Professional Documents
Culture Documents
Geoffrey D. DUNN
Australian Catholic University, Brisbane
Marital separation brought about when one of the spouses has been
taken captive by a foreign enemy and thereby enslaved is not something
one presumes is common today. Yet the disappearance of married persons
does occur and what it means both civilly and ecclesiastically in terms of
the ability to remarry must be a real question for those affected. In this
paper I wish to investigate the first recorded instance of the Christian
church’s involvement in such issues, which occurred in the early years of
the fifth century, during the Roman episcopate of Innocent I. The decre-
tals of this bishop stand at the dawn of what would develop in western
canon law and are therefore of historical significance to this field as well
as to the history of marriage as a sacrament. We find usually brief refer-
ence to Innocent’s Epistula 36 in standard treatments of these disciplins,
yet a thorough examination of the people and issues involved is appropri-
ate because I believe it has often been misunderstood.
In particular I wish to challenge the view expressed by the canonist John
Noonan in the early 1970s that Innocent decided this case because Constan-
tine had decreed early in the fourth century that marriage was a religious
matter where episcopal judgement was to be recognized by the state1. I wish
to argue that a careful reading of this letter in the light of Roman law indi-
cates just the opposite: that Innocent’s decision was in stark contrast with the
law and therefore had no binding civil effect. I believe the bishop of Rome,
in the light of the weakness of Honorius’ regime after Alaric’s invasion, felt
confident enough in his own authority to challenge imperial legislation.
The decretal survives in the manuscripts of the fifth-century Collectio
Dionysiana, in which earlier collections of papal letters and conciliar
canons were gathered together, and the Collectio Hispana, a seventh-cen-
tury Spanish collection2. This makes it among the earliest papal contribu-
tions to the development of canon law3.
1. J.T. NOONAN, Ursa’s Case, in L.G. WRENN (ed.), Divorce and Remarriage in the
Catholic Church, New York, NY, 1973, pp. 36-37.
2. See F. MAASSEN, Geschichte der Quellen und der Literatur des canonischen Rechts
im Abendlande bis zum Ausgange des Mittelalters, Bd. 1, Graz, 1870, p. 247; P. JAFFÉ,
Regesta Pontificum Romanorum, Bd. 1: A S. Petro ad a. MCXLIII, rev. F. KALTENBRUN-
NER, Leipzig, 21885, p. 47 n. 313. I am currently preparing a critical edition of all Inno-
cent’s letters.
3. See J. GAUDEMET, Les sources du droit de l’Église en Occident du IIe au VIIe siècle
9992_ETL2007/1_05_Dunn 22-06-2007 11:11 Pagina 108
I. RECIPIENT OF LETTER
Who was Probus? The fact that Innocent addressed him as “lord,
deservedly illustrious son”4 would indicate that he was of the highest
rank in the senatorial aristocracy5 and that he was Christian6. The second
volume of The Prosopography of the Later Roman Empire identifies
Probus with Flavius Anicius Petronius Probus, ordinary consul in 4067. It
is impossible to be definitive.
When did Innocent write? His letter refers to the “confusion of the bar-
barian tumult”8. It would seem most likely that Ursa had been taken cap-
tive in association with Alaric’s capture of Rome on 24 August 4109. So
we can say that the letter was written sometime between late 410 and
early 417. We could only narrow that further if we knew whether Inno-
cent was writing to Probus because of an office he held or because of his
relationship with those involved.
Alaric’s army, this does not mean that Zosimus was wrong, since the motive assigned by
Procopios to Proba was that of saving a starving city. I think P. BROWN, Pelagius and his
Supporters: Aims and Environment, in JTS n.s. 19 (1968) 93-114, p. 98, is wrong to assert
that Zosimus and Procopios were claiming that the Anicii were collaborators with the
Visigothic army.
15. Cod.Theod. 14.10.4. See PLRE 2 (n. 7), p. 908 (Probianus 1).
16. See A.H.M. JONES – J.R. MARTINDALE – J. MORRIS, The Prosopography of the
Later Roman Empire, Vol. 1: A.D. 260-395 (= PLRE 1), Cambridge, 1971, pp. 736-740
(Probus 5); D.M. NOVAK, Anicianae domus culmen, nobilitatis culmen, in Klio 62 (1980)
473-493; A. CAMERON, Polyonomy in the Late Roman Aristocracy: The Case of Petronius
Probus, in JRS 75 (1985) 164-182.
