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

life (Conjugium esse consensum legitimum (...) et legitime factum masculi et feminae ad individualem vitae consuetudinem observartdam).63 Moreover, he went on to distinguish between espousal and marriage:64

Nomen autem desponsationis non ipsum conjugii consensum quo matrimonium firmatur, sedpactionem et promissionem futuri consensus significare65 [...], quia et spondere non dare est aut facéré, sed promittere.

(The term engagement signifies not the consent to marriage that constitutes matrimony, but the agreement and promise of future consent [...], because to pledge is not to give or to do, but to promise).

Then he spelled out the difference between marriage (which could not be rescinded, unless it was intrinsicaly invalid) and a promise to marry (which could): ‘Indeed’, he wrote, ‘the sacrament of marriage is not promised for the future, but made permanent by the testimony of present consent (sacramentum conjugii non quidem [...] mutua sponsione futurum promittitur, sedpraesentis assensus attestatione firmatur)' ,66

At the time of writing, Master Hugh was one of the leading theologians in Latin Christendom, and his teaching, expressed with admirable clarity, reached a wide constituency. Indeed, I have argued, most recently in the Canon Law Congress at Toronto (2012), that this section of De sacramentis influenced Pope Innocent II’s judgment in a tricky marriage case appealed to him from England between 1138 and 1141. The case turned on whether the expression of present consent, without further solemnization or consummation, constituted an indissoluble marriage which could invalidate a later solemn marriage with someone else. Innocent’s response was unqualified:67

63 De sacramentis, xi, c.5: PL CLXXVI. 485-488, at 485. Ivo of Chartres, Decretum, 8.1, and the Panormia, 6.1, cited Inst. 1.9, Conjugium autem sive matrimonium est viri et mulieris conjunc- tio, individuam consuetudinem vitae continens, replacing coniugium with nuptiae, from which Gratian, in C.27 d.a.q.2, which replaces continens with retinens.

64 Ibid., PL CLXXVI. 487.

65 This seems to echo Nicholas I, above, at n. 15.

66 Ibid.. PL CLXXVI. 486.

67 Super eo quod: WH 1016; JL 8274; App. 6.31; 1 Comp. 4.1.10. For the Tresgoz vs Sackville case, to which it refers, see Duggan, A. J., Master of the Decretals, 389-390; for the canonical and theological context, see Duggan, A. J., "Our letters have not usually made law (legem fa- cere) on such matters" (Alexander III, 1169): a new look at the formation of the canon law of marriage in the twelfth century, in Goering, J. - Their, A. - Dusil, S. (ed.), Proceedings of the Fourteenth International Congress of Medieval Canon Law, Toronto, 5-11 August 2012, Città del Vaticano (in press).