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Consummation 177
Pope Leo I
A key text in the story is a passage from Pope Leo I’s decretal letter
to Rusticus of Narbonne:
Not every woman joined to a man is the man’s wife, for not every son
is his father’s heir. The bonds of marriage between free men and women
follow the rule of law and are between equals, as the Lord established,
long before the beginning of Roman law. Therefore a wife is one thing, a
concubine is another, just as a slave girl is one thing, and a free woman
another. . . . Therefore since the society of marriage was established from
the beginning in such a way that it should have in it, beyond the union
of the sexes, the symbol [sacramentum] of Christ and the Church, there is
no doubt that a woman of whom we learn that the nuptial mystery [mysterium]
has been lacking has nothing to do with marriage. Therefore, if
a cleric anywhere has given his daughter in marriage to a man who has
a concubine, it should not be treated as if he has given her to a married
man, unless perchance that woman has been freed, and given a dowry
in accordance with the law, and accorded the honour of a public wedding.
One of the issues was: when is a marriage not a marriage but
a sexual partnership? The question arose because in one or more
cases the daughter of a priest or deacon under Bishop Rusticus’s
authority had been heading for marriage with a man who already
had a partner. Should the partner be counted as a wife? Pope
Leo gives criteria for deciding whether this existing partner is
a wife. If she is a slave who has not been freed, she is judged
not to be a wife. (Why does the bishop not extend his question
to daughters of laypeople too? Probably because his practical
authority over marriage did not extend beyond the clergy.)
Behind the assumption that a slave girl was not a wife lay the
whole tradition of classical antiquity. It was taken for granted
that slaves could not marry. The only way to marry a female
slave was to set her free. Christianity’s doctrine of equality before
God had not yet eroded this assumption. If we look forward
to the Council of Ch^alons-sur-Saone in 813, we see that in the
non consomm‹e’, in S. Kuttner and K. Pennington (eds.), Proceedings of the Fifth
International Congress of Medieval Canon Law (Monumenta Iuris Canonici, Series
C, Subsidia, 6; Vatican City, 1980), 309–31.
Ep. 167. 4, Migne, PL 54. 1204–5, cited by Gaudemet, ‘Recherche sur les
origines historiques’, 309.