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Ephemerides Theologicae Lovanienses 83/1 (2007) 107-121. doi: 10.2143/ETL.83.1.2021743

© 2007 by Ephemerides Theologicae Lovanienses. All rights reserved.

The Validity of Marriage in Cases of Captivity

The Letter of Innocent I to Probus

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
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108 G.D. DUNN

The letter is summarised easily. Writing to Probus, the bishop of Rome

related how, during the barbarian disturbances, Ursa, a wife, was taken
into captivity, after which Fortunius, her husband, remarried (the new
wife’s name being Restituta). Ursa eventually returned to Rome and
wanted to resume her married life. She brought the matter to Innocent,
who determined that the validity of her marriage endured and that Fortu-
nius’ second marriage was invalid. We may consider this letter through a
series of questions.

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.

(Initiations au christianisme ancien), Paris, 1985; D. JASPER – H. FUHRMANN, Papal Letters

in the Early Middle Ages (History of Medieval Canon Law), Washington, DC, 2001, pp.
35-38; L. KÉRY, Canonical Collections of the Early Middle Ages (ca. 400-1140) (History
of Medieval Canon Law), Washington, DC, 1999, pp. 9-13.
4. INNOCENT I, Ep. 36 (ed. PL, 20, c. 602): “dominus filius merito illustris”. Indeed,
Innocent addressed Anicia Juliana, the wife of Anicius Hermogenianus Olybrius, ordi-
nary consul in 395 together with Anicius Probinus, his brother, in identical terms,
allowing for gender difference: Ep. 15 (ed. PL, 20, c. 519): “domina filia merito illus-
tris…”.
5. Illustris was the title reserved for consuls, praetorian prefects, urban prefects, masters of
the infantry, and masters of the cavalry by the late fourth century. See A.H.M. JONES, The
Later Roman Empire 284-602: A Social, Economic, and Administrative Survey, Vol. 1,
Oxford, 1964, p. 143; M.R. SALZMAN, The Making of a Christian Aristocracy: Social and
Religious Change in the Western Roman Empire, Cambridge, MA – London, 2002, p. 38.
6. Bishops frequently addressed Christian lay people as filii and filiae, but not non-
Christians.
7. Berlin-Brandenburg Academy of Arts and Sciences (ed.), Corpus Inscriptionum
Latinarum (= CIL), Berlin, 1893-, 6.1752 (= H. DESSAU, Inscriptiones Latinae Selectae
[=ILS], Berlin, 1892-1916, 1268); CIL 6.1756; J.R. MARTINDALE, The Prosopography of
the Later Roman Empire, Vol. 2: A.D. 395-527 (= PLRE 2), Cambridge, 1980, pp. 913-
914 (Probus 11). This suggestion is favoured by C. PIETRI – L. PIETRI (eds.), Proso-
pographie chrétienne du bas-empire. II: Prosopographie de l’Italie chrétienne (313-
604), Vol. 2: L-Z (= PCBE 2.2), Rome, 2000, p. 1842 (= Probus 5). This suggestion had
been made much earlier: see P. COUSTANT, Epistolae Romanorum Pontificum, Paris
(Delatour), 1721, p. 910; M.R. GREEN, Pope Innocent I: The Church of Rome in the
Early Fifth Century, Diss. Oxford, 1973, p. 9. BARONIUS made no mention of this letter
in his sixteenth-century Annales Ecclesiastici. This Probus was the brother of the two
consuls of 395.
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THE VALIDITY OF MARRIAGE IN CASES OF CAPTIVITY 109

II. DATE OF LETTER

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.

