Oldradus de Ponte, Consilium No. 35

Oldradus de Ponte (de Laude) Little is known of this jurist. He was likely from Lodi and studied in Bologna with Jacobus de Arena and the civilian Dinus. Before 1307 Oldradus served as an assessor in Bologna and he may have taught Roman law there. In 1307, Oldradus moved to Padua where he taught Roman law until early in 1311. Johannes Andrea records having held public disputations with him in Padua. Among Oldradus's students were Albericus de Rosate and perhaps Bartolus. A manuscript at Cornell University which contains consilia from a number of jurists who taught at Perugia includes a single consilium of Oldradus. This is in harmony with Oldradus having been a teacher of Bartolus who studied at Perugia and suggests that Oldradus may have taught briefly there. Diplovatatius claimed that Oldradus taught law at Siena and Montpellier, based on an account in a Tractatus de commemmoratione attributed to Baldus de Ubaldis. This work remains a mystery and thus Diplovatatius's claim must be treated with skepticism. Evidence from a charter at Lérida suggests that Oldradus may have given lectures there. In 1311, Oldradus went to the papal court in Avignon as the protégé of Peter Cardinal Colonna. Oldradus served as an auditor and judge in the Rota at Avignon for the rest of his life. It is likely that he also taught in the law school in Avignon. It is thought that Oldradus exercised a considerable influence over the legal business and politics of the curia. The traditional date of his death is usually stated as 1335; however, Thomas Fastolf wrote that Oldradus was debating cases in the Rota in 1336-1337 and evidence from his consilia indicates that he may have been alive as late as 1343.

Oldradus wrote several hundred consilia which display a most penetrating and creative legal mind. Two of his consilia (43 and 69 in the Vulgate series) seem to have been used as the basis for Clement V's decretal Pastoralis cura, in which the Pope repudiated the claims of the Emperor Henry VII to cite King Robert of Naples for rebellion.

Oldradus was one of the first canonists not only to write a x-large number of consilia on actual legal problems but also to collect them. His consilia collection helped to establish this genre as the principal form of legal discourse in the later Middle Ages.

Munich, Staatsbibliothek  5463, fol. 40r-40v (base manuscript)

Munich, Staatsbibliothek 3638, fol. 25v

Lawrence, Kansas, University of Kansas, K. Spencer Library, G.18, fol. 28r

Oldradus, Consilia (Rome: 1472; Hain 9932), unfoliated and (Rome 1478; Hain 9934), fol. 38va-38vb

§ An si mulier conpulsa per uim uel metum qui potuit cadere in constantem, utrum matrimonium contraxit tale matrimonium teneat

Factum tale est: Quidam Iohannes nomine laicus Traiecten. [Trabecen. Clm 5463] dioc. ad nuptias cuiusdam Margarite aspirans quamquam ipse sciret ipsam nolle cum eo matrimonium contrahere.   Associatis sibi quibusdam ipsam rapuit uiolenter ipsamque inuitam et penitus renitentem per uim et metum mortis qui cadere poterat in constantem compulit in quorundam presentia ad contrahendum matrimonium per uerba de presenti cum eodem et postmodum eam renitentem et inuitam 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 durante. Que Margarita quam primum facultas adfuit, fugit ab eo et statim publice extitit protestata quod numquam consenserit in eundem in aliquo actu ad matrimonium pertinentem.

§ Queritur an sit contractum matrimonium inter eos?  Et breuiter est dicendum quod premissis existentibus ueris inter ipsos nullum fuit matrimonium celebratum quod probatur sic. Matrimonium enim in ueritate 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.  Verba prefata et carnalis copula nequiuerunt coniugale fedus perficere inter eos.

Nec obstat si dicatur quod ipsa expressit uerba apta ad matrimonium contrahendum fuerit et cognita fuit carnaliter per dictum Iohannem cum quo stetit licet reclusa xii. diebus circa; ergo uidetur in eum tacite consensisse, extra. de spons. 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 patientiam," in fine ponuntur uersus:[6]

Effuge cum poterisne consensisse puteris;

quod si perstiteris, tunc sua semper eris.

Item mulier de qua fit mentio in prealleg. c. Insuper,[7] permisit 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 spon. c. Consultationi et c. Veniens.[8] Nam in matrimoniali contractu liber debet esse consensus, ut in pre alleg. c. Cum locum, extra. de spon.[9] Hec autem non liber set per uim et metum qui cadere poterat in constantem. Et ideo nullum fuit matrimonium inter eos. 

§ If a woman who is compelled by force and fear that could affect a reasonable person contracts a marriage whether such a marriage is valid

The case: A certain layman of the diocese of  Utrecht named Johannes, wished to marry a certain Margaret even though he knew that Margaret did not want to marry him.   Johannes gathered together a group of men and seized her violently.  Through force and through the fear of death that would compel a reasonable man, she contracted marriage with him with words of the present tense and in the presence of witnesses, although she was unwillingly and inwardly resistant.  Afterwards he held her unwilling and resistant and knew her carnally with the same fear continuing. After the carnal union he held her forcefully for twelve days or thereabouts in his house although she remained always resistant. As soon as Margaret had the opportunity, she fled from him and immediately made protests publicly that she never consented in him in any act pertaining to marriage.

§ It is asked whether there is a contract of marriage between them? And briefly it must be said that assuming the truth of the allegations, 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 for the church it is necessary that the words would  express consent at the present time, as the aforesaid laws say. And although in this contract there was 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.

It does not matter if it is said that the woman expressed words appropriate for contracting a marriage and that she was known carnally by the said Johannes, with whom she stayed, although held <unwillingly> for about twelve days.  Therefore <it may be argued> she appears to have consented in him tacitly, as in the decretals Ad id quod,[3] and Insuper,[4] because the woman who is mentioned in the aforesaid decretal Ad id quod,[5] cohabited with the man for a year and a half and could flee from him but did not want to. But this Margaret was held and detained but 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 patientiam", in the end is placed a verse:[6]

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

Again the woman mentioned in the afore-alleged decretal Insuper,[7] permitted herself to be known carnally and could have left the man but did not. But Margaret fled when she could. 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 decretal Cum locum.[9] This marriage, however, was not free, but through force and threat that would affect a reasonable person. 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 sacrament 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 does not admit a woman's claim that she had not consented to a marriage because 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 verse text quoted in the Gloss reads:
effuge cum poteris
ne consensisse puteris,
nam si perstiteris
illius uxor eris.

[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 2.671]; and c.13: Alexander III reiterates that an unwilling woman does not contract a marriage [Friedberg II 665-666].

[9] X 4.1.14.


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 23 (1999) 85-113.

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 prozess 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).

Revised transcription, translation, and notes originally made by Professor Brendan McManus, Bemidji State University, Bemidji, Minnesota  [BMcManus@BemidjiState.edu].