Zeitschrift des Max-Planck-Instituts für europäische Rechtsgeschichte Rechts R Journal of the Max Planck Institute for European Legal History geschichte g Rechtsgeschichte Legal History www.rg.mpg.de http://www.rg-rechtsgeschichte.de/rg27 Rg 27 2019 71 – 89 Zitiervorschlag: Rechtsgeschichte – Legal History Rg 27 (2019) http://dx.doi.org/10.12946/rg27/071-089 David L. d’Avray * Werner Menski ** Authenticating Marriage: The Decree Tametsi in a Comparative Global Perspective * Department of History, University College London, [email protected] ** Faculty of Laws, School of Oriental and African Studies (SOAS), London Dieser Beitrag steht unter einer Creative Commons Attribution 4.0 International License Abstract The most common form of global history traces the growing power of the West and tries to explain it. There is a parallel story of the expansion of Christianity, in which the influence of the Council of Trent on the world as a whole deserves a more prominent place than it has received. But there is another kind of global history: the comparative sort. This article looks at the Council of Trent’s solution to the problem of clandestine marriages in a comparative perspective, showing how the prob- lems it faced are paralleled in three other societies, but also that a unique mechanism for dealing with them was created, the Congregatio Concilii. Keywords: Tametsi, Sharia, Pakistan, Trent, Hardwicke □× Fokus focus David L. d’Avray, Werner Menski Authenticating Marriage: The Decree Tametsi in a Comparative Global Perspective* Global history takes two forms. The first is the discussions before the Council of Trent’s de- structured chronologically, the second compara- cree Tametsi on marriage: viz., that positive law tively. The focus of the (very broadly) chronologi- lacks the power to impose an extra condition for cal sort is on seminal developments and influen- the validity of marriage; and eighteenth-century ces. Questions about how the West became more England, which tried to solve the problem along powerful and richer than the rest tend to domi- lines somewhat similar to those laid down by the nate, but the approach also works for religious Council of Trent. It emerges forcibly that this was history, not least for the spread of Christianity as a no easy problem to solve: that is common to all world religion throughout the globe. Under this four cases. There is also a finding about the specif- large rubric the history of the Council of Trent’s icity of the Counter-Reformation solution. Diffi- influence deserves a prominent position, for mis- cult though the problems created unintentionally sionary work was almost a Catholic monopoly in by Tametsi were, the creation of the Congregatio the early modern period, and the effect of the Concilii as the body with the task of implementing Council of Trent’s decrees on the areas mission- the Council’s non-dogmatic decrees provided a ised, in general and with special reference to way of dealing with them. Administrative in char- marriage, ought to be a major theme in that story. acter rather than legal in the ius commune sense, the In fact, the proportion of historical importance to Congregatio Concilii seems to have been relatively research undertaken is higher for this topic than nimble in responding to and resolving the prob- for most, and most of the contributions to this lems that new legislation invariably generates. Focus section help to redress that. Under the aegis of Pope Innocent III, with the It is also possible, however, to study the Council medieval papacy arguably at the peak of its power, of Trent’s marriage decrees in the framework of the in the context of across-the-board reforms, as then other sort of global history, that is to say, compa- conceived, the Fourth Lateran Council of 12151 ratively. By looking at responses of different soci- revolutionised marriage law in that it reduced the eties to approximately the same problem, one can »forbidden degrees« within which a valid marriage begin to discern patterns of similarity but also of could not be contracted from seven (sixth cousin) specificity. It is the aim of the present essay to ask to four (third cousin) and required that banns be such questions. read before marriages, in the hope that impedi- The Council of Trent attempted to change a ments would be revealed before the knot was tied.2 situation in which couples could get married What Lateran IV did not do was make the prior validly without any formalities. Here we look at reading of the banns, or any form of public that attempt in the light of other societies that had ceremony or registration, a condition for a mar- to face the same problem: medieval Europe, which riage to be actually valid – banns were required but addressed it wholly ineffectually; modern Pakistan, breakingthatrulewouldnotbeagroundfor which has still to overcome a conviction