The Early Dccretists’ Theories of Sex and Marriage

Most dccretists, whatever their school, took a dim view of the role of sex in human life. Their negative attitudes toward sexuality reflected the opinions of the authorities that Gratian cited, particularly Jerome, Augustine, and the Re­sponsa Gregorii.^[1056] The decretists knew also, especially from the translations of Aristotle that had begun to appear during the twelfth century, that ancient phi­losophers had often disapproved of sexual pleasure save in marriage and that they, as well as the Church Fathers, had strongly advised that sexual activity be limited to the minimum necessary for the reproduction of humankind.^[1057] Some decretists also held fast to the belief that sex was impure and unclean and that sexual relations transmitted, as it were by contagion, a state of spiritual disease.^{[1058] [1059] [1060] [1061]}

Some decretists considered sexuality part of the natural order of Gods crea­tion.

Huguccio s teaching echoed anthropological ideas current among contempo­rary theologians, such as Robert of Melun (d. 1167). These notions—derived originally from St. Augustine—were accepted by other canonists of Huguccios generation.^[1065] Pleasurable sensations, especially sexual pleasure, according to this scheme, were no part of God’s original creation. Rather, the exquisite sen­sations of sex had developed after creation was complete, as a result of original sin. Genital contact between Adam and Eve in the Garden of Eden had not been accompanied by pangs of passion, since these resulted from the Fall. In Paradise, touching the genitals produced feelings no different than those produced by touching one hand with the other. After the Fall, however, the genitals became sensitized and thus became a source of intense pleasure. This pleasure, in turn, was the root of sexual sin,^[1066] and indirectly led to other calami­ties, such as the Biblical flood.^[1067]

This exercise in paleophysiology enabled Huguccio and his contemporaries to put a convenient distance between God and human sexuality, by relegating sexual sensations to the aftermath of the Fall from Grace. Once they defined sexual pleasure as a postlapsarian novelty, Huguccio and the rigorists could deny it any legitimate role in human life, including married life.

But the decretists found themselves bedeviled by other problems when they came to deal with Gratian’s treatment of marriage formation. Gratian’s marriage theory was unsatisfactory to many writers because it placed sexual relations at the very center of marriage formation.

The leading spokesmen for the modified coital theory were Paucapalea, Rolandus, and Rufinus. Paucapalea subscribed to Gratians marriage formation theory without substantial change. Marriage, in Paucapaleas Summa, centered on the sexual union of a couple; a consensual union without consummation was no marriage, but merely a betrothal that could be terminated for good cause. Only when the union was consummated by intercourse did permanent mar­riage in the full sense begin.^[1069]

Rolandus, who made marriage law the principal focus of his Summa, sought to balance the two elements: he emphasized that both consent and consumma­tion were essential to true marriage. It might be customary to refer to a union initiated by consent as a marriage, Rolandus asserted, but such a union is not permanently binding until it is consummated. Consummation, furthermore, creates a right to continued sexual relations. Prior to consummation, the man and woman were free to separate if either party wished to enter religion; after consummation such a parting required mutual consent. Marriage for Rolandus became fully binding only as a result of consummation.^[1070]

Rufinus, while squarely supportive of the coital theory, encountered diffi­culty in reconciling Gratians position with the consensual view.

An anonymous treatise on matrimony known as In primis hominibus, writ­ten at about the same time as Gratians Decretum, also struggled with these issues. In primis hominibus assigned equal weight to the exchange of verbal consent and to physical consummation: marriage can be contracted, according to this treatise, either by an exchange of consent or by intercourse between two parties who are legally capable of marrying one another.³⁴ Another anonymous marriage treatise of the same period, De ortu coniugii: �?Sacramentum coniugii non ab homine’ which survives in a single manuscript at Stuttgart, put forward no less than four definitions of marriage, two of which stressed its consensual nature, while the other two emphasized the necessity of consummation in order to create a binding marriage.³⁵

The most influential and successful spokesman for consensual marriage the­ory in the mid-twelfth century was the Paris theologian, Peter Lombard (ca. 1095-1160). In his Sententiae, Peter held that the marital bond resulted from consent alone, provided that consent was given in the present tense. Consent to marriage at some future time constituted betrothal, not marriage. Future consent followed by intercourse, however, did create a marriage, according to his scheme. Intercourse was legally significant only if there had been prior agreement about a future marriage. For a couple who had exchanged present consent to marry, however, consummation was legally irrelevant. They were married, regardless of whether they had sexual intercourse or not.

