CATHOLIC LAW SCHOOL - A.D. 1150
John T. Noonan, Jr. *
* The Honorable John T. Noonan, Jr., Judge, U.S. Court of Appeals for the
Ninth Circuit; Robbins Professor of Law, Emeritus, Boalt Hall School of Law,
University of California, Berkeley. This speech is the text of the Brendan
Brown Lecture delivered on April 1, 1998 as part of the Centennial Celebration
at The Catholic University of America, Columbus School of Law.
SUMMARY:
... We are in a law school today, so let me start, as we do in law schools,
with a case. ... Thus she was not married, because both did not consent to the
same thing, and that is necessary for marriage. ... If any free man takes a
slave girl in matrimony, and they were joined by mutual consent, he does not
have license to send her away, except on account of fornication [cf. Mt.
19:9]. ... It is the book, and the teaching method that it embodies, that have
made Master Gratian celebrated and best demonstrate the character of the first
Catholic law school. ... There is at work in the
hypothetical a second social fact not present in our world: society is divided
into free and slave. ... If a slave may marry, why is a mistake as to a
spouse's status as a slave different from a mistake as to his wealth, his
integrity, his mental capacity, or his chastity? You may say that in a society
where slavery exists, the mistake is of such a social magnitude that the
mistaken spouse deserves a break; but it's not too difficult to think of other
cases - say the spouse is a homosexual - where an analogous argument can be
made and the category of a status mistake asserted. ...
TEXT:
[*1189]
We are in a law school today, so let me start, as we do in law schools, with a
case. The case reads as follows:
CASE TWENTY-NINE
Gratian: A noblewoman learned that another noble's son sought her in marriage.
She consented. But a non-noble of servile condition offered himself under
first man's name and took her as wife. Her first choice at last arrived to
seek her in marriage. She complained that she had been deceived and wanted to
marry the first man. The questions here are:
First, were they married?
Second, if she first believed a man was free, and later discovered he was
servile, could she lawfully leave him forthwith?
QUESTION I
Gratian: That they were married is proved this way. Marriage is the union of a
man and woman keeping an undivided way of life [Instit. 1 9.1.]. Mutual consent
makes marriage. Those, therefore, who join in order to keep an undivided way
of life, consenting to each other, are married.
1. Reply to this: Consent occurs when two or more perceive the same thing
[Dig. 2.14.1]. He who is in error, however, does not perceive the same thing.
So he cannot consent - that is, agree to the same thing as another. So, one
who errs does not consent. Thus she was not married, because both did not
consent to the same thing, and that is necessary for marriage.
Someone errs in the same way when he is ordained by someone he believes to be
a bishop, but who is really a layman. He is not ordained and [*1190] must
still be ordained by a bishop. She erred in his way and thus was not united in
marriage, but rather yet to be united.
2. On the contrary: Not every error eliminates consent. One who takes a wife,
thinking her a virgin, or one who takes a prostitute, thinking her chaste,
errs because he thinks a corrupted woman is a virgin, or because he accounts a
prostitute as chaste. But did they not consent to these women? Does either man
have the option of sending the woman away and taking another?
In fact, not every error excludes consent. Error as to person is one thing,
error as to fortune another, error as to condition another, and error as to
quality yet another. Error as to person occurs when one thinks someone is
Virgil (St. Gall, p. 170: Stichus) when he is Plato
(St. Gall: Pamphilius). Error as to fortune occurs when one thinks someone is
rich when he is poor, or conversely. Error as to status occurs when one thinks
someone is free when he is of servile status. Error as to quality occurs when
one thinks someone is good when he is bad. Error as to fortune or quality does
not exclude consent to marriage.
If one agrees to sell a field to Marcellus, and Paul later arrives saying he
is Marcellus and buys the field from him, did he agree on the price and sell
the field to Paul?
(Digest 6.1.72) Also, if one promises to sell me gold, but gives me yellow
ore in place of gold, and thus deceives me, did I consent to the yellow ore? I
never wanted to buy yellow ore, and at no time did I consent to it, because
consent cannot exist without the will.
(Digest 18.1.9 and 13.7.1)
Just as error as to the matter here excludes consent, so error as to person
does in marriage. She did not consent to this man, but to the man she thought
this man was.
3. Objection: Jacob did not consent to Leah but to Rachel [Gen. 29:9-30]. He
served seven years for Rachel. So, when Leah was put in with him, but he did
not know it, there would have been no marriage if error as to person excluded
consent. For, as was said, he did not consent to her, but to Rachel.
Response: Antecedent consent is one thing, subsequent consent another.
Antecedent consent would be consent to both an undivided way of life and to
fleshly intercourse. Subsequent consent occurs when, after sexual relations
during concubinage or fornication, they both consent to the former as well.