III. WHY DID INNOCENT WRITE TO PROBUS?

Jurgens suggested that this letter was “Innocent’s solution to a mar-

riage case submitted by Probus”10. Yet, Innocent’s letter would indicate
that it was Ursa, the first wife, who was the petitioner in this matter11.
One would first need to investigate whether he was either the urban pre-
fect of Rome or the praetorian prefect of Italy, in which case the bishop
of Rome wrote informing him because of his official position. Noonan’s
argument is that Probus was the civil official who would have been
responsible for implementing the bishop’s decision12. We know all the
praetorian prefects of Italy around this time, except perhaps for anyone
who may have held a very brief tenure, for example March to June of 412
or June to August 41313. We know all the urban prefects of Rome around
this time, with some gaps from late 411 to late 412 (although Palmatus
was there in March 412) and late 414 to 417 (although Gracchus was
there in July 415 and Probianus in December 416). So, if we conjecture
Probus holding one of those two offices, then a date for this letter
between Alaric’s capture of the city and Innocent’s death, would only be
possible in the brief periods available in 411-412, 413, 414-41714.

8. INNOCENT I, Ep. 36 (ed. PL, 20, c. 602): “conturbatio procellae barbaricae”.

9. ZOSIMUS, H.N. 5.37.1 – 6.6.3; SOCRATES, H.E. 7.10 (ed. GCS n.F., 1, pp. 355-356);
SOZOMEN, H.E. 9.6-10 (ed. GCS n.F., 4, pp. 397-402); PHILOSTORGIUS, H.E. 12.3 (ed. GCS,
21, pp. 141-142); OROSIUS, Hist. adu. Pag. 7.38-40 (ed. CSEL, 5, pp. 544-552); PROSPER
TIRO, Chron. Min. 1240 (ed. T. MOMMSEN, Chronica Minora Saec. IV. V. VI. VII, Vol. 1
[MGH AA, 9] Berlin, 1892, p. 466) and THEOPHANES, Chron. AM 5903 (ed. C. DE BOOR,
Theophanis Chronographia, Vol. 1, Leipzig, 1885, p. 80.20-23).
10. W.A. JURGENS, The Faith of the Early Fathers, Vol. 3, Collegeville, MN, 1979,
p. 183 n. 12. G.H. JOYCE, Christian Marriage: An Historical and Doctrinal Study
(Heythrop Series, 1) London, 21948, p. 320, and PCBE 2.2 (n. 7), p. 1842, also suggest that
it was Probus who submitted the question.
11. INNOCENT I, Ep. 36 (ed. PL 20, c. 602): “Sed favore Domini reversa Ursa nos
adiit…”.
12. NOONAN, Ursa’s Case (n. 1), p. 36.
13. See PLRE 2 (n. 7), p. 1247.
14. ZOSIMUS, H.N. 6.7.4 reports that the Anicii were not supporters of Alaric. Even if
PROCOPIOS, B.V. 1.2.27, were accurate that it was Proba who opened the gates of Rome to
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110 G.D. DUNN

The other interesting figure is Probianus, the urban prefect of Rome

mentioned in the Theodosian Code for 12 December, 416, who received
a law from the emperor Honorius in Ravenna forbidding barbaric customs
like long hair and the wearing of animal skin garments in Rome15. We
know that Sextus Claudius Petronius Probus, the father of the two consuls
of 395 and of Anicius Probus, the consul of 406, himself consul in 371
and several times praetorian prefect16, was the grandson of Petronius Pro-
bianus, consul in 322 and urban prefect in 329-33117. Could the recipient
of Innocent’s letter therefore be Flavius Anicius Petronius Probus Pro-
bianus, known in the Code, as was usual, by his last name and in literary
contexts by another name, as happened in late antiquity18? If this were the
case, then the suggestion could be made that the letter from Innocent
would be dated to some time around late 416. For this to be the case,
however, one would have to reject the suggestion in PLRE 2 that Pro-
bianus 1 could be the same as Rufius Probianus (Probianus 7), an urban
vicar of Rome19. What is even more telling against identifying Probus
with Probianus is the epigraphic evidence. An inscription from the church
of Gregory the Great on the Caelian in Rome mentions Arcadius and
Petronius Probus as consuls (in 406)20. Other Roman inscriptions name
Arcadius’ partner in his sixth consulship as Anicius Probus21. One even
mentions him as Anicius Petronius22. Not one of them lists Probus, the

