Marriage Theory in Early Decretal Collections

An inescapable consequence of Alexander’s developed marriage doctrine was the sanction that it gave to marriages covertly contracted.³⁵ Alexander foresaw this problem and expressed concern about clandestine marriages in some of his decretals. But Alexander could not maintain that valid marriage is contracted by consent alone and avoid the consequence that such consent might be given privately. Although he ruled in Solet frequenter that parties who contracted clandestine marriages were anathema and that marital consent must be ex­changed before witnesses, Alexander refrained from making compliance with these requirements a condition of valid marriage.^[1307] On the contrary, Alexander explicitly ruled in Quod nobis that marriages could be secretly contracted “for reasonable and legitimate cause,” and in Super eo vero he held that a union contracted by present consent, without priest or solemnity, was nonetheless fully binding.^{[1308] [1309] Since Alexander adhered to this policy despite his expressed concern over secret marriages, he evidently believed that some higher good could be achieved by freeing the marriage contract from requirements of form, publicity, ceremony, or witnesses. It is hard to escape the inference that this higher good was to make it possible for persons to marry despite extraneous considerations, such as financial exigency, public disapproval, or opposition from family, friends, and feudal lords.38}

Clandestine marriages seriously undermined the stability of marriage and family relationships. Since secret marriages were just as valid as public ones, couples could marry and divorce informally without attracting public attention. Accordingly no husband or wife, even in a publicly solemnized union, could ever be sure that an earlier mate from a clandestine marriage might not some­day appear on the scene to claim his or her spouse. Moreover, a person married in a secret exchange of consent could subsequently contract a bigamous public marriage. Clandestine marriage thus furnished enormous scope for misunder­standing and confusion, deliberate or fortuitous, where one party believed that s/he was married to another person, who believed that s/he was not married.^[1310]

Historians have found little to commend in Alexander Ill’s marriage doc­trine, even though freedom to choose one’s marriage partner was often in se­rious danger from family interests during the twelfth century, and the pope’s concern to provide legal safeguards against interference with this freedom was hardly trivial or unfounded. Further, the consistency with which Alexander’s successors adhered to his marriage system, despite the social costs that it en­tailed, indicates a continuing awareness of the problem of both formal and infor­mal coercion and a commitment to the goal of free consent.

Alexander Ill’s immediate successors made only modest additions to the Church’s marriage law. The next major phase in the maturation of medieval matrimonial legislation commenced a decade after Alexanders death, when the College of Cardinals elected its youngest member, the thirty-seven-year-old Lothario dei Segni, as Pope Innocent III. No pope before or since has been more forceful in his defense of papal power, none faced greater challenges, po­litical or intellectual, to that power, and few have left so lasting an imprint on their office or on the Christian Church.

The Contributions of Innocent III

Innocent was an extraordinary figure in an extraordinary age. When he took the papal throne, towns and cities throughout Europe were growing daily in size and wealth. These urban centers increasingly challenged established political relationships and social values. At the same time, each of the major European kingdoms was ruled by a man of talent and ambition—Richard Lion-Heart in England, Philip Augustus in France, Henry VI in Germany. Dissatisfied with traditional feudal monarchy, they and their successors sought to centralize their governments, to increase royal revenues, to concentrate power in the king’s hands—all policies that threatened the independence and power of the Church. And in the universities, philosophers and theologians seemed bewitched by the novelties of the heathen—they seemed to find more inspiration in the pages of Aristotle and Averroes than they did in Holy Writ or the writings of the Fathers.

But Innocent IH faced even more direct and open challenges to the Church and to papal authority than those from intellectuals, kings, and burghers. Eu­rope in 1198 was spotted with festering patches of heresy. In the manufacturing towns of northern Italy and southern France the unordained and untrained fol­lowers of Peter Waldo were preaching and teaching an alarming brand of Chris­tianity that denied the special authority of the clergy and cast doubt on the spiritual value of the sacraments. Elsewhere, Cathar heretics attacked the be­nevolence of the Creator by proclaiming that the material world was intrinsically evil; they maintained that only the spiritual realm, on which they seemed to feel they had a monopoly, had been created by an all-good deity.