Antecedent consent did not make Jacob and Leah husband and wife, but
subsequent consent did.
But they are not to be adjudged fornicators because of their intercourse, for
he knew her with marital affection, and she rendered the debt to him with
marital affection, thinking she was rightly joined to him, on account of the
Law of the First Born and her father's command.
4. A later authority [C. 34 qq. 1 & 2 c. 6] proves that error as to person
[*1191] sometimes excuses. When a wife's sister goes to the bed of her
sister's husband (both the sister and the husband being unaware), and the
sister's husband knows her, she loses perpetually the right of marriage, but
he who knew her in ignorance is excused.
This is also proved in another way. The devil sometimes transforms himself
into an angel of light [cf. 2 Cor. 11:14], but this error poses no danger to
one who believes him to be good when he is posing as good. If, then he asked
an unlettered person whether he wished to share his blessedness, and the
latter replied that he wanted to associate with him, can one say he chose to
associate himself in devilish damnation? Did he not, rather, choose to
participate in eternal bliss?
Also, if a heretic came to some Catholic and convinced him to accept his
beliefs as those of Augustine, Ambrose, or Jerome, did he consent to accept
the man's belief? Should one not say rather that he consented, not to the
heretical sect, but to the integral Catholic Faith that the heretic falsely
claimed to present?
Because this woman was deceived by error, she plainly did not consent to the
latter man, but to the former man he falsely claimed to be.
So she is not his
wife. [Noonan's
Conclusion to the First Question]
5. Error as to fortune or quality does not exclude consent. When one accepts
the prelacy of a church he believes to be very rich, and it is less so,
although he is in error as to fortune, he still cannot renounce the prelacy he
accepted. Likewise, one who marries a pauper thinking him wealthy cannot
renounce this relationship, although she did err.
Likewise, error as to quality does not exclude consent. When one buys a field
or a vineyard, supposing it very fruitful, but errs as to the quality of the
property and buys an infertile one, he still cannot rescind the sale.
Likewise, one who takes as his wife a prostitute or seduced woman, thinking
her chaste or a virgin, he cannot send her away and take another [om. SG, sed
non Gratianus I].
QUESTION II
Gratian: The second question concerns condition. Can a woman lawfully send
away a man she thought to be free if afterwards she discovers he was servile?
Many arguments prove that the woman cannot lawfully leave the slave. In Christ
Jesus, there is neither Jew nor Greek, slave nor free [cf. Col 3:11]. Nor is
there in Christian marriage, for the same law rules all in the Faith of
Christ.
The Apostle said to all without discrimination [cf. I Cor. 7:36], "Whoever
wishes to marry, let him marry in the Lord." And again [I Cor. 7:39],
[*1192] "Let a woman marry whom she pleases, only let it be in the Lord." He
does not command a free woman to marry only a free man, or a slave girl only a
slave, rather everyone may marry whomever he wishes, provided it is in the
Lord.
Also, Pope Julius:
C. 1.
Slaves can lawfully contract marriage. There is one Father in heaven for all
of us. Each of us, rich or poor, free and slave, will equally render an
account for himself and his soul. Therefore, we do not doubt that all,
whatever their condition, are under one law before the Lord. If, however, all
are under one law, then neither a free man nor a slave can be sent away, once
he is joined in marriage.
Also, Pope Zacharias:
C. 2.
A man cannot lawfully send away a slave girl he has taken in matrimony. If any
free man takes a slave girl in matrimony, and they were joined by mutual
consent, he does not have license to send her away, except on account of
fornication [cf. Mt. 19:9]. There shall be one law in all things, for the man
and for the woman [cf. C. 29 q. 2 c.5].
Also, Pope Julius:
C. 3.
Lawful marriage certainly exists between a master and a freed woman. Some ask
whether or not it is a lawful marriage if someone has given his slave girl her
freedom and united with her in matrimony. We, therefore, resolve this ancient
doubt and declare such marriages lawful. If marriage is entirely made by
consent, there is nothing impious or contrary to the law in such a union. Why
would we think that the said marriage should be prohibited?
Part 2
Gratian: Reply to the foregoing: It is not denied that a free woman can
[*1193] marry a slave, but, if his servile condition was unknown, he can be
freely put away when his servile status is discovered. What the Apostle [1 Cor.
7:39] and Pope Julius [C. 29 q. 2 c. 1] say should be understood to concern
those whose condition was known to both.
The woman did not know this man's condition. Therefore, these authorities do
not compel her to stay with him, so she is free to leave or stay with him.
