http://uclue.com/?xq=809 en-us Fri, 10 Sep 2010 20:21:20 +0000 Uclue - (c) 2007 Uclue LLC roger.browne@gmail.com http://blogs.law.harvard.edu/tech/rss
You're very welcome. I'm so glad you were pleased and that I was able to be of help. Thank you for the kind words and five stars, and good luck in your research.

Best wishes,
Byrd]]> Sun, 16 Sep 2007 14:39:10 +0000 http://uclue.com/?xq=809#6171 http://uclue.com/?xq=809#6171 Sun, 16 Sep 2007 02:18:16 +0000 http://uclue.com/?xq=809#6159 http://uclue.com/?xq=809#6159 Thu, 13 Sep 2007 21:54:35 +0000 http://uclue.com/?xq=809#6101 http://uclue.com/?xq=809#6101 The article in the following link makes clear that Gratian’s discussion of consent to marriage is directed against the practice of betrothal by parents or guardians without the parties’ consent, and that their consent is only valid at an age when they understand the commitment they are making.
While to us it may seem unlikely that children in puberty could have this understanding, in an era when this was the common practice, this would not have been questioned, and, indeed, the children would have been familiar with practice and understood what they were consenting to.
http://llr.lls.edu/volumes/v35-issue2/reid.pdf
Page 21 on Marriage, page 34, footnote 217 reference to “ex publico”
Perhaps this article and footnotes or its source can help you further.

Puperty occurs, of course, at no specific age, making it difficult for an authority (Pope or other) to set an age of consent in a period when the ability to reproduce was the generally accepted age of consent.

The timeline (upper right) in the following link shows that the long-standing age of consent in England of 12 years was decreed in 1275 (by Edward I).
http://www.channel4.com/health/microsites/A/adultat14/consent/aoc_debate.shtml

This link says:
“In substance the statute of Edward I re-enacted the common law rule …”
http://links.jstor.org/sici?sici=0042-6601(192411)11%3A1%3C81%3AHOTCIT%3E2.0.CO%3B2-2


Here is a comprehensive website on Gratian:
http://pantheon.yale.edu/~haw6/gratian.html

I hope this may be of further help.
Regards, Myoarin

PS: You'll have to cut and paste the links, since I copied from Word and the hyperlinks don't seem to have been transferred as such. Sorry.]]> Thu, 13 Sep 2007 21:53:19 +0000 http://uclue.com/?xq=809#6100 http://uclue.com/?xq=809#6100
The answer to your question is not so simple as it might appear. This whole are of medieval canon law is all very complex and convoluted. First, I'd like to just give you a very brief comment on the history of canon law so you might appreciate why it seems so difficult to find the specific writings of Pope Alexander III in general, and the one you ask about specifically, which by the way, is Latin for "out of the people."

Pope Alexander III (Pontificate 1159-1181) issued over 700 decretals, or letters/decrees carrying the force of law, of which only 470 have survived. Of those, 400 of the most important, including the ones on marriage that modified and clarified existing laws of the time, both secular and ecclesiastical, are included in several collections still used and referred to today in matters of canonical law. The difficulty lies in the fact that these decretals have not been published in a separate and self-contained body of work but rather have been included in larger collections, which have subsequently been codified into canon law.

The first collection to include Alexander III's letters was compiled by canonist (church law specialist) Bernard of Pavia, also known as Bernardus Balbi, in his "Brevarium," circa 1189. However, more often referred to today is the compilation known as the " Decretals of Pope Gregory IX," which combined several earlier collections into one large compilation, organized into five books. Alexander III's decretals on marriage are in Liber Quartio, or Book Four of Gregory IX's collection. Succeeding these two is yet another, later collection referred to as "The Decretals, Sext, Clementines and Extravagantes." There does not exist online, nor in English, a separate text of Alexander III's decretals alone. Some original documents and collections are preserved in the Vatican library, which is to be closed for three years beginning in July 2007 for an extensive renovation project. Therefore, further efforts requiring use of these old manuscripts will have to be temporarily placed on hold, though it will still be possible to place orders for photographic reproductions.

