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

tempts to offer solutions to individual problems,81 and they received wider legal authority only when incorporated into collections of decretales or canones,82 83 Even as Alexander III granted relaxation of the consanguinity rules for the Norwegian island (Greenland), he refused Archbishop Oystein’s request for a general relaxation on the ground that he ‘could not find that any such general dispensation had been made in the constitutions of the holy fathers and by the sacred canons, except that which the blessed Gregory had granted to the recently converted English, that they could marry in the fourth grade, and afterwards revoked (nos siquidem in sanctorum patrum constitutis et sanctis cano- nibus aliquam in huiusmodi dispensationem non legimus generaliter factam fuisse, nisi quod beatus Gregorius Anglis nouiter adfidem conuersis ut in iiiior. gradu matrimonium contrahere possent induisit, quod ipse idem posteci reuo- cauity.83 Hence, he could not give a specific answer, ‘because our rescripts have not usually made law on such matters (cum scripta nostra super talibus legem facere non consueuerunty.

As late as 1192, Celestine III was reluctant to allow a less rigorous interpretation of the consanguinity rules for Oslo (which already enjoyed the special relaxation allowed by Nicholas Breakepear84), because he was afraid that such change would disturb the population. Asked whether a man in the sixth degree of descent could, despite local custom to the contrary, marry a woman related to the same ancestor in the second or third degree, ‘following the rule approved by some teachers (secundum regulám, a quibusdam doctoribus approbatam)', Celestine gave preference to local custom:85

Unde in hac parte consultius duximus multitudini et observatae consuetudini de- ferendum, quam alìud in dissensionem et scandalum populi statuendum, quadam adhibita novitate.

(Therefore in this regard we deem it more advisable (consultius) to defer to the custom observed by many than to establish something that causes disagreement (dissentio) and scandal among the people on the basis of some novelty).

81 Duggan, C., Equity and Compassion in Papal Marriage Decretals to England, in van Hoecke, W. (ed.), Love and Marriage in the Twelfth Century, Leuven 1981.59-87 (repr. with the same pagination in idem, Decretals and the Creation of 'New Law’ in the Twelfth Century. Judges, Judgements, Equity and Law, CS 607; Aldershot, 1998), no. IX.

82 Duggan, A. J., Making Law or Not? The Function of Papal Decretals in the Twelfth Century, Erdő, P. - Szuromi, Sz. A. (ed.), Proceedings of the Thirteenth International Congress of Medieval Canon Law, Esztergom 2008, Città del Vaticano 2010. 41-70.

83 Decretales ineditae, 149-151 no. 86, at 149, almost certainly relying on Gratian, C.35 q.5 c.2: see above, at n. 34.

84 Above, n. 75.

85 Quod dilectio tua, to Nicholas Arnesson, bishop-elect of Oslo ( 1190-1225): JL 17671 ; see Holtz- mann, W., La “Collectio Seguntina " et les décrétales de Clément III et de Célestin III, in Revue d’histoire ecclésiastique 50 (1955) 400^153 at 440-441, no. 76 (for the arenga) + X 4.14.3.