The Mysterious Canonist Bazianus on Marriage

Chapter 15
The Mysterious Canonist Bazianus on Marriage¹

Charles Donahue, Jr.

Since Tommaso Diplovatazio’s De claris iurisconsultis scholarship has, for the most part, recognized the existence of two Bolognese glossators of the last quarter of the twelfth century with similar names, Johannes Bassianus and Bazianus (or Basianus).² The former was a civilian, who wrote numerous glosses on all parts of the Corpus iuris civilis, a summa on the Novels, summae on titles of the Digest, Institutes and Code, distinctiones, commenta and lecturae, and a number of important procedural works.³ He was the teacher of, among others, Azo, and his opinions are frequently cited in the Accursian gloss. The latter was a canonist, largely known for his glosses on Gratian’s Concordance of Discordant Canons, whose work is frequently cited in manuscripts that date from or are copies of works from the late twelfth and early thirteenth centuries, but whose work thereafter seems largely to have been forgotten.⁴ Biographical details about both men are sparse. In the case of Bassianus, they consist largely of scurrilous anecdotes.⁵ In the case of Bazianus, there is a plaque on what purports to be his tomb in the cathedral of Bologna that gives a few tantalizing hints about his life and a group of notarial documents concerning a case in which he sat as one of the judges in 1193.⁶ The first tells us that he was a doctor of both laws (Summus in alterutro doctoris iure peregit / hactenus officium …), and if that is right, he is the first person known to have been such. On the basis principally of the second (the case was turned into a quaestio disputata and reported under the name of Bassianus), it has recently been suggested that Bassianus and Bazianus were, in fact, the same man.7

The basic arguments against this suggestion can be briefly outlined. First, the sigla used to identify the work and opinions of the civilian (Io., Iob., Io. Ba.) are not the same as those used to identify the canonist (b., Baz., bas., baç., bar., etc.),⁸ but this could be the product of different scribal traditions in the two disciplines.⁹ This differentiation could even have been conscious, as authors and scribes sought to separate the work of a man who may have been the first to operate in the two disciplines. Indeed, Bazianus is one of the few, perhaps the only, twelfth-century canonist, who is known only by what seems to be a family name or toponym.¹⁰ This is just what we would expect if the scribes were trying to distinguish the canonistic work of a man whose civilian work was already firmly associated with his Christian name.

Second, the civilian probably came from Cremona, whereas the tomb inscription seems to give the canonist Bolognese origins. The tomb inscription, however, is sufficiently vague (flos roseus patrie) that it could have been applied to one who, though born in Cremona, had spent many years teaching in Bologna.

Third, in the Latin and Italian of the twelfth century (as in modern Italian) Bassianus and Bazianus or Basianus are not homonyms, the intermediate consonantal sound being quite different. Unfortunately, the wide variations in the spellings of the two names (Bassianus, Bossianus, Boxianus vs. Basinus, Bassianus, Baxianus, Bazanus, Bazianus, Bosianus) suggest that there was no consistent tradition of how the names were pronounced.

Fourth—and perhaps most telling—is the fact that there is evidence that the civilian died in England, whereas the tomb inscription suggests that the canonist died in Bologna (and states that his mortal remains are within).11 It may be, however, that the inscription is of a later date (or even that his remains within were shipped from England to Bologna).¹²

Finally—and this argument does not seem to have been made before—the known product of Bassianus is quite large. One really has to wonder whether a man who produced as much as Bassianus did on the basic corpus of Roman law, Romano-canonical procedure, and the Libri feudorum would also have had the time to lecture on the Decreta and produce the not inconsiderable number of glosses that are attributed to Bazianus.

In the absence of further discoveries in documents or manuscripts, it seems unlikely that progress on the issue is going to be made by pursuing the admittedly scanty evidence of the lives of the two men. There is now, however, a rather large body of work that has been quite firmly identified as that of the civilian and the canonist, respectively. More careful examination of that work may cast light both on the question why the civilian’s work continued to be respected and that of the canonist did not, and on the question whether the style and opinions of the two are sufficiently consistent that they could have been the same man. This is a large undertaking. Particularly in the case of the civilian, the known corpus of work is large, and quite a bit of it is unpublished.¹³ It is also a delicate undertaking, because both style and opinions can change over a long career. Nonetheless, I would like to make a start here, first by examining what is known of the canonist’s views on the topic of marriage, and then, very briefly, those of the civilian. This examination will not prove that the two are not the same man, but it will suggest that they probably are not.