17. PLRE 1 (n. 16), pp. 733-734 (Probianus 3).
18. CAMERON, Polyonomy (n. 17), pp. 171-172.
19. PLRE 2 (n. 7), pp. 908-909. J.-P. CALLU, Symmaque. Lettres, t. 3: Livres VI-VIII
(Collection des Universités de France), Paris, 1995, p. 119 n.1, identifies the urban vicar
with the urban prefect and with the Probianus addressed in SYMMACHUS, Ep. 8.14. I think
we can assume safely that the Probus of Innocent’s letter and the Probianus of Sym-
machus’ letter were not the same person. It still remains possible that Symmachus wrote to
Rufius Probianus, the future urban vicar, and Innocent wrote to a Probus Probianus, the
urban prefect.
20. G.B. DE ROSSI, rev. A. SILVAGNI – A. FERRURA – D. MAZZOLENI – K. CARLETTI,
Inscriptiones Christianae Urbis Romae, n.s. (= ICUR), 10 vols, Rome, 1922-1992, 7.20604
(= E. DIEHL, Inscriptiones Latinae Christianae Veteres [= ILCV], 3 vols, Berlin, 1925-
1931, 3727B). Another inscription from the basilica of St. Paul lists him by this name as
well: ICUR n.s., 2.4847 (= ILCV 4427).
21. ILCV (n. 20) 2977A; 4459; 133 (= ICUR n.s. [n. 20], 7.17536); 4704 (= ICUR n.s.,
7.17537); ICUR n.s., 4.11140; 5.13386.
22. ICUR n.s. (n. 20), 1.1358.
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V. INNOCENT’S INVOLVEMENT
23. This is the opinion favoured by GREEN, Pope Innocent I (n. 7), p. 9.
24. PLRE 2 (n. 7), p. 483 (Fortunius 2). See CIL (n. 7), 6.31994 (= ILCV [n. 20] 299).
25. PLRE 1 (n. 16), p. 989 (Vrsus 3).
26. PLRE 2 (n. 7), p. 1192 (Vrsus 3).
27. ICUR (n. 20), 7.17826.
28. ICUR (n. 20), 7.19546; 7.19547 (a child); 7.19548 (a child); 7.19549 (a twenty-
three year old); 7.20683 (the exact location of this inscription along the Via Tiburtina is
uncertain).
29. ICUR (n. 20), 7.18946.
30. On marriage in general between Roman and non-Roman in this period see
R.C. BLOCKLEY, Roman-Barbarian Marriages in the Late Empire, in Florilegium 4 (1982)
63-79.
9992_ETL2007/1_05_Dunn 22-06-2007 11:11 Pagina 112
31. Dig. 24.2.1: “Paulus libro trigesimo quinto ad edictum: Dirimitur matrimonium
diuortio morte captiuitate uel alia contingente seruitute utrius eorum”; 24.3.10: “[Pom-
ponius] libro quinto decimo ad Sabinum: Si ab hostibus capta filia, quae nupta erat et
dotem a patre profectam habebat, ibi decesserit, puto dicendum perinde obseruanda
omnia, ac si nupta decessisset, ut, etiamsi in potestate non fuerit patris, dos ab eo profecta
reuerti ad eum debeat. Si vir uxorem suam occiderit, dotis actionem heredibus uxoris dan-
dam esse Proculus ait, et recte: non enim aequum est uirum ob facinus suum dotem sper-
are lucrifacere”; 49.15.12.4: “Sed captiui uxor, tametsi maxime uelit et in domo eius sit,
non tamen in matrimonio est”. The edition of the Digest is T. MOMMSEN, rev. P. KRUEGER,
Corpus Iuris Civilis, Vol. 1: Institutiones, Digesta, Hildesheim, 251993. See J. GAUDEMET,
Le mariage en Occident. Les mœurs et le droit, Paris, 1987, p. 41.
