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POWER OVER THE BODY, EQUALITY IN THE FAMILY
Rights and Domestic Relations in Medieval Canon Law
By Charles J. Reid Jr. William B. Eerdmans Publishing Company
Copyright © 2004 Wm. B. Eerdmans Publishing Co.
All right reserved. ISBN: 0-8028-2211-8
Chapter One
The Right and Freedom to Contract Marriage The Story of Christina of Markyate
It is not likely that Gratian ever heard of the story of the early-twelfth-century mystic and recluse Christina of Markyate. Born at the end of the eleventh century to an Anglo-Saxon noble family, Christina was attracted to a monastic vocation at an early age. Her various struggles to realize this calling foreshadow many of the issues discussed in the pages of this volume. Christina's life makes one appreciate that the dense legal theory the canonists constructed around the freedom to marry, the proper scope and limit of paternal power, and the nature of the conjugal relationship itself, had real-life consequences.
Christina's hagiographer describes her as an intensely religious young girl. She resolved to follow a monastic calling upon visiting the religious house of St. Albans at about the age of twelve or fourteen. Moved by the piety she witnessed there, Christina took a private vow of virginity, a vow she later confirmed in the presence of a certain Sueno, canon of Huntingdon.
Christina's chosen path was far from easy. She had first to surmount the advances of Ralph, who was both a family friend and the lecherous bishop of Durham. One night, while staying with Christina's parents, Ralph was overcome with lust for the young Christina. He arranged to have Christina come to his bedroom, where he tried to force her to perform an "unspeakable act" (nephanda re). Christina only managed to escape his clutches by a clever subterfuge.
Ralph tried to win the young girl's affections with expensive gifts. When that did not work, he decided to try to ruin the one thing Christina held dear: her vow of virginity. He put it into the head of a young nobleman named Burthred to seek Christina's hand in marriage.
Christina's parents learned of Burthred's interest and approved the match. But they realized they also needed to obtain Christina's consent to the union. They set their minds to obtaining it by fair means or foul. They ridiculed Christina's professed vow of virginity. They made "sweet promises" (blanditi). They heaped on threats (minas addiderunt). They enlisted a friend of Christina's to "sweet-talk" (aures sedulo demulceret lenociniis) her into agreeing to the union.
For a year, Christina held out against these efforts to bribe and berate her into a union she did not desire. One day, however, when they were all gathered in church, the whole lot of them "attacked" (agressi sunt) the young girl suddenly and in concert. Overcome by pressure, Christina agreed to the match, at least outwardly. That day, she became Burthred's bride.
Christina, however, would not take the next step. She fiercely resisted consummating her union to Burthred. Her parents' pressure became even more overt. They prevented her from having "conversation with any religious and God-fearing man." They kept her from visiting the monastery or its chapel. They tried to entice her by getting her drunk, hoping that wine would loosen her inhibitions. Having failed at these efforts, her parents resorted to a blunter mechanism: they invited Burthred to enter her bedroom while she was asleep in the hope that he might catch Christina unawares and consummate the union. Christina, however, "moved by providence," was awake, alert, and dressed when Burthred entered the room.
Christina exhorted Burthred to follow the example of saintly couples from the past who had maintained chaste marriages: St. Cecilia and her husband Valerian, were rewarded with immortality for the chaste way in which they conducted themselves. They could be like the saints of old, Christina assured the young man. Burthred, apparently either convinced by Christina or simply worn down by her defenses, eventually withdrew from the bedroom. Christina's parents and others met him and denounced him as "a cowardly and useless boy" (ignavum ac nullius usus iuvenem conclamant).
Bullied by his putative in-laws, Burthred resolved to enter the bedroom once again on another night. They tried to rouse his courage by scolding him, warning him not to fall for her tricks and telling him that he must not play the part of the woman (ne... effeminetur). If he had to, they told him, he was free to use force (vi). That night, Christina hid herself and Burthred was unable to find her. When Burthred tried to enter her room on a third night, Christina was able to escape.