We begin with two opinions of Bazianus that are cited in the Summa of Robert of Corson (1208 × 1212), a work which, so far as I am aware, has not previously been used as a source for the work of Bazianus.14 Robert was a student of Peter the Chanter, the Paris moralist of the late twelfth century.¹⁵ How he acquired his knowledge of Bazianus’s opinions we cannot say.¹⁶ Neither of the opinions is recorded as such in the known glosses of Bazianus, but as we have noted, these glosses tended to be ignored by the subsequent canonists.¹⁷ What follows may give us some indications of why that is the case, because both times that Robert cites Bazianus it is to disagree with him.

The first disagreement is relatively minor: in expounding on the three Augustinian “goods” of marriage, Robert tells us:

Bazianus and his followers expound these [goods] negatively, saying that in marriage there ought to be offspring, that is a spirit not opposed to offspring, and faith, that neither will go to another’s bed, and sacrament, that there will never be a divorce. But this does not explain what each of these things is, and therefore it seems to us that [the problem] is to be solved in another way, so that we say that “offspring” is the hope of procreating offspring for the service of God, “faith” is the observance of mutual servitude and conjugal chastity, and “sacrament” is the holiness or firmness of matrimony, or, if you prefer, inseparability.¹⁸

What is interesting about this is not so much that Robert disagreed with Bazianus, but that Bazianus dealt with the issue at all. Most of the canonists say little or nothing about the goods of marriage, leaving that topic to the writers of sentences. Huguccio does not deal expressly with the topic, nor do the summae of Bernard of Pavia or Tancred.19 When Raymond of Peñafort returns to the topic, he derives his material from Peter Lombard.²⁰ It is only with Hostiensis that we find a canonist expounding once more on the goods of marriage, and Hostiensis’s treatment may well come from his pastoral experience not from his canonic learning.²¹

Robert’s disagreement with Bazianus on this issue tells us something about the emerging divide between theologians and lawyers. Bazianus’s negative definitions of the goods of marriage are more legal in two senses. First, they are closer to the text of Augustine’s that is being expounded.²² Two of the three goods are there stated negatively.²³ It is also more legal in that Bazianus was probably concerned about the minimum requirements for validity in marital consent. One cannot validly marry and exclude the possibility of offspring; one cannot marry on the understanding that one will be free to commit adultery; one cannot marry with the understanding that if it does not work out, one will divorce. Bazianus’s statement of the “good” of offspring also neatly sidesteps the difficulty of the validity of marriages of those who are beyond normal child-bearing age. Such people do not marry “with a spirit opposed to offspring.” It is just that they know that it is highly unlikely that they will have any.

Robert’s positive conception of the “goods” of marriage fits much better with the sacramental theory that he and the sentence-writers espoused. Marriage involves the hope of procreating offspring for the service of God.24 It is a fulfillment of the command to “increase, multiply, and fill the earth.”²⁵ It involves a commitment to mutual servitude and conjugal chastity, and hence is the sacrament of the promise of redemption given to Abel.²⁶ It is holy and firm, as is the union of Christ and the church or the unity of humanity and divinity in Christ.²⁷ Robert’s theology of marriage is sounder than what we find here reported in the name of Bazianus. Whether his theology is taking him beyond what is legally possible is a question about which we may have more doubt.

