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• The Tribal System In Wales 1
• The Murder of Henry Clement 1
• Two Chartularies of the Priory of St Peter At Bath 1
• The History of Marriage, Jewish and Christian 1
• The Origin of the Borough 1
• A Song On the Death of Simon De Montfort 1
• Wyclif On English and Roman Law 1
• “execrabilis” In the Common Pleas 1
• Canon Law 1
• Records of the Honourable Society of Lincoln’s Inn 1
• Magistri Vacarii Summa De Matrimonio 1
• Land-holding In Mediaeval Towns 1
• An Unpublished “revocatio” of Henry Ii 1
• Canon Mac Coll’s New Convocation 1
• Canon Law In England 1
• Elizabethan Gleanings 1
• The Corporation Sole 1
• The Crown As Corporation 1
• The Unincorporate Body 1
• The Body Politic 1
• Moral Personality and Legal Personality 1
• Trust and Corporation 1
• The Teaching of History 1
• Law At the Universities 1
• A Survey of the Century 1
• Lincolnshire Court Rolls and Yorkshire Inquisitions 1
• The Laws of the Anglo-saxons 1
• The Making of the German Civil Code 1
• State Trials of the Reign of Edward I 1
• William Stubbs, Bishop of Oxford 1
• Lord Acton 1
• Sir Leslie Stephen 1
• Henry Sidgwick 1
• Mary Bateson 1

THE HISTORY OF MARRIAGE, JEWISH AND CHRISTIAN1

One of the penalties that a learned man must now and then pay for the fame that his learning has brought him is that his lightest words will seem serious to others, and that if, passing for a moment outside the province that he has made his own, he falls into mistakes, those mistakes will be pointed out by critics who are incompetent to judge the strong points of his work. Dr Luckock’s book on the History of Marriage2 is so likely to become authoritative among a large class of readers and disputants, so likely to be regarded as an armoury of proved controversial weapons, that the ungracious task of pointing to passages in it that should either be amended or omitted is a task which some one, though he may be profoundly ignorant of biblical, patristic, and talmudic lore, ought to undertake; and it falls to me to say that, whatever may be his title to write a history of more ancient or more modern affairs, of the text of Leviticus or the text of Lyndhurst’s Act, what he has written of the middle ages requires careful revision.

Though I think that he has made several mistakes, it will be sufficient if I single out two paragraphs. A reconsideration of them might lead him to a correction of other passages and a distrust of those writers who have been his guides. The error to which I shall refer lies, not in an overstatement, but in an understatement of what I take to be a part of his case, and therefore bears witness to his candour, for he has in the following words (so it seems to me) made unnecessary concessions to those whom he regards as his adversaries, besides needlessly tainting the fair names of a gallant earl, a faithful countess, and two august popes.

From the Norman Conquest to the beginning of the seventeenth century no new Ecclesiastical Laws were made on this subject [the indissolubility of marriage]. Dispensations, however, for remarriage after separation were from time to time sought and obtained from the Pope. There were two famous instances in the highest rank of life. King John had married Hadwisa, daughter of William, earl of Gloucester, and lived with her for eleven years without any scruple on the score of consanguinity, but being captivated by the personal beauty of Isabella of Angoulême, he resolved to shelter himself under the plea of nearness of kin to obtain a divorce. The evil was aggravated by the fact that his second wife was already betrothed; but those were days when kings claimed to be a law to themselves, and a dispensation was readily granted for his adulterous union.

His example was followed not long after, in the reign of Henry III, by Simon de Montfort, who appealed to Rome to obtain a ratification for a second marriage, while his lawful wife was still living. It was in direct opposition to the Canons and Constitutions of the Church, but again the dispensation was granted.

(Morgan, On the Law of Marriage, II. 218; Jebbs’ [corr. Tebbs’] Essay, 204.)

Now as to Montfort’s case, I cannot but think that, if the dean of Lichfield will look for a few minutes at the evidence, he will see the necessity of making honourable amends to Earl Simon and Pope Gregory, perhaps also to the countess Eleanor, or of revealing the name of that other wife. Surely he is not hinting at some hitherto undisclosed scandal about the dowager of Flanders, who, says M. Bémont, was old enough to be Simon’s grandmother, and who swore that she had not married him. I fear that Dr Luckock’s informants were ignorant of her existence. The names of his informants he gives us in the fairest way. They are not quite the names that we should have expected in such a context, not Bémont nor Pauli, not Prothero nor Creighton nor Norgate, but Morgan and Tebbs; still any warrantors are better than none.