Hence the Council of Verberie, at which King Pepin was present, legislated, at
c. 6:
C. 4.
On one who takes a slave girl as a wife thinking her to be free. If any free
man takes another's slave girl as his wife, thinking that she is free, and
this woman is later discovered to be enslaved, he may redeem her from slavery,
if he can. If he cannot, he may take another wife, if he wishes. But if he
knew she was a slave, and still thought highly of her, he must later keep her
as his lawful wife. A free woman must do likewise with another's slave.
Also, from the same, c. 8:
C. 5.
A woman cannot lawfully send a man away if she married him knowing he was a
slave. If a free woman takes a slave, knowing him to be a slave, let her keep
him, for we all have the same Father in Heaven. There shall be one law for the
man and for the woman [cf. C. 29 q. 2 c. 2].
Also, Gregory, [in [Register], V, I, to Bishop Fortunatus]:
C. 6.
One who has proved himself free at law cannot be sent away because of servile
status. The bearer of this letter came here last year with her mother,
compelled by litigation. Your Fraternity has prudently discovered that her
husband, your priest, dismissed her from union with him because of her servile
status. The woman and her mother assert that, in this case, you have promised,
if she can with God's help prove that she is free, you will restore her
marriage.
[*1194] Let Your Fraternity know that, with God the Author of Freedom's
guidance, she has proved that she is free, without any suspicion of slavery.
Now that you know this, we order you to restore her to her husband without
delay, and to prevent him from advancing other reasons to eject her. If you,
contrary to our expectations, fail to do this, or he delays receiving her,
know that we will correct it with severe punishment.
Gratian: When it says [C. 29 q. 2 c. 5], "Knowing him to be a slave," it is
understood that, if she did not know he was a slave, she would not be
compelled to stay with him. So, when one is deceived as to person or
condition, one need not adhere to the one through whose fraud one was
deceived.
But, if she received a free man, and he, as an excuse to withdraw, made
himself someone else's slave, he cannot send his wife away, nor can she be
enslaved on account of the marriage bond.
Hence in the Council of Trebur:
C. 7.
A man who received a woman while he was free may not abandon her by means of a
deceitful status change. It has been reported to the Holy Synod that a certain
free man received a free woman as his wife and, after procreating children, he
made himself another's slave to procure a divorce. It is asked if he must keep
the woman, and, if he does keep her, must she also be enslaved, in accord with
secular law.
It is decided that he may not send the woman away. Nor, in accord with
Christ's law, should the woman be enslaved, because he made himself a slave
without her consent, and she took him as husband when he was free.
Gratian: There is also a question as to whether there is a marriage if one
man's slave takes another's slave girl.
Legislation of the [Second] Council of Chalons-sur-Saone, [c. 30], treats
this:
C. 8.
The authority of their masters cannot annul the lawful marriages of slaves. We
have heard that certain men, with amazing presumption, annul the lawful
marriages of their slaves, ignoring the words of the Gospel [Mt. [*1195]
19:6], "What God has joined together, let no man put asunder." So we declare
that the marriages of slaves cannot be annulled, even if they have different
owners. Rather, preserving the unity of marriage, let them serve their
different owners. This is to be observed when the marriage is a legal union
with the owners' consent.[su' n1 ']
The case comes from the casebook of the law school of the University of
Bologna. The first version of the book was in use by 1139. In round numbers,
1150 may be taken as a time when it was current. It is not only an old
casebook. It is a remarkably durable one. It was a major resource for canon
law until 1917 when the Code of Canon Law was issued by Benedict XV. It had a
run of not quite 800 years. As the author of a casebook myself, I'd be happy
if my book would last one-tenth this time.
Why was it so durable, so significant? Not exactly because of the reputation
of its reputed author, Gratian. No one knows who Gratian was. The Camaldolese
monks, who in the seventeenth century wrote the history of the University of
Bologna, claimed Gratian was a Camaldolese. He has also been identified as a
bishop and as a layman. He remains a mystery, known only by his remarkable
book. It is the book, and the teaching method that it embodies, that have made
Master Gratian celebrated and best demonstrate the character of the first
Catholic law school.
It is, then, not to the teacher but to his book and the case taken from it
that I turn to show what a Catholic law school - the
preeminent Catholic law school - was like in 1150, the
point at which Bologna begins to produce men trained in canon law.
You will note right away that the case is a hypothetical. The term was not in
vogue, but the putting of hypotheticals as a teaching device is standard in
the thirty-six cases that form the heart of Gratian's book. Like many law
professors' hypotheticals, this one is a bit strained in order to bring out
the points the professor wants to make. It is strained but not fantastic. It
does make one assumption that is contrary to life in our day but not to life
then: that a woman would want to marry a man she hadn't seen. Clearly in 1150
we are in a society where the nobility does go in for arranged marriages, the
arrangements can be made sight unseen, and consequently there is room for
deception when the expected spouse is replaced by an imposter.
