Folia Theologica et Canonica 3. 25/17 (2014)

IUS CANONICUM - Anne J. Duggan, The paradox of marriage law: from St Paul to Lateran IV (1215)

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ANNE J. DUGGAN

the Virgin and St Joseph;7 8 in Roman law, the engagement (sponsalia) was an expression of willingness by both parties to make a nuptial contract, a preliminary stage which could be cancelled without legal penalty, as long as the parties returned any gifts they had received in contemplation of matrimony; and both laws permitted divorce and re-marriage. Equally both laws prohibited marriage between close relatives, variously defined, deeming them incestuous (nuptiae incestae), while marriages between persons of unequal status, as between slave and free, were forbidden. Only marriages between Roman citizens were deemed lawful, that is, recognized by law and subject to law, and a similar restriction applied to the Jewish people; and only persons of sound mind and lawful age, defined in Roman law as twelve years for a girl and fourteen for a boy, could marry. For the Roman citizen, however, given that all the legal requirements of lawful age, free birth, status, parental consent, and dower were met, the nuptial contract to share a common life was binding from the moment the man and the woman expressed their consent and before the couple had sexual relations, a principle neatly summarized by the Roman jurist Ulpian (t228): Nuptias non concubitus, sed consensus facit, subject in practice to the power of the paterfamilias.*

Although based on these two foundations, the conceptualization of Christian marriage was significantly modified by Christ’s condemnation of divorce, recorded by St Matthew (Matt. 19: 3-6), a passage which later sometimes provided the Gospel reading for nuptial masses.9 To monogamy was added the mutual commitment to live together according to God’s law until the bond was broken by death. Equally important was St Paul’s vision of the nuptial union as a great mystery, which signified the union between Christ and the Church: Sac- ramentum est magnum; ego autem dico in Christo et in ecclesia (Eph. 5: 32).10 His language echoes through the writings of St Augustine and St Ambrose, for

7 Jeremias, J., Jerusalem in the Time of Jesus, 368. St Matthew described the Virgin as both ‘betrothed’ (Matt. 1:18: desponsata) and as Joseph’s ‘wife’ (1: 20: conjugem tuam), while Joseph was ‘her husband’ (1: 19: virejus).

8 Dig. 50.17.30. The immediate effect of the consent is made explicit in another opinion of Ulpian preserved in Dig. 35.1.15: videtur impleta condicio statim atque ducta est uxor, quamvis non- dum in cubiculum mariti venerit. nuptias enim non concubitus, sed consensus facit. Cf. Dig. 23.2.1; D.24.1.32.13, non enim coitus matrimonium facit, sed maritalis affectio (Ulpian). For twelfth- and thirteenth-century commentators, see Donahue, Ch. Jr., 'The Case of the Man Who Fell into the Tiber: The Roman Law of Marriage at the Time of the Glossators’, in American Journal of Legal History 22 (1978) 1-53; cf. (for ‘Alexander Ill’s rules’). Duggan, A. J., The Effect of Alexander Ill’s “Rules on the Formation of Marriage” in Angevin England, in The R. Allen Brown Memorial Lecture 2010 (Anglo-Norman Studies), 33 (2011) 1-22.

9 Cf. The Sarum Missal (early 13th cent), ed. Wickham Legg, J. (Oxford 1916) 413—418 at 416.

10 One of the solemn prayers in the Sarum Missal, 417, includes an echo of the Pauline teaching: (...) Deus qui tarn excellenti misterio coniugalem copulam consecrasti ut christi et ecclesie sac- ramentum presignares in federe coniugalem (...): Sarum Missal, 417, n. (MS A).