By Andrew J. Finch
Published Online by the Kent Archaeological Society
Introduction: The twelfth century marked an important stage in the evolution of canon law, and the establishment of a functioning system of ecclesiastical jurisdictions throughout much of Western Europe. Both were crucial elements in the process whereby the Church, acting under a variety of pressures, came to take increasing responsibility for the definition and regulation of marriage as well as a widening disciplinary role in the daily lives of the laity. In the area of marriage, the synthesis by Alexander III of existing sacramental and legal opinion in 1163 produced a doctrine in which marriage was held to be a purely consensual union. Any two legally entitled adults could form a marriage through words of mutual consent with a two-fold distinction existing in the nature and intent of these words. A binding and immediately effective union was created through the exchange of words of present consent (per verba de presenti). Publicity, solemnization in facie ecclesie, and indeed consummation added nothing to the essential validity of such a contract. On the other hand, words of future consent (per verba de futuro) expressed only an intention to marry; but if these were followed by sexual intercourse they took on the status, and all the legal consequences, of a de presenti contract.
The Alexandrine synthesis was disseminated through conciliar and synodal legislation, and a system of control and regulation was established both to discourage the making of marriage contracts which circumvented the Church’s requirements of publicity and to monitor closely the process leading to the exchange of consent. Canon 51 of the Fourth Lateran Council gave general effect to much of the existing local and provincial legislation on this subject. Banns of marriage were to be published on three successive Sundays or feast days to allow potential objections to be raised. Those ignoring this requirement were to be excommunicated, and a priest blessing an unpublicized union could be suspended for up to three years. However, a marriage contracted without these requirements remained valid unless a diriment condition was present. The presence or absence of the banns therefore became the acid test of whether a marriage was held to be clandestine or not. As such, clandestinity became a legal catch-all encompassing not only informal de presenti contracts which lacked all forms of publicity, and which were possibly never intended to become fully fledged unions, but also publicly solemnized marriages which infringed the requirements of canon law with regard to the place and time of the banns.