There is at work in the hypothetical a second social fact not present in
[*1196] our world: society is divided into free and slave. Being a slave is
not simply a social fact but a legal one. The status of a slave is, by law, a
status where most of the legal attributes of personhood are absent. This state
of affairs is the legacy of over one thousand years of Roman law and the
universal acceptance of slavery is part of the social structure.
The hypothetical is posed with seven selected facts. The woman is of noble
birth. She accepts a specific proposal of marriage. An imposter appears, who
takes her as a wife. The real fiance arrives. She wants to back out of her
mistaken consent. She now also discovers that the imposter was a slave. On
this basis two legal questions are posed with great clarity: (1) Was she
married? and (2) Discovering that the man is a slave, is she free to disavow
the marriage?
The discussion opens by reference to Roman law, always an important element in
a Catholic European law school. The teaching of what was a new academic
subject, canon law, had evolved at Bologna from the teaching of Roman law that
had begun by 1100. n2 Theology is a background assumption. The canon law
teacher was a theologian on his way to becoming a lawyer. n3 Theology says
that a marriage is indissoluble. Theology does not say what a marriage is. To
answer that question, the teacher and his students have to turn to human
experience. The most accessible experience is incorporated in the familiar law
of imperial Rome. Gratian draws on this law in two ways, to define marriage as
a joining "in order to keep an undivided way of life" and to announce that
marriage is made by mutual consent. n4 These foundational propositions plunge
him into his first problem: consent, as Justinian's Digest declares, requires
that those consenting "perceive the same thing." n5 If a party is in error as
to the thing perceived, there cannot be consent. The woman, mistaken as to the
man she was marrying, is not married. A somewhat different case is thrown in
as a reinforcing analogy: a layman ordained by a man he thinks is a bishop
remains a layman if in fact the ordainer is not a bishop.
Now Gratian complicates the argument, as law professors will. With [*1197]
out citation of authority, he suggests that if a man marries a woman in error
as to her chastity, he may not get out of the marriage on the ground of
mistake. Following up the suggestion, Gratian announces that there are four
different kinds of error. Where he gets these categories from is not clear; he
imposes them as obvious; and, of course, like many astute law professors, he
has already inserted his solution in his categories.
The four kinds of error are as to person, fortune, status, and quality. As is
apparent on very little inspection, these are overlapping and not very stable
categories. They invite debate. They are the tools that Gratian appears ready
to use. However, he moves to two commercial examples, one of which involves
fraud. If you intend to buy gold and are given yellow ore instead, you did not
consent to the purchase. The mistake is as to matter. It vitiates your
consent. The sudden movement of Gratian's thought goes to an example which is
treated as offering a decisive analogy with mistake as to person - this sudden
movement is as though you were in the classroom hearing a professor brimming
with ideas replace one idea with a better one that has just come into his
mind.
The mind of the law professor, who is also well-read in Scripture, then
wanders off to a biblical case set out in Genesis. Jacob has agreed to serve
Laban seven years, at the end of which time Laban will give him his younger
daughter Rachel in marriage. Jacob has looked both girls over and found Rachel
distinctly better looking than her elder sister, Leah. As the story goes in
Robert Alter's excellent modern translation:
and Jacob served seven years for Rachel, and they seemed in his eyes but a few
days in his love for her. And Jacob said to Laban, "Give me my wife, for my
time is done, and let me come to bed with her." And Laban gathered all the men
of the place and made a feast. And when evening came, he took Leah his
daughter and brought her to Jacob, and he came to bed with her. n6
The story assumes, but does not say, that after the feast Jacob was too drunk
to know the difference between two sisters he'd seen for seven years and whose
looks he had enthusiastically compared. In the morning he's naturally upset.
Laban explains that "it's not done thus in our place, to give the younger girl
before the firstborn," but he stipulates that if Jacob finishes out the bridal
week with Leah he can have Rachel, too. n7 Jacob agrees. In this polygamous
world, a second wife is no problem. In fact he has five sons from her.
[*1198] What is the relevance to Gratian of this tale which, in passing,
conveys a recognition of both beauty and love as major motives for marriage,
approves parental disposal of daughters in marriage, takes polygamy in stride,
and is ambiguous about Laban's deception? In a later case, Gratian will defend
the proposition that marriage must be made by the free will of the man and
woman. Here he doesn't bother to look at the parental role, nor does he pause
to examine the consent a blind-drunk Jacob could have given to Leah. He picks
up the story as a kind of biblical ornament to his legal exposition and
imagines a student asking how Jacob was married to Leah when he thought he was
in bed with Rachel. The question is answered with ease by creation of two new
categories, antecedent consent and subsequent consent. After Jacob acquiesced
in Laban's request to stay the bridal week with Leah, he is assumed to have
knowingly consented to her as a wife. One side problem remains: when they
first had intercourse, weren't they fornicators? It's a question a mischievous
or zealous student might well raise. Gratian's answer is no. Jacob thought she
was his wife - he treated her "with marital affection," a key canonical
concept describing the state of mind and feeling distinguishing conjugal
relations from lust. As for Leah, she thought she was doing the right thing.
