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Response to Review of How Marriage Became One of the Sacraments: The Sacramental Theology of Marriage from its Medieval Origins to the Council of Trent

I am grateful to Professor Müller for taking a look at my book on the medieval theology of marriage and for remarking on some aspects of it, mostly pertaining to canon law and litigation. In response, I shall note an error of fact, correct an omission, remark on an interesting point made by Müller, and, finally, comment on the puzzles of clandestinity during the central and late Middle Ages, to which Müller devotes several paragraphs.

Professor Müller says, ‘Reynolds himself does not characterize his own contribution as particularly novel and prefers to consider it a useful synthesis and work of reference’. That is not, in fact, how I ‘prefer to consider’ the book. Nor does it accurately describe what I intended to accomplish in writing it.

Professor Müller does not say much in his review about the sacramental theology of marriage and its history. Much of what the book provides is found in detailed analysis, especially of scholastic debates and of the proceedings at Trent. It also offers a fundamental historical reconsideration of some crucial phases in the sacramental theology of marriage, such as its origins in the so-called ‘School of Laon’. All this is hard to summarize. But I also pursue an overarching argument, and because Müller’s review does not convey this, I shall summarize it here in four main points.

First, when the doctrine emerged, there was nothing new about recognizing marriage as a holy estate and as a (lowly) way of participating in the life of the church. What was new was the ‘decision’ on the part of theologians and ecclesiastical authorities to account for the holiness of marriage by including marrying – and not the state of being married – among the seven sacraments of the church. Much of the ‘how’ explored in detail in this book pertains to the theologians’ efforts to make sense of this inclusion, which the canonists pretty much ignored, for it wasn’t their problem. In crucial respects, marrying just didn’t look like a sacrament, partly because what priests did in ‘dispensing’ it was not, as most theologians conceded, sacramentally essential but was rather a ‘sacramental’. This problem became acute after 1220 because scholastic theologians now construed the seven sacraments not only as a closed system, extending the benefits of Christ’s Passion, but also as a genus under which marriage was a univocal species. As time passed, the need to defend the proper place of marriage in the sacramental system only increased, and what had been a rather esoteric doctrine of the schools became a pillar of the faith. This development reached its zenith at the Council of Trent, when the entire Catholic conception of celibacy and marriage as hierarchically ordered ecclesiastical vocations was under attack by the Protestant ‘heretics’.

Second, the doctrine of marriage as a sacrament has to be understood in relation to the system of seven sacraments, which emerged at the same time. That system, I argue, established how, in addition to preaching, the ‘people’ were dependent on the mediation of the clergy for their salvation. (Neither kings nor religious were visible in this picture.) But since the ministry of priests was accidental to the sacrament of marriage, the church ‘dispensed’ this sacrament not by joining or blessing the spouses sacramentally but by regulating it. The church assumed sole responsibility for defining and sometimes changing the laws (the impediments and so forth), for supervising marrying, and for adjudicating cases pertaining to the marriage bond (validity and divorce), chiefly in episcopal courts. Skirting around some chicken-and-egg questions, we may safely say that the doctrine of marriage as a sacrament presupposed, confirmed, and provided a rationale for this exclusive jurisdiction. At the same time, theologians maintained that marriages ought to be contracted in an ecclesiastical setting with the blessing of a priest, since the ritual revealed the sacrament. From this perspective, a marriage contracted in a secular setting was akin to the performance of the bare essentials of baptism or eucharist in an improper setting without the liturgical sacramentals. Theologians such as Albertus Magnus, Bonaventure, and Thomas Aquinas went as far as they could toward construing marrying as a sacrament dispensed with the blessing of the priest, but they were forced to qualify or to draw back from that position.