For Peter Lombard and those who followed him, therefore, marriage was primarily a matter of the intention of the parties.

Peter Lombards theory of marriage formation through present consent was,

"In primis hominibus, in B.L. MS Royal 11.B.XIII, fol. 86vb-87ra: “At uero inquir­endum est quid dicat esse coniugium et forsitan sic poterit describi: suscipere mulierem in suam et uirum in suum tali consensu et uoluntate ut dum uixerint non se deserant et traddatur corpus suum in potestatem alt[er]ius ad debitum reddendum exprimendo hunc consensum uel talibus uerbis �?uolo te in uxorem’ et �?te in maritum,’ uel non contra­dicendo copulationibus eos si fuerint tales qui ualeant inter se contrahere coniugium. See also RudolfWeigand, "Kanonistische Ehetraktate aus dem 12. Jahrhundert, ” in Pro­ceedings of the Third International Congress of Medieval Canon Law, Strasbourg, 3-6 September 1968, ed. Stephan Kuttner, MIC, Subsidia, vol. 4 (Vatican City: Biblioteca Apostolica Vaticana, 1971; cited hereafter as Strasbourg Proceedings'), p. 61.

³⁵Quoted by Weigand, "Kanonistische Ehetraktate, ” pp. 66-67.

³⁶Peter Lombard, Libri IV sententiarum 4.27 2-5, 4.28.3, 3d ed., Spicilegium Bona- venturianum, vols. 4-5 (Grottaferrata: Collegium S. Bonaventurae, 1971-81) 2:422-24, 434-35. Note that the Lombards theory of consent differs radically from the consent theory of Roman law. Roman consent theory assumed that marital consent must be ongoing and continuing and could be revoked at any time by either party. Consent, as Peter Lombard understood it, was given once for all; once given (in the present tense, at least) it could not be revoked. See also Le Bras, “Observations sur Ie manage,’’ p.

In the mid-twelfth century, however, acceptance of this theory and of the Lombard’s distinction between present and future consent, was still limited to theologians and canonists who taught or who received their training at Paris. The author of the Summa Parisiensis, for reasons that may be fortuitous, did not comment expressly on the conflict between Gratian’s modified coital theory and Peter Lombard’s version of the consensual theory. Still, passing ref­erences in the Paris Summa show that its author accepted the Lombard’s for­mulation.^[1074] Stephen of Tournai refused to take sides in the conflict over mar­riage theories. After summarizing Gratian’s theory, Stephen provided his read­ers with an account of Peter Lombard’s alternative definition of marriage. He then declared: “We leave it to the reader whether he would prefer to accept this position.”^[1075]

An obscure glossator who wrote in the 1160s, and whom the manuscripts refer to simply as “The Cardinal” (Cardinalis), identified marital consent with marital affection. A marital union, according to The Cardinal, was complete and perfect when the couple exchanged consent and sexual intercourse added nothing to the union that already existed.^[1076]

Joannes Faventinus, who wrote his Summa about 1171, proceeded cau­tiously in choosing between the opposing theories. Although he described Gratian’s distinction between “marriage begun” (matrimonium initiatum) and “marriage completed” (matrimonium ratum) as “noble,” ^[1077] he maintained that mutual assent in spirit created the marital bond that joined married couples.^[1078] Gandulphus, a slightly later glossator, agreed with The Cardinal and supported the consensual theory, together with the Lombard’s distinction between present and future consent. By the n8os, the consensual theory had become well es­tablished; Sicard of Cremona, who was not a daring innovator, accepted the Lombard’s version of the consensual theory of marriage as a matter of course.^[1079]

