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)

THE PARADOX OF MARRIAGE LAW: FROM ST PAUL TO LATERAN IV ( 1215) 191

example, and forms the foundation of Pope Leo I’s clarification of the difference between marriage and concubinage in the fifth century (458/9). Asked if a daughter could lawfully be given in marriage to a man who had had a concubine, Leo declared that she could, because marriage and concubinage were entirely different states, for concubinage lacked the nuptial mystery, the sacramentimi between man and wife:11

Unde cum societas nuptiarum ita ab initio constituta sit, ut preter sexuum con- junctionem haberet in se Christi et ecclesie sacramentum (Eph. 5: 32), dubium non est eam mulierem12 non pertinere ad matrimonium, in qua docetur nuptiale non fiiisse mysterium.1

(Thus, since the association of marriage (societas nuptiarum) was established from the beginning so that, apart from (preter) the union of the sexes, marriage should contain within itself the sacrament of Christ and the Church, there is no doubt that that woman [the concubine], in whom it is shown that there was no nuptial mystery (nuptiale mysterium), does not belong to matrimony.)

The presumption is that the concubine was a slave, with whom no lawful marriage was possible as long as she remained in her servile status. Pope Leo, indeed, allowed that exception: ‘unless it appears that that woman had been freed, given a dower, and made honourable through public nuptials (nisiforte ilia mu- lier, et ingenua facta, et dotata legitime, et publicis nuptiis honestata videa- turf, in which case, of course, the man could not lawfully marry anyone else.

But marriage was also a social institution, surrounded by customs and ceremonies which often obscured the essential element of consent. Family interests and the authority, especially of the bride’s father, often predominated. This cultural reality lay behind Pope Nicholas I’s crucially important response to the Bulgarian Khan Boris I four hundred years later in 866.14 Nicholas first distinguished between espousals (sponsalia) and marriage (nuptiae) in the Roman fashion, defining espousals as promised agreements to a future marriage (sponsalia [... ] futurarum sunt nuptiarum promissa foedera), before describing the

11 JL 544, Leo I to Rusticus of Narbonne, 458/9: PL LIV. 1197-1209, no. 167, at 1204-1205.

12 PL LIV. 1205.

13 Echoed in Sarum Missal, 417: Deus qui tam excellenti misterio coniugalem copulam consecras- ti ut christi et ecclesie sacramentum presignared in federe coniugalem (...).

14 On this important letter, see Dujèev, J., Die Responso Nicolai I Papae ad Consulta Bulgarorum als Quelle für die bulgarische Geschichte, in Santifaller, L. (Hrsg.), Festschriften zu Feier des zweihundertjähr. Bestandes des Haus-, Hof- und Staatsarchivs, I. Vienna 1949. 349-362; cf. Sheehan, M. M., The Bishop of Rome to a Barbarian King on the Rituals of Marriage, in Bowman, S. B. - Cody, B. E. (ed.), In iure veritas: Studies in Canon Law in Memory of Shafer Williams, Cincinnati 1991. 187-199 (repr. in Sheehan, M. M., Marriage, Family, and Law, 278-291).