Title II: On the Betrothal of Minors

Latin source headnote: A father contracts betrothals for an underage son, but not for one of age unless he consents.

Hormisdas, to Bishop Eusebius.

Your fraternity asked us concerning an adult son for whom the father wishes to contract a marriage, whether he can do it without the will of the adult son. To this we say that, if the son does not consent in any way, it cannot be done; but a father can deliver in marriage to whom he wishes a son not yet adult, whose will cannot be discerned. And after the son has reached perfect age, he ought altogether to fulfill this.

Latin source headnote: Minors, whether both or one, ought not to be joined except for the good of peace.

Pope Nicholas.

Where there is no consent—(And below:) By authority of this decree, therefore, we more strictly prohibit any persons henceforth from being joined where either or both have not reached the age determined by laws or canons, unless perhaps, with some most urgent necessity intervening, such as for the good of peace, such a union is tolerated.

Latin source headnote: With respect to marriage, those are pubescent who from the condition of the body can conceive and beget.

Isidore.

The pubescent are called from the pubes, that is, named from the modesty of the body, because these places then first put forth down. Certain persons, however, reckon puberty from years, that is, that he is pubescent who has completed fourteen years, although he matures most slowly. But it is certain that he is pubescent who both shows puberty from the condition of the body and can now beget. And child-bearing girls are those who give birth in childish years.

Latin source headnote: From betrothals contracted with one younger than seven years, an impediment of public honesty does not arise; it is otherwise if they are contracted with one older, or with one younger who consents after seven years. And affinity following dissolves preceding betrothals for the future.

Alexander III, to the Bishop of Hereford.

We received the letters of your fraternity, from the tenor of which we perceived that, when a certain parishioner of yours named A. was of perfect age, he betrothed a certain girl in the cradle; but, as time proceeded, the same A. knew the girl’s mother and received her as wife. Whence, because you doubt whether a marriage of this kind ought to stand, you sought counsel from us concerning it. Concerning this we respond to your consultation in this manner: if the aforesaid man received the mother of the aforesaid girl as wife before the girl herself completed her seventh year, do not dissolve the marriage, but permit the same man freely to keep the aforesaid woman as wife, since betrothals of this kind which occur in the cradle are null. But if, after the aforesaid girl completed her seventh year, the aforesaid man received her mother as wife, since betrothals are from then accustomed to have force, do not defer pronouncing a sentence of separation between them, nor permit him to have either daughter or mother as wife.

Latin source headnote: Betrothals which are null from defect of consent do not create the justice of public honesty; but some betrothals do so, even though they have been dissolved in a lawful manner.

The same, to the Archbishop of York.

The noble man W., son of G., approached our presence with your letters, from the tenor of which we perceived that, when he had betrothed the daughter of a certain noble man while she was of lesser age, and afterward, when she did not furnish assent in this matter, before she reached marriageable years a separation was celebrated between them. But as time proceeded, after the girl’s father died, [the aforesaid] W. joined her mother to himself in marriage. Since you were unwilling to sustain this deed, you solicitously admonished him to dismiss her; and, because he was unwilling to acquiesce in your admonitions in this matter, you bound him with the bond of excommunication. At last, after receiving security from him that he would approach our presence and firmly observe our statute concerning this, you announced that the same man had been absolved at our command and sent him to our presence with your letters. But the aforesaid W., constituted in our presence, proposed to us by his assertion that he betrothed the girl herself while she was under her seventh year; afterward, [however], before she reached marriageable years, she was unwilling in any way to consent to receive the aforesaid W. as husband, and thus she approached your presence with her father, in whose power she had remained, and with the aforesaid W. And when you heard from the girl’s mouth, and knew through her and through her father, that she did not wish the aforesaid W. as husband, you immediately announced publicly in full synod that he was absolved from a betrothal of this kind. But after many years had elapsed and the girl’s father also had died, our dearest son in Christ H., King of the English, delivered the mother of the aforesaid girl to the aforesaid W. as wife. The same W., so that discord arisen between his blood relatives and the woman’s blood relatives might be quieted, received and solemnly betrothed her, took her without contradiction of the Church, and begot children from her; and the girl was joined to another man. But although it is contained in your letters that the girl herself was of lesser age when a betrothal of this kind was made, nevertheless it matters whether, when she was of lesser age, [she was] near an age fit for marriage or under seven years. And therefore we command your fraternity by apostolic writings, instructing that, after the truth of the matter has been diligently investigated and known, if it is established to you that the aforesaid girl was not seven years old when she was betrothed to the aforementioned G., and that afterward she did not consent to him, and that the same G. was absolved by you from a betrothal of this kind, you command the marriage celebrated between the same G. and the girl’s mother to be inviolably observed and announce their offspring to be legitimate; because, as your discretion is not ignorant, betrothals and marriages cannot occur before seven years, especially if consent does not afterward accede.