A third analysis of the process by which marriage is contracted first emerged in the Summa de matrimonio written in the late 1150s by the Italian legist Va- carius (d. ca. 1200), who was at that point practicing and perhaps teaching civil law in England. Vacarius was displeased, even angry, at the way in which can­onists of his generation dealt with the formation of marriage. They were, he thought, confusing the matter intolerably; their interpretations were inconsis­tent, useless, and rarely applied in practice.^[1080] Vacarius explicitly rejected Grat­ian’s version of the coital theory.^[1081] While he did not comment on Peter Lom­bard’s version of the consensual theory—understandably, since the Lombard was writing his Sententiae at almost precisely the same time as Vacarius com­posed his treatise on marriage—there is little reason to believe that he would have had much good to say of it either. Instead, Vacarius proposed that the law of marriage should rest on traditio, the delivery of the wife to the husband, in much the same way that the Roman law on transfer of property rested on the delivery of an object from a seller to a buyer or from a donor to a donee.^[1082]

Vacarius s contention that marriage took place by traditio clearly appealed to a number of his contemporaries. The idea that traditio makes marriage was at the heart of Bishop Henry of Winchester’s opinion in the convoluted case of Anstey c. Francheville, which was fought out between 1158 and 1163, just as Vacarius was finishing his treatise.^[1083] Cardinalis seems at times to have thought along similar lines, for example, when he declared: “It is not carnal intercourse but the introduction of the bride into the house that makes a wife according to the law.”^[1084] Vacariuss marriage theory also influenced the author of the Summa “Elegantius in iure,” the major treatise of the Rhineland school.^[1085]

The early Bolognese decretists accepted Gratian’s conclusion that perma­nently binding, indissoluble marriage was limited to Christians and that mar­riages among infidels were neither ratum nor perfectum. Infidel marriages were thus subject to dissolution, according to the Bolognese masters.^[1086] Among the Parisian teachers, Stcphcn of Tournai also maintained that an infidel mar­riage, even though it was ratified by consummation, remained dissoluble. He added that a mixed marriage between an infidel and a Christian, even if con­summated and thus ratified, could also be dissolved. Only marriages between Christians ought to be considered permanent unions, according to Stephen.^[1087] The Cardinal maintained, however, that consummation through sexual rela­tions did not legally ratify marriages at all. In his view, ratification and hence indissolubility was conferred either by the priestly blessing during the wedding or else by the marital affection that the couple felt for each other.^[1088] Vacarius brushed the whole controversy aside and declared roundly that Gratian’s dis­tinction was senseless. Any marriage, whether between Christians or infidels, was ratified, according to Vacarius, if the law recognized it as valid.^[1089]

Those who held that marriage was completed by the exchange of consent and ratified by marital affection or the nuptial blessing seem to have been moti­vated in part by a desire to reduce the significance of sex in marriage and to recast Christian matrimonial theory in terms of a spiritual rather than carnal union. The Cardinal expressed this notion more clearly than most when he ar­gued that a marriage without sexual relations is better than one in which the couple have carnal intercourse. A decision to refrain from sex, he insisted, does not break the bond of marriage—indeed it makes it firmer, since the union is then based upon mutual affection, rather than upon a passion for pleasure and venereal sensations.^[1090]

The most trenchant and influential critic of Gratian’s treatment of marriage was Huguccio, who flatly rejected Gratian’s marriage formation theory as erro­neous.^[1091] Huguccio totally abandoned Gratian’s distinction between initiated and consummated marriage and opted instead for the Lombard’s consensual theory. Present consent alone, Huguccio maintained, immediately created a perfect and complete marriage between a couple; the marriage was indissoluble from the moment of present consent, and sexual intercourse was not required. Huguccio also rejected the notion that parental permission, ecclesiastical cere­monies, or traditio were essential to the creation of marriage. Present consent, so long as it was not coerced or otherwise interfered with, and so long as the parties were legally free to marry one another, constituted the only require­ment for the creation of a lifelong union. Everything else, including sexual rela­tions, seemed irrelevant to him.^[1092]

