How Marriage Became One of the Sacraments: The Sacramental Theology of Marriage from its Medieval Origins to the Council of Trent
Philip L. Reynolds
Cambridge, Cambridge University Press, 2016, ISBN: 9781107146150; 1076pp.; Price: £82.99
Date accessed: 18 September, 2019
I imagine that in recent years John Witte, the series editor of the Cambridge Studies in Law and Christianity, frequently crossed paths with the author of the monograph under review here. Both of them work as faculty at Emory University in Atlanta and are senior members of Emory’s Center for the Study of Law and Religion, with Witte serving as its current director. Close professional ties are further suggested by the extravagant size of Philip Reynold’s new book which at almost 1100 printed pages speaks not only to his unflinching determination as a writer, but also to that of a press ready to accept his ponderous manuscript for publication.
What persists in the outcome is Reynolds’ sincere worry about the stamina of his readers. He acknowledges right from the start that he would not expect many of them ‘to read a book composed on this scale sequentially from cover to cover’ (p. xxvii). To facilitate their lot, he further chose to include an elaborate table of contents (pp. vii–xvii) that accommodates no less than 20 chapters and about 100 suitably descriptive subtitles. Additionally, his opening chapter provides ‘an overview of the entire study (pp. xxvii–xxviii)’, featuring the essence of his argument on what still amounts to a total of 98 pages.
How Marriage Became One of the Sacraments is indeed the central question pursued by Reynolds. Along with theology as a branch of higher learning in the Western Church, sacramental doctrine began to form in the early 12th century and attained mature articulation around the time of Thomas Aquinas who died in 1274. Reynolds admits (p. xxvi) that it was in his original plans to write a study on this ‘classical’ period in the elaboration of the Christian marriage formula alone. His realization, however, that the first generation of theologians soon after 1100 introduced an entirely new understanding of Saint Augustine’s teachings on the matter persuaded him to extend the investigation all the way back to the original statements of relevant authors and texts from Antiquity forward (chapters 2–6, pp. 99–243). He also noticed that the period of high scholasticism represented by towering figures like Thomas Aquinas did not offer a convenient place to end the book. Theologians continued to generate original thought and refinement long thereafter and certainly did not furnish any clear-cut break in the doctrinal development prior to the formulation of Tametsi, the famous reform decree on marriage issued by the Catholic Church at the Council of Trent in 1563 (chapters 17–20, pp. 725–982).
The rise of a single and coherent theory of sacramental marriage at the hands of 12th-century theologians and canon lawyers (chapters 7–11, pp. 244–458) together with the establishment of classical church doctrine through the thirteenth century (chapters 12–16, pp. 459–724) constitutes the core of Reynolds’ analysis. It takes his readers across relatively familiar ground and devotes much space to works and intellectuals readily expected to have shaped the consensus on marriage as a sacrament in the late medieval Western Church. Reynolds himself does not characterize his own contribution as particularly novel and prefers to consider it a useful synthesis and work of reference, with the added virtue of exhibiting his own ‘fresh’ reading of the original evidence instead of a mere reiteration of findings from the multilingual and widely scattered secondary literature. If he ‘wanted to do more than that’ (p. xxv), it was to identify with greater accuracy just who among medieval thinkers brought new elements to the scholastic debate and what it was that historically prompted them do to so.
Scholastic reflection ultimately established that the process of contracting sacramental marriage was comprised of several elements including a ‘future’ promise or the definitive ‘present’ consent between one eligible man and woman to marry each other, and the successive carnal consummation of their mutual commitment. Since the first sacramental bond had united Adam and Eve as early as in Paradise, moreover, theologians had to develop a rationale that would confer some of the sacramental blessings inherent in the institution to all of humanity and not merely the baptized. They also had to devise arguments in favor of something that would set Christian marriages apart from pagan ones and make the former worthier in God’s eyes. In due course, biblical exegesis led to the conclusion that absolute indissolubility could only reside in unions between two believers, reaching an almost perfect degree in those who had exchanged proper matrimonial vows while never attaining absolute perfection until intercourse had ensued between the partners. Theological finesse again abounded with regard to questions about the way in which matrimony differed from the remaining six sacraments, about how divine grace reached the newlyweds, and what exactly it consisted of.
For many observers then as well as today, however, the most startling component of scholastic sacramental doctrine was the insistence on free consent between the spouses as the sole requisite for marriage contracts to acquire validity. Neither a public ceremony, nor the presence of a priest, of relatives, or of witnesses was necessary to create permanent matrimonial obligations and secure approval from the ecclesiastical hierarchy. As a result, so-called clandestine marriages, contracted without publicity and sufficient testimony proliferated and quickly provoked prohibition from church as well as lay legislators. All the same, the rule establishing binding force ‘by consent alone (solo consensu)’ stood firm from its formulation in the 1100s to the promulgation of Tametsi in 1563, enduring for the astonishing length of 400 years. ‘Medieval clerics, canonists, and theologians did not celebrate the possibility of marrying clandestinely’, Reynolds writes in his concluding section, although ‘they reluctantly accepted that there was no way to make them invalid’ (pp. 981–2).
The unending issue of clandestinity, deeply embedded in the late medieval construct of sacramental marriage, affords Reynolds with an ideal opportunity to make good on his inaugural promise and expound why the scholastic experts would have ‘argued as they did, for they often used forms of argument that would convince few if any today’ (p. xxv). In order to uncover socio-historical causes such as the ones behind the peculiar theological choice of sole consent as the cornerstone of canonical marriage, Reynold laces his treatment with brief forays into the wider historical context and asked what tangible influences can be discerned beyond the narrow discourse of contemporary academics. In so doing and venturing outside his own primary expertise as a medievalist theologian and intellectual historian, he relinquishes the ‘fresh’ and direct consultation of the primary material on display elsewhere in his book and relies with greater regularity on works of secondary literature written in the English language.
