Answer by Researcher byrd on Thu 13 Sep 2007 - 5:53 pm UTC:

Hello Coderoyal,

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


=======================================================================================

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