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Texts and Commentary P1: KNP CUUS187-01 CUUS187/Donahue 978 0 521 87728 2 February 9, 2008 16:18 Texts and Commentary 1. Introd, n. 5: The closest that the developed classical law came to an impediment on cross-class marriages was the impediment of error of person, and this was not a prohibition of cross-class marriage but a rule designed to ensure that one knew what one was doing. See Ch 1. 2. Introd, n. 6: For marriage among the lower strata of English society, see Homans, English Villagers, 144–94. For women, see Stenton, English Woman in History, 29–74. For some causes cel´ ebres` involving diplomatic marriages, see Smith, Papal Enforcement. See generally Howard, History of Matrimonial Institutions. 3. Introd, n. 7: Nul besoin d’insister sur le fait que tout mariage etait´ alors une affaire decidee,´ conduite, et conclue par le pere` et les anciens du lignage. 4. Introd, n. 8: See Holdsworth, History of English Law, 3:31, 201; Pollock and Maitland, History of English Law, 1:368, 372–3; Bennett, Life on the English Manor, 240–8; Homans, English Villagers, 149–52. 5. Introd, n. 17: Compare, e.g., Armengaud, La famille et l’enfant; Mousnier, La famille, l’enfant et l’education´ , and Pillorget, La tige et le rameau, with Macfarlane, Origins of English Individualism, and Macfarlane, Marriage and Love in England. 6. Introd, n. 23: See id. 344–6; Luther, Tischreden 1:229–30, in Werke 62; preamble to Stat., 32 Hen. 8, c. 38 (1540); Council of Trent, sess. 24, Canones super reformatione matrimonii,c.1(Tametsi), in Decrees of the Ecumenical Councils 2:755–6. Luther’s objections were anticipated by Hugh of St Victor, even before Alexander. De sacramentis 2.11.6, in PL 176:488C–494A; Deferrari, trans., pp. 333–9. Considering that Luther and Hugh were both Augustinians, the former may have derived his objections from the latter rather than, as he says, from hearing confessions. 7. Introd, n. 25: See Turlan, “Recherches,” 503–16, for a similar point; it is raised explicitly by Alexander’s contemporary Vacarius. Summa de matrimonio,p.277. 8. Introd, n. 26:Onthe sources of the Romeo and Juliet story, see Moore, Legend of Romeo and Juliet. Another striking English Renaissance literary example of an informal marriage entered into to avoid family pressure may be found in John Webster’s Duchess of Malfi. 9. Introd, n. 33: Most of the records reported in these two books contain marriage cases; some of them contain hundreds; a few, e.g., Cambrai, contain thousands. 10. Introd, n. 38: For a recent study of the literary evidence, with some provocative conclusions about the institution of marriage generally, see McCarthy, Marriage in Medieval England. For a remarkable study of some thirteenth-century marriage sermons, with a powerful argument that they did affect what people thought about the institution, see d’Avray, Medieval Marriage Sermons. His equally remarkable general study, d’Avray, Medieval Marriage, arrived too late for its findings to be fully incorporated in this book. It should be read in conjunction with this book. Both McCarthy’s book and d’Avray’s more general book contain extensive references to and appreciations of the current literature, making that unnecessary here. 673 P1: KNP CUUS187-01 CUUS187/Donahue 978 0 521 87728 2 February 9, 2008 16:18 674 Texts and Commentary 11. Introd, n. 39: See, for example, the use that Hanawalt made of coroners’ rolls in Ties That Bound, and in a number of other works, or the use made of manor court rolls (rolls that frequently record administration as much as disputes) by a whole raft of scholars of whom Bennett, Women in the Medieval English Countryside, may be taken as an example. 12. Ch 1, n. 2: The outline given here refers for the most part to primary sources. Fuller accounts may be found in Brundage, Law, Sex, and Gaudemet, Mariage en occident, both with bibliographical references. For even more detailed accounts, the older works, Dauvillier, Mariage; Esmein, Mariage, and Freisen, Eherecht, are still valuable, though, in some measure, superseded. 13. Ch 1, n. 3: The Tancredian-Raymondian Summa survives in many manuscripts. As revised by Raymond, the work is quite unusual in its mixture of issues that concern the internal forum of the confessional and those that concern the external forum of the courts. It also treats of sponsalia de futuro only in passing, a characteristic also of the original work by Tancred. 14. Ch 1, n. 6: The Repertorium poenitentiariae germanicum should have references to the practice if it was widespread. I will not say that there are none there, but a rather careful examination of the first (1431–47) and fifth (1464–71) volumes did not reveal any. 15. Ch 1, n. 7: XetYper verba de presenti seu per verba de futuro carnali copula subsecuta matrimonium ad invicem legitime contraxerunt. Later in the book I will call this the ‘formula’ libel. E.g., Ch 2, n. 35;Ch6,nn. 64–8, 163. 