinente. Queritur an sit contractum matrimonium inter eos. Such is the fact: a certain layman of the diocese of Traceocensis named Johannes, aspiring to marry a certain Margaret even though that man knew from those associated to her <that> that woman was unwilling to contract marriage with him, siezed her violently and, <even though she was> unwilling and inwardly resistant, through force and the threat of death <by which> he was able to drive her into sin occasionally, compelled her in the presence of certain persons to contract marriage with the same man through words at that present time, and afterwards he held her imprisoned, unwilling and resistant. He knew her carnally with the same threat upon her who held out during this time, and after the carnal union held her violently for twelve days or thereabouts shut up in the house throughout this period. Which Margaret, as soon as the faculty was present, fled from him and immediately made protests publicly that she never consented inhim in any act pertaining to marriage. It is asked: is there a contract of marriage between them?
Et breuiter est dicendum quod premissis existentibus ueris inter ipsos nullum fuit matrimonium celebratum quod probatur sic. Matrimonium enim contrahitur per legitimum uiri et mulieris consensum, xxvii. q. ii. c. Cum sufficiant,[1] et extra. de sponsa. c. Cum locum, et c. Tue, et c. Tua nobis,[2] licet quo ad ecclesiam necessaria sint uerba consensum exprimentia de presenti ut dicunt iura predicta. Et licet in dicto contractu fuerit forma coniugalis contractus, scilicet uerba et carnalis copula ex quo substantia coniugalis contractus scilicet consensus dicte Margarite abfuit uerba prefata et carnalis copula nequauerunt coniugale fedus perficere inter eos. Nec obstat si dicatur quod ipsa expressit uerba apta ad matrimonium contrahendum et cognita fuit carnaliter per dictum Iohannem cum quo licet stetit reclusa xii. diebus circa; ergo uidetur in eum tacite consensisse, extra. de sponsa. Ad id quod,[3] et qui matri. accu. possunt, c. Insuper,[4] quia mulier de qua fit mentio in prealleg. c. Ad id quod,[5] per annum et dimidium cohabitauit cum uiro et potuit ab eo fugere et noluit. Hec autem Margarita inclusa detenta fuit et statim cum potuit aufugit ut dictum est supra. Vnde in dicto c. Ad id quod, in glo. que incipit, et ita per pacientiam, in fine ponuntur uersus:[6]

effuge cum poteris
ne consensisse puteris;
quod si perstiteris,
tunc sua semper eris.

And briefly it must be said that in the aforesaid true particulars, no marriage was celebrated between those persons which is proven thus: marriage namely is contracted through the legitimate consent of a man and a woman, as in the chapter, Cum sufficiant,[1] and the decretals, Cum locum, Tue, and Tua nobis.[2] Although as far as the Church goes, the words would be necessary expressing consent at the present time, as the aforesaid laws say. And although in the said contract there will have been the form of a marriage contract, namely the words and the carnal joining, the substance of a marriage contract, namely the consent of the said Margaret, was absent. The aforesaid words and carnal joining cannot complete a marriage contract between them. Nor does it stand in the way if it be said that that woman expressed words apt for contracting a marriage and <that> she was known carnally by the said Johannes, with whom, it is allowed, she stood shut in for about twelve days; therefore she appears to have consented tacitly in him, as in the decretals Ad id quod,[3] and Insuper,[4] because the woman concerning whom mention is made in the aforesaid decretal Ad id quod,[5] cohabited with the man for a year and a half and was able to flee from him and was unwilling. But this Margaret was detained, shut up, and immediately when she could she fled, as has been said above. Whence in the said decretal, Ad id quod, in the gloss which begins, "et ita per pacientiam", in the end is placed a verse:[6]

Flee when you can
lest you be though to have consented;
because if you stick around,
then you will always be hers.

Item mulier de qua fit mentio in prealleg. c. Insuper,[7] pemisit se cognosci et potuit a uiro recedere et noluit. Set ista Margarita cum potuit aufugit. Et ideo nullum fuit matrimonium inter eos ut expresse habetur, extra. de sponsa. c. Consultationi et c. Veniens.[8] Nam in matrimoniali contractu liber debet esse consensus, ut in pre alleg. c. Cum locum, extra. de sponsa.[9] Hic autem non liber set per uim et metum qui cadere poterat in constantem. Et ideo nullum fuit matrimonium inter eos. Moreover the woman mentioned in the afore-alleged decretal Insuper,[7] permitted herself to be known <carnally> and was able to pull back from the man and was unwilling. But that Margaret fled when she was able. And therefore there was no marriage between them as is held expressly in the decretals Consultationi and Veniens.[8] For in a marriage contract, consent ought to be free as in the afore-alleged decretal Cum locum.[9] Here however it <was not> free, but through force and threat which was able to drive her into sin occasionally. And therefore there was no marriage between them.