aired in annulment. It left the rule established in preceding * Wewouldliketothankthefollowing 1 For general background on this for help of various kinds: Benedetta council, see e. g. Foreville (1965). Albani,BonnieBlackburn,Charles 2 Fourth Lateran Council decrees 50, Donahue, Julian Hoppit, Daniela 51, 52; Tanner (1990) 257–259; Lombardi, Lyndal Roper, Silvana Baldwin (1970) 332–337. Seidel Menchi. This article has been published earlier in the Max Planck Institute for European Legal History Research Paper Series: http:// dx.doi.org/10.2139/ssrn.2754003. David L. d’Avray, Werner Menski 71 Rg 27 2019 decades that free consent was sufficient to make a well-crafted law could create entirely unforeseen marriage valid,3 and the consequences unfolded problems: thus, even if the Fourth Lateran Coun- over the next centuries. Until the Counter-Refor- cil had passed such a law, they would have faced a mation a couple could validly get married entirely host of unforeseen problems. The aftermath of the on their own – without priest, magistrate, or even Council of Trent also makes the same point, which witnesses – in Catholic Europe: Church authorities is brought home by soundings in a little-known did not like it, but they recognised the faits accom- fondo of the Congregation set up to implement plis. Granted that Lateran IV changed so much, it Tridentine decrees. The same soundings also show is good to think about the major negative fact that a method of resolving them quite different from the thirteenth-century council missed what might that of classical medieval canon law, and raise the seem to the modern observer an excellent oppor- question of whether this wider range of changes tunity to anticipate the Council of Trent’s ruling was even conceivable in the thirteenth century. on marriage in church: for it is well known that in The comparative method used here is combined the sixteenth century the Council of Trent made with a certain sort of counterfactual analysis. It is a a priest’s presence a sine qua non for a valid mar- different sort from speculations about what would riage between Catholics (decreeTametsi).4 The later have happened if Napoleon had won the battle of medieval marriage law’s unwilling acceptance of Waterloo, and equally far from the attempts at unauthenticated marriages is the point of contrast counterfactual quantification of the »New Eco- with three comparanda: modern Pakistan, eight- nomic History« that was in vogue especially in eenth-century England, and Tridentine Catholi- the 1960s and 1970s. It is closer to the approach cism, all of which faced the same problem and of Geoffrey Hawthorn,5 whose method deserves tried to fix it by making formal authentication more sustained attention from historians. Haw- procedures a sine qua non for a valid marriage. thorn’s method was to ask whether a given coun- The firstpartofthisessayexplorestheconse- terfactual scenario was within the realm of plausi- quences of the medieval Church’s inaction, but we bility at a given time. Did people making decisions then go on to ask what the alternatives were. Only atthetimehaveenoughroomformanoeuvreto comparative analyses can make this relatively con- bring about this other outcome? He argues, for crete. They all show how hard it was to move from instance, that the Black Death was unstoppable the assumption that divine law alone determined by human agency when it first hit Europe in 1348. what constituted a marriage to the regulation of A couple of generations later, however, people validity by positive human law – without breaking knew that a really ruthless cordon sanitaire could the link with the religious system, as modern keep it away from a given city or region. There was Western states do. Comparison and contrast with an alternative, though it required harsh decisions. modern Pakistan suggests that the Western Church Where a regime was in place capable of enforcing was better placed to legitimate such a change at such decisions, but did not do so, a different out- least with the religious elite, but also that religious come, escape from the plague, is plausibly counter- assumptions about the minimum requirements for factual.The objection to some counterfactual state- a valid marriage would not have been easy to alter, ments, that they do not answer historical questions, granted a widespread assumption that unofficial need not hold with Hawthorn’s methodology or contracts were valid in the eyes of God. Eighteenth- with the variant of it employed here. We offer century England suggests that even an apparently modal statements about the past in answer to modal 3 d’Avray (2008) 125–127. 4 Council of Trent, Sessio 24, De Ma- trimonio, Canones super reforma- tione circa matrimonium, in: Alberigo (1972) 755–757. For con- text see Jedin (1975), ch. 5 passim, and 156–158, 160–162, and Lombardi (2008) 100–105.