16. Ch 1, n. 10: This was the impediment of disparity of cult, the dispensability of which was not, so far as I am aware, discussed until after the council of Trent. See Esmein, Mariage, 2:378–9. 17. Ch 1, n. 11: Error, conditio, votum, cognatio, crimen / cultus disparitas, vis, ordo, ligamen, honestas / Si sis affinis, si forte coire nequibis / Hec socianda vetant connubia, iuncta retractant. Ecclesiae vetitum, necnon tempus feriatum / Impediunt fieri, permittunt facta teneri.Tancred, Summa de matrimonio 15, pp. 17, 18. 18. Ch 1, n. 12: The only such case with which we will deal in this book is Frothyngham c Bedale (Ch 5, at n. 100). Here, however, we are not dealing with consent but with the sexual intercourse necessary to form the marriage. The woman claimed that she was drunk at the time. 19. Ch 1, n. 13: Inter alia impedimenta matrimonii impossibilitas coeundi maximum obtinet locum quoniam ex sui natura potius quam ex constitutione ecclesiae impedit matrimonium. 20. Ch 1, n. 17: That Alexander is citing Gratian is reasonably clear because he describes the rule as quod in Decretis habetur expressum. 21. Ch 1, n. 19:X4.2.1 (Alexander III, Litteras tue fraternitatis,WH631) and Canones-Sammlungen,63(1 Par. 180, Alexander III, Continebatur. Porro si,WH204[b]); cf. X 4.2.5 (Alexander III, Accessit ad presentiam, WH 12). 22. Ch 1, n. 21: Si autem fuerit aetati proxima, ut in undecimo vel circa XII annum, et cum suo assensu desponsata et cognita ab eodem viro, separari non debet, etc. 23. Ch 1, n. 23: si ita fuerint aetati proximi quod potuerint copula carnali coniungi, minoris aetatis intuitu separari non debent. 24. Ch 1, n. 24: De muliere quae est invita tradita viro et detenta, quum inter vim et vim sit differentia et utrum postea consensus intercesserit nobis nihil postea expressisti, nihil certum inde tibi possumus respondere. 25. Ch 1, n. 26: Quum locum non habeat consensus ubi metus vel coactio intercedit, necesse est ut ubi consensus cuiusquam requiritur coactionis materia repellatur. Matrimonium autem solo consensu contrahitur, et ubi de ipso quaeritur plena debet securitate ille [most mss. omit] gaudere cuius est animus indagandus ne per timorem dicat sibi placere quod odit et sequatur exitus qui de invitis solet nuptiis provenire.Asimilar sequestration order is given in X 2.13.8 (Ex transmissa,WH495[a]), but there the fear is that the knight will harm the girl. P1: KNP CUUS187-01 CUUS187/Donahue 978 0 521 87728 2 February 9, 2008 16:18 Texts and Commentary 675 26. Ch 1, n. 27: secundae, nisi metu coactus qui possset in virum constantem cadere eam desponsaverit, [ipsum] adhaerere facias ut uxori. 27. Ch 1, n. 29: Iudex secundum diversitatem personarum et locorum iudicabit qualis sit metus et iudicabit matrimonium aliquod, aut nullum. 28. Ch 1, n. 31: Sane, iuxta verbum Apostoli, sicut in Christo Iesu neque liber neque servus est a scramentis ecclesiae removendus, ita nec inter servos matrimonia debent ullatenus prohiberi. Et si contradicentibus domi- nis et invitis contracta fuerint, nulla ratione sunt propter hoc dissolvenda, debita temen et consueta servitia non minus debent propriis dominis exhiberi. See Landau, “Hadrians Dekretale ‘Dignum est’”; Sahaydachny, De coniugio seruorum. 29. Ch 1, n. 34: Si vero aliquis sub huiusmodi verbis iuramentum alicui mulieri praestiterit:‘Ego te in uxorem accipiam, si tantum mihi donaveris’, reus periurii non habebitur si eam nolentem sibi solvere quod sibi dari petiit non acceperit in uxorem, nisi consensus de praesenti aut carnis sit inter eos commixtio subsecuta. 30. Ch 1, n. 35: Si conditiones contra substantiam coniugii inserantur, puta, si alter dicat alteri:‘contraho tecum si generationem prolis evites’, vel ‘donec inveniam aliam honore vel faculatibus digniorem’, aut ‘si pro questu adulterandam te tradas’, matrimonialis contractus, quantumcunque sit favorabilis, caret effectu, licet aliae conditiones appositae in matrimonio, si turpes aut impossibiles fuerint, debeant propter eius favorem pro non adiectis haberi. 31. Ch 1, n. 40: E.g., Quinque Compilationes,p.48(1Comp. 4.6.5, Continebatur. Super eo,WH202[b]); id.(1Comp. 4.6.3, Significatum est nobis,WH962); id.(1Comp. 4.6.4, Cum institisset apud nos,WH 263). According to Petrus Hispanus, Alexander himself did not regard this last decretal, which seems to say quite plainly that ordination to the subdiaconate is not an impediment to marriage, as binding. See Liotta, Continenza dei clerichi, 275, 280, 305. 32. Ch 1, n. 43: Uxoratus sine licentia uxoris inter vos nullatenus recipiatur, quae integrae opinionis ita exsistat quod nulla merito1 suspcio habeatur eam ad secunda vota velle migrare vel quod minus continenter debeat vivere;2 quae si talis exstiterit, marito eius in consortio vestro recepto, ipsa publice in conspectu ecclesiae continentiam professa in domo propria cum filiis suis et familia poterit permanere.
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