Indeed, if the aforesaid girl had completed her seventh year before [a betrothal of this kind], although the aforesaid man was absolved by law itself from betrothal to the girl because she was unwilling to consent to him, nevertheless it appears dishonorable that he should have the mother of her whose daughter was betrothed to him. But if it has appeared to you that he should remain with the girl’s mother, lest discord formerly arisen between the blood relatives of each, but now quieted, be stirred anew, you will be able to dissemble this and tolerate it with equanimity. But the sons whom he received from her, if he took her as wife while the Church tolerated it, cannot be prohibited from succession to the paternal or maternal inheritance.

Latin source headnote: If an underage girl, betrothed and conducted home, seeks permission after becoming of age to marry another, she is not heard if the man swears that he knew her; nor is she heard if, not yet of age but near puberty, she is proved to have been known. And from betrothals contracted with a minor older than seven years, public honesty arises.

The same, to the Bishop of Norwich.

It was contained in your letters that, when a certain girl under marriageable years had been delivered to a certain man as wife and conducted home by him, her parents asserting that she existed as of lawful age, on reaching marriageable years she sought permission to marry another, asserting that she had by no means consented to the same man. But the aforesaid man proposed to the contrary that, although the same girl perhaps had not yet reached her twelfth year when she was delivered to him as wife, nevertheless she was so close to the age that he knew her by carnal commingling. Hence it is that, since she says that she was not known by the same man, and you consulted us whether she can marry another, we respond to your consultation in this manner: since it is expressly contained in the decrees that, if a man says that he knew his wife and the woman denies it, one must stand by the man’s truth, faith is to be applied to the aforesaid man who says that he knew the woman herself, if he affirms it by oath.

But if she was near the age, as in the eleventh or about the twelfth year, and with her assent and the will of her parents was betrothed and blessed, and known by the same man, she ought not to be separated, especially since her parents confessed that she had been of lawful age. But if a girl under marriageable years and near the age was betrothed to someone, blessed and conducted home, it is not lawful for anyone of the blood relationship of the man to whom she was betrothed to take her as wife, nor is it permitted for the same betrothed man to join to himself anyone of the blood relationship of the betrothed woman [in marriage].

Latin source headnote: If persons older than seven years contract betrothals, neither can withdraw before puberty. This first. And the one who first reaches puberty will wait for the other. This second. But if at the time of the contract one was of age and the other was not, not the former but the latter, upon becoming of age, can withdraw. This third.

The same, to the Bishop of Bath.

Concerning those who, [existing] under the years fit for contracting marriages, contract betrothals, whether both or one should protest before they reach years fit for contracting marriages and should petition to be separated, they are by no means to be heard. But if either of them reached the years of puberty while the other existed under the same years when those betrothals were contracted, if the one who is of lesser age protests when reaching those years and is unwilling to consent to the other, they can be separated from one another by judgment of the Church. But a woman who, after she reaches marriageable years, married one who had not yet reached years fit for contracting marriages, since she once consented to him, will no longer be able in any way to dissent or depart, unless perhaps he whom she married, after he reaches lawful age, altogether refuses to furnish his consent to her.

Latin source headnote: Minors contracting betrothals ought not to be separated before puberty, but can be after puberty if they contradict the betrothals, unless carnal union intervened.

The same, to the same.

Your discretion asked us whether it is lawful for those who are joined in the name of marriage below marriageable years, or for one of them, to depart from such a marriage before they reach years fit for marriage. To this we respond to your inquiry in this manner: because before marriageable years they do not have conjugal consent by authority of the holy Fathers, they are held to wait until lawful age, and then either let the marriage be confirmed or, if they are unwilling to be together, let them be separated, unless perhaps carnal commingling intervened beforehand, since it is sometimes accustomed to anticipate the time of puberty. But if one of them reaches the years, etc., as above in the preceding chapter.

Latin source headnote: Minors fit for marriage are bound by the contract of marriage unless violence intervenes.

The same, to the Archbishop of Genoa.