In the year 1822, the Society for Promoting Christian Knowledge in the diocese of St David’s having offered a prize of fifty pounds, Mr H.V. Tebbs, proctor in Doctors’ Commons, set to work, and within a short space of time—two months, if I read him rightly—produced an essay on the “Scripture Doctrine of Adultery and Divorce,” which wandered through many ages and lands, and promoted Christian Knowledge within the aforesaid diocese in manner following, that is to say:—

In 1199, King John being divorced from the duke of Gloucester’s daughter was in the same year remarried to Isabell, the heiress of a noble family. And, indeed, king John’s first wife had been, previously to her marriage with him, divorced from Henry de Leon, duke of Saxony.

Matthew Paris makes mention of the case of Simon de Montford, in Henry III’s time, in which the pope, in opposition to the laws and canons of the church, granted a dispensation, and then ratified his second marriage.

(Matth. Paris, Hist., p. 455.)

Now it is always dangerous to speculate about the origin of error, for error is manifold; still if we suppose that by p. 455 Mr Tebbs meant p. 465 in Wats’s edition, we shall come to a passage in which Matthew Paris speaks of a marriage contracted by Montfort and also of a papal dispensation. Had Mr Tebbs been in less haste to earn a prize and promote Christian knowledge, he might have turned over a few pages and come upon another passage in which Paris says more of that marriage and that dispensation. He would have come upon the well-worn story of the widowed girl’s rash vow, and would have discovered that (to put the matter technically) the impediment to the marriage was not the ligamen of the husband, but the votum of the wife. I am inclined to think that, if he had carried his researches yet a little further, he would have found that no papal dispensation was necessary for the validation of this marriage; in other words, that Pope Gregory (who knew his canon law) decided, and was right in deciding, that a votum castitatis, however solemn, provided that it did not amount to a professio in some recognised religious order, was no impedimentum dirimens. Simon and Eleanor had sinned, but their marriage was a good marriage. As to that other wife, I fancy that the rapid Mr Tebbs invented her. He saw the words Et dispensavit dominus Papa cum ipsa, prout sermo sequens declarabit. He had no mind or no time to look for the sermo sequens; he saw that the pope “dispensed with” some woman, and took this to mean that Simon was suffered to put away wife No. 1 (whether she was Eleanor or no he does not tell us) and marry wife No. 2. The pope of Rome used to do such things—in England and the year 1822: Christian knowledge affirmed it.

In Dr Luckock’s index we may read, “Cosin, bishop, his carelessness in quoting authorities—mischievous consequences of this—” I know not how careless Bishop Cosin was, or how much mischief his carelessness may have done, but I do not think that Mr Tebbs was careful, and he seems to me to have done more mischief than I should have thought him capable of doing, so artless were his ways. However, he succeeded in deceiving the Rev. Hector Davies Morgan, who (so the Dictionary of National Biography says) had gained another of these 50l. prizes by promoting Christian knowledge, and who in 1826 published a book on the doctrine and law of marriage. Morgan repeated what Tebbs had said, adding a generalising ornament of that kind which historical essayists used to think permissible and elegant. These sad cases of Simon and John he sets before us as mere examples of the sort of thing that your mediaeval pope would do. “The facility with which such dispensations were granted is strikingly illustrated by the case of King John.” There are some marriages with which we who are not popes can dispense. One of Earl Simon’s seems to have belonged to this class. I think that the dean of Lichfield will not be infringing any papal prerogatives if he dispenses with that marriage for the future.

Turning to King John, we feel almost angry with Dr Luckock for suppressing that thrilling episode in these Morgano-Tebbsian Gesta Pontificum which introduces us to Henry de Leon, duke of Saxony. And I am not certain that something true might not be made of it, if we held that a count of Maurienne must be also count of Mortain (Mortain, Maurienne, Macedon, and Monmouth were much alike in the diocese of St David’s), or that Clementia of Zäringen was identical with her own daughter, though in the latter case we might also have to hold that a boy but five or six years old could be irrevocably bound by a marriage contract. That little John should marry the divorced wife (or, in strictness of law, discarded mistress) of his sister’s husband, adds a spice of horror to the tale and sets us thinking about that inscrutable mystery the affinitas secundi generis. Dr Luckock saw that there was something wrong with Henry “de Leon.” The pity is that when his scepticism had been once aroused it fell asleep again and left the accusation against Innocent III unretracted. The pope is still supposed to do something wrong and to enable our bad king to be “a law to himself.”