But did Bazianus actually hold the opinion that Robert ascribes to him? There is one reported gloss of Bazianus’s on the topic, not where we would expect to find it at C.27 q.2 c.10, but at C.27 q.2 d.p. c.39, where Gratian tells us that Mary and Joseph had a perfectum coniugium, not ex officio, but “from those things that accompany (cominantur) marriage, to wit, from faith, offspring, and sacrament.” This prompts Bazianus to write:²⁸

The three goods of marriage (coniugii) are in matrimony itself sometimes only according to what is required (secundum exigentiam), sometimes according to what is required and what is done (secundum actum). For it is said that offspring belong with marriage (proles matrimonio esse), not because offspring is always there, but because the nature and law of matrimony require that one not have sexual relations with another. The sacrament is of Christ and the church, not that the commingling (commixtio) is the sacrament of Christ and the church, as some say, because sometimes commingling is fornication, but it, that is to say matrimony, is the sacrament of Christ and church by reason of the commingling. Sometimes, however, these three goods are in marriage in deed (actualiter), when one does not have sexual relations with another, and offspring are raised up, and they do not depart from each other. You should say that the three goods of marriage were with Mary and Joseph at least (saltem) according to what is required.

The difficulties that writers on marriage in the twelfth century had with the marriage of Mary and Joseph are well known. Gratian’s theory that marriages became indissoluble only when the couple had sexual intercourse created a considerable tension—as the tortured sentence of the master quoted above suggests that he was aware—with the traditional doctrine that Mary and Joseph were truly married and never had sexual intercourse. Hugh of St. Victor’s theory of the dual sacramentality of marriage allowed the marriage of Mary and Joseph to be regarded as sacramental (by the exchange of consent), but still not doubly sacramental (and perhaps not indissoluble), because the sacrament of the union of Christ and the church was, since its announcement in the letter to the Ephesians (Eph. 5:31–32), firmly associated with Genesis 2:24 (“and the two shall become one flesh”).29 Bazianus’s gloss solves none of these problems. He substitutes a distinction between “requirement (exigentia)” and “deed (actus),” for Gratian’s distinction between “office (officium)” and “accompaniment (cominantur).” That distinction does not work at all well with the good of offspring, because offspring are not required in order for there to be a marriage (as Bazianus recognizes), and the requirement that the couple not have intercourse with others is not the good of offspring, but the good of faith. Bazianus affirms that the sacrament of Christ and the church comes about by reason of a married couple’s having sexual intercourse (and his distinction between the marriage being sacramental and the intercourse being sacramental is well enough taken), but that fails to explain how that sacrament was present in the virginal marriage of Mary and Joseph.

Whether Bazianus expounded the negative version of the goods of marriage that Robert ascribes to him (perhaps in gloss on C.27 q.2 c.10 that has not survived with his siglum or in the proemium that the canonists wrote to Causa 27),30 we cannot say. What we can say is that he did try his hand at a positive version at C.27 q.2 d.p.c.39, and that that version is positively bad.³¹

The other place where Robert disagrees with Bazianus is on the argumentation to be used in a case involving the possible application of error of condition. A man marries a woman believing her to be of servile condition. She is, in fact, free. Is the marriage invalid because of error of condition? There are those who think that it is

… because there is disparity of condition that impedes matrimony; therefore the marriage is null. On the other hand, if I owe you a hundred [sous] and pay you two hundred, I am absolved from the hundred. By similar reasoning, I wish to contract with a woman who is of praiseworthy condition and I contract with her who is of doubly better condition, I am not defrauded in anything that I had proposed. Therefore, if the marriage contracted with the slave woman would stand, much more so ought the marriage contracted with a free woman.³²

According to Robert, both he and Bazianus agree with this second conclusion. They disagree on how it is to be reached.

Bazianus and his followers wish to prove the contrary [that the marriage is not impeded], persuaded by this reason: If I sell to you all my wine except what is sour and musky,³³ and in the meantime it all becomes sour, I have thus sold nothing. If, however, I say: “I sell you all my wine of whatsoever quality it may be,” if it all becomes sour, it is clear that such a sale holds. Similarly, in the marriage contract, if the wife is better than I thought, the marriage holds.34

“Arguments by analogy are never necessary ones,” Robert continues,

and therefore determine that the reason of Bazianus and others like it should be blown away. We say that error of condition impedes matrimony only where someone is deceived: believing that he is contracting with a free woman, he contracts with a slave. But when the converse obtains, he is not deceived. Hence when someone contracts de facto with a free woman, believing that she is a slave, the marriage stands unbroken, because he then does not err, but acts wisely, improving his condition in something.³⁵