With Huguccio and with the decretals of Alexander III, which we will exam­ine in the next chapter, the victory of the consensual theory as expounded by Peter Lombard was virtually assured in the schools. Although a few writers still clung to Gratian’s version of the coital theory of marriage, they were a decided minority after the time of Huguccio.^[1093] Consent in the present tense was almost universally accepted by canonists after the late 1180s as the critical test of whether a marriage existed or not.⁵⁰ Customary law, to be sure, remained largely unaffected by the doctrinal shifts among the learned jurists; local courts continued to treat consummation as essential to the creation of a binding mar­riage.^{[1094] [1095] But as the ecclesiastical courts, presided over increasingly by univer­sity-trained canonists, secured a virtual monopoly over questions relating to the formation of marriage, the consensual theory became the standard both of theory and of practice.}

Disputes about marriage formation and related matters in the writings of the decretists reflected uncertainties in the ways that the popes of the second half of the twelfth century handled these problems. Papal marriage decisions of this period showed a considerable variety of opinion and practice, as we shall see in the next chapter. When Alexander III dissolved marriages on grounds of super­vening affinity, and when Urban III granted a divorce to a woman whose hus­band had contracted leprosy and allowed remarriage when a missing mans death was presumed but not proved, so long as the first marriage had not been consummated, we are seeing the views of the Bolognese school put into prac­tice. Before the end of the century, however, papal policy had begun to incline toward acceptance of the Parisian theory of consensual marriage, and papal de­cisions in marriage cases increasingly reflected this policy shift.

The displacement of the coital marriage theory by the consensual theory in the schools was probably not unrelated to the growing conviction among theo- Iogians that Christian marriage ought to be considered a sacrament. True, Christian writers had for many centuries used the term sacramentum to de­scribe marriage, but until the twelfth century the meaning of the word, par­ticularly as applied to marriage, had never been defined with precision.^[1096] The clarification the concept of sacramentality and its application to marriage owed a great deal, once more, to Peter Lombard. Although he was neither the first theologian to use the term sacramentum specifically to describe the mechanism for securing grace under the Christian dispensation nor the first to include mar­riage among the sacraments of the Christian faith, the Lombards exposition of these notions became the standard treatment that every theologian studied in the schools of the high and later Middle Ages.^[1097]

When canonists dealt with the sacramental nature of marriage they were less concerned with its internal spiritual effects than with its external manifesta­tions. While Gandulphus maintained that the sacramental element in marriage is the marital union itself, other decretists criticized his approach and sought to identify the sacramentality of marriage with the inseparability and mutual de­pendence of the married couple, which they compared to the union between Christ and the Church.^[1098] Marriage can exist without children and even without fidelity, Joannes Faventinus declared, but it must have stability, otherwise it would be impossible to distinguish marriage from casual sexual unions. Fur­ther, he argued, the stability which is the essence of the sacrament of marriage must be capable of surviving temporary separations, which often occur during marriage. When the married couple are sacramentally joined, they remain married despite short-term separations. That sacramental union, Joannes ar­gued, is at the core of the married state.^[1099] Huguccio agreed: “I say, therefore, that the sacrament that is the good of marriage is the inseparability of the mar-

ried couple.”⁶⁵ Huguccio insisted that the sacrament of marriage must not be identified with carnal intercourse, since the desire for sexual relations is vola­tile and might pass away, while the spiritual union of the married couple persists.⁶⁶

The author of the gloss apparatus Ordinaturus magister posited a further distinction between marriage and the other sacraments. While other sacra­ments give grace, he asserted, marriage does not, for other sacraments operate through sacred words, while marriage depends instead on the consent of the parties. Further, he continued, the other sacraments originated with canon law, while marriage originated in the law of nature.⁶⁷

In order to explain the nature and effects of marriage, many decretists found it necessary to examine its origins and purposes as a human institution. They postulated that marriage has a dual origin: it first began in Paradise, where it was instituted for the procreation of children. After the Fall, marriage was re­instituted outside of Paradise, according to this scheme, this time for protection against fornication.⁶⁸ Just as marriage had two origins, it continues to have two

⁶⁵Huguccio, Summa to C. 27 q. 2 c. 10 v. ex peccato, in Weigand, "Gandulphus- glossen,” p. 41, and Roman, p. 758.

