Question II

GRATIAN. PART I. The second question was proposed concerning condition: whether it is lawful for a woman to put away a man whom she thought free if she afterward finds him to be a slave. That it is not lawful for a woman to depart from a slave appears capable of proof by many reasons. For in Christ Jesus there is neither Jew nor Greek, neither slave nor free; therefore neither is there such a distinction in the marriage of Christians. For each is governed by the same law in the faith of Christ. For it is said by the Apostle without distinction to all: “He who wishes to marry, let him marry in the Lord.” And likewise: “Let a woman marry whom she wishes, only in the Lord.” It is not commanded that a freeborn woman marry a freeborn man, or a female slave a slave; rather, let any one of them marry whom she wishes, provided that it is in the Lord.

Likewise Pope Julius, c. 4. All of us have one Father in heaven, and each person, rich and poor, free and slave, will render an account equally for himself and for their souls. Therefore, we do not doubt that all, of whatever condition they may be, have one law with respect to the Lord. But if all have one law, then, just as a freeborn person cannot be put away, so neither will a slave once joined in marriage be able thereafter to be put away.

Likewise Pope Zachary. If a free man has received a female slave in marriage, he does not have permission to put her away if they were joined by the consent of both, except for the cause of fornication; rather, henceforth there will be in all things one law for the man and the woman.

Likewise Pope Julius. If anyone has given his female slave freedom and associated her with himself in marriage, it was doubted among some whether marriages of this kind should appear legitimate or not. We, therefore, resolving the ancient ambiguity, judge such marriages to be legitimate. For if all marriages come about from affection, nothing impious or contrary to the laws can occur in such a union. Why, then, should we have considered the aforesaid marriages to be prohibited?

PART II. GRATIAN. To these things it is answered thus: It is not denied that a freeborn woman can marry a slave; rather, it is said that, if he is not known to be of servile condition, he can freely be put away when his servitude has been discovered. But that saying of the Apostle and of Pope Julius is to be understood of those whose condition is known to both. Yet this man’s condition was unknown to the woman. Therefore, she is not compelled by the foregoing authorities to remain with him, but is shown to be free either to remain or to depart. Hence at the Council of Verberie, which King Pepin attended, it was established in c. 6:

If any freeborn man has received as wife another man’s female slave and thinks that she is freeborn, if the woman is afterward discovered to be in servitude, if he can redeem her from servitude, let him do so; if he cannot, let him receive another if he wishes. But if he knew that she was a female slave and approved it, thereafter let him have her as a legitimate wife. A freeborn woman ought to act similarly concerning another man’s slave.

Likewise from the same Council, c. 8. If a freeborn woman has received a slave, knowing that he was a slave, let her keep him, because we all have one Father in heaven. There will be one law for the man and the woman.

Likewise Gregory, [Book VI, epistle 1, to Bishop Fortunatus]. Your Fraternity knows more carefully for what cause the bearer of these presents, when compelled to come here with her mother last year, came: namely, because her husband, your cleric, is known to have removed her from his company after she was accused of having been of servile condition. They also assert that, while you were here, you promised that, if by the Lord’s aid she were able to prove herself free, you would restore her to her marriage. Therefore, let Your Fraternity know that, by the revelation of God, the author of liberty, she has been proved free, and no blemish of servile status has been found in her. These things being known, we wish her to be restored to her husband without any delay, and let that same man no longer seek for himself contrived pretexts by which he may cast her off. For if this is not fulfilled by you—which we do not believe—and perhaps he delays receiving her, know that we will correct it with rigorous punishment.

GRATIAN. When it is said, “knowing that he was a slave,” it is given to be understood that, if she did not know that he was a slave, she is not compelled to remain with him. Therefore, because this woman suffered deceit both as to person and condition, she is not compelled to adhere to the man by whose fraud she was deceived. But if she received a free man, and he, in order to furnish a cause for discord, made himself someone’s slave, he will neither be able to put away his wife, nor will she be able to be reduced to servitude because of the bond of marriage. Hence in the Council of Tribur:

It was reported to the holy synod that a certain freeborn man had received a freeborn wife and, after the procreation of children, had made himself someone’s slave as an occasion for divorce—that is, marital separation. It was asked whether he necessarily ought to keep the woman and, if he kept her, whether she too ought to be subjected to servitude according to secular law. It was judged that the wife ought by no means to be put away, yet that, because of Christ’s law, the woman was not to be reduced to servitude, since he made himself a slave without the consent of the spouse who had received him as a free husband.

GRATIAN. It is also asked whether, if the slave of one person receives another person’s female slave, there is a marriage between them. Concerning these persons it was established thus in the Council of Chalon, [II, c. 30]:

It has been told to us that certain persons dissolve legitimate marriages of slaves by a certain presumptuous exercise of power, not attending to that saying of the Gospel, “What God has joined, let man not separate.” Hence it has seemed good to us that marriages of slaves are not to be dissolved, even if they have different masters; rather, while remaining in one marriage, let them serve their own masters. And this is to be observed in those cases where there was a lawful union and it occurred by the will of the masters.