The appearance of a readable, inexpensive translation of this crucial work will be of great benefit to any student or scholar working on medieval marriage law but unable to read Latin sources. Pierre Payer has already shown himself extremely able in the compilation and translation of medieval penitential and canonical sources. Many of us have made wide use of The Bridling of Desire. Views of Sex in the Later Middle Ages(University of Toronto Press, 1993) and Sex and the Penitentials: the Development of a Sexual Code 550-1150(University of Toronto Press, 1985). Unfortunately, as Payer wrote "readers cannot assess the skill and care of the editor [or translator] without the relevant manuscripts to hand . . ." (7). I have every confidence, nevertheless, in Payer's translation.
Penyafort (ca.1180-1275) entered the Dominican Order early in its existence, about 1223, after studying and teaching in Bologna. He was master general of the order for only two years, 1238-40 (2) His Summa de paenitentia, which did not include the topic of marriage, was highly significant until the end of the thirteenth century (1). A second edition appeared in 1241. He may have written his compilation to update Tancred's Summa de matrimonio,also based on Gratian's Decretum (2). He was an "excellent Catalan canonist" according to James Brundage, Law, Sex and Christian Society, (327). See pages 397-99 in that work for an excellent brief comparison of aspects of Penyafort's writing compared to that of other canonists.
As Payer points out "the Summa on Marriage offers contemporary readers a reliable picture of the basic medieval conception of marriage and the conditions required for its validity" (5-6). It is divided by Payer into six broad topics: engagement, marriage, impediments to marriage, legal procedure in marriage cases, legitimacy of children, dowries and gifts in view of marriage (4). Penyafort himself listed twenty-five topics or titles as subdivisions of the work. Copious footnotes (which had been included within the text by Penyafort) appear here at the foot of the page directing the reader to the place of the original Latin text within in the Summa and also to Gratian or other canonists used by the author.
The writing in this translation is blessedly clear: "Engagements are contracted in four ways: sometimes by a mere promise; sometimes by giving an engagement pledge; sometimes with the addition of an engagement ring; sometimes with the addition of an oath" (13). Much of Penyafort's writing will be familiar to anyone who has read Michael Sheehan or James Brundage on medieval marriage.
Some assertions will surprise students, as in the statement that engagements may be entered into by boys and girls at the age of seven since the children by then "are said to have discretion, and engagements are usually attractive to them then." (14) The children may not marry, nevertheless, until the girl is twelve and the boy at least fourteen. It is clearly explained that if the children were less than seven years of age, and upon arriving at puberty, one or both of the engaged couple do not wish to continue with the promise to marry, the Church may, but does not have to, dispense the person or the couple from marriage to one another (17). He reiterates the vital importance of consent in marriage.
Similar to comments by many government leaders today: Marriage can only be the union of one man with one woman (19). Marriage is forever, even if one of the couple becomes a heretic (23). If one dismisses the other because of fornication, both remain married, though apart, and cannot remarry while the other lives (23). While marriage is not a sacrament, sacrament is one of the "goods" of marriage, one mirroring the union of Christ with the Church, thus it cannot be dissolved (24- 25).
The section on impediments is bewildering to those unfamiliar with the Middle Ages. If a woman married a man she believed to be free, or vice versa, and finds out later that the allegedly free person is a slave, the marriage is deemed to be illicit and does not exist because of the deception (32).
The section on vows may surprise some readers. Penyafort makes the important distinction that neither husband nor wife may make a vow of chastity, or enter religious life, without the consent of the spouse (35). Vows made below the age of consent, 12 or 14, are not valid (35). Unfortunately for some, not all popes adhered to this point of view. On vows and their validity, see James Brundage, "The Votive Obligations of Crusaders," Traditio (22, 1966), 22-118, reprinted in Brundage, The Crusades, Holy War and Canon Law(Variorum, Aldershot, 1991).
A highly complex section (39-42) explains what degree of consanguinity or blood relationship between individuals bars them from marrying, and sets out the way in which these regulations have been lightened to permit those not related in the first-fourth (rather than first-sixth) degree to marry. The next section on spiritual relationship is comparatively simpler explaining that not only may god-parents not marry their god-children, but the god-child may not marry a child of the god-parent, or the god-parent's spouse, because they now have a spiritual though not blood relationship. Similar constraints apply between adopted and natural children (47-8).
The section on marriage between believers, Jews, Christians, Muslims (Saracens in the text), pagans, and heretics is illuminating regarding prevailing opinions of these four groups and their religion or lack of it. A Christian may only marry an unbeliever if he or she promises to convert (51). Jews or Muslims can contract legal marriages with others of their own faith. If the unbeliever in a similar marriage converts to Christianity, while the partner remains non-Christian, the marriage can be dissolved permitting the new Christian to marry another Christian (51). Consanguinity is not an issue in marriages between Jews or between Muslims unless they have breached the laws of their own faith (51). Male converts married to more than one wife must repudiate all but the first wife (52).
One doubts whether this regulation was universally applied, but at least theoretically when fear or violence impelled a woman to marry, the marriage should be considered invalid unless the female remained with her husband for at least 18 months or consented to carnal intercourse. In the second instance, the marriage stands (54-55).
Interestingly, inability to cohabit is a reason to declare a marriage invalid provided the problem cannot be overcome within three years. Male frigidity, castration before the marriage, some female genital abnormalities, and long-lasting bewitchment all qualify in this instance (64-68).
Title XIX explains under what conditions an individual can bring a suit against his or her spouse either to dissolve the marriage or to receive him or her back from some other person (71-74). If both partners have committed adultery, the spouse should be restored to the original partner.
Title XX illustrates the care and thoughtfulness with which this treatise was written. It explains who may, or may not, bring an accusation against a couple which could result in the dissolution of the marriage (75-77). Penyafort explains that in cases in which one set of parents "is superior in riches, nobility, power, or honour" they are to be rejected as witnesses "because parents are seen to love the honour and advancement of their children" (76).
Another case of sympathetic reasoning occurs in the section on dismissal of the wife or husband for adultery or fornication (80-83). An evidently "adulterous wife cannot be accused by her husband . . . if he himself was convicted of fornicating . . . if he offered her in prostitution" of if the wife married another since she sincerely believed that her husband was dead; if she thought the man with whom she had carnal relations was actually her husband; if the act was the result of force; if the husband had taken her back after the act; or finally, if both were unbelievers and later converted they must return to one another (81-2).
The last title, XXV, discusses what a dowry is and how it is to be treated (87-9).
An unnumbered page compares Penyafort's statements with those of Thomas Aquinas with references to each. Pages 92-95 give complete references to Roman law and to other collections of canon law found within this summa. An index to subjects completes the book (96- 8).
This short book (98 pages including addenda) is extraordinarily rich both in the thought and work of Penyafort and on ways in which previous canonists, and Roman law, treated the subjects of engagement, marriage, impediments to marriage, legitimacy of offspring, and dowries. It contains enough material to keep undergraduate or graduate students busy for an entire semester, or a year for those who read Latin and who can consult the original sources. It need not be used only for information on ecclesiastical or canon law and how it was treated at the middle of the thirteenth century, but as a great source of medieval mentalité. We can learn, for example, both that educated churchmen believed in bewitchment, and that great attention was paid to the fundamental quality determining a valid marriage: consent.
Anyone wanting further information on this short book will find 24 pages on the WWW at www.pims.ca/pdf/inst41.pdf. You will find the table of contents, introduction in full, notes on the edition, and pp. 11-18 of the translated text complete with notes.