Folia Theologica 14. (2003)
Szabolcs Anzelm Szuromi: A Turning Point in the History of the General Councils of the West in the 13th Century (A Critical Summary on the Importance of the Constitutions of the Fourth Lateran Council [1215] According to its Theological, Canonical and Historical Aspect)
A TURNING POINT 171 as to prohibit the blessing of hot water and hot iron for judicial ordeals.57 By the 12th century, through the activity of the University of Bologna and Pope Alexander III (1159-1181), the canonical concept regarding the importance of consent in the celebration of marriage was unified (cf. "consensus theory").58 Two accounts of marriage can be distinguished based upon Huguccio's works. According to one theory, marriage comes into being between a man and a woman at the moment of the public pronouncement of the matrimonial consent. According to a second theory, the marriage comes into being when, the parties having been betrothed (i.e., engaged by a free act of the will), the parties come together in the conjugal act at any time after the engagement (matrimonium praesumptum). The decretals of Innocent III which refer to the "consensus theory" were included in the Decretales Gregorii IX, and were, therefore, soon in force throughout the whole Church.59 But the clandestine marriages60 were often a cause of confusion since the form required for the validity of the sacrament of matrimony was not clearly regulated at that time.61 This is why canon 51 of Lateran IV prescribes public weddings in a church and also requires that there be a public proclamation of the marriage before the wedding, in order to ensure that both parties are free to contract marriage.62 In the 13th century, the canonically defined impediments to marriage included youth (i.e., when a party has not yet reached sufficient age), an already existing marriage bond, consanguinity, affinity, spiritual relationship such as between godparents and godchildren, a vow of 57 Canon 18. 58 Cf. DONAHUE, Ch., “The policy of Alexander the Third’s consent theory of marriage” in KUTTNER, S. (ed.), Proceedings of the Fourth International Congress of Medieval Canon Law (Monumenta iuris canonici C/5), Città del Vaticano 1976. 251-281. 59 X 4. 1. 2. cf. X 4. 1. 16; X 4. 1. 25. 60 NUZZO, L., “II matrimonio clandestino nella dottrina canonistica del basso medioevo” in Studia et Documenta Historiae et Iuris 64 (1998) 351-396. GARCIA SÁNCHEZ J., “La dispensa del impedimento de edad en un supuesto dei siglo XVI” in Revista Espanola de Derecho Canónico 56 (1999) 205-235. 61 FINCH, A.J., “Parental Authority and the Problem of clandestine Marriage in the Later Middle Ages” in Law and History Review 8 (1990) 189-204. 62 COD 258.