Also, these collections include references to earlier law and decretals, which had already established the age of discretion, or age of consent, to which Alexander evidently acceded as shown by his reference to it without making any attempt to change it or establish another. He did not issue any separate decretal on that subject. First mention of the age of consent is from an earlier compilation by Gratian, a Benedictine monk often credited as the "father of the study of canon law," autheticated by reference to statements of Pope Nicholas. And in fact, the premise of Common Law Marriage which declares consent as the main factor establishing marriage, also is given in prior decretals and confirmed by Alexander III in his later writings.

The main point on which Alexander III differs from many earlier writings is his emphasis on the point that it is consent alone which establishes marriage, and not consummation, or sexual intercourse. Previous understanding held consummation to be equal to or even more important than consent.

While all these documents are available in whole, in both print and online, they are in Latin, not English. English translations are not yet complete. However, Kenneth Pennington, Ph.D., Professor of Ecclesiastical and Legal History at the Catholic University of America is a preeminent scholar who has made study in this area his life's work. He has published and is still working on several translations of his own, and has also with permission published translations by others of these works. In addition, his published papers on the subject are among the most authoritative of the available online references I was able to locate. In answering your question I'll make use largely of materials found on his webiste. References to his writings and other sources are given below.

As to the specifics of your question, here are the pertinent translations:
==============
AGE OF CONSENT
==============

1) On the subject of age of consent, from the English translation of "The Decretals, Sext, Clementines and Extravagantes" by John T. Noonan Jr. as published on line by Ken Pennington:

GRATIAN MARRIAGE CANONS FROM THE DECRETUM (Vulgate Edition) C.30 Spiritual Affinity, q.2 Age of Consent

Question II
Gratian: Betrothals cannot be contracted before the seventh year. For they can be contracted only with consent, which requires each party to understand what they agree to. This proves that betrothals cannot be contracted between children, because the debility of age prevents consent.
Pope Nicholas witnesses to the same, saying:
C. 1.
Marriage cannot be contracted before the age of consent.
Where there is no mutual consent, there is no marriage. Therefore, to give boys to girls in their cradles, or vice versa, accomplishes nothing, even if the father and mother do it and desire it, unless both children consent after reaching the age of discretion.

This is corroborated by Alexander in the DECRETALS OF GREGORY IX, BOOK FOUR

Title I, Betrothals and Marriages
C.25 ".... children under lawful age cannot contract by words alone, since they cannot consent."

Title II, Betrothal of Children
C.4 Alexander III to the Bishop of Hereford
"....betrothals made in the cradle are null

HOWEVER, there is a distinction made between age of discretion and puberty, or age of fitness for marriage:

Title II, Betrothal of Children
C.8 Alexander III to the Bishop of Bath
" those below marriageable age cannot give conjugal consent and so must wait until lawful age. Then the marriage will either be confirmed or, if they do not wish to stay together, they will be separated, unless they have already had carnal intercourse, because this can sometimes occur before puberty."

C.10 Alexander III to the Archbishop of Genoa
" A contract before puberty, even with attempted carnal intercourse, does not create matrimony."

===================
COMMON LAW MARRIAGE
===================

2) On the subject of Common Law marriage, also from Noonan's translation of ""The Decretals, Sext, Clementines and Extravagantes,"

DECRETALS OF GREGORY IX, BOOK FOUR (Alexander III decretals)

Title I, Betrothals and Marriages

C.9 Alexander III to the Bishop of Biscaglia
"If a man and a woman promise to take each other as husband and wife at a certain time, this is a contract of matrimony in the present tense...."

C.15
"Betrothal for a future date followed by intercourse may not be dissolved by a betrothal in the present."

C.25 Alexander III to the Bishop of Brescia
" Lawful consent alone will contract matrimony, but verbal expression is required as proof...."
" You have asked further instruction as to whether marriage can be contracted by words alone, and by what words, since some men doubt that something spiritual can be contracted by words alone.
We therefore reply to your inquiry as follows: Marriage is truly contracted through the lawful consent of a man and a woman. But the Church requires words in the present tense that express consent....
C.26 as above
"... entirely lacking the consent, without which nothing can create the conjugal bond."