The digression permits the teacher to touch on the immorality of sex without
marriage.
A case of incest rounds out the digression. A sister creeps into the bed of
her sister's husband. The assumptions have to be that the wife is away and
that, again, we have a husband too soused to know the difference. The
lascivious sister-in-law is punished by being denied the right to marry
anyone; the husband is excused because of his ignorance. This case doesn't
materially advance discussion of the hypothetical. It seems to enter the
professor's mind by a kind of gossipy association of ideas, one story of
ignorant mistake leading to another such story dealt with by law.
The teacher returns to the central question of mistake as to person, and the
teacher now shows his interest in, and knowledge of, theology. He knows from
St. Paul that the devil transforms himself into "an angel of light." n8
Suppose, so transformed, the devil asks an unlettered one if he wishes to
share his happiness, does the answer Yes mean an acceptance of hell?
Similarly, if a heretic convinces a Catholic that the heretic's beliefs are
those of Augustine, Ambrose, or Jerome, does the Catholic consent to the
heresy or to what the Catholic believes to be the Catholic faith? These
questions are rhetorical. They emphasize that error can de [*1199] stroy
true consent. They are not strikingly apropos to the case at hand, branching
off as they do in the direction of good faith as a defense to heresy. As used
by Gratian, the questions are meant to reinforce the argument that the woman
is not married.
There is, however, a further wrinkle, illustrated by both ecclesiastical and
secular law. If a priest accepts a prelacy thinking that it is well-endowed
and it is not, he cannot back out. If you buy a field or vineyard thinking it
is very fruitful and it turns out to be infertile, you are stuck. These errors
are labelled errors of "fortune or quality." n9 By the same token, Gratian
moves quickly to say, if a woman thinks a man is rich and he turns out to be
poor, she can't get out of the marriage. It's just the same, he says again, as
to a man who think he's married a virgin, and the bride turns out to have been
seduced or to be a prostitute. No authority is cited for any of these
propositions: ecclesiastical, commercial, or matrimonial. They are put forward
as matters of common knowledge and acceptance.
After all these illustrations, analogies, distinctions, and categories, what
is Gratian's answer to his first question: Was the woman married to the
imposter? One way to read him is to go back where he says error as to person
is different from error as to fortune. On that reading the woman is not
married when she made a mistake as to person. But another reading is possible:
Gratian has left the matter open. He has no decisive summing up. His final
illustrations are of serious mistakes that do not vitiate consent. He offers
no principled argument for his different categories, which could collapse into
each other. He has started an argument.
He has left his students to finish it.
Let's look at Question II. It takes us at once into a fundamental
sub-question: can a slave ever marry? As to that question, Roman law had a
simple answer: no. A slave did not have the rights and capacities of a person.
If a slave had a sexual relation with someone, it was "a thing," nothing more.
You will observe that Gratian, so careful to cite the Institutes and Digest of
Justinian in answering Question I, makes not the slightest acknowledgment of
Roman law here. "The Church lives by Roman law"--was a maxim current in
Gratian's day. n10 But the maxim does not always hold. Without apology,
without argument, with the sovereign freedom of one who is the expositor of
the law of the Church, he [*1200] will decide the question of slave marriage
uninhibited by secular law.
His first thought goes very far, so far that, if he sticks to it, the status
of the slave disappears in canon law. In Christ Jesus, as St. Paul has
instructed the Colossians, there is neither Jew nor Gentile, neither slave nor
free. n11 If there are no slaves in Christ, how can slave status be a bar to
matrimony? Gratian enlarges on the implications of his citation of St. Paul by
two more quotations from the same authority speaking to the Corinthians
specifically about marriage and setting no restriction as to the freedom of
all Christians to marry. The scriptural foundation of Gratian seems solid.
Gratian proceeds with what is the common way of answering questions in his
book - not by the free ranging discussion he engaged in answering Question I,
but by citing a series of legal authorities arranged in short chapters with a
summarizing headnote at the start of each chapter. He begins with three
rulings by popes that slaves may marry validly. One of the rulings
acknowledges an "ancient doubt" on this point. n12 None of them acknowledge
that they go in the teeth of Roman law. They were, in their time,
revolutionary without even mentioning the authority they repudiated. In
Christ, the slave can receive the sacraments, the slave is eligible for
salvation, the slave is a human being. On these capital points Christian law
is firm. Gratian, taking the citations from earlier collections of papal
pronouncements, does not attempt to date them or to provide any historical
context. Without hesitation, he sees the rulings as the undisputed canon law.