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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THE VALIDITY OF MARRIAGE IN CASES OF CAPTIVITY 111

consul of 406, as Probianus. There is no evidence at all to link Probus in

Innocent’s letter with Probianus the urban prefect of 416, other than the
fact that Probus’ great-grandfather had the name Probianus.
On the other hand, the real possibility must be entertained that Innocent
wrote to Probus not because he was holding high office but because he
had a more personal connection with the parties. If my arguments below
are correct, then Innocent was not instructing Probus to carry out civilly
an ecclesiastical decision, as Noonan advocates. It could well be instead
that Fortunius and Ursa were freedpeople, tenants or clients of Probus,
and Innocent was informing him privately about his decision23.

IV. SUBJECTS OF LETTER

Can we identify Fortunius, Ursa and Restituta? PCBE and PLRE do

not help, unless the low ranking equestrian Fortunius, buried in Rome
possibly sometime in the fifth century, could be him24. Similarly, there is
no evidence to suggest that Ursa was related either to the Ursus men-
tioned in Symmachus, Ep. 9.1125 or the Ursus who was urban prefect of
Constantinople in 415-41626. There is an inscription from the Coeme-
terium Cyriacae on the Via Tiburtina that mentions a Fortunius and Ursa
together27. There are other inscriptions from the same catacomb that men-
tion either an Ursa28 or a Fortunius29. We can find similar results when we
consider other burial sites in Rome. Of course, there is no need to pre-
sume that they were mentioned on inscriptions.

V. INNOCENT’S INVOLVEMENT

Why was Innocent making a determination about this matter? Roman

law seems relatively clear about this kind of situation. A person taken
captive was considered to have been reduced to the status of a slave, and
hence to have lost all rights of citizenship30. As slaves could not marry, a

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.
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112 G.D. DUNN

captive citizen had their marriage terminated31. A person returned from

captivity could have their other rights (to ownership of property and
slaves, etc.) restored by postliminium32. The terminated marriage was not
reestablished unless both former spouses agreed through a fresh exchange
of consent33. One of the reasons why one of the former spouses might not
agree to reanimate their former marriage was because they might have
remarried in the meanwhile34.
Justinian, in the first half of the sixth century, would try to curb the
practice of remarriage in cases where one of the spouses had been taken
captive, at least until there was confirmation of that captive spouse’s death
or five years had elapsed35. While remarriage within that period where
doubt about a spouse’s death existed was not prohibited, there were penal-
ties attached to those who defied the emperor’s new law. The phrase “after
the prescribed time” (post constitutum tempus) found much earlier in
Paulus is taken as an interpolation from Justinian’s commission36. How-
ever, the question then remains about how to interpret the first sentence in

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.
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THE VALIDITY OF MARRIAGE IN CASES OF CAPTIVITY 113

book 62 of the Digesta by Julian, the second-century African jurist, about

wives of husbands taken into captivity not being able to remarry hastily37.
Even though everything after the first sentence is also a Justinianic inter-
polation38, that first sentence itself indicates that there was some enduring
connection between husband and wife in the time before Justinian39. Wat-
son, however, argues that Julian cannot possibly have written the first
sentence as it is. His view is that what is being indicated here is that if a
woman’s husband were taken captive then, although the marriage was
dissolved and she was free to remarry, she would still be considered a
married woman for the purpose of inheritance and legacies40.
The question remains as to why Ursa approached Innocent about a
matter that seemed clear-cut in civil law and why the bishop of Rome
made a determination. Innocent seemed very much aware of the civil law
implications of captivity, for he observed that it had produced a defect
(naevus) in a validly established marriage41. The question of course for
him would be whether from a Christian perspective it was so serious a
defect as it was in Roman law to terminate the marriage.
It should be no surprise that Innocent believed in the enduring validity
of the marriage between Fortunius and Ursa. Many early Christian writ-
ers in the West, to say nothing of those in the East, expressed their views
on the permanence of marriage, from Tertullian’s ad Uxorem, de Exhor-
tatione Castitatis and de Monogamia to Augustine’s de Nuptiis et Concu-
piscentia, de Adulterinis Coniugiis and de Bono Coniugali42. Innocent too

