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
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
||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,
et extra. de sponsa. c. Cum locum, et c. Tue, et c. Tua nobis, 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, et qui matri. accu.
possunt, c. Insuper, quia mulier de qua fit mentio in prealleg. c. Ad id quod, 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
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, and the decretals, Cum locum, Tue,
and Tua nobis. 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,
and Insuper, because the woman concerning whom mention is made in the aforesaid
decretal Ad id quod, 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:
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,
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. Nam in matrimoniali contractu liber debet esse
consensus, ut in pre alleg. c. Cum locum, extra. de sponsa. 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,
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.
For in a marriage contract, consent ought to be free as in the afore-alleged decretal Cum
locum. 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.
 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].
 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].
 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].
 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].
 X 4.1.21.
 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.
 X 4.18.4.
 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
 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.
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;
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. [firstname.lastname@example.org].
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Paul Halsall June 1998