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) 197

can and Roman rales, including first cousins. Very slightly earlier, in a much discussed series of responses to the missionary St Augustine of Canterbury (c.601), Pope Gregory I had forbidden first-cousin marriages, ‘allowed by the law of the Roman state (respublica)' ,30 on the ground that they infringed the sacred law (sacra lex), meaning Leviticus, reinforced with the example of John the Baptist’s condemnation of Herod’s marriage with his sister-in-law, Hero- dias, but he explicitly permitted marriages in the third or fourth generation, that is between collateral descendants from a common great grandparent

.31

Vnde necesse est, ut iam tertia uel quarta generatio fidelium licenter sibi iungi debeant; nam secunda quam, quam praediximus, a se omnimodo debeat abstinere. (Hence the faithful should indeed lawfully marry (iam [...] debeat) relatives in the third or fourth generation, but not those in the second.)

This was in conformity with the Roman law just cited, although Gregory counted the generations to the common parent not degrees of relationship between spouses, so that descendants in the second generation from a common ancestor were related in the fourth degree in the Roman calculus, while in the ‘canonical’, they were in the second grade of consanguinity. These conceptual and computational differences were to have serious consequences when the two were merged into a six- or seven-generation table of incestuous relationships.

Sensitivity to the problem of incest grew during the seventh and eighth century, especially in ‘German’ lands. Although there was considerable variation from time to time and place to place, the net of incest was cast wider and wider.32 First, Gregory I’s instruction was modified by the concoction of a spurious

30 From Gregory’s Libellus responsionum to Augustine of Canterbury (c. 601), Bede’s Ecclesiastical History of the English People (ed. and trans. Colgrave, B. - Mynors, R. A. B.; Oxford Medieval Texts), Oxford 1969. 79-103, at 84-87 (i, 27, §5), esp. 84-85: Quaedam terrena lex in Romana republica permittit, ut siue fráter et soror seu duorum fratrum germanorum uel duo- rum sororum filius et filia misceantur. Sed experimento didicimus ex tali coniugio sobolem non posse sucrescere, et sacra lex prohibet cognationis turpitudinem reuelare. ‘Quaedam terrena lex’ referred to Cod. 5.4.19 (cf. Institutes, 1.10.4), which had in 405 removed the restrictions on cousin marriages.

31 Bede’s Ecclesiastical History, 84-85. Despite earlier challenges (Bede’s Ecclesiastical History, 79 n. 4, 84 n. 1) the authenticity of the whole of Gregory’s letter, including has recently been defended by Ubl, K., Inzestverbot und Gesetzgebung: die Konstruction eines Verbrechens (300-1100), Berlin 2008. 223, but cf. Meyvaert, P., Le Libellus Responsionum à Augustine de Canturbery; un oeuvre authentique de Saint Grégoire le grand’, in Grégoire le Grand (ed. Fontaine, J. - Gillet, R. - Pellistrandi, S.), Paris 1986. 543-550, at 546, who argued that the passage had been interpolated ‘dans le territoire lombard de l’Italie du Nord au VIIe siècle’.

32 De Jong, M., An Unresolved Riddle: Early Medieval Incest Legislation, in Franks and Alemanni in the Merovingian Period: An Ethnographic Perspective (ed. Wood, L), Woodbridge 1998. 107-124. Stone, R., Morality and Masculinity in the Carolingian Empire, Cambridge 2012. 255-267.