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.
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114 G.D. DUNN

expressed a theological opinion: the regulations of religion were invio-

lable43. Elsewhere in his letters we find Innocent in full agreement with
the church’s teaching on marriage: a woman who remarries while her
first husband lives is not only an adulteress but is to be denied penance
until one of her husbands has died44. The church condemned adultery by
both men and women45. Only death dissolved marriage46. Yet, in Epistula
36 Innocent was not simply expressing a theological opinion; he went
further by issuing some kind of judicial sentence47. Even though the
synod of Elvira early in the fourth century and the 407 synod of Carthage
issued canons about excommunicating those who remarried after
divorce48, this is the first time we find an individual situation examined.
The opening of the letter tells us that the barbarian tumult “facultati
legum intulit casum”. To me this is one of the two interesting parts of the
decretal and how we read the Latin determines how we understand Inno-
cent’s involvement. The argument of Noonan and Joyce, that this meant
that Innocent was exercising the civil power given to bishops under Con-
stantine I to hear civil cases and make determinations, has been countered
recently by Reynolds, who points out that in 399 Honorius had limited
that power to religious matters only49. Rather than Noonan’s interpreta-
tion that this decretal is proof that by Innocent’s time marriage was con-
sidered a religious matter, I believe that it indicates that marriage was still
very much a civil matter and that the bishop of Rome was disagreeing and
dissenting from the civil position. Even though the episcopal court could
hear matters where both parties agreed, it is Reynolds’ contention that it
is unlikely that Fortunius would have agreed to have this matter heard by

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.
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THE VALIDITY OF MARRIAGE IN CASES OF CAPTIVITY 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).

VI. INNOCENT’S DECISION

What did Innocent determine? The comment of Pospishil that Innocent

decided that Fortunius must reestablish marriage with Ursa is reading too
much into the decision54. The bishop of Rome’s decision was twofold.
50. Cod. Theod. 1.27.2. REYNOLDS, Marriage (n. 33), p. 133. NOONAN, Ursa’s Case
(n. 1), p. 37, considers it unlikely that Fortunius would have agreed to have this matter
heard in an episcopal court. I agree with him on this point.
51. INNOCENT I, Ep. 36 (ed. PL, 20, c. 602): “…et nullo diffitente…”. If Fortunius had
been present and wanted to continue in his relationship with Restituta surely he would have
said something. Was Innocent, though, only stating that no one disagreed with the fact that
Fortunius and Ursa had been married?
52. REYNOLDS, Marriage (n. 33), p. 133. The question is whether or not it was consid-
ered a religious matter by civil authorities.
53. INNOCENT I, Ep. 6.4 (10) (ed. PL, 20, c. 500): “Viri autem liberius uxores adulteras
apud sacerdotes deferre consuerunt: et ideo mulieribus, prodito earum crimine, communio
denegatur”.
54. V.J. POSPISHIL, Divorce and Remarriage: Towards a New Catholic Teaching, Lon-
don, 1967, p. 175.
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116 G.D. DUNN

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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THE VALIDITY OF MARRIAGE IN CASES OF CAPTIVITY 117

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
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118 G.D. DUNN

exception, even though he was utilising Matthew in his argument67. In

response, I would point out that earlier in the letter to Exsuperius, as we
have noted above, Innocent had mentioned those who were prosecuting
cases before church tribunals on the grounds of adultery68. I think we can
take it that Innocent accepted divorce on the grounds of adultery as legit-
imate, even though, as we have noted above, he indicated that only death
dissolved marriage. If we take both statements together, it would seem
that the church felt stuck with the Matthean exception and tried to down-
play its existence69. I am endorsing the opinion of Nautin70. I think that in
Innocent’s letter the fact he could point out that no divorce on the grounds
of adultery had been obtained (because there was no adultery) was
another supporting argument used in favour of the validity of the first
marriage71.