Christina remained with her parents after this night. Although they made a few more attempts to see the union consummated, these efforts were inevitably frustrated. Eventually, her parents turned to the Church, hoping that ecclesiastical power might be brought to bear on Christina's obstinacy. Her father, Autti, visited the local prior, a man named Fredebert. Parental authority (nostra authoritate), her father informed Fredebert, must be preserved. It cannot be seen to be publicly mocked. Could the reverend Fredebert ensure that she follow through on the consent she gave and consummate her union?
It was Fredebert's turn to convince the young girl. He lectured her on the nature of marriage. It was through marriage that man and woman became one flesh. St. Paul taught Christians that a woman has no power over her body. Her husband has this power. Man and woman owe one another the conjugal debt (debitum). By marriage they are joined together; divorce is forbidden. And furthermore, Fredebert observed, shifting the terms of his entreaties, children owe their parents obedience and must defer to them. Christina should now respect her parents and go through with the marriage that they have arranged.
Christina responded by defending her freedom to choose whether to marry or to follow a religious vocation. Her parents acted against her will (contra voluntatem meam). "I have never been a wife," Christina continued. "I have never thought of it. You must know that from my infancy I have chosen to be chaste and vowed to Christ that I would remain a virgin." To force her into an unwilling marriage in violation of the vow she has taken would be to "defraud Christ." Christina, too, knew how to quote Scripture. All those who leave family and friends and surrender all they have to follow Christ, she reminded prior Fredebert, are promised an eternal reward. The marriage she desired was nobler and richer than any fleshly union: marriage to Christ himself.
Fredebert, now sympathetic to Christina's professions, conveyed Christina's response to her father Autti. He was still reluctant to hear this news and thought to appeal to the local bishop, not the lecherous man who had tried to seduce Christina, but the bishop of Lincoln, a certain Robert. His hope was that the bishop would order Christina to submit to the authority (dominium) of her husband Burthred. Bishop Robert, however, initially took Christina's side.
Autti made one last attempt to compel her to consummate the union. He offered the bishop a large sum of money to change his mind. Burthred, meanwhile, clearly fatigued by the struggle, decided to release Christina from the matrimonial vow. Autti responded by insisting that Burthred lacked the authority to absolve his bride from her marital commitment, and once again appealed to the bishop. Robert, his palms suitably greased, now sided with Autti.
The bishop did not have the last word. Despite the obstacles put in her way, Christina persevered in her commitment to Christ. She prized her vow more than she valued the wealth and fame her parents might confer on her and more than she valued life as Burthred's wife. Christina finally achieved her calling by escaping her family and openly enrolling in a convent. The marriage was ultimately dissolved by the archbishop of York and Christina became abbess of Markyate Abbey.
Christina's story stands at the beginning of this volume almost like a causa in Gratian's Decretum. It epitomizes most of the major themes of this book: when and how did the parties to a marriage acquire the right and freedom to contract marriage themselves? What pressure, if any, might be brought to bear against their will? What was the nature and extent of paternal power? What was the nature of the conjugal debt? Might a marriage ever be forcibly consummated? What if the parties chose to withdraw from marriage in order to enter religious life? In what ways were husband and wife equal in their marital rights? In what ways was the wife subordinate to her husband? What did it mean for a child to treat his or her parents with respect? What claims might children make on parents in return for the respect and obedience they showed them? What role did the Church have in enforcing this system of rights and obligations? On what larger theory of human relations was this system of thought grounded? These are among the questions that will be considered in the course of this volume.
The first and most obvious issue highlighted in the Christina of Markyate narrative is the subject of this first chapter, the right and freedom to marry or to refrain from marriage.
Today it is taken for granted that the freely exchanged consent of the parties makes a marriage. This essential human freedom is typically described as a right. These observations are true whether one speaks of contemporary canon law or of contemporary secular legal systems, such as the American domestic relations law.
