The Canon Law On the Formation of Marriage and Social Practice in the Later Middle Ages

Abstract

The legal rules concerning the formation of marriage adopted by Pope Alexander III (1159-1181) gave considerable freedom to marriage partners to form a marriage without the consent of their parents or lords. A preliminary survey of the surviving records from the medieval church courts in both England and France suggests that there were substantial differences in the types of marriage-formation cases being heard in the two countries. The difference in types of cases, in turn, suggests that by the end of the Middle Ages, French parents were having more success than English in controlling the marriage choices of their children.In a series of decretal letters dating from the end of his pontificate in the late twelfth century, Pope Alexander III synthesized the canon law of the formation of marriage. Because of the church courts' exclusive jurisdiction throughout Western Europe over cases concerning the formation of marriage, rules derived from Alexander's synthesis were applied in all Western European countries until the Reformation. For most Catholic countries, they were changed by the decree Tametsi of the council of Trent in 1563.They remained in effect in England, however, until the middle of the eighteenth century.' 1 Briefly stated, Alexander's marriage rules were these:1. Present consent (&dquo;I take thee as wife/husband&dquo;), freely given by a man and woman capable of marriage, made a valid marriage, which was indissoluble during the joint lives of the contracting parties, except in the most unusual of circumstances.2. Future consent (&dquo;I promise to take thee as wife/ husband&dquo;), freely given by a man and woman capable of marriage, made a valid, indissoluble marriage, if that consent was followed by sexual intercourse between the parties.3. Any Christian man was capable of marrying any Christian woman, if both were over the minimum age of consent (seven in the case of future consent; fourteen for the man and twelve for the woman in the case of present consent), if neither had been previously married to someone else who was still living, if neither was in major orders or had previously taken a solemn vow of chastity, and if the parties were not too closely related to each other.2 2 *Research for this article was supported by a generous fellowship from the Guggenheim Foundation.'The best general history of the canon law of marriage, Esmein, Mariage, is now somewhat out of date. For Alexander and his decretals, see bibliography cited in note 2, below. For England, see Giesen, Grundlagen und Entwicklung.2 For the rules, see Dauvillier, Marriage, confirmed, with some qualifications, in Donahue,

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