⁶⁶Huguccio, Summa to C. 27 q. 2. c. 16 v. non pertinere ad matrimonium, in Weigand, "Gandulphusglossen,” p. 41, and Summa to C. 27 q. 2 pr., ed. Roman, p. 749-

⁶⁷Ordinaturus magister to C. 1 q. 1 c. 101 v. quicquid, in Weigand, Naturrechts- lehre, p. 286. Joannes Favcntinus, Summa to C. 32 q. 2 d.a.e. 4 v. non autem datur presentia spiritus sancti, in B.L. Royal 9.E.VII, fol. 142vb, added that marital inter­course, although it did not give grace, at least did not take it away: “Id est propter eon- iugales illos actus gratia scilicet non datur; si tamen habetur, non amittitur, nisi in casu illo in quo modo talis culpa incurritur.” Cf. SP to C. 32 q. 2 c. 4, ed. McLaughlin, p. 241. Magister Hermannus, a follower of Abelard, maintained a similar distinction; MiiIler, Lehre des hl. Augustinus, p. 74.

⁶⁸Rolandus, Summa to C. 27 pr., ed. Thaner, pp. 113-14. The comments of Rufinus on C. 27pr. were copied almost verbatim by Joannes Faventinus and Simon of Bisignano: purposes: the satisfaction of sexual desire and the begetting of offspring.⁶⁹ Of these, sexual desire was the “less honest,” although, as Rolandus noted, many people nonetheless marry for that reason.™

Rufinus

(ed. cit., p. 432)

Matrimonii vero institutio duplex fuit: una in para­diso ante peccatum, altera extra paradisum post pec­catum. Prima ad officium propter sobolem propa­gandum, dicente Domino, �?Crescite et multiplicamini et replete terram [Gen. 1:28]’; secunda ad re­medium propter fornica­tionem vitandam, dicente

Joannes Faventinus (B.L. Royal 9. E. VII fol. 132ra

Matrimonii uero institutio duplex fuit: una in para­diso ante peccatum, altera extra paradisum post pec­catum. Prima ad officium propter sobolcm propa­gandum, dicente Domino, �?Crescite et multipli­camini et replete terram [Gen. 1:28]'; secunda ad remedium propter fornica­tionem uitandam, dicente

Simon of Bisignano (B.L. MS Add. 24,659, fol. 28vb)

Duplex uero est institutio matrimonii. Una fuit in paradiso ante peccatum, altera extra paradisum post peccatum. Prima concessa fuit propter so­bolem, domino dicente, �?Crescite et multi­plicamini’; secunda ab apostolo propter uitandam fornicationis periculum est concessa, dicente

The decretists agreed, however, that whatever other considerations entered into the choice of marriage partner, the avoidance of fornication was one prin-

apostolo, �?Ususquisque uxorem accipiat propter fornicationem [cf. ι Cor. 7:2],’ ut infirmitas prona in ruinam turpi­tudinis, sicut Augustinus dicit, honestate coniugii exciperetur.

apostolo �?Unusquisque propter fornicationem accipiat uxorem,’ ut infirmitas prona in ruinam turpitudinis, sicut Augus­tinus dicit, honestate con­iugii exciperetur.

apostolo, �?Unusquisque habeat suam propter for­nicationem uitandam,’ ut sic infirmitas prona ad ruinam turpitudinis hon­estate coniugii excip­eretur, ut infra eodem questio, nuptiarum [C. 27 q. 1 c. 41].