The law as papally proclaimed even encompasses the delicate case of a man
marrying his own slave, although it is assumed in the case presented that the
man will first emancipate and then marry her.
In the face of these sweeping authorities, Gratian creates a doubt by
returning to the hypothetical where the free person did not know of the
other's servile state. This ignorance, he maintains, changes the situation.
The woman is free to stay or leave.
In support of this qualification is a chapter citing a French church council,
marked by the irrelevant detail that King Pepin was present. The authority is
local. It's enough for Gratian. The next chapter from the same council
supports the general rule, implicitly applying it only where there was
knowledge of the spouse's slavery. Chapter six, which follows, is a ruling by
a major authority, Pope Gregory the Great. It as [*1201] sumes that priests
may marry. It orders a bishop to make a priest of his diocese and to take back
as a wife a woman he had dismissed because he thought she was a slave. The
pope rules that he, the pope, has found her to be free, so the priest must
have her back. The implication is that, if she had been found to be a slave,
she would have lost her marriage. The placing of this decision in Gratian
implicitly reads the decision as one where her husband married her believing
her to be free. The decision thus lines up with the local French council. At
this point Gratian himself concludes that error as to either person or status
leaves the person who was deceived free to leave the deceiver. Slave status
remains a status of importance in Christian law.
Chapter seven goes on to deal with a desperate attempt to escape marriage: a
married man enslaves himself to another man and contends that his marriage is
over. Not so, says the local Council of Trebur: he's still married and,
moreover, his wife remains a free woman. Gratian's headnote stamps the whole
maneuver as a fraud to annul the marriage.
Finally, chapter eight deals with the marriage of a slave to a slave. It is
valid, according to the second council of Chalons-sur-Saone: God has joined
them together; no man, even a master, may separate them. But there's a catch.
The master, or masters if there are two different owners, must first have
consented. Their consent makes the marriage legal. Only if legal, does it
become inviolable. If inviolable, it survives even though each of the married
pair must serve a separate owner.
Having examined in this detail a single case studied at Bologna in 1150, what
can we say of the first Catholic law school? The study
of law was, at least in part, the study of hypotheticals, with the power of
hypotheticals to select and isolate significant legal issues and the weakness
of hypotheticals that they lack the rich concreteness, the true mindbinding
complexity, of real cases. The hypotheticals were the basis for questions that
opened up substantial areas of law in a penetrating way. The questions also
turned out to be convenient pegs on which to hang a variety of authorities.
The form paid off in the organization of authorities around a question. As the
form also permitted digressions, the student was given a glancing look at
problems and possibilities not immediately germane to the question asked.
Priests can marry validly, so Gregory the Great indicates. Gratian doesn't
pause to set a context. Believers in heresy may be in good faith. Gratian
doesn't stop to ask when. Bridegrooms may get so smashed at bridal feasts that
they don't recognize the bride in bed with them. Gratian abstains from
comment. Multiple wives were apparently once acceptable to God. Gratian does
not note the change in law and [*1202] morals. People who commit incest are
subject to enormous punishments. Gratian doesn't ask why. An attentive student
might be stimulated to think about the rules he knew and their alternatives
and the great variations the institution of marriage had known. A great deal
of tolerance of human frailties is apparent in Gratian, along with some
tolerance of heavy punishments.
The good side of the way Gratian put in authorities that were sometimes not
very pertinent to the question at hand was the breadth of experience
referenced. The bad side was the invitation to look at his book, not in terms
of questions asked, but in terms of the authorities collected - that is, not
to use the authorities as aids to answering Gratian's particular questions,
but to remove the authorities from this framework and to cite them on whatever
topic they shed light. The possibility was accentuated by the ahistorical
presentation. Context was not usually provided for the canons he cited only as
so many relevant rulings. In short, the temptation was to use Gratian as a
quarry, taking from the 4,000 authorities he used any building blocks you
wanted.
The difference is captured by the difference in the two titles by which the
work has been known. Gratian called it Concordia discordantium canonum, A
Harmony of Unharmonious Canons, - a title wonderful in its analogy with music
where harmony can come from dissonance, and a title forthrightly announcing
that the legislative enactments of the Church were not in harmony and needed
the work of scholars to be brought into working order. The other title was
Decretum, The Decree - a wooden title suggesting that Gratian set out "the
law" plain and simple. Over the centuries, treatment of the book as The Decree
became common. With such usage there was lost the living spirit of the law
school as it existed in Bologna in 1150.