Both the argument reported in the name of Bazianus and that of Robert are fundamentally bad arguments. Bazianus’s argument would seem to depend on the basic Roman law of sale about stipulations and errors of quality. If the quality is stipulated in the sale and then the goods delivered do not meet the stipulated quality, then the sale may be voided by the buyer. If, on the other hand, the quality is not stipulated, it is up to the buyer to determine their quality, and he takes the risk that they may go bad between the formation of the contract and the delivery.³⁶ This rule, of course, does not answer the question what is to happen if the quality of the goods is better than that stipulated or if the quality of the goods is better than what the parties thought it was, even though they did not stipulate. Even if we accept the analogy of marriage contracts to sales contracts (something which Robert seems unwilling to do), we need other rules of sales law to complete the analogy and justify the result.37

Once more we must ask whether Robert got Bazianus’s argument right. The Glossa Palatina, reports Bazianus’s opinion on this topic at C.29 q.2 pr:³⁸

And because we deal here with error of condition, note that h. [Huguccio] says that only the worse condition impedes. baç [Bazianus], however, says that both the better and the worse condition impede. For if my slave believes that he is contracting with a slave woman and contracts with a free woman, there is no matrimony.

The opinion reported by Robert in the name of Bazianus fits better with what the Glossa Palatina (not quite correctly)³⁹ reports in the name of Huguccio. The situation, however, described in the Glossa Palatina is different from the one Robert puts (a slave contracts with a free woman thinking she is a slave vs. a free man contracts with a free woman thinking she is a slave). Hence, it is possible that Bazianus held to the opinion later reported in the Glossa Palatina under the name of “b.” (?Bernard of Pavia, ?Bernardus Compostellanus Antiquus), that both errors of “better” and “worse” condition impede, but not in the situation where the parties end up with a person of the same status as theirs.40 If he did so hold, it is difficult to see how he could have used Roman sales law to justify the result.⁴¹

Robert’s argument is even worse. However much Robert would like us to believe that there is no deception in the case where a free man contracts with a free woman whom he thinks is a slave (but there is where he contracts with a slave woman whom he thinks is free), that statement is simply wrong.⁴² In both cases the man is deceived (whether the woman contributed to the deception is an independent variable that is not discussed here), and in both cases he errs.

We can rescue the conclusion, but only if we offer a different argument, one that depends on a previous passage in this section:

We say that servile condition, according to the fiction of the law and the interpretation of it, make the slave to be considered as not a human being, because just as our first parent lost his true essence to servitude to sin, so, he who is made a slave loses his free essence, because he does not have power over his body, but his master does. Whence condition [slave or free] refers more to the what than to the what sort, but those things which pertain to fortune and quality refer to the what sort rather than the what.⁴³

Behind this effort to distinguish error of condition from error of quality, we can see why this impediment is sometimes called, even in Robert’s time, “disparity of condition.” It refers to the fact that in Roman law a slave could not validly marry. Hadrian IV’s decretal Dignum est had emphatically put an end to the church’s acceptance of the Roman law rule,44 but the notion that a slave had no power over his body remained (creating considerable moral difficulties that are explored both by Robert and Peter the Chanter).⁴⁵ In these circumstances it is understandable why the rule developed that one who married a slave must know that he or she was a slave. Such marriages might not be regarded as marriages by the secular law, and entrance into such a marriage was likely to cause considerable difficulty for both partners. No such difficulties would occur if someone thinking that he or she was marrying a slave in fact married a free person. Hence, there was no reason to allow error of condition to void such a marriage. Hints of this argument are found in Robert’s discussion of the problem. It is surprising that he was not able to tie it down.⁴⁶

Most of the known glosses of Bazianus that were not reported in his name in the glossa ordinaria are quite short and technical.47 A couple of them cast some light on his thought about marriage generally.