See also the Fragmentum Cantabrigiensis to C. 27 pr., in Cambridge University Li­brary, MS Add. 3321(1), fol. 10r: “A quo sit institutum? A deo, scilicet institutum est ut ex celsitudine institutoris dignitas sacramenti intelligatur. Ubi institutum est? In para­diso. Quando institutum est? VI. die, ut ex lectione genesis colligitur.”

⁶⁹Rolandus, Summa to C. 27 pr., C. 27 q. 1 c. 41 v. in quibusdam, and C. 32 q. 2 pr., ed. Thaner, pp. 114, 125, 164. Rufinus, Summa to C. 27 pr., ed. Singer, p. 432, was again followed closely by Joannes Faventinus and Simon of Bisignano:

Rufinus

(ed. cit., p. 432)

Denique cause coniugii alie sunt propter quas, alie per quas contrahitur; cause propter quas con­trahitur alie sunt prin­cipales, alie secundarie. Et quidem principales in- telliguntur susceptio pro­lis et vitatio fornicationis, secundarie vero ut: mulieris pulcritudo, pacis reformatio, divitiarum possessio et similia.

Joannes Faventinus

(B.L. Royal 9.E.VII, fol. 132ra)

Denique cause coniugii alie sunt principales, alie sunt secundarie; et quidem principales intel- Iiguntur susceptio prolis et et uitatio fornicationis, secundarie uero ut mulieris pulcritudo, pacis reformatio, dititiarum possessio et similia.

Simon of Bisignano (B.L. MS Add. 24,659, fol. 28vb)

Cause uero propter quas contrahitur matrimonium alie sunt principales, alie secundarie. Principales sunt iste: susceptio prolis, uitatio Ibrnicatinis; secun­darie sunt uero mulieris pulcritudo, pacis reformatio.

Sicard of Cremona’s comments in B.L. MS Add. 18,367, fol. 53vb, also bear a close re­semblance to the other three: “Cause [matrimonii] alie sunt propter quas, alie per quas. Propter quas alie principales, alie secundarie. Principales due que ad duas respiciunt insitutiones, Uidelicet procreatio prolis, uitatio fornicationis. Ad secundariam, secun­darie que non respiciunt ad institutiones, ut mulieris pulcritudo, diuitiarum possessio, pacis reintegratio.” Cf. the gloss to the Summa of Honorius in Weigand, “Liebe und Ehe,” p. 48.

⁷⁰Paucapalea, Summa to C. 27 pr., closely followed by the treatise Sacramentum con- cipal goal of matrimony and that individuals ought to seek marriage partners sufficiently attractive to ward off outside temptations.^{[1100] [1101]} Other reasons for mar­riage, such as a desire for wealth or a need to form a family alliance, were sub­sidiary to fleeing fleshly temptations.^[1102] When the decretists spoke of mutual attraction between partners as a basic condition for marriage, they referred pri­marily to physical attraction, rather than to love or emotional attachment. Love, as they conceived it, was a consequence of marriage, not a cause of it.^[1103] At the same time, the decretists usually maintained that marriage was more than just a joining of bodies, but that it necessarily involved a joining of souls as well, to create a “solid friendship” (firma amicitia) in which husband and wife shared common likes and dislikes.^[1104]

Marriage for the decretists was more than just a contract, more than a sexual partnership for the breeding of children, and certainly more than an instrument for transmitting property and cementing ties between families. In addition to these other characteristics, the decretists saw marriage as a personal relation­ship between husband and wife, a relationship bonded by the marital affection that was essential to the matrimonial union.⁷⁵ This enlargement of the de­cretists’ concept of marriage was part of a broader development in the late twelfth century that has been called the discovery of the self.⁷⁶ Along with poets and theologians among their contemporaries, the decretists believed that inti­mate relationships should be grounded in a sharing of personal identity and outlook.⁷⁷ In marriage this shared identity included, but was not limited to, the partners’ sexual activity; their shared sexual relationship must be exclusive not only because law and morality required it, but also because infidelity betrayed the trust and affection upon which marriage was grounded.™