Third, the problems and the peculiarities of marriage as one the sacraments gave rise to the recognition that marriage was a peculiarly hybrid sacrament in several respects. Whereas baptism was only a ritual washing, and eucharist only a ritual meal, Christian marriage really was marriage. Theologians had inquired since the early 12th century into the relationship between marriage as a sacrament of the church and marriage as a civil institution common to all peoples everywhere. Albertus Magnus and Thomas Aquinas showed that marriage could be fully explained in political, merely human terms, prior to its special status as a sacrament. The most important outcome of these inquiries was the theory that marriage was both a civil contract and a sacred sacrament, for which Thomas Aquinas deserves most of the credit. Thomas claimed that the contract of marriage was related to the sacrament as water was related to baptism.

Thomas’s brief but definitive exposition of this theory in his early commentary on Peter Lombard’s Sentences was seminal, and it came up again and again during the discussion of clandestinity at the Council of Trent. In the view of most of those who favored the invalidation of clandestine marriage at Trent, which all but a very few of the prelates conceded would be major innovation, the church would be invalidating not a sacrament per se but the underlying civil contract, just as the power of a priest to convert wine into Christ’s blood would be prevented if the wine first turned into vinegar through some natural cause. This rationale was not, its proponents claimed, sacramental or theological but rather civil and contractual, pertaining to the power of the ‘prince’ over contracts in the political community, for most conceded that the church had no power to alter the essence of a sacrament. The church would invalidate clandestine marriages henceforth, they held, not by virtue of her divine power over the sacraments, but as the relevant civil authority: as the res publica christiana. None of the proponents deduced that secular authorities were entitled to regulate the contract, nor that secular courts should adjudicate it.

Fourth, medieval theologians parsed marriage in several ways in terms of diverse branches of law. For example, Albertus Magnus claimed that marriage had received four cumulative ‘institutions’, respectively under the natural law, the Mosaic law, (Roman) civil law, and the New Law of Jesus Christ. Again, Thomas Aquinas proposed in the Summa contra gentiles (IV.78) that marriage was subject to natural law insofar as it perpetuated the species, to civil law insofar as it perpetuated the political community, and to the governance (regimen) of the church insofar as it perpetuated the ecclesiastical community. Such thinking shaped how theologians and the prelates at Trent differentiated between the contract of marriage, subject to civil law (albeit in this case handled by ecclesiastical courts), and the sacrament, subject to divine law and to ecclesiastical statute. Nevertheless, this legal ‘parsing’ did not presuppose, strange though this may seem to us, any division of actual jurisdiction.

The church’s claim of exclusive jurisdiction over marrying per se (as distinct from its consequences) was both historically and theologically fundamental to the doctrine. But prof. Müller rightly points out that in adopting a standard narrative of this ‘clerical takeover’, I failed to note that it was not uncontested in practice. After all, this was an ecclesiastical doctrine, not a description of what actually happened. Müller points to evidence that aggrieved spouses in the central and late Middle Ages sometimes pursued ‘matrimonial litigation in other places’. Frederik Pedersen has touched on this possibility in an article on marriage litigation in late-medieval England, where he suggests that savvy aggrieved spouses chose strategically from which kind of court, secular or sacred, to seek redress. Pedersen also discusses a case in which Parliament adjudicated a matrimonial matter that should by rights have been ecclesiastical.(1) It is hardly imaginable, in any case, that ecclesiastical authorities had totalitarian control over what other courts were up to, especially in the Italian city states, where (as I note in the book) notarization of marriages fulfilled the role that ecclesiastical witness fulfilled in Anglo-Norman culture, and where the profile of the church and the clergy in marrying was much less conspicuous than it was in northern France and England. Nor does it seem likely that the demarcation between ecclesiastical and secular legal interests in marriage, even when it was recognized in theory, was always observed in practice. Contrariwise, the clerical takeover was at least remarkably successful. It much more than wishful thinking.

This omission does not affect my central narrative, which is about theology and doctrine and not about litigation. (I depend entirely on work by other scholars for background information regarding litigation and episcopal courts.) But if there was not just inconsistency and noise but a sustained, theoretically informed dissonance – a Duby-esque contest between ecclesiastical and secular models of marriage litigation that persisted into the central and late Middle Ages – then that fact might shed light on the theologians’ theory of marriage as both contract and sacrament, and on their arguments about the civil and sacred aspects of marriage.