A passage from Gregory’s Moralia quoted in D.13 c.2 expounds on 1 Cor. 7:6 (“I say this [that “every man should have his own wife and every woman her own husband”] by way of indulgence, not precept.”)⁴⁸ Gregory puzzles over why Paul should have phrased this as a concession. Bazianus puts the problem more starkly:⁴⁹

If matrimony or the good of nuptials is always good, as Augustine says [C.27 q.1 c.41], did the Apostle permit a good “since what is forgiven is not without vice”⁵⁰ (argument [C.22 q.1 c.3])?⁵¹ No way! But it is said that he permitted matrimony on account of the fault inhering in it, because the lawful mingling of the couple cannot be without delight of the flesh, as [C.33 q.4 c.7] and here: “that this that he had conceded [he showed to be] not without fault [(albeit very small)].”⁵² Or he permitted the immoderate exaction of the conjugal debt or the conjugal work that is derived from incontinence, in order to avoid unlawful lyings together, which is also judged venial on account of the nuptial good, as [C.33 q.2 d.p. c.2] and [c.3].

Bazianus here sticks close to Gregory’s text. He emphasizes, perhaps a bit more than does Gregory, the goodness of marriage (his source for this is Augustine). He adds, as Gregory does not, the possibility that the Apostle’s concession rendered venial the “immoderate exaction” of the debt. Although he does not say this, that possibility might make the “moderate” exaction of the debt not even venially sinful. This is not much from which to draw any firm conclusions, particularly when Bazianus does not purport to be giving his own opinion but that of others (dicitur). It is perhaps enough that we can suggest that in the general effort to mollify the ancient rigorism about the sexual act that is characteristic of the twelfth-century canonists, Bazianus is to be found more in the vanguard than in the rearguard (a position that one might assign to Huguccio).53

The passage from Augustine cited in the previous gloss (C.27 q.1 c.41), becomes for Bazianus the occasion for a brief discussion of sins committed by intent alone. Augustine had argued that for those who have vowed chastity not only was contracting marriage sinful but also wishing to do so. Bazianus remarks:⁵⁴

Pay attention. Because the very act of contracting does not seem to be a sin,⁵⁵ as is understood from the preceding words “not in the undertaking [of marriage]” and “not in the marrying,” what sin there is here may be doubted. And it can be said that it is the deliberation that precedes the contract that is rightly called the breach of faith, as is argued above [C.17 q.1 c.4],⁵⁶ just as is also said of the wicked focus of the hireling on money alone, whose preaching is nonetheless good, for the Apostle rejoiced at it to the Philippians: “whether in pretense or in truth Christ is proclaimed I rejoice in it and shall continue to rejoice. [Phil. 1:18]” But this only about those who vow simply; it is otherwise about those who vow solemnly.

This gloss is more peculiar than it looks at first glance. Gratian included Augustine’s text at this point in order to show that Augustine did not invalidate the marriages of those who had taken vows. He did not, and so the passage was on point for his purposes. Augustine, however, clearly thought that getting married after one had taken a vow of chastity was sinful, more sinful, he says, than adultery. The rhetoric of the passages that Bazianus refers to is a bit tortured, but the meaning is clear enough: “undertaking [a marriage] is not condemned by the lesser good but by the ruin that comes out of the higher good;” faith is broken, “even if not by marrying, nonetheless by willing [marriage].”⁵⁷ There is no way that the first passage can be read to hold that the undertaking of the marriage is not sinful, and while the second could be so read, it is probably better read in the context to say that the breach of faith occurs by willing marriage, even if the marriage does not take place (in which case we should translate “even if by not marrying”).

A canon of uncertain origins is one, among many, that Gratian includes in C.27 q.2 in order to establish the proposition that a married person cannot take monastic vows without the consent of his or her spouse. This canon, speaking of the husband, warns that if the wife, remaining in the world, marries another, she is “without doubt an adulteress.” Bazianus glosses:58

You should assert⁵⁹ that without doubt the adulteress⁶⁰ can be dismissed by the man in this case, and even if the man gave occasion for the adultery, she will nonetheless be held to keep the faith of the marriage. Find this stated in the decretal of Alexander [X 4.19.4] and above [C.27 q.2 c.21], where an inquiry was ordered concerning the fornication of Agathosa so that she could not recall her husband [from the monastic life], when he was seeking to be converted [to the monastic life] against her will.⁶¹ But when the husband has converted without the permission of his wife, can she without asking him and against his will be converted. Of course! For faith is not to be kept to him, as is argued in [C.28 q.2 c.2], since it is in the discretion of the one dismissed whether he or she wishes to ratify the conversion of the one dismissing, as in [C.33 q.5 c.2]; a good argument in [?X 4.1.6].⁶²