In that school, as Question I of Case Twenty-Nine illustrates, authority was
subject to analysis. "Question Authority" was a favorite bumpersticker of the
1970's in America; it lingers on in a Berkeley nostalgic about the days of the
free speech movement. Questioning authority is also Gratian's method - a
method that discreetly and forcefully achieves this result by pitting one
authority against another. A free-wheeling dialogue is created. Gratian's
method of answering his questions is argumentative. He states reasons, makes
distinctions, creates categories, draws lines, poses analogies. As to
authority, theological principle is present, but in the background not the
foreground of the discussion. Roman law is used when helpful, and absolutely
ignored as if nonexistent when contrary to Christian law. Scripture is cited
as commanding a result, but Scripture is qualified when it appears to lead to
a result the teacher does [*1203] not approve. "You always can imply a
condition in a contract," Holmes has written n13 and you can always imply
conditions to the apparently apodictic announcements of the Bible. Gratian, a
master teacher, was a master of such implied qualifications, tempering
absolutes to custom.
Ecclesiastical authority is also invoked, again with freedom. A great pope
like Gregory is put on a par with a couple of provincial councils from France.
Gratian uses the authorities as chips to raise a doubt, bolster an argument,
pose a paradox. He does not stand in awe of them.
As important as authority is practice--that is, what Gratian appears to see as
so obvious, so taken for granted, that it needs no authority for support - for
example, the proposition that you cannot get out of a marriage because you
were mistaken as to the bride's chastity. The proposition is neither backed by
a citation nor argued for, except by classifying the error as an error of
quality. It is the way things are. Unarticulated, and perhaps only dimly
apprehended, is the sense operating in the background of the teacher's mind
that, if you let mistake become a major reason for dissolving a marriage, you
will not have many indissoluble unions.
Hence, it is not really explained in the text why errors as to person or as to
status prevent the bond from being indissoluble, while other errors,
conceivably of greater moment to the parties, do not. If a slave may marry,
why is a mistake as to a spouse's status as a slave different from a mistake
as to his wealth, his integrity, his mental capacity, or his chastity? You may
say that in a society where slavery exists, the mistake is of such a social
magnitude that the mistaken spouse deserves a break; but it's not too
difficult to think of other cases - say the spouse is a homosexual - where an
analogous argument can be made and the category of a status mistake asserted.
Questions like these are not pursued in Gratian's text, but they are present
in the material presented and are invited by contemplation of it. Mistake as
to person as a reason for dissolution is the most interesting possibility of
all. On its face, mistakes as to person will only occur when marriage is
contracted at a distance. In my examination of decisions of the Roman Rota, I
found only one application of the rule. It came from French Indo-China before
World War I. An elderly widower, wanting to remarry, heard of a beautiful
young maiden up river. The widower sent his son to propose on his father's
behalf. The son dutifully went. The girl turned the father down. Mortified at
his failure in his filial mission, the son negotiated with another village
girl to return with him to be his [*1204] father's bride - only this one was
old and ugly. Back in his home village, the son told his father that he'd won
for his father the girl his father had heard about and wanted. Meanwhile the
son carefully kept the proposed bride under wraps in a local convent. The day
of the wedding she went to the church heavily veiled. The father became aware
of her age and ugliness only after he had given his consent to marriage before
the priest. Like Jacob, he was shocked and disbelieving that he'd married her.
On these facts, the Sacred Roman Rota held that the father had made a mistake
as to person. The marriage was annulled. You will note that the identity of
the woman was at issue, but the important facts about her were her age, looks,
and her qualities, not her name. n14
Given modern psychological explorations of what makes a person, mistake as to
person is a category that still has potential for development beyond the odd
case from Indo-China. It is, I suggest, a characteristic of Gratian's method
that his questions and his categories are open-ended and durable.
The largest social question raised by Case Twenty-Nine was the compatibility
of slavery with the Gospel of Jesus Christ. It is characteristic of Gratian
that he does not press the question to the point of saying slavery is a sin.
He will only go so far as to say slaves can marry, and even there he, or
perhaps an editor, unexpectedly added, only if their owners consent. From our
perspective it's a timorous exposition of the demands of Christianity,
especially so today when John Paul II can issue an encyclical, Evangelium
vitae, describing slavery as intrinsically evil. Christians of Gratian's day
did not regard slavery as intrinsically evil but as a customary division of
society, sanctioned by law, practiced by churchmen and religious orders, and
mitigated at least by the availability of Christian marriage. You can see in
Gratian's teaching at Bologna how the fundamental question of human freedom
for all was in front of him and how, bound by convention and custom, he failed
to address it.