32. Cons. Sirm. 16; Cod. Theod. 5.7.1-2; Cod. Iust. 8.51.1-20; Inst. Iust. 1.12.5;
1.20.2; 2.12.5; Dig. 49.15.1-30. On the relationship between the Sirmondian Constitutions
and the Theodosian Code on this point see J.F. MATTHEWS, Laying Down the Law: A Study
of the Theodosian Code, New Haven, CT – London, 2000, pp. 134-183. Many of the legal
provisions considered the more complicated matters of children born in captivity and what
to do with persons ransomed from captivity.
33. Dig. 49.15.8; 49.15.14.1: “Non ut pater filium, ita uxorem maritus iure postliminii
recipit: sed consensu redintegratur matrimonium”. P.L. REYNOLDS, Marriage in the West-
ern Church: The Christianization of Marriage During the Patristic and Early Medieval
Periods, Leiden, 1994, p. 45, says that there is ambiguity in these statements: “[t]he ques-
tion at stake here is this: either postliminium applied to marriage but was subject to agree-
ment; or postliminium did not apply, and marriage, having ceased, could be recreated by
agreement”. One should correct his footnote 2 to read 49.15.14.1.
34. J.F. GARDNER, Women in Roman Law and Society, London, 1986, p. 88. See also S.
TREGGIARI, Roman Marriage: Iusti Coniuges From the Time of Cicero to the Time of
Ulpian, Oxford, 1991, p. 44.
35. Nou. Iust. 22.7. See T. MACKIN, Divorce and Remarriage (Marriage in the Catholic
Church, 2), New York, NY, 1984, pp. 102-104.
36. Dig. 49.15.8: “Paulus libro tertio ad legem Iuliam et Papiam: Non ut a patre filius,
ita uxor a marito iure postliminii recuperari potest, sed tunc, cum et uoluerit mulier et
adhuc alii ‘post constitutum tempus’ nupta non est: quod si noluerit nulla causa probabili
interueniente, poenis discidii tenebitur”. See REYNOLDS, Marriage (n. 33), p. 45 n. 3.
9992_ETL2007/1_05_Dunn 22-06-2007 11:11 Pagina 113
37. Dig. 24.2.6: “Iulianus libro sexagesimo secundo digestorum: Uxores eorum, qui in
hostium potestate peruenerunt, possunt uideri nuptarum locum retinere eo solo, quod alii
temere nubere non possunt et generaliter definiendum est, donec certum est maritum
uiuere in captiuitate constitutum, nullam habere licentiam uxores eorum migrare ad aliud
matrimonium, nisi mallent ipsae mulieres causam repudii praestare. sin autem in incerto
est, an uiuus apud hostes teneatur uel morte praeuentus, tunc, si quinquennium a tempore
captiuitatis excesserit, licentiam habet mulier ad alias migrare nuptias, ita tamen, ut bona
gratia dissolutum uideatur pristinum matrimonium et unusquisque suum ius habeat immin-
utum: eodem iure et in marito in ciuitate degente et uxore captiua obseruando”.
38. MOMMSEN, rev. KRUEGER, Corpus Iuris Civilis (n. 34), Vol. 1, p. 355 n. 26.
39. Cod. Iust. 8.51.12 stated that liberated captives recovered their status at once
(“liberati ilico statum, quem captiuitatis casu amiserant”), yet 8.51.4 stated that a son can-
not take possession of his captured mother’s property until it was certain that she was dead
(“Nec nos praeteriit hereditatem eius, quam incognitum erat ab hostibus interfecta an
capta esset, a filio adiri non potuisse (quando eorum bona, qui in hostium potestatem redi-
guntur, eo demum tempore successionis iure adquiri possunt, cum captos apud hostes mor-
tuos esse cognoscitur), nec super facultatibus eius, cuius incerta uita ac fortuna fuit, tan-
sigi uel iudicari potuit”).
40. A. WATSON, Captivitas and Matrimonium, in Tijdschrift voor Rechtsgeschiedenis
29 (1961) 243-259, pp. 255-256.
41. INNOCENT I, Ep. 36 (ed. PL, 20, c. 602).
42. See P. NAUTIN, Divorce et remariage dans la tradition de l’Église latine, in RSR 62
(1974) 7-54; MACKIN, Divorce and Remarriage (n. 35), pp. 112-162. AUGUSTINE, De
Adult. Con. 2.10.9 (ed. CSEL, 41, p. 392) noted that a man remarried adulterously if he did
so knowing that a captured wife was still alive.