The identification of marriage primarily with emotional, rather than sexual aspects of the relationship between the parties enabled the decretists to ac­count gracefully for some anomalies in the traditional accounts of the union be­tween the Virgin Mary and St. Joseph. Those who accepted the coital theory of marriage had great difficulty in explaining how or in what sense the Blessed Virgin and Joseph had been married, and several mid-twelfth century commen­tators criticized Gratian’s theory of marriage formation precisely on this ac­count.⁷⁹ Those who grounded marriage on emotional rather than sexual ties had little difficulty in interpreting the union of Mary and Joseph as a legitimate marriage.⁸⁰

⁷⁵Huguccio, Summa to C. 27 q. 2 c. 36 v. quam in Vat. lat. 2280, fol. 262rb, and ed. Roman, p. 793: "Coniunctioncm, id est ex matrimonio et est personalis relatio.” Va- carius argued that marital consent implies emotional bonding of heart and mind; Summa de matrimonio, ed. Maitland, p. 274. See also Weigand, “Liebe und Ehe,” p. 42; Noonan, “Marital Affection,” p. 509; and Jean-Louis Flandrin, Les amours paysannes: amour et sexualite dans les Campagnes de Tancien France (XVIe-XIXe siecles), Collec­tion archives, no. 57 (Paris; Gallimard/Julliard, 1975), pp. 25-27.

⁷⁶Bynum, Jesus as Mother, p. 87.

⁷⁷Leclereq, Monks on Marriage, pp. 1, 8, 29, citing the views of Egbert of Schonau (d. 1184) and Richard of St. Victor (d. 1173).

⁷⁸Rolandus, Summa to C. 27 q. 2 c. 6 v. coniuges verius, ed. Thaner, pp. 127-28; Huguccio, Summa to C. 27 q. 2 c. 10 and c. 51, ed. Roman, pp. 759, 803.

⁷⁹Rolandus, Summa to C. 27 q. 2 c. 10 v. omne itaque, ed. Thaner, p. 128; Stephen of Tournai, Summa to C. 27 q. 2 pr., ed. Schulte, p. 235; Rufinus, Summa to C. 27 q. 2 pr., ed. Singer, pp. 444-45; Cardinalis, gloss to C. 27 q. 2 d.p.c. 29 v. Simplicitersponsa and v. quam Joseph, ed. Weigand, p. 79; Huguccio, Summa to C. 27 q. 2 c. 9, v. Coniugium fidele and to C. 27 q. 2 d.p.c. 39 v. futura erat coniux, in Weigand, "Gandulphus- glossen,” pp. 40, 41. See also Penny S. Gold, “The Marriage of Mary and Joseph in the Twelfth-Century Ideology of Marriage,” in Vern L. Bullough and James A. Brundage, eds., Sexual Practices and the Medieval Church (Buffalo: Prometheus Press, 1982), pp. 102-17.

⁸⁰Gandulphus, glosses to C. 27 q. 2 c. 3 v. copulam and C. 27 q. 2 c. 10, in Weigand, 'GandulphusgIosscn," pp. 28, 32; Vacarius, Summa de matrimonio, ed. Maitland, P∙ 279∙

When the decretists described a marriage as “legitimate,” they usually meant a union between persons who were legally capable of marrying one an­other. The decretists, like the civilians, also used “legitimate” on occasion to describe marriages contracted with the consent of the families of the parties and solemnized by a formal ceremony, but cautious writers hesitated to assign this meaning to the term. While customary law in regions as widely separated as Sicily and England required formal marriage ceremonies and dowries, the canonists did not.^[1105] Although they certainly did not oppose, and indeed rather favored, the use of wedding rituals and the formalization of property arrange­ments through dowry agreements, the decretists commonly held that none of these formalities was essential.^[1106] A union without these was as valid and as binding as one contracted with full pomp and circumstance, despite the prob­lems that private, informal marriages created. Betrothal, too, was not a neces­sary preliminary to marriage, although it was desirable; the canonists refused to hold prenuptial betrothal agreements binding if the parties subsequently changed their minds and decided to marry someone else.^[1107]

Without exception, the decretists insisted that consent to marriage must be free and uncoerced; the use of force in order to secure the agreement of either party might invalidate the marriage. They maintained, too, that while parents and families had the right to make known their preferences concerning their children’s marriages, elders had no right to impose those preferences on a child who objected to them.^[1108] The principle that marriage can only be contracted by free consent of the parties was often reiterated by decretists and Church officials.