Marriage, the 1983 Code of Canon Law teaches, is made by the consent of parties legally capable of manifesting consent. This consent is an act of the will by which man and woman bind each other in an irrevocable covenant. All are able to contract marriage who are not prohibited by law. Commenting on this provision of the law, the New Commentary on the Code of Canon Law states that "[e]very person enjoys the natural right to marry. This fundamental right is rooted in the social nature of the human person and is recognized by Catholic social teaching."
In so pronouncing marriage a basic right, the Commentary was itself following the declaration of Pope John XXIII in Pacem in Terris that marriage was among the natural rights of man (iura hominis). There are, John pronounced, certain rights grounded in the dignity of the human person by virtue of our status as creatures of God. These rights include the right of life, the right of bodily integrity, the right to have the means by which to earn one's daily bread. But these rights also included the right to choose one's state in life, which included the right "to begin a family, in which a man and wife are able to enjoy equal rights and duties."
American constitutional law has also recognized the fundamental character of the right to marriage. Loving v. Virginia presented the case of an interracial couple who married one another in violation of the Virginia anti-miscegenation statute. In holding the statute unconstitutional, the Supreme Court acknowledged that "[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Quoting earlier precedent, the Court continued: "Marriage is one of the 'basic civil rights of man', fundamental to our very existence and survival." Laws restricting the exercise of this right were thus subjected to the highest form of constitutional scrutiny and where, as in the case of the Virginia anti-miscegenation statute, they failed to serve a compelling governmental interest, they were and are liable to be struck down as constitutionally infirm.
The fundamental character of this freedom is taken as basic. The idea that a family might arrange the marriages of its children, the suggestion that a child might be compelled into an unwanted marriage or that he or she could not afterward object to the force that was employed to obtain coerced consent are notions that are alien to our way of thought. But our own presuppositions have a relatively brief history, extending back only eight hundred or so years. That the freedom to enter a marriage should be considered a basic right would have been familiar to canonists active around the year 1200, but not much before that time. Roman lawyers, as well as the theologians and canonists of the early Middle Ages, adhered to a very different system, one that gave enormous authority to the family in matrimonial decision-making.
To be sure, the canonists of the twelfth and thirteenth centuries did not share our conception of marriage as belonging primarily to the parties themselves to arrange. It would be wrong to imply that they thought of marriage in the exact terms conceived by the modern Code of Canon Law or by the United States Supreme Court. Most marital decisions in twelfth- and thirteenth-century Europe continued to be influenced, above all else, by dynastic and familial considerations. But what is significant is that the canonists put into the legal literature of their time the notion that there was such a right. They were willing as well to establish a structure of law that conserved the right and allowed its free exercise where the parties did, in fact, choose to claim it, even in the face of familial and social opposition. Seen in this light, the canonists stand at the beginning of a line of development that continues to influence the contemporary world.
Part I: The Ancient Requirement of Parental Consent
The Roman-Law Background
That the freely-exchanged consent of the parties is essential to the formation of a marriage is assumed today, but this assumption, like the freedom to select one's place of burial, like other basic rights considered in this volume, originated in the matrix of twelfth-century legal writing, particularly the work of Gratian. Law and social expectations prior to the twelfth century were, in fact, very different.
Roman law followed a set of rules regarding the consent of the parties that differed in some significant ways from the system the canonists put in place. The process of marital formation, at least for those upper class households about whom we have the most evidence, typically began with betrothal. Roman law on the subject of betrothals blended together differing requirements of consent - the consent of the parties to the future marriage, to be sure, but also the consent of the heads of the households whose negotiations were the usual precursor to engagement.
According to Julianus, engagements (sponsalia) were made with the consent of the future bride and groom. And so, Julianus concluded, even a daughter within the power of her father should (oportet) consent to a betrothal as much as she would be expected to consent to the actual marriage. But where a daughter did not "fight" (repugnat) her father's arrangements, Ulpian added, she was deemed to consent.
Continues...
Excerpted from POWER OVER THE BODY, EQUALITY IN THE FAMILY by Charles J. Reid Jr. Copyright © 2004 by Wm. B. Eerdmans Publishing Co.. Excerpted by permission.
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