9992_ETL2007/1_05_Dunn 22-06-2007 11:11 Pagina 114
43. INNOCENT I, Ep. 36 (ed. PL, 20, c. 602): “…sancta religionis statuta…”.
44. Ep. 2.13 (15) (ed. PL, 20, c. 579): “Si enim de omnibus haec ratio custoditur, ut
quaecumque uiuente uiro alteri nupserit, habeatur adultera, nec ei agendae poenitentiae
licentia concedatur, nisi unus ex eis defunctus fuerit…”.
45. Ep. 6.4 (10) (ed. PL, 20, c. 499): “Super hoc Christiana religio adulterium in
utroque sexu pari ratione condemnat”.
46. Ep. 2.13 (15) (ed. PL, 20, c. 479): “Si enim de omnibus haec ratio custoditur, ut
quaecumque uiuente uiro alteri nupserit, habeatur adultera, nec ei agendae poenitentiae
licentia concedatur, nisi unus ex eis defunctus fuerit: quanto magis de illa tenenda est,
quae ante immortali se sponso coniunxerat, et postea ad humanas nuptias transmigrauit!”.
47. This point is not made by J. GAUDEMET, L’Église dans l’Empire romain (IVe-Ve siè-
cles) (Histoire du Droit et des Institutions de l’Église en Occident), Paris, 21989, p. 542.
48. For Elvira canons 8-10 see C.J. HEFELE, A History of the Christian Councils from
the Original Documents, Vol. 1, trans. W.R. CLARK, Edinburgh, 1894 (Eng. edn), pp. 141-
142; S. LAEUCHLI, Sexuality and Power: The Emergence of Canon Law at the Synod of
Elvira, Philadelphia, PA, 1972; M. MEIGNE, Concile ou collection d’Elvire, in RHE 70
(1975) 361-387; H. HESS, The Early Development of Canon Law and the Council of
Serdica (OECS), Oxford, 2002, pp. 40-42. For 407 synod of Carthage, canon 8 see Reg.
Eccl. Carthag. Excerpta 102 (ed. CCSL, 149, p. 218).
49. For Constantine’s legislation: Cod. Theod. 1.27.1; Cons. Sirm. 1. For Honorius’
legislation: Cod. Theod. 16.11.1; 16.2.23. See JOYCE, Christian Marriage (n. 10), p. 320;
REYNOLDS, Marriage (n. 33), p. 133; GAUDEMET, Le mariage (n. 31), pp. 75-85.
9992_ETL2007/1_05_Dunn 22-06-2007 11:11 Pagina 115
Innocent50. The statement in the letter that no one disputed Ursa’s claim
could be an indication that Fortunius did not appear before Innocent51.
Reynolds goes on to conclude that, since Ursa brought this matter to
Innocent, by 410 marriage was considered a religious matter52. The fact
that Innocent referred to sancta religionis statuta in his letter would seem
to reinforce this impression that he considered marriage to be a religious
concern. Whether or not the civil authority accepted the bishop’s claim
(and hence would give civil effect to a Christian determination) is the
point at issue and I am arguing that it is highly unlikely that it would
have, particularly when we see Justinian still upholding the old civil law
a century later, albeit in a modified form. Even though in his letter to
Exsuperius of Toulouse, Innocent indicated that men had an easier time
prosecuting adulterous wives before an episcopal court than did women53,
this would not mean that the episcopal court’s decision had civil effect,
unless, of course, both parties had agreed to have the case heard there.
Why were people bringing charges of adultery against their spouses
before bishops? It seems likely that they wanted an ecclesially-sanctioned
divorce, as shall be considered below, not because they needed one civilly
but in order not to fall foul of the church.
My contention is that facultati legum intulit casum should not be trans-
lated, as Noonan has: “has brought a case within the power of the laws”.
Rather, I would translate casus in its regular sense of emergency or
calamity. What the barbarian insurgence had done is not introduce some-
thing “within” the power of the laws but has introduced an emergency
“to” (a simple dative) the capacity or the ability of the law (to render a
decision acceptable to the Christian way of thinking).