John’s matrimonial affairs are not so plain as might be wished. Contemporary Englishmen seem to have been somewhat uncertain as to what really happened. We start of course with this, that he went through the form of marriage with Isabella, otherwise Avice, of Gloucester; and that, if there was no dispensation in the case, this would-be marriage between two persons who stood to each other in the third degree of consanguinity was a nullity. John and Isabella are living together in incestuous concubinage; it is John’s duty to put Isabella away, and if Pope Innocent commands him to do so, we need not be surprised. Thus we may understand the rumour which found credence in an English monastery to the effect that the pope issued such a command and that John obeyed it1 That is a consistent story. Nevertheless we may be fairly certain that it is not true. We learn from another and a trustier source that there had been some papal dispensation for the union between these second cousins, and we are told that the pope was vexed when certain French bishops pronounced a divorce, or, to use stricter language, declared that the marriage was null2 . This they may well have done without questioning the pope’s power of removing the impediment that lay between John and his kinswoman. For any one of twenty reasons they may have held that the document which John had obtained from the papal chancery did not meet the case. I am not defending them; I know not whether they need defence, but it seems quite possible that if an appeal to Rome had been made against their sentence it would have been reversed. Isabella, it may be, was not so anxious to retain the king of England as Ingeborg was to retain the king of France; we know that she tried two other husbands before she died. But, whichever story be true, the marriage with the Gloucester heiress was pronounced null by an ecclesiastical court. Indeed John seems to have been at pains to obtain a sentence from the Norman bishops3 and another sentence from the bishops of his more southerly dominions4 . John, then, if a wicked, was none the less an unmarried man. He required no dispensation if he wanted to marry.

One point, at all events, I should have said, was beyond all reasonable doubt, had not Dr Luckock written the paragraph that I have transcribed, namely, that the pope gave John no help in getting rid of Isabella of Gloucester. Innocent himself told Philip of France that John’s case had never come before the Roman see. Mistaken he can hardly have been. Why should we not believe him1 ?

Dr Luckock, when he rejected the pretty tale about Henry de Leon’s divorced wife, may have felt that he was depriving his readers of a harmless joy, and owed them some compensation. So John’s crime and Innocent’s complacency must be magnified. “The evil was aggravated by the fact that his second wife was already betrothed.” Now no doubt John behaved scurvily to the Lusignans, and sorely was he punished for so doing; but we seem to have very good reason for believing that the contract between Hugh and Isabella was one which, according to the law of the church, she could avoid. We are told that when she said her verba de praesenti she was below the age at which a complete marriage was possible2 Hugh might be irrevocably bound, but she was free to avoid her contract, and if, when old enough to marry, she married John, her marriage with John would be valid without any dispensation. I have not come upon the authority which asserts that there was any dispensation at all relating to this bond (such as it was) between Hugh and Isabella, but I think that Dr Luckock would have considerable difficulty in proving that about the year 1200 it was unlawful or scandalous for a pope to dispense with a marriage that had not been consummated. Not so very long before that time such a marriage would hardly have been treated by the church as more than an agreement to marry. It may be formally true that after 1066 (the date that Dr Luckock chooses) “no new ecclesiastical laws were made” touching the indissolubility of marriage, but he does not, I take it, doubt that about a century after that date there was a very large change in the canonical conception of the manner in which a perfect and indissoluble marriage comes into existence.

“These were days,” he says, “when kings claimed to be a law to themselves, and a dispensation was readily granted for his adulterous union.” Yes, and these also were days when Innocent was laying France under an interdict in order that King Philip might be constrained to dismiss the German adulteress and take back the Danish wife. These popes were shamelessly inconsistent, were they not?

Unless Dr Luckock is in possession of information which leads him to believe that John’s union with his cousin of Gloucester and Earl Simon’s union with that anonymous lady were not consummated unions, or were contracted between persons who had never been baptised, he is, if I understand him rightly, charging two popes with having done what canonists of the classical age said that the popes never did, and even that no pope could do; he is charging them with having dispensed with the impediment to marriage which consists in a lawful and consummate ligamen uniting two Christians. This charge he has brought not merely against two popes, but, to all appearance, against the two most illustrious of all ecclesiastical legislators. He will, I think, admit that his “two famous instances in the highest rank of life” are mere illusions. He speaks of them, however, as if they were examples of what was done “from time to time” by popes who lived after the middle of the eleventh century. If he has some other and some better attested instances to offer, he should give them to the world. I am too ignorant to say that there are none to be found, but any which can be found should certainly have a place in every history of marriage law, for they are conspicuously absent in some books which nowadays enjoy a higher repute than the works of Messrs Morgan and Tebbs.

[1]English Historical Review, Oct. 1895.

[2]The History of marriage, Jewish and Christian, in relation to divorce and certain forbidden degrees. By H.M. Luckock, 1894.

[1]Coggeshall, 103.

[2]Diceto, II. 167; cf. ibid. 72.

[3]Diceto, II. 167.

[4]Hoveden, IV. 119.

[1]Innocentii III Opera (ed. Migne), I. 1015: Licet autem praedictus Ludovicus quondam pater tuus et praesens etiam rex Anglorum ab his quas sibi iunxerant, praelatorum terrae suae iudicio fuerint separati, super divortio tamen non fuit ad sedem apostolicam querela delata. Unde quod a praelatis ipsis factum fuerat, cum nullus penitus reclamaret, noluit revocare.

[2]Hoveden, IV. 119.