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) 205

Dico quia, legitimo consensu interueniente, ex eo statini coniuxfiiit quo spontanea pactione sese coniugem esse consensit. Non enim futurum promittebatur, sed presens firmabatur.

(I declare that, lawful consent having taken place,68 she became a wife from the moment she consented by voluntary agreement to be a wife. For it was not promised for the future, but confirmed in the present.)

Not only had Master Hugh, in a few short sentences, cut through all the confusions of terminology that had bedevilled the treatment of marriage for some centuries, but he also provided an example of the customary words in which present consent could be expressed. ‘When the man says, ‘I take thee as mine so that thou henceforth shalt be my wife and I thy husband’, and she similarly says, ‘I take thee as mine so that I henceforth shall be thy wife and thou my husband’.69

Cum ille dicit: Ego te accipio in meam, ut deinceps et tu uxor mea sis, et ego maritus tuus; et illa similiter dicit: ‘Ego te accipio in meum, ut deinceps et ego uxor tua sim et tu maritus meus ’.

Furthermore, he argued that clandestine marriages were valid if the parties declared them publicly:7"

Tunc siquidem voluntas propria suffragatur et vota légitima succurrunt, cum id quod in occulto fecerunt sponte utrique in manifesto profitentur.

(For then, indeed, the individual will is supported and lawful vows assist when both publicly profess what they willingly did in secret).

Hugh’s defence of consent as the essential element in sacramental marriage, which was consciously advanced against the opinions of ‘quidam’ (probably Gratian and his followers), as well as his distinction between engagement and matrimony became characteristic of what historians have called the ‘French school’ for the rest of the century, being echoed and extended by Peter Lombard (f 1160) and Peter the Chanter (f 1197), the Lombard writing his Sentences between 1155 and 1158 with a copy of Gratian’s Decretum before him.71

681 cannot see any justification for Butler and Brook’s translation of this clause as ‘if it was done by lawful consent’: JohnS, Letters, I. 229.

69 De sacramentis, xi.5: PL CLXXVI. 488.

70 De sacramentis, xi.6 (PL CLXXVI. 489).

71 Sententiarum libri quatuor, 4.26-37 (PL CXCII. 908-932), at 4.27.9 (PL CXCII. 913). For the modern edn, see Magistri Petri Lombardi Parisiensis Episcopi, Sententiae in IV Libris Distinc- tae, I-II (Spicilegium Bonaventurianum 4-5), Grottaferrata 1971-1981. III.