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Consummation 179
Gaudemet shows that this rereading of the text of Leo did not
have any impact until the twelfth century. Then some books of
church law start altering Leo’s text in the same kind of way as Hincmar
had done. One of them was Gratian’s Decretum. Gaudemet
is cautious about the connection between the Hincmar–Stephen of
Auvergne case in the ninth century and Gratian in the twelfth. He
thinks that the influence of Hincmar’s text on Gratian is not direct
and that the chain of texts linking them cannot be reconstructed:
too many links are missing. Nevertheless, he agrees that Hincmar
was the intellectual ancestor of the text in Gratian, Pars II, C. 27,
q. 2, c. 17, a transformed version of Leo the Great’s remark, that
reads as follows:
Since the social bond of marriage was instituted from the beginning in
such a way that without sexual intercourse marriages would not contain
the symbol of the union of Christ and the Church, there is no doubt that a
woman whom we learn to have been without the nuptial mystery does not
pertain to marriage.
Gaudemet concludes his paper with the comment that the interpolated
passage would ‘leave its impress thenceforward on the canonical
doctrine of marriage’. He sees this as decisive in the history
of the origins of the power to break a non-consummated marriage
(the title of his paper is ‘Investigation into the historical origins of
the power to break a non-consummated marriage’). If he is right,
as I believe he is, symbolism was crucial to the reasoning behind
the development.
So careful and dense is Gaudemet’s wording, in fact, that one can read his text
several times without being absolutely sure how much or how little he is claiming.
His overall conclusion is worth quoting: ‘Doctrine commune des P›eres, le
consensualisme matrimonial est scrupuleusement conserv‹e par les collections canoniques
jusqu’aux ann‹ees 1123–1130. Hincmar, pour r‹esoudre une grave dicult‹e, y
fait ‹echec afin de permettre la rupture d’une union non consomm‹ee. Mais le traitement
qu’il infligea au responsum de L‹eon n’atteignit pas la transmission du texte
dans les collections canoniques. La doctrine avanc‹ee par l’archev^eque de Reims
repara^§t entre 1123 et 1130 dans une collection qui du coup interpole le texte
de L‹eon. Interpolation que l’on retrouve dans le D‹ecret de Gratien et qui marquera
d‹esormais la doctrine canonique du mariage’ (‘Recherche sur les origines
historiques’, 331).