- Marriage Advice for a Pope: John XXII and the Power to Dissolve
The standard histories of marriage law, at least the marriage law of the Church, jump from the thirteenth century to sixteenth. Only the more careful writers pause to say that, at the beginning of the fifteenth century, the popes began, quite quietly, to dispense couples who had formed a marriage by the exchange of present consent but had not had sexual intercourse to marry others—that is, to dissolve unconsummated present-consent marriages. Prior to that time, only the entry of one of the couple into the religious life would release the other to marry a third person. That this was the only ground for dissolving an unconsummated present-consent marriage was the result of a decretal of Pope Innocent III (Ex parte tua, X 3.32.14). Innocent's predecessors had experimented with other possible grounds for dissolving such marriages.
Virtually everyone who has told this story has ignored Pope John XXII's decretal Antiquae concertationi (December 1, 1322; Extrav. Jo. XXII 6.un). Those simply tracing changes in legal doctrine can ignore it, because it simply confirms the holding of Ex parte tua: Entry into religion is the only way in which an unconsummated present-consent marriage can be dissolved. The taking of higher orders, but remaining a "secular"—that is, not entering a religious order—does not serve to dissolve the marriage. Any man who is party to an unconsummated present-consent marriage who takes higher orders must either enter the religious life (in which case the marriage is dissolved) or must return to his spouse (in which case the orders are invalid). In the context of the development of ideas, this decretal should have given rise to more consideration. Why was the pope in the mid-1320s issuing a decretal on this topic? After all, he did not think it necessary to confirm any of the other doctrines about marriage that had been established over the course of the late-twelfth and early-thirteenth centuries.
The answer, of course, is that the issue was controversial in the early-fourteenth century and had been controversial for some time (the antiqua concertatio referred to in the incipit of the decretal).The great mid-thirteenth-century canonist Hostiensis had suggested that it was hard to distinguish between entry into religion and the taking of higher orders (which contained an implied vow of chastity even if one was not expressly taken).The sayings of Jesus on divorce in the New Testament were based on the statement [End Page 782] in Genesis that the two had become one flesh—a fairly clear reference to sexual intercourse (Mk. 10:6-10; Mt. 19:4-6, both quoting Gn. 2:24)—and the sacramentality of marriage suggested in Ephesians 5:31-32 also relies on the same Genesis text. If the divine prohibition on divorce was based on a marriage's being consummated, then the normal indissolubility of unconsummated present-consent marriages was a matter of church law, which the pope could change.
What Patrick Nold has discovered is not only that there are hints of this debate in the already published texts concerning marriage but also that John XXII commissioned a group of thirteen cardinals, theologians, and canonists, to advise him on the matter (some members gave two opinions). One manuscript of these consultations survives, and it is this manuscript that is edited here.
The edition is a fine piece of craftsmanship. The text itself should have been edited years ago. It is one of the few that shows in one place the range of possible views that lies behind a papal decision. Interestingly, all but one of the consultants takes the position that the pope should not expand the grounds for dissolution of unconsummated present-consent marriages. Most of them, however, come to the conclusion that he has the power to do so. Indeed, both the grounds for...