Most of this is derivable from the well-known decretal of Gregory the Great that precedes it (C.27 q.2 c.21). The delegate is to inquire into whether Agathosa consented to her husband’s conversion and agreed at the time to her own conversion or whether she has committed “fornication.”63 In either event she is not to be permitted to recall him from the monastery. Otherwise she may, even if he is tonsured. That the argument that the husband’s conversion gave the wife occasion to commit adultery is not to be countenanced is derived from a decretal of Alexander III, which states, pretty clearly, that this argument is not to prevail, not in the situation where one of the spouses has joined a monastery, but where both of them have committed adultery and neither wants the other back. The application to this situation is not inevitable (in the decretal the couple were being forced to reunite, whereas here the man is being allowed to dismiss his wife and choose the monastic life, even though his initial entry was wrongful, illegal, and arguably occasioned the wife’s adultery), but one can see how the extension was made. More strained is the citation of C.28 q.2 c.2, a text ascribed to Gregory the Great but in fact by Ambrose, on the topic of the “Pauline privilege” (1 Cor. 7:13). That faith is not to be kept to the pagan spouse of a convert to Christianity, which pagan spouse engages in “contumely of the Creator,” is one thing, that it is not to be kept to one who “espouses a higher life” is another. Even more troubling is the fact that it is a pagan marriage that is dissolved in 1 Cor. 7:13, while what we have here is a sacramental Christian marriage. Again, however, one can see how the argument is made. C.33 q.5 c.2 is also far from the point. In that case Alexander II holds that a man who extorted the consent of his wife to enter the monastery must return to her. It is Bazianus who derives from this decretal the proposition that since the consent to enter the monastery must be arrived at mutually between the spouses, if one enters without one’s spouse’s consent, the non-consenting spouse has discretion whether to accept the act or not. The conclusion follows logically from the proposition that the consent must be mutual, so long as we do not require that the consent be mutual and simultaneous. Finally, the citation of the decretal De illis (if that is what it is) is the most strained of all. In that case, Alexander holds that a woman whose fiancé has disappeared may marry another, although she is to do penance if it was her fault that the previous marriage was not consummated. The argument, I take it, is that just as the woman whose fiancé has disappeared may marry another, so too, a woman whose husband has entered a monastery without her permission may enter a monastery herself. The analogy is hardly “on all fours.” The woman in De illis had engaged in what was, at most, a dissoluble initiate marriage, perhaps the obligation was only contractual; in the case at hand, we are dealing with an indissoluble sacramental marriage. De illis does not raise the question of what was to be done if the man was present but simply delaying in going through with the marriage. Presumably in that situation, his consent would have to be sought, although the engagement might be dissolved if he failed to consummate the marriage within a reasonable period of time. In the case at hand, the husband’s consent is deemed irrelevant.

While the argumentation of this gloss is problematical, its basic conclusions seem sound. This is because of a doctrine that is at least implied in a number of texts in the Decreta (and that had been resoundingly confirmed by Alexander III)64 that the only way in which a married person could espouse the monastic life was if his or her spouse not only consented but also took a vow of chastity. Under Alexander’s decretals, in most instances, the spouse also had to embrace the monastic life. Under these circumstances, one can easily see how the conversion of one spouse without the consent of the other would give the non-consenting spouse discretion. He or she could follow the other into the monastic life or call the other back. Those were the only possibilities. Once the first spouse had committed to the monastic life, he or she no longer had a choice. The choice rested with the non-consenting spouse.

Bazianus’s gloss on C.27 q.2 c.24—a text of Augustine’s that says that a man who abstained from sexual relations with his wife without her consent gave her occasion to commit “fornication” and that her sin will be attributed to his abstinence—continues the previous discussion:⁶⁵

Above [D.50 c.50]. There is an argument here that one who gives occasion for harm is deemed to have given the harm. This raises the question whether an adulteress separated from her husband or vice versa can be converted [to the monastic life] the other willing.⁶⁶