First he found that the first marriage endured and that it was valid because
it was founded from its origin by divine grace55. He was clear that he had
made this decision “with the support of the Catholic faith”56. Does this
mean that he recognized that his decision was not in accord with Roman
law? I think it does. Thus, Noonan’s and Joyce’s argument that Innocent
determined that Fortunius’ second marriage was invalid civilly as well as
ecclesially, in my opinion, is inaccurate57. They fail to take into account
the Roman law on abduction into slavery, which endured in some form
past Justinian, and its effect on marriage.
The second thing he determined was that Fortunius’ relationship with
Restituta “can in no way be legitimate”58. Restituta’s marriage to Fortu-
nius cannot be valid because of the ligamen of his first marriage59. Inno-
cent wrote that the former wife was still alive and had not been dismissed
by divorce60.
This is the second interesting and controversial part of the decretal. Jur-
gens argues that we must not read more into a document than what is
there and that those who read the letter to mean that the second marriage
could have been valid if the first marriage had been terminated by divorce
after Ursa’s kidnap are wrong. His hypothesis is that Probus had asked
Innocent whether the divorce Fortunius did obtain after Ursa’s kidnap
was of any consequence61. Thus he wants to read Innocent as saying that
Ursa was not dismissed by divorce because divorce could not dismiss her
rather than saying that she was not dismissed by divorce because one was
not obtained. This does seem to me to be twisting the natural sense of
what Innocent wrote, especially as Fortunius needed no divorce civilly
after Ursa’s abduction. As well, it presumes that it was Probus who first
had written to Innocent, something that can be determined only by read-
ing more into the letter than it actually contains. Joyce argued differently:
since no divorce was obtained Innocent found the second marriage
invalid at civil law as well as ecclesiastical law62. The same position was
55. INNOCENT I, Ep. 36 (ed. PL, 20, c. 602): “…statuimus … illud esse coniugium,
quod erat primitus gratia divina fundatum…”.
56. Ibid.: “fide catholica suffragante”.
57. NOONAN, Ursa’s Case (n. 1), p. 37; JOYCE, Christian Marriage (n. 10), p. 320.
58. INNOCENT I, Ep. 36 (ed. PL, 20, c. 603): “…nullo pacto posse esse legitimum”.
59. NOONAN, Ursa’s Case (n. 1), pp. 36-37.
60. INNOCENT I, Ep. 36 (ed. PL, 20, c. 603): “…priore superstite, nec diuortio
ejecta…”. On divorce in Roman law see J. EVANS GRUBBS, Law and Family in Late Antiq-
uity: The Emperor Constantine’s Marriage Legislation, Oxford, 1995, pp. 225-242; EAD.,
Women and the Law in the Roman Empire, London, 2002, pp. 187-218; GAUDEMET, Le
mariage (n. 31), pp. 40-42.
61. JURGENS, The Faith of the Early Fathers, Vol. 3 (n. 10), p. 183 n. 12: “In this
hypothesis, Innocent is only pointing out that the divorce is without effect: the woman was
not dismissed by the divorce”. This is the suggestion too of Chanoine N. IUNG, Évolution
de l’indissolubilité. Remariage religieux des divorcés, Paris, 1975, p. 52.
62. JOYCE, Christian Marriage (n. 10), p. 320 n. 2.
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put by Crouzel63. Reynolds rejects this on the grounds that the Roman law
on captivity made it clear that the marriage was dissolved automatically
and no divorce was needed. He claims that Innocent might have reached
a compromise in situations created by deportation where one did not
know if one’s spouse was alive or not64. While I agree with his critique,
his solution unfortunately makes no sense to me at all. How could one
obtain a divorce after a remarriage when the captive reappeared?
I would like to consider several different possible solutions and to offer
reasons why one makes better sense than all the others. First, perhaps
Innocent was unaware of the Roman law on captivity. However, we can-
not make such a presumption of ignorance given that Innocent acknowl-
edged that there was a naevus in the first marriage. Had that defect been
brought about by Fortunius’ bigamy, we may presume that Innocent
would have mentioned that as the ground for his decision. On the basis
though of what is in Julian (Dig. 24.2.6) and the Codex (8.51.4), maybe
some form of divorce was required in these situations, despite the other-
wise clear-cut opinion of jurists that the marriage would be terminated
automatically. This would support the interpretation offered by Joyce and
Crouzel, yet is probably making too much out of any ambiguity in the
law, particularly as that ambiguity may only result from Justinianic inter-
polations.