Concerning those, however, who are betrothed at a lesser age, are delivered and joined, and in the course of time petition for judicial separation, alleging their lesser age or force done to them by their parents, by the present letters we respond to your inquiry that, if they were so near the age that they could be joined by carnal union, they ought not to be separated from one another in view of their lesser age if one appears to have consented to the other, since malice appears to have supplied age in them. But of whatever age they may be, they can excuse themselves by violence inflicted unless consent accedes after the violence. [That also, etc. (cf. c. On Presumptions II. 23.)]

Latin source headnote: A contract before puberty, even with an attempt at carnal union, does not make a marriage.

Urban III, to the Bishop of Le Mans.

We received the attestations transmitted to us by your fraternity concerning the matrimonial cause which is debated between the young man H. and the woman G.; and, after they had been diligently inspected and more fully understood, it manifestly became known to us that the aforesaid young man had not yet reached his twelfth year when he received the aforesaid G. as wife. And although he had attempted, as each confessed, to deflower her, nevertheless the woman believes that she escaped as a virgin. But before he reached his fourteenth year, he departed from the aforesaid woman, who, since he is seventeen years old, contends to claim him for herself as husband. But since the man is seventeen years old, he refuses to receive her. Whence, because, until you consulted us concerning the cause itself, you did not consider that you should proceed to pronouncement of sentence, we respond to your consultation in this manner: if the woman is unable to prove by suitable witnesses that after his fourteenth year or around the end of his fourteenth year the aforesaid young man consented to her, after receiving from him an oath that, after he reached lawful age, he did not consent to have her as wife, you can and ought to absolve him from the woman’s claim and give permission to each to pass to other vows.

Latin source headnote: If an older girl unwillingly contracted betrothals with a younger boy, she is not held to wait for him until he reaches adult age.

The same, to the Archbishop of Pisa.

We received from the letters of your fraternity that a certain girl in her twelfth year was sworn and betrothed to a certain boy of nine or ten years, and, as time proceeded, by the will of her parents rather than her own, as she asserts, was led to the house of the father of the aforesaid boy. There, unwilling and against her will, as you propose that you heard from her own mouth, and driven both by the persuasions and threats of her parents, she remained for a year and more; and at last, departing thence, she returned to her own house. But when admonished by her mother, and afterward by you, as you assert, she wholly refuses to return to him, asserting that she never wished and does not wish to have him as husband, but petitions for the faculty of marrying another.

But since the aforementioned boy, as your letters contained, has not yet reached his fourteenth year of age, nor ever had carnal access to the same girl, we respond to your discretion in this manner: if the aforesaid girl, after being earnestly admonished by you for this purpose that she wait until the same boy completes his fourteenth year of age, has not considered that she should wait at your admonition, according to those things which have been proposed, grant her the free faculty of receiving another man as husband by our authority. Given at Verona.

Latin source headnote: Betrothals contracted with one younger than seven years acquire validity through mutual cohabitation after seven years and induce the justice of public honesty; nevertheless, they are dissolved by a marriage of the present.

Clement III.

Two children, William and Guilielma, in your diocese, as we received, were joined matrimonially, the boy being in his sixth year but the girl in her seventh; they remained together for three years. Then, however, the girl’s father, withdrawing her from her betrothed, joined her to another named M., with whom she remained peacefully for seven years. But he then left her because he believed that she had another husband, namely him to whom she had first been betrothed. But the first betrothed man, reaching years of discretion, obtained from P., your predecessor, permission to contract with another; he received as wife a certain woman named S., cousin of the first woman, and, remaining with her for some time, nevertheless, as he himself confesses, did not know her carnally, although she asserts that she was known by him.

But when the father of the aforesaid Guilielma saw her abandoned by the second man, he compelled by force the aforesaid William, to whom he had first betrothed her, altogether to dismiss his niece S. and return to his betrothed Guilielma; afterward he cohabited with her for two years, as it is reported. Therefore, because you ask to be instructed what is to be done by you in these things, we respond briefly that, because childish age impeded it, there was no marriage between G. and G. And although the same man, after she married another, could have taken another as wife, nevertheless, because he took the said S., the cousin of the same woman, whether he knew her or not, he ought not to remain with the same S. on account of the justice of public honesty, nor to have recourse to the first woman, because she was lawfully joined to another.