The historians of medieval canon law cited by Reynolds generally agree on certain normative and political circumstances that supposedly informed 12th-century normative thought during the build-up of sacramental doctrine. In Reynolds’ words, for example, ‘the inclusion of marriage among the sacraments presupposed that the church had exclusive legal competence as regards both legislation and jurisdiction over the essential matters of marriage’ (p. 36). His assessment is in line with the widely held historiographical belief that church courts had managed to secure ‘exclusive jurisdiction over marriage around 1100’ (pp. 38–9), and prepared the ground for theologians to conceive of the institution as something that already possessed universality for Christians similar to the other sacraments. In effect, modern scholarship on England and Northern France quite unanimously delineates a historical setting in which both theory and practice had no one except ecclesiastical judges adjudicate whether or not marital claims were legally valid. To cite Ruth Mazo Karras (1), domestic partnerships outside of wedlock as defined by the priesthood could only feature as ‘unmarriages’ at the time.
Absent from the bibliography of the book, however, is the increasing number of studies investigating matrimonial litigation in other places, such as the works on judicial practice in the Northern Italian city-states by Silvana Seidel-Menchi and Cecilia Cristellon.(2) Beginning in the late 1990s, these authors have challenged the purported centrality of church law for the laity, citing rich archival evidence to argue that Italian marriages figured largely as privately notarized agreements, which left little room for spouses to consent freely and escape the heavy-handed brokerage and omnipresence of friends and family. In similar vein, Trevor Dean has shown that for centuries Italian city statutes criminalized persons who married without parental consent.(3) As late as in 1500, surprisingly few litigants took their matrimonial complaints to the bishop’s vicar who ordinarily would have been in charge according to the canonical norms. Lay indifference was further reinforced by the slowness or outright passivity ecclesiastical officials demonstrated far and wide, from England to Sicily and Portugal to Poland, when it came to prosecuting public allegations concerned even with the most notorious breaches of sacramental standards. During the heyday of Thomas Aquinas in the 1260s, moreover, the royal Castilian laws of the Siete partitdas (4.14) perpetuated the barragania, a form of civil marriage that explicitly permitted consensual splits or divorce in the modern sense of the word.(4) Writing on the eve of the Tridentine Council, the leading Spanish jurist, Gregorio Lopez (who died in 1560), continued to stress the plain impossibility of reconciling the lawfulness of the barragania with the matrimonial parameters set by the Roman Church.(5) As a result, ecclesiastical jurisdiction over legitimate sexual unions may have been aspirational rather than fully established in the 1100s and for many years thereafter.
When lastly, in 1563, the decree Tametsi transformed sacramental marriage from an event centered on the contracting couple to one hinging on the presence of the parish priest (and two additional witnesses) at the moment consent was exchanged, a revolutionary turnaround had occurred that contemporary observers as well as modern scholars have struggled to understand in historical terms. None of the proponents of the new rule, Reynolds intriguingly states in his final remarks, was able to ‘explain why invalidation was more expedient in the sixteenth century than hitherto’ (p. 982) and at any time following the development of sacramental theory in the 1100s.(6) The social history of what induced early scholasticism to embrace, say, clandestinity, thus remains unwritten notwithstanding the considerable achievement of Reynold’s book. For the first time, it offers Anglophone and global readerships a magisterial and comprehensive guide to Western theological reflection on a subject that is captured so adequately in the title.
- Ruth Mazo Karras, Unmarriages. Women, Men, and Sexual Unions in the Middle Ages (Philadelphia, PA, 2012).Back to (1)
- Silvana Seidel-Menchi, ‘I processi matrimoniali come fonte storica’, in Coniughi nemici. La separazione in Italia dal XII al XVII secolo, ed. Silvana Seidel-Menchi and Diego Quaglioni (Bologna, 2000) pp. 15–94; Cecilia Cristellon, La carità e l’eros. Il matrimonio, la Chiesa, i suoi giudici nella Venezia del Rinascimento (1420–1545) (Bologna, 2010); now available in English as Marriage, the Church and Its Judges in Renaissance Venice 1420–1545 (London, 2017).Back to (2)
- Trevor Dean, ‘A regional cluster? Italian secular laws on abduction, forced and clandestine marriage (fourteenth and fifteenth centuries)’, in Regional Variations in Matrimonial Law and Custom in Europe, 1150–1600, ed. Mia Korpiola (Leiden, 2011), pp. 147–59.Back to (3)
- Las Siete Partidas, 4.14, trans. Samuel Parsons Scott, ed. Robert I. Burns S.J. (Philadelphia, PA, 2001).Back to (4)
- Las Siete Partidas, 4.14.2, ‘Una sola’, in Las siete partidas del sabio Rey Don Alonso el Nono, ed. Gregorio Lopez de Tovar (7 vols; Valladolid, 1587–98), vol. 4, fol. 41rb (no. 15): ‘In order to create a licit concubinage, several things are required by the civil law, because concubinage cannot exist in any way according to canon law for it is contrary to the precept of the Ten Commandments: “Do not commit adultery” (my translation from the Latin)’.Back to (5)
- I am presently writing a monograph entitled ‘Marriage litigation in the Western Church, 1215–1517’, in which I intend to address this question.Back to (16)
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.
- 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)