Alternatively, as a third solution – the one I support – Innocent could
simply have been covering all bases. If it were possible for a man to
divorce his wife legitimately in the eyes of the church on the grounds of
his wife’s adultery (the Matthean exception)65, then all Innocent might
have been saying was that since the church did not recognize the termi-
nation of the marriages where either partner had been taken captive and
since the only legitimate grounds for divorce – that of adultery on the
woman’s part – had not been possible, then it was obvious that the first
marriage was the only valid one66.
The problem with this interpretation, it could be argued, is that when
Innocent wrote to bishop Exsuperius of Toulouse and discussed the ques-
tion of remarriage for the divorced he did not mention the Matthean
63. Henri CROUZEL, L’Église primitive face au divorce du premier au cinquième siècle,
Paris, 1970, p. 281.
64. REYNOLDS, Marriage (n. 33), p. 134: “It is possible that Innocent was prepared to
allow divorce after the captive had returned if he or she did not wish to reclaim his or her
spouse”.
65. It certainly was possible under Constantine I’s legislation (see Cod. Theod. 3.16.1).
See H. CROUZEL, Le texte patristique de Matthieu V.32 et XIX.9, in NTS 19 (1972-1973)
98-119; ID., Quelques remarques concernant le texte patristique de Mt 19,9, in Bulletin de
Littérature Ecclésiastique 82 (1981) 83-92; REYNOLDS, Marriage (n. 33), pp. 173-212;
EVANS GRUBBS, Law and Family (n. 60), pp. 242-253.
66. MACKIN, Divorce and Remarriage (n. 35), p. 163, says that those who say that
“Innocent intended to strengthen the case against Fortunius’ attempt at a second marriage
on the ground of Roman law, since the latter had alleged no grounds for lawful divorce
9992_ETL2007/1_05_Dunn 22-06-2007 11:11 Pagina 118
even according to this law” are presenting a limp argument because “according to Roman
law once a spouse was captured and stolen away and reduced to a condition equivalent to
slavery, no divorce was needed”. My argument is that Innocent was stating that Fortunius
remarried under the civil provisions relating to captivity of spouse, which the church was
not accepting as effective, and that, in addition, since he had not obtained a legitimate
divorce on the grounds of his wife’s adultery – because i) he did not need to do this civilly
in order to remarry and ii) this ground was not applicable –, his first marriage remained
valid. Captivity and divorce were separate issues for Innocent.
67. INNOCENT I, Ep. 6.6 (12) (ed. PL, 20, cc. 500-501): “Qui uero uel uxore uiuente,
quamuis dissociatum uideatur esse coniugium, ad aliam copulam festinarunt, neque pos-
sunt adulteri non uideri, intantum, ut etiam ipsae adulterium commisisse uideantur, secun-
dum illud quod legimus in euangelio: Qui dimiserit uxorem suam, et duxerit aliam,
moechatur; similiter et qui disissam duxerit, moechatur. Et ideo omnes a communione
fidelium abstinendos”. REYNOLDS, Marriage (n. 33), p. 214, says that Innocent would
surely have mentioned the exception if he accepted it. MACKIN, Divorce and Remarriage
(n. 35), p. 162, more convincingly I believe, says simply that he avoided this question.
68. INNOCENT I, Ep. 6.4 (10) (ed. PL, 20, cc. 499-500). Hence, the absolute statements
by F. DELPINI, Indissolubilità matrimoniale e divorzio dal 1o al XIIo secolo (Archivio
Ambrosiano, 37), Milan, 1979, p. 42 and G. LACHNER, Die Kirchen und die Wiederheirat
Geschiedener (Beiträge zur ökumenischen Theologie, 21), Paderborn, 1991, p. 195 indicate
that they has not read Innocent’s letter thoroughly.
69. The second canon of the synod of Neocaesarea early in the fourth century required
women who had married their dead husband’s brother (and were therefore excommuni-
cated because they had married within a prohibited degree) to declare on their deathbeds
that if they recovered they would break that marriage in order to receive penance. Does this
simply mean separate from them or obtain some form of divorce?
