A companion to the author's Dissolving Royal Marriages: A Documentary History 860–1600 (New York: Cambridge University, 2014), this clear sighted-book takes aim at two oft repeated criticisms of the legal system of the medieval church: 1) that the complexity and malleability of its law of marriage allowed wealthy laymen to secure divorces in violation of the principle that Christian unions were indissoluble; and 2) that its system of matrimonial dispensations was mischievous and irrational, designed primarily to fill papal coffers. Neither criticism is warranted, the author maintains. This conclusion emerges from a careful study of royal marriage cases.
Understanding the first subject requires familiarity with the intricacies of the canon law of marriage. It held that a marriage freely contracted by words of present consent and entered into by a legally competent man and woman beyond the age of puberty was indissoluble, at least if neither party was not bound by a prior matrimonial bond, if they were not too closely related to each other, and if their contract was subsequently consummated by sexual union. These requirements left what now appear to have been “escape hatches,” and the kings whose actions are surveyed in this study sought to take advantage of them. However, the popes stood fast against attempts that went beyond established legal categories. Despite the plenitudo potestatis claimed by the successors of St. Peter, the canonical rules bound not only kings; they bound the popes themselves. True, the popes had formulated the rules in the first place, and in some circumstances, their own actions were taken as the proper measure of how far the “escape clauses” extended, but once the rules had been established, they were not set aside. The popes refused all contrary requests, and had they succumbed to pressure, their action would have been condemned by what the author calls “the legally literate world of the higher clergy” (217). The existence of this check on the exercise of papal authority is an intriguing point—one not often noted in historical accounts of the papacy. It might profitably have been more fully explored with discussion and examples of its exercise.
The second subject of the book's coverage takes up matrimonial dispensations. Dispensations allowed persons not otherwise eligible to marry to do so, typically men and women related to each other within the prohibited degrees of affinity or consanguinity. One counted down from a common ancestor, and if fewer than five steps were required to reach the man and woman, marriage between them was unlawful. Except for the closest degrees, however, the rules were subject to relaxation at the hands of the papacy. And here, worldly factors counted. Dispensations required the payment of money, they were given more readily to the great than to the humble, and political considerations counted in their issuance. The operative rule was that no secular ruler who had earned the enmity of the reigning pontiff need apply.
How then to explain this disparity between the treatment of dispensations and annulments? The answer lies in the purposes of the two and in theology more than in law. The rule of indissolubility was a rule of divine law established by the command of Jesus: “Whom God has joined together let no man put asunder” (Matthew 19:6). The rules involving the prohibited degrees, by contrast, were “man-made” (94). They served a social purpose (210). Traceable back to the fertile intelligence of St. Augustine, the idea was that the kinship disqualifications were intended to extend the bonds of charity by encouraging marriage outside familial groups. When more pressing needs intervened, however, that goal gave way. Rightly so. Thus, for example, if a monarch needed an heir to secure peace in his realm, the societal goal of peace might outweigh the purpose Augustine had articulated, and it was left to the popes to do the weighing and make the decision. Therefore, the two areas of the law did not conflict.
They did come into tension, however, in one circumstance: application of the rule that a papal dispensation had to be exact to have effect. Dispensations were not blanket permissions to marry a specific person. They simply removed a disqualification. To render a marriage lawful, they had to state correctly what that disqualification was. Permission to marry a person related in the third degree of consanguinity did not cover a marriage barred by the fourth degree of consanguinity, even the persons involved were correctly named in the dispensation. It was a question like this that clouded the most famous royal divorce, that of England's Henry VIII, and cases like his were not rare at the papal court. A technically invalid dispensation thus provided a road to divorce. One wishes, therefore, that the author had considered and confronted the findings in the book whose subject and approach most closely matches his own, John Noonan's Power to Dissolve (Cambridge, Mass.: Harvard University, 1972). Judge Noonan's historical survey of high profile marriage cases decided in Rome led him to a negative assessment of the system. What he found was repeated “dispensationship” (332). It treated litigation as “an especially artificial game” (325). That game, he argued, could have been avoided. The canon law itself offered a way out. Men and women who had secured dispensations could have been dealt with either under the common canonical principle that some actions might be illicit but still legally valid, or else subjected to the equitable principle of estoppel. The latter, an accepted part of the church's jurisprudence, holds that a person who seeks and receives a benefit should not later be allowed to dispute its validity when others have relied on it. At the Roman court, neither alternative was taken, and in Judge Noonan's view, that failure “lessened the seriousness of the moral order” (326).