(And below:) But since the man is the head of the woman, and William says that he did not know the aforesaid S. before, he will be able, if he wishes, to take another as wife, and S. to be joined to a lawful husband; but after separation, penance is to be enjoined upon each for a time to avoid scandal of the people. But if it were lawfully established that S. herself had been known by him either afterward or before, permission to contract will be given to neither while the other is living. Guilielma therefore will remain with M., nevertheless with suitable penance for a time imposed upon M. himself, who, on his opinion alone, without seeking the judgment of the Church, perniciously dismissed Guilielma.

Latin source headnote: A marriage which does not exist cannot be accused, as if it was contracted with one younger than seven years; nevertheless, an impediment can be denounced lest it be contracted in the future.

Innocent III, to C. and P., Former Sons of Malebranca.

In order to dissolve what had been done between I., son of the noble man Leo [de Monumento], and S., daughter of the late Matthew [de Fortebrachio], concerning contracting marriage, it was proposed on your part in our presence and that of our brothers that, since the said girl had not yet reached seven years, neither marriage nor betrothals could be contracted with her. The assent of the blood relatives, who are principally to be required in such matters, was also lacking. Even if sufficient age had existed and the assent of the blood relatives had intervened, the persons nevertheless are not lawful for contracting marriage, because a line of consanguinity stands in the way.

But after an accusation concerning consanguinity had been proposed for the girl, and the degrees of consanguinity had been computed both on the part of the young man and on the part of the girl, when she wished to prove it by suitable witnesses, the aforesaid I. proposed many exceptions through which he strove in many ways to remove you from the accusation. And when disputation had continued for a long time on each side concerning his exceptions, after all things proposed on either side had been heard and understood, by the counsel of our brothers, by interlocutory judgment we pronounce that neither marriage nor betrothals were contracted between the said young man and girl, since it is established that the girl had not yet reached seven years. Wherefore an accusation had no place, since there was nothing which could lawfully be accused; nevertheless, consanguinity could be denounced so that the marriage to be contracted would be prohibited.

Therefore, for the denunciation to be lawfully proved, we assign as the term the feast of All Saints next to come, saving not only the exceptions proposed but also those to be proposed. But lest anything meanwhile be attempted against the girl, by apostolic authority we firmly prohibit further new proceedings in the same business until either the denunciation is abandoned or, after it has been proved, proceedings are conducted by judicial order. But if anything is attempted against our prohibition to her prejudice, we decree it to be void and altogether to lack force.

Latin source headnote: If someone contracts through words of the present with a minor in whom malice does not supply age, he is understood to have contracted not marriage but betrothals, even if earnest-money giving intervened.

The same, to the Bishop of Abbatis.

Your letters exhibited to us contained that a certain noble man betrothed his daughter, about twelve years old, to a certain noble man, who gave earnest money to her, with mutual consent acceding. But after the nuptials had been deferred for a little while, the girl’s father entered the way of all flesh. When he had been taken from human affairs, the maternal uncle of the aforesaid girl joined her in marriage to another, and the man who had first betrothed her contracted with her mother. But your predecessor, considering that he could not remain with her whose daughter he had lawfully betrothed, promulgated a sentence of separation between them. Afterward, when the second man, who had taken the aforesaid girl as wife, had died, she joined herself to a third while he who had first betrothed her was living. Moreover, both she and the same man considered that you should be humbly consulted as to whether they could lawfully [together] remain; but you, after deliberation had been had, responded that, while the first betrothed man was living, she could not lawfully be joined to another. But because your church petitioned that you consult the Apostolic See concerning this, you deferred proceeding further, humbly supplicating us that we deign to rescribe to you concerning this.

But because, through those things expressed above, it could not for certain be established to us what age the girl was when she was betrothed to the same man, since it is said that she was about twelve years old, and whether prudence then supplied age in her, we respond to your fraternity in this manner: if the girl was then of marriageable age, and lawful consent of the present intervened between her and the first man, without doubt a lawful marriage was contracted between them, even if carnal commingling did not follow. But if the girl was not of marriageable age when the often-mentioned man betrothed her, and prudence did not supply age in her, beyond doubt not marriage but betrothals were contracted between them, although the same girl received earnest money from the man himself. Wherefore, if according to the first manner she contracted marriage with him, while he lives she could not duly contract a conjugal covenant with another; but if according to the second manner betrothals alone were contracted, the marriage which was celebrated between her and the other ought to be reputed lawful, provided another canonical impediment does not stand in the way. [Given at Rome, at Saint Peter’s, on the sixth day before the Ides of May, in the ninth year. 1206.]