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) 207

which the rules were used to attack marriage on grounds of real or imagined consanguinity or affinity.74 The pope’s concern was matched by a corresponding willingness to allow temporary general dispensations for specific regions (Greenland

,75 Sweden,76 and the Croatian province of Spalato),77 as well as dispensations for particular marriages78 and authorization for individual bishops to leave undisturbed existing marriages in the third/fourth or later grades which infringed the rules as transmitted through Gratian.79 His letters also show that the term incestus was applied only to liaisons with very close relatives, more or less in conformity with Leviticus 18, but including first cousins.80

It is important to recognize that such papal responsa were not devised as solemn adjustments to the general laws of the Church. Many, indeed, were at74 As in the Bohun vs Arderne case in 1178, where Alexander thought it ‘strange (incongruum) that the marriage of the aforesaid R.’s mother, which was not challenged when she was alive, should be attacked now’: Causam que inter R. et F.: WH 120; JL 14002; X 4.17.7: Duggan, A. J., The Nature of Alexander Ill's Contribution to Marriage Law, with Special Reference to Licet preter solitum, in Andersen. P. et al. (ed.), Law and Marriage in Medieval and Early Modern Times (Proceedings of the Eighth Carlsberg Conference on Medieval Legal History), Copenhagen 2012.45-65.

75 Chodrow, S. - Duggan, C. (ed., rev.), Decretales ineditae saeculi X//(Monumenta Iuris Canonici B/4), Città del Vaticano 1982. 149-151, no. 86, at 149, to 0ystein of Nidaros/Trondheim (1157/61-1188), allowing marriage in the fifth, sixth, and seventh degrees, until such time as it was no longer necessary: Duggan, A. J., The Decretals of Archbishop 0ystein of Trondheim (Nidaros), Blumenthal, U.-R. et al. (ed.), Proceedings of the Twelfth International Congress of Medieval Canon Law, Washington D.C., 1-7 August 2004, Città del Vaticano 2008.491-530, Appendix, no. 1. Earlier still, in 1152/3 Cardinal Nicholas Breakspear, legate for Eugenius III in Norway and Sweden, allowed marriages in the sixth and seventh degrees: Berquis, A., The Papal Legate: Nicholas Breakspear’s Scandinavian Mission, in Bolton, B. - Duggan, A. J. (ed.), Adrian TV. The English Pope (1154-1159), Studies and Texts, Aldershot, 2003. 41 —48, at 44^15.

76 PL CC. 849-852, no. 975, to Stephen of Uppsala, 1171/2.

77 Duggan, C., Decretal Letters to Hungary, 23-24, no. 10, to Gerard of Spalato, 1168 x 70.

78 E.g. in 1166 for the marriage of Geoffrey of England and Constance of Brittany (MTB, vi, 170-174 no. 292, at 170-171). They were second cousins, great-grandschildren of Henry I of England, and thus in the third or fourth degree, according to the mode of calculation.

79 Bishop John of Poitiers (1162-81) was authorized not to dissolve marriages in the third or fourth grade, unless they were ‘public and notorious’: Quoniam a nobis: Decretales ineditae, 55-56, no. 32§ii.

80 Ex tenore litterarum (1168-9), to the bishop of Thérouanne: Decretales ineditae, 29-30 no. 16, referred to relations with a man’s sisters, step-daughter, two sisters, aunt, neice, a mother and daughter, his wife’s mother, sister, daughter, aunt, or niece; Vice beati Petri (1171-1172), to Stephen of Uppsala, PL CC. 849-852, no. 975, at 850: illicit relations with mother, daughter, first cousin (consobrina), or niece (neptis); Aeterna et incommutabilis (6 July [1172], to King Knut Ericsson of Sweden, PL CC. 1259-1261, no. 1447bis, at 1259-1260: dead spouse’s blood relative. A similar distinction between close and near relations was made in the laws drawn up in Old English by Archbishop Wulfstan of York and issued by King Cnut at Winchester, 1021/2, which distinguished between close kin and ‘distant relatives’ (51.2): ‘It is not the same, that a man has intercourse with his sister, as with a distant relative’ (Councils and Synods [above, n. 22.], I/I. 498).