Finally, Prof. Müller observes that the history of ‘what induced … scholasticism to embrace … clandestinity … remains unwritten’. I am not sure whether Müller is referring specifically to scholastic theologians here; nor why he singles out the schoolmen in particular rather than churchmen in general, or bishops, or popes. Be that as it may, it is false to say that scholastic theologians embraced clandestinity. Rather, they very reluctantly conceded that clandestine marriage, while it was quite wrong, was nonetheless valid. Its validity, other things being equal, followed necessarily from their account of marriage qua sacrament. Hugh of Saint-Victor, in the first extensive treatment of the perils of clandestinity, observed that the problem would not exist if clandestine marriages were ruled invalid, but he conceded that the consensus of tradition ruled out that option. In any case, I doubt whether scholastic theologians by around 1200 had much influence on ecclesiastical policy regarding marriage. Their task was only to provide a satisfying rationale for the policy, as they did right up to the eve of Trent.

The real question, I submit, is why the medieval ‘church’ (if I may be forgiven for reifying so complicated a corporation) never ruled, as a matter of doctrine and canon law, that only marriages joined by a priest were real and valid, as the ‘Greeks’ had done since the sixth century. I don’t doubt that scholastic theologians could have provided an adequate a priori rationale for that policy if it had been adopted. Gratian himself, drawing on Hincmar of Rheims, suggested that a marriage became irrevocable only when a priest blessed the union, although this part of his treatment was largely forgotten (C. 27 q. 2 dictum post c. 50).

I addressed this question only indirectly in the book, for the cultural divergence between East and West that it presupposes seems imponderable. Nevertheless, I had in mind and occasionally alluded to two plausible and mutually consistent lines of explanation for the western church’s reticence. On the one hand, churchmen could only go so far in making marriage an ecclesiastical institution, for they had to accept its prevailing secularity. Churchmen had to struggle mightily and with only partial success even to get folk to solemnize their marriages in or at a church, and they were unable to eradicate aspects of the prevailing conceptions and custom that were inconsistent with ecclesiastical doctrines and norms, such as the notion that one married gradually through a kind of stepwise courtship, and the expectation that sex could rightly begin before solemnization. On the other hand, in order to affirm their own control over marriage, churchmen had to reserve the right to come between parents and children in the choice of marriage partners. There is plenty of evidence for the first line of argument. The second is merely speculative, but it makes good sense. If there is a puzzle here, it pertains to the presumed readiness of many bishops (for here too there were regional variations) to come between fathers and the marriage choices of their sons and daughters.

Virtually all of the prelates at Trent agreed with the Protestants that clandestine marriage was a major social evil, and the main concern of those who wanted to make clandestine marriage invalid at Trent was that it wrecked families by obstructing paternal authority. Moreover, the early drafts of what became the decree Tametsi included also the invalidation of marriages made without parental consent, although this clause (to the dismay of the French) did not make it to the promulgated decree, having been abandoned at the third draft with little opposition. The theory of marriage as contract-and-sacrament provided the only plausible rationale for overriding the church’s traditional reticence. The eventual invalidation of marriages not witnessed by the church, despite its proponents’ ingenious efforts, was barely consistent with the sacramental doctrine that they had already affirmed, as the opponents pointed out. How could witnessing an act become a defining feature of the act itself? The answer given was that this was acceptable in contract law, and that the council was invalidating the contract without ‘touching’ the sacrament. A puzzling feature of this debate is the fact that most of the sizable minority of prelates who opposed invalidation and defended the traditional position were Italians. (Contrariwise, roughly half of the Italian prelates were opponents.) I was unable to suggest any explanation for this correlation.

Notes

  1. Frederik Pedersen, ‘Marriage contracts and the Church Courts of fourteenth-century England’, in To Have and To Hold: Marrying and Its Documentation in Western Christendom, 400–1600, ed. Philip L. Reynolds and John Witte, Jr. (Cambridge, 2007), pp. 287–331.Back to (1)