Pondering this stupendous failure, we can, I think, draw a question for our
Catholic law school today. Is there any realm or areas
that we avoid, any line of thought that we do not pursue, because to do so
would put us into too much conflict with the customs of the day? I ask, not
meaning now to propose an answer.
The overall impression of the first Catholic law school
is of opportunities missed, yes; of perfection not achieved, yes; but also of
argument, [*1205] reasoning, and reflection filled with vitality. Authority
is used to challenge authority. The teacher puts questions and gives
illustrations that challenge convention. The canons clash. The resolution is
with the school.
From documents after 1150, we learn that students organized the school;
masters were adventurers who offered their teaching to those who would pay
them. n15 The Registry of Bologna has a record of oaths given by masters not
to teach in another city. n16 There were no admission requirements, no
examinations, and no dean. The school did not consist in any set of buildings
we know of. The only information on how teachers and students lodged is a
decree of Pope Clement IV in 1189 excommunicating students or masters who bid
up the rent of a building already occupied by students. n17 The students and
the masters were typically treated as a unit; so a decree of the Emperor
Frederick Barbarossa in 1158 had recognized them. n18
The school made canon law the equal, if not the superior, of the greatest
legal system extant, the Roman, borrowing from its forerunner judiciously. The
school trained men who could be lawyers, judges, and administrators in the
Church from Dublin to Cracow. The school educated teachers for other
universities; the men who taught canon law at Oxford in the 1190's relied on
Gratian. n19 The school staffed the Roman curia and on a number of occasions
provided a pope with his education. The school made possible a system of law
binding Europe together. When, about a century after Gratian had first
composed his work, Pope Gregory IX made a new, up-to-date collection of papal
decrees, edited as he said to avoid prolixity, duplication, and outright
contradictions, he appropriately sent the collection to his "beloved sons, the
doctors and students" of the law school at Bologna. n20
FOOTNOTES:
n1. C. 29, reprinted in Corpus Iuris Canonici, 1091, 1091-96 (E. Friedberg
ed., 1959) (translated by John T. Noonan, Jr. and Augustine Thompson, O.P.).
n2. See generally 1 Hastings Rashdall, The Universities of Europe in the
Middle Ages 98-99, 112-13 (F.M. Powicke & A.B. Emden eds., Oxford University
Press 1936).
n3. John Van Engen, From Practical Theology to Divine Law: The Work and Mind
of Medieval Canonists, in Proceedings of the Ninth International Congress of
Medieval Canon Law 873, 879 (Biblioteca Apostolica Vaticana ed., 1997).
n4. See C. 29 q. 1, reprinted in Corpus Iuris Canonici 1091 (E. Friedberg ed.,
1959).
n5. See generally id. (citing 2 The Digest of Justinian, Book 14 (Theodor
Mommsen et al. eds., 1985)).
n6. Genesis: Translation & Commentary 154 (Robert Alter trans., 1996).
n7. Id. at 155.
n8. See 2 Corinthians 11:14.
n9. See C. 29 q. 1, reprinted in Corpus Iuris Canonici 1092 (E. Friedberg ed.,
1959).
n10. See R.H. Helmholz, The Spirit of Classical Canon Law 17 (1996) (stating
that the aphorism "Ecclesia vivit lege Romana" developed because "the church
had lived according [to] the Roman law during the early Middle Ages").
n11. See Colossians 3:11.
n12. C. 29 q. 2 c. 3, reprinted in Corpus Iuris Canonici 1093 (E. Friedberg
ed., 1959).
n13. O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 466 (1897).
n14. See John T. Noonan, Jr., Power to Dissolve: Lawyers and Marriages in the
Courts of the Roman Curia 332-33 (1972) (citing Southwestern Ce-Li, 5
Decisiones Sen Sententiae 242 (April 17, 1913)).
n15. See Rashdall, supra note 2, at 149.
n16. See Commissione Per La Storia Dell'Universita, 1 Chartularium Studii
Bononiensis: Registro Grosso 3 (Presso La Commissione Per La Storia
Dell'Universita Di Bologna 1909).
n17. See X 3.18.1, reprinted in Decretales Gregorii P. IX, in Corpus Iuris
Canonici 519-22 (E. Friedberg ed., 1959).
n18. See Rashdall, supra note 2, at 144 & n.1.
n19. See James A. Brundage, The Rise of Professional Canonists and Development
of the Ius Commune, Zeitschrift Der Savigny-Stiftung F*r Rechtsgeschichte,
Kanonistische Abtelung Lxxxi 34-36 (1995).
n20. Gregory IX, Rex Pacificus (Sept. 5, 1234), reprinted in Decretales
Gregorii P. IX, in 1 Corpus Iuris Canonici 4 (E. Friedberg ed., 1991).