70. NAUTIN, Divorce et remariage (n. 42), p. 43: “Le pape ne veut évidemment pas
dire qu’il serait valide dans tous les cas, mais qu’il le serait du moins dans le cas prévu par
l’Évangile, à savoir si le divorce avait eu lieu ‘pour cause de fornication’”. He disagrees
with Crouzel’s interpretation.
71. GAUDEMET, Le mariage (n. 31), p. 71: “Les auteurs [Innocent and Leo] ne raison-
naient que sur l’hypothèse de l’adultère de la femme, seul cas envisagé in terminis par l’é-
vangile”. See also ID., L’Église dans l’Empire romain (IVe-Ve siècles) (Histoire du Droit et
des Institutions de l’Église en Occident, 3), Paris, 1958, p. 542. Hence, Innocent was not
saying that Fortunius could have obtained a divorce because, as a captive, his wife pre-
sumably would have committed adultery (even though against her will). Further, Innocent
was not saying that even if Fortunius had obtained a divorce from Ursa on the grounds of
adultery that this meant he was entitled to remarry.
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VII. OUTCOMES
72. I think this is the point made briefly by POSPISHIL, Divorce and Remarriage (n. 54),
p. 175, although he does not allude to the novelty of Innocent’s decision in the light of
Roman law. J.T. NOONAN, Novel 22, in W.W. BASSETT (ed.), The Bond of Marriage: An
Ecumenical Interdisciplinary Study, Notre Dame, IN, 1968, 41-90, p. 63 is too brief to be
illuminating when he writes, “Ursa, returning home was entitled to take back her remarried
husband, Fortunius, for the Pope so ruled on the explicit understanding that she had ‘not
been cast out by divorce’”. He makes no reference to the degree to which Innocent dis-
agreed with the Roman law, which he mentioned, nor to the fact that Innocent would only
have accepted divorce on the grounds of adultery.
73. REYNOLDS, Marriage in the Western Church (n. 33), p. 133.
9992_ETL2007/1_05_Dunn 22-06-2007 11:11 Pagina 120
“second” marriage) or punishing her husband for not taking her back. In
other words, this suggests that Innocent was being asked for a decision
because his decision would be effective and have ecclesial rather than
civil consequences.
Yet, if it did have civil consequences, why was it that Theodosius II
and Justinian preserved the old civil positions with regard to divorce in
their codifications? Why did they not incorporate Innocent’s decision if it
did have civil effect? The five-year waiting period was as far as the civil
law would go to implement Innocent’s position74? Thus, it seems likely
that Innocent was in fact finding fault with the civil law on this matter
and taking an independent stance and that the civil law was slow in
endorsing this Christian principle. This seems to me to be the most telling
argument against Noonan’s interpretation. Perhaps all he might say in
response is that even if Innocent had made a decision that was civilly
binding in this instance, it did not amount to being a precedent, but even
that seems improbable. If Innocent’s decision had no civil effect, then it
would seem unlikely that Innocent was writing to Probus because of the
latter’s high ranking official capacity. What is of even more interest for us
today would be to know how Honorius reacted to a Christian bishop tak-
ing a stand in opposition to the law75. The trouble is that this early decre-
tal says nothing about this.
CONCLUSION
74. See MACKIN, Divorce and Remarriage (n. 35), pp. 107-108, for a response.
75. On Honorius’ religious legislation in the couple of years preceeding 410 see G. DE
BONFILS, L’imperatore Onorio e la difesa dell’ortodossia cristiana contro celicoli ed ebrei,
in Vetera Christianorum 41 (2004) 267-294.
9992_ETL2007/1_05_Dunn 22-06-2007 11:11 Pagina 121
erence to divorce as meaning that Innocent had no doubt that there was no
reason at all to believe that their marriage could be dissolved.
The letters of Innocent are enormously significant for the development
of canon law. They are a precious record of the emergence of the papal
claims to governance of the church early in the fifth century. The letter to
Probus is one of the earliest pieces of ecclesiastical matrimonial jurispru-
dence. Fortunius, Ursa and Restituta are the first names we know of the
countless many whose lives have been scrutinized by ecclesiastical tri-
bunals of one form or another.