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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THE VALIDITY OF MARRIAGE IN CASES OF CAPTIVITY 119

The solution I am proposing seems to be the one that best assimilates

all the evidence we have72. In summary, I am suggesting that Innocent
accepted the practice of divorce on the grounds of a wife’s adultery, per-
haps somewhat reluctantly, and was stating that since this ground was not
explored (because it could not be) then the first marriage remained valid
despite Ursa’s abduction, as only the Matthean exception terminated a
marriage apart from death. What we find here is the bishop of Rome dis-
agreeing with the civil law’s understanding of the dissolution of marriage
due to the abduction into slavery of one of the spouses.

VII. OUTCOMES

What was the effect of Innocent’s decision? We know nothing of its

reception. Thus, we cannot tell whether Fortunius and Ursa ever reunited.
If Innocent was indeed acting under the power of civil law then his deci-
sion would have been binding. Reynolds says that “[i]t is improbable that
this tribunal’s judgment would have had any civil consequences, or that
Innocent could have applied any sanctions other than ecclesiastical ones,
although it is possible that the local power of the Bishop of Rome was
exceptional and extended into the civil arena”73. I disagree only with his
last point. What then was the point of Ursa going to Innocent if it would
have no real consequence for her other than a moral victory? One could
imagine that she wanted her status clarified and her position as a married
woman upheld within the church, in addition to hoping for the re-estab-
lishment of married life with her husband. Perhaps it also kept unwel-
come suitors at bay in the event that her husband did not take her back,
although one cannot imagine that this was the determining cause reason
for Ursa approaching the bishop.
There might have been ecclesial consequences for Fortunius with Ursa
successfully prosecuting her case. If he did not take her back as his wife,
he should have been excommunicated, although Innocent’s letter nowhere
states that this decision was made. It makes most sense to believe that
Ursa would have asked for a decision because she believed it was possi-
ble for there to be the outcome she wanted, i.e., reunion with her husband
in a civilly valid marriage (and thus the annulling or terminating of his

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.
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120 G.D. DUNN

“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

My conclusions must be tentative given the scarcity of evidence, but I

believe that only the following set of conclusions fit together coherently
and make best sense of all the evidence in the context of Roman law.
Innocent wrote to Probus, a high-ranking member of the most prominent
senatorial, aristocratic, Christian family in Rome, not because of any
office he held but because of some personal connection with Ursa and
Fortunius, they being most likely clients or freedpeople of his. Innocent
rejected the Roman legal position that abduction and enslavement dis-
solved marriage. His judgement in this marriage case did not have civil
effect (because that Roman legal position endured) but only ecclesiastical
impact in upholding Ursa’s good name within the Christian community
and in possibly excommunicating Fortunius. From his other letters we
know that Innocent was opposed to divorce, except in the case of adul-
tery. In this case, given that there was no evidence to support a divorce
between Fortunius and Ursa on that ground, we should interpret the ref-

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.
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THE VALIDITY OF MARRIAGE IN CASES OF CAPTIVITY 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.

Centre for Early Christian Studies Geoffrey D. DUNN

Australian Catholic University
1100 Nudgee Road
Banyo 4014
Australia

ABSTRACT. — This paper explores Epistula 36 of Innocent I, bishop of Rome

in the first quarter of the fifth century, one of the earliest known ecclesial deci-
sions on the validity of a marriage, which was upheld in this instance. By asking
questions about the relationship of the recipient of the letter to the parties
involved, why Innocent intervened, and the civil implications of a spousal abduc-
tion by a foreign enemy we gain insight into a crucial stage of the Christianisa-
tion of marriage. It is argued that Innocent wrote to Probus probably because he
was personally connected with the couple, that Innocent rejected the Roman law
on the dissolution of marriage due to abduction and enslavement, and that his
decision, which had only ecclesial and not civil effect, marks an important
moment in church-state relations. The reference to divorce should be taken as a
simple statement that this Roman practice was not relevant here as it was not a
case of the Matthean exception.