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128 Chapter 2
ness of the rationale behind the rules. A woman named Gemma
had a daughter whose name is simply given as ‘T’. The daughter
was betrothed to a boy when they were both less than seven, and
a penalty clause was included in the arrangement. Still, when she
grew up she married someone else. The father of her childhood
fianc‹e attempted to enforce the penalty clause. In 1231 the pope
gave delegates the power to stop him, because marriages should be
free. In a case of 1233 a French clergyman was able to bring in the
pope to help a relative. Her father had died and her guardian had
arranged for her to marry the son of a certain Theobald, when the
son came of age. If this son died first, she would marry another son.
Theobald and the son specified under plan A both died; there was
another son but he was not yet old enough to marry. So Theobald’s
widow seems to have imprisoned (‘presumes to detain’) the girl,
who was now of marriageable age. The clergyman petitioned for
her release and freedom to marry someone else. The pope commissioned
the bishop of Le Mans to investigate and judge the case.
If the facts turned out to be as stated, the girl was to be released,
or else the woman holding her would face ecclesiastical censure.
Again the pope states the rationale that ‘marriages should be free’,
matrimonia libera esse debeant.
The hard line on indissolubility needs to be set against the insistence
on liberty. Marriage was for life, but it must be entered freely.
We have seen—it is the theme of this chapter—that symbolism underlay
the idea that marriage was for life. It seems also to connect
with the thought that marriage must be free. To quote Noonan yet
again:
Unwilling marriages usually brought bad results. But why was freedom a
positive good? Reflection on the canons led to an answer put in the terms of
the great mystery of the Epistle to the Ephesians, succinctly stated in 1457
by the last great commentator on Gratian, Juan de Torquemada: ‘Marriage
signifies the conjunction of Christ and the Church which is made through
the liberty of love. Therefore, it cannot be made by coerced consent.’
‘cum vero libera matrimonia esse debeant’: the phrase is from the calendar in
Les Registres de Gr‹egoire IX, ed. Auvray, vol. i, no. 719, col. 449, but it looks as
though the editor has taken it from the words of the papal letter.
‘proneptis’: it can mean great-granddaughter, but in context ‘great-niece’ is
more likely.
Les Registres de Gr‹egoire IX, ed. Auvray, vol. i, no. 1188, cols. 671–2.
Noonan, ‘Power to Choose’, 434.