None of these challenges appeared to daunt the new pope. Self-assured, in­dustrious, a man of keen intellect, infectious charm, and intellectual audacity, Innocent seemed certain that he was God’s chosen agent on earth. Secure in that belief, he was ready to deal with everyone and everything that came his Afi way.

⁸⁰The literature dealing with Innocent III and his pontificate is large. A helpful basic introduction is James M. Powell, Innocent III: Vicar of Christ or Lord of the World? (Boston: D. C. Heath and Company, 1963). An old but still valuable study is Friedrich von Hurter-Ammann, Geschichte Papst Innocenz des Dritten und seiner Zeitgenossen, 3d ed., 4 vols. (Hamburg: F. Perthes, 1841); the standard modern biography is Helene Tillmann, Papst Innozenz III., Bonner historische Forschungen, vol. 3 (Bonn: Ludwig

Countless crises crowded the eighteen years of his pontificate, but Innocent made time nearly every day to deal with the flood of legal business referred to the papal court. Indeed this was the papal function that he appeared to enjoy with greatest zest. Among the hundreds of cases that Innocent decided were numerous marriage cases, and he was by all odds the most daring of Alexander Ill’s immediate successors in adopting new departures in marriage law. None­theless Innocent stood firmly by the basic tenets of Alexander’s marriage forma­tion doctrine. The new pope insisted more fiercely than Alexander had on the principle that Catholic marriage law must be uniform and that local variations on fundamental issues must be discouraged. Innocent firmly maintained the consensual doctrine as Alexander had framed it and was adamant in defending it against other models of Christian marriage.^[1311]

Innocent nevertheless did modify some features of the Alexandrine mar­riage law. He rejected the doctrine that a present consent marriage might be dissolved on the grounds of supervening affinity.^[1312] In addition he explicitly de­nied that abduction followed by carnal intercourse created an impediment to marriage; he thus cleared the way for marriage between the abductor and his victim, provided that both parties consented freely to the union.^[1313] Innocent also clarified the elements of conditional marriages. In the decretal Per tuas he held that a couple who exchanged conditional consent should be presumed to be married if they had sexual relations following the exchange of consent, even if the condition had not yet been fulfilled at the time when intercourse took place.^[1314] Sex thus became a constitutive element in conditional marriage, since Innocent construed consent to sexual intimacy as abrogating the condition on which the original consent had been premised. In this ruling he contradicted the position taken by Huguccio, whose pupil he is often said to have been.^[1315] In other respects, however, Innocent remained sympathetic to Huguccios rigor- istic approach.^[1316]

A major unresolved problem that figured in the marriage decretals of this age concerned the dissolution of marriages in which one party suffered from impotence or frigidity. On this matter, French and Roman practice differed. Gallic tradition accepted either permanent or temporary impotence as ade­quate grounds for dissolving a marriage. In these cases, accordingly, French bishops allowed either party to remarry without penalty. Roman custom, how­ever, restricted dissolution to cases of permanent impotence alone and allowed only the sexually capable partner to remarry. The early decretists, as we have seen, were divided on this question, and variance in practice persisted. Alexan­der III in an early decretal affirmed the Roman rule, but he later declared that the French custom might be tolerated.^[1317] Clement III in 1190-91 reaffirmed the Roman position, which left the law as confused as before.^[1318]

In 1206, Innocent III attempted to clarify the matter in a decretal that dealt with a case in which the couple could not consummate their marriage because of a gross disparity of size between their genital organs. Innocent ruled that the marriage might be ended, and the parties might remarry. But he added that if surgery or intercourse with a second husband later made it possible for the woman to accommodate her first husband, then she must return to the first husband and reinstate the prior marriage. The womans second husband was presumably free to remarry, although Innocent did not explicitly rule on that issue.^{[1319] [1320] Innocent Ills successor, Honorius III, decided that inability to consum­mate a marriage after three years of vain efforts constituted sufficient proof that the condition was real.™ Honoriuss decision left unresolved, however, the pro­cedure to be followed when the condition was cured after the marriage was dis­solved, as well as the difficulties posed by what would now be called relative impotence—where a man was unable to have sex with a particular woman, but was perfectly capable of intercourse with others.}