Title IV
C.3 Alexander III to the Archbishop of Salerno
"... You have asked us whether, if there has been lawful consent in the present tense between a man and woman, with or without an oath, and no carnal intercourse has followed, it is lawful for the woman to marry another. Or, if she has married another and had carnal intercourse, whether she ought to be separated from him.
On this we answer your question as follows: If there was lawful consent between the man and woman, with the solemnity which is customary, that is, with the priest or, as is still done in some places, a notary present, before competent witnesses, and there was consent in the present tense, so that each expressly received the other by mutual consent using the customary words with each saying, ``I take you as mine,'' and ``I take you as mine,'' it is not lawful for the woman to marry another, whether an oath was used or not."

==========
REFERENCES
==========

Kenneth Penningtin, Ph.D. Homepage:
http://faculty.cua.edu/Pennington/

Pennington, Curriculum Vitae:
http://faculty.cua.edu/Pennington/vitaweb.htm

Pennington, selected texts:
--Pope Alexander III http://faculty.cua.edu/Pennington/Medieval%20Papacy/AlexanderIIIKP.html

--Marriage Canons from The Decretium of Gratian and The Decretals, Sext, Clementines, and Extravaganes (English Translation): http://faculty.cua.edu/Pennington/Canon%20Law/marriagelaw.htm#CASE_THIRTY-ONE_
--A Short History of Canon Law from Apostolic Times to 1917 http://faculty.cua.edu/pennington/Canon%20Law/ShortHistoryCanonLaw.htm#The%20Age%20of%20the%20Papal%20Decretal

Classic Encyclopedia (based on the 11th edition of the Encyclopedia Britannica): Canon Law:
http://www.1911encyclopedia.org/Canon_law

Canon Law - History and explanations:
http://www.mb-soft.com/believe/txw/canon.htm

"The Medieval Idea of Marriage" by Christopher Nugent Lawrence - explains the emphasis on consent over consummation, as well as Alexander III's contribution to canonical law on the subject.
http://books.google.com/books?id=czDMXCB_uFkC&pg=PA138&lpg=PA138&dq=%22alexander+iii%22+canon+law+marriage+%22age+of+consent%22&source=web&ots=6vnLnqm-eG&sig=eCMRUPz0OCJPT_icBcjrsQnb5kQ

"The Papacy, An Encyclopedia" by Philippe Levain - explains the role of Alexander III in establishment of canon law.
http://books.google.com/books?id=DGVg0VASJ00C&pg=PA22&lpg=PA22&dq=decretals+%22alexander+iii%22&source=web&ots=que1V9gb9A&sig=8VF1r-Mi8QseIs6GwosJTBdSl18

"The English Church and the Papacy: From the Conquest to the Reign of John," by Zachary Nugent Brooke - talks about Alexander III's contributions to canon law:
http://books.google.com/books?id=o54pyg3LtiUC&pg=PA213&lpg=PA213&dq=decretals+pope+%22alexander+iii%22+(english%7C%22english+translation%22)&source=web&ots=D0DAIirAUM&sig=MdHublh4e3VGs-bpbdmL8G2mvwM#PPA213,M1

Decretals of Pope Gregory IX (complete, downloadable, Latin):
http://freespace.virgin.net/angus.graham/GregDecr.htm

Gregorius IX Decretalium Compilatio (Decretals of Gregory IX), Latin, full text:
http://www.intratext.com/IXT/LAT0833/_INDEX.HTM

Vatican Library
http://bav.vatican.va/en/v_home_bav/home_bav.shtml

Vatican Archives
http://asv.vatican.va/home_en.htm

Vatican Library Photographic Reproduction Services
http://www.vaticanlibrary.vatlib.it/BAVT/info/en/Services/photo_reproductions.htm

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I hope you will find this information gives you the answer you neede. If not, or you require further assistance, please ask for a Clarification. Thank you.

Regards,
Byrd]]> Thu, 13 Sep 2007 17:53:02 +0000 http://uclue.com/?xq=809#6097 http://uclue.com/?xq=809#6097
Through a lot of research and sifting through a lot of inaccurate information online, I believe I determined that the decree exists in what is known as the "Ex Publico" by Pope Alexander III.

I am looking for the original text, in english, of the decree in the Ex Publico that establishes the Common Law Marriage, and the text that establishes the age of consent at the time for the Common Law Marriage.]]> Thu, 13 Sep 2007 01:09:16 +0000 http://uclue.com/?xq=809 http://uclue.com/?xq=809