 


Legal Citations

[1] C. 27 q.2 c.17 (Cum societas): this is a quotation from a letter of Pope Leo (I) asserting that a woman must have participated in the sacament of marriage in order to be considered married by the Church [Friedberg I, 1066].

[2] X 4.1.14: Alexander III, "... matrimonium autem solo consensu contrahitur ..." [Friedberg II 666]; and c.25: Innocent III, "... Postulasti utrum ex solis uerbis et ex quibus matrimonium contrahitur. Nos igitur inquisitioni tue taliter respondemus quod matrimonium in ueritate contrahitur per legitimum uiri et mulieris consensum, set necessaria sunt quantum ad ecclesiam, uerba consensum exprimentia de presenti ..." [Friedberg II: 670]; and c.26 (c. Tua nos): Innocent III [Friedberg II 670-71].

[3] X 4.1.21: Innocent III instructs not to admit a woman's claim that she had not consented to a marriage because the claim was made after she had been living with the man for a year and a half [Friedberg II 668-69].

[4] X 4.18.4: Alexander III declares that a woman who claimed not to have consented to marriage not be heard because she admitted that she knew him (carnally, one assumes) after the point at which she said she had not been willing to consent to marriage [Friedberg II 719].

[5] X 4.1.21.

[6] Glossa Ordinaria (written by Bernardus Parmensis) to X 4.1.21, sub verbo: per annum et dimidium. The gloss states that an adult female who is led pacienter into the house of a man is presumed to have consented, "quia hec non posset probare se uirginem, si uir dicat quod eam cognouit per aspectum corporis cum iam sit corrupta..." concluding by citing the little ditty. The verse text quoted in the Gloss that I read was rather different

effuge cum poteris
ne consensisse puteris,
nam si perstiteris
illius uxor eris.
Flee when you can
lest you be thought to have consented;
for if you stick around,
you will be that man's wife.

[7] X 4.18.4.

[8] X 4.1.28: Honorius III declares that women who deny having consented to marry soon after the alleged marriage took place and have not consummated the relationship should be heard <by the ecclesiastical judge> [Friedberg II 671]; and c.13: Alexander III reiterates that an unwilling woman does not contract a marriage [Friedberg II 665-666].

[9] X 4.1.14.

For an explanation and of the citations of Medieval Canon and Roman Law jurisprudence, please see ORB Online Encyclopedia: Law: A Guide to Online Resources.


Bibliography

Mario Ascheri, "Analecta manoscritta consiliare (1285-1354)," Bulletin of Medieval Canon Law 15 (1985) 61-94.

Ingrid Baumgärtner, ed. Consilia im späten Mittelalter: Zum historischen Aussagewert einer Quellengattung (Studi/Schriften des Deutschen Studienzentrums in Venedig 13; Sigmaringen 1995).

B.McManus, "The Consilia and Questiones of Oldradus de Ponte," Bulletin of Medieval Canon Law (Forthcoming in 1998).

Peter Pazzaglini and Catherine A. Hawks, Consilia. A bibliography of holdings in the Library of Congress and certain other collections in the United States (Washington, D.C. 1990) xiii-xxiv.

Peter Riesenberg, "The consilia literature: A prospectus," Manuscripta 6 (1962) 3-22.

Eduard Will, Die Gutachten des Oldradus de Ponte zum prozeá Heinrichs VII. gegen Robert von Neapel (Abhandlungen zur mittleren und neueren Geschichte 65; Berlin/Leipzig 1917).

Norman Zacour, Jews and saracens in the consilia of Oldradus de Ponte (Pontifical Institute Studies and Texts 100; Toronto/Buffalo 1990).


Transcription, translation, and notes by Brendan McManus, Ph.D. [mcmanubj@oneonta.edu].


This text is part of the Internet Medieval Source Book. The Sourcebook is a collection of public domain and copy-permitted texts related to medieval and Byzantine history.

Unless otherwise indicated the specific electronic form of the document is copyright. Permission is granted for electronic copying, distribution in print form for educational purposes and personal use. If you do reduplicate the document, indicate the source. No permission is granted for commercial use.

Paul Halsall June 1998
halsall@murray.fordham.edu