Late twelfth- and early thirteenth-century pontiffs also acted on problems raised by infidel marriages. Celestine III held that a Saracen who converted to the Christian faith might marry a Christian woman even if he had a Saracen wife at the time of his conversion.⁷¹ Innocent III took a more rigorous position on this matter: infidel marriages were indissoluble under the same conditions that applied to Christian marriages; that is, the parties must have consented freely, and they must have ratified their consent by sexual intercourse.⁷² Soon thereafter, however, Innocent reconsidered some of the implications of his ear­lier verdict. In Quanto te he held that if one party to an infidel marriage con­verted to Christianity, the convert could remarry in his new faith, provided that his unconverted spouse refused to cohabit with him after his conversion or that she made it difficult for him to fulfill his new religious obligations.⁷³ In the decretal Gaudemus, dated in 1201, Innocent imposed further limitations on re­marriage. Infidels who had married within the degrees of relationship forbid­den by canon law were not permitted to dismiss their earlier wives solely on that account after baptism. The canonical prohibitions were a matter of eccle­siastical positive law and did not stem from natural or divine law, Innocent de­clared. Converts who had infringed the prohibitions prior to baptism were not required to conform to them later. Further, a convert who had more than one wife at the time of his conversion should retain his earliest mate and dismiss all the others. Those who had divorced and remarried while still infidels, Innocent added, must send away their later partners and return to the first one. Should this be impossible—perhaps because the first partner had remarried—the con­vert must remain unmarried until his first spouse died.⁷⁴

While Innocents decretals concerning the marriages of converts clarified some of the uncertainties that clouded this topic, they failed to supply a reliable guide for handling other situations where the law remained unclear.⁷⁵ Problems of this sort were on the rise during the early thirteenth century in Europe’s frontier regions, such as Livonia, where Innocent III campaigned to suppress Ievirate marriage, which apparently was practiced among the pagan Balts, and where Honorius III cautioned judges to be wary of Russian clerics who pre­tended to dissolve the marriages of converts to Latin Christianity.⁷⁶

Late twelfth- and early thirteenth-century popes often called on local au­thorities to instill respect for Catholic marriage law in their flocks. Both new converts and the faithful in regions where Christianity had long been estab­lished were all too prone, Roman authorities believed, to regard marriage as a private matter and to ignore canonical rules that conflicted with personal pref­

ix 3.33.1 (JL 17,649); Pfaff, "Kirchliche Eherecht,” p. 109.

^7zX 4.14.4 (Po 507); Maccarrone, "Sacramentalita,” pp. 454-55.

⁷³X 4.19.7 (Po 684); Noonan, Power to Dissolve, pp. 344-46.

⁷⁴X 4.19.8 (Po 1325).

⁷⁵Noonan, Powerto Dissolve, p. 347; Maccarrone, "Sacramentalita," pp. 459-60.

⁷⁶Honorius III in Senas Latvijas vestures avoti, no. 101, ed. A. Svabe, 2 vols. (Riga: Latvijas vestures Instituta Apgadiens, 1937) 1:77; Innocent III in X 4.19.9 (Po 1323).

Concubinage

erence or family interest. Marriages that failed to conform to canon law, Alex­ander III warned, cannot be tolerated. Local authorities must compel the faithful to obey the law. Failure to do so was an offense against reason and the Church’s authority.^[1321] Likewise people must not dissolve their marriages infor­mally or without reasonable and evident cause, he declared in another decretal. People must realize, he continued, that marriage was a serious business, insti­tuted by God, not man.^[1322] Alexander himself several times attempted to recon­cile estranged couples who had separated without the permission of Church authorities.^[1323]

The popes of this era, particularly Alexander III, were willing, even eager, to accommodate marriage law to social reality. There were limitations, naturally, to the law’s elasticity: divine commands must be obeyed, but human law could be bent with due discretion in order to achieve equitable results. “It is more tolerable,” Alexander III declared, “to allow some people to remain joined con­trary to human ordinances than to disjoin legitimately married persons con­trary to the Lord’s law.”^[1324] This equitable principle accounts for many of the in­consistencies among the marriage decretals of this period.