Families continued through the twelfth century and beyond, however, to concoct stratagems of various kinds to secure compliance with their wedding aims. A Montpellier man in 1172, for example, disinherited any daughter who failed to comply with his plans for her marriage; this ploy, with numerous varia­tions, continued long in use. Parents even dictated marriage plans for their chil­dren in their wills: unless my daughter marries so-and-so, she shall receive no part of my estate; if she does marry him, however, then she shall receive such- and-such.^[1109] A person who went through a form of marriage in order to inherit an estate or to placate family members, but who never consented at heart to the union, could in theory appeal to the Church courts to be released from the marriage. Such cases were difficult to prove, but pleas of this sort occasionally succeeded.^[1110]®

Even greater problems arose with clandestine marriages. The decretists, faithful to Gratians teaching and to papal policy, recognized marriages that took place without formalities or witnesses as valid.^[1111] But jurists sought to discour­age hidden marriages, because they opened the way to abuse. Rufinus, for one, taught that couples who married secretly should be presumed to be living in adultery or fornication, unless they could rebut this presumption.^[1112] If the par­ties could somehow convince a judge that they had entered the union with the intention of contracting a permanent marriage, their union was deemed to have become legitimate after the fact.^[1113]

Couples who faced opposition from parents and family often married se­cretly in defiance of family pressure.^[1114] The decretists felt obliged to treat clan­destine marriages as valid because of their opposition to forced marriages and their concern to implement the basic principle of canonical marriage law, namely that free consent was essential to valid marriage. If a couple exchanged consent, it was logically difficult for decretists who accepted the consensual the­ory to deny validity to such a marriage, despite lack of witnesses, ceremonial, and the like. Indeed, the decretists were prepared to admit almost any sort of plausible testimony that corroborated the statements of the parties as evidence for an exchange of consent.^[1115]

Serious problems arose when a party who had allegedly been married by a clandestine exchange of consent later married another partner publicly. If the first spouse petitioned the Church courts to adjudge the earlier union valid, it might well happen that adequate evidence could not be produced to prove the existence of a marriage, even though both partners knew perfectly well that they had exchanged consent. In situations of this sort, the courts could find themselves requiring the partners in the second marriage to continue living to­gether in an adulterous union.^[1116] This was obviously unsatisfactory, but given the rules about clandestine marriage and the rules of evidence that the courts worked with, anomalous outcomes of this sort were unavoidable.^[1117]

An irregular but not infrequent type of marriage that twelfth-century de­cretists also had to cope with was the conditional marriage, where consent was contingent upon the fulfillment of a condition. Thus, “I marry you, but only on condition that you produce a son,” or “on condition that you give me a thousand gold pieces,” or “on condition that your father pay the dowry that he has prom­ised,” were typical contingencies.

Conditional marriages presented the decretists with painful choices. The canonists could have adopted three possible attitudes with respect to condi­tional marriages. First, they could have ignored the conditions and judged the validity of the marriage without reference to them. Second the jurists could have acknowledged the existence of the conditions, but denied that the validity of the marriage depended upon their fulfillment. Third, they could have ac­cepted the conditions as decisive for the existence of a legal marriage.^[1118] None of the alternatives was entirely acceptable, and no good solution to the problem was immediately apparent from the law as expounded in Gratian’s Decretum. The problem required, in fact, both further legislation to clarify the basic law and additional discussion of the constituent issues before a consensus on the problem of conditional marriage could emerge.^[1119]