Untitled

Consummation 191
she may have stopped short of actually committing herself solemnly
to that life. If she did not make such a commitment, the picture
changes, and the first marriage is not after all dissolved. If the first
marriage is reinstated, the original couple find that they are married
after all. Both have to leave their current partner.
It was a hard decision for the parties, one must imagine. On the
face of it, no one ended up with the desired partner. But we need
to look at the situation from Innocent’s point of view: he could
not change his ethical principles because of a hard case, or let the
hard case make a bad law. The rationality of the pope’s decision can
hardly be questioned, within the terms of his own ethical and religious
system. The judgement of impotence had been mistaken, and
even an unconsummated marriage could not be dissolved except by
undertaking a solemn vow of chastity.
If we move fast forward four centuries we find a similar case
treated di·erently: the principles of Innocent have not been jettisoned,
in fact a style of reasoning dear to him has been at work, but
the outcome has been to create more room for man¥uvre. The case
was decided by the ‘Congregationof the Council’, a body which was
responsible for implementing the decrees of the Council of Trent
and whose activity curiously parallels the stream of papal case law
in the twelfth and thirteenth centuries. (The ideal-type which elucidates
both phenomena is that reform legislation requires concrete
clarification.) It is reported by the interesting seventeenth-century
theologian and canon lawyer Jacob Pignatelli.
The case concerned a Spanish couple, Garcܤa de Vargas and
Elizabeth de Lezano. They got married when he was 16 and she was
14, but she found herself unable to consummate the union. As with
the thirteenth-century case from Auxerre, she was examined by
matrons who confirmed that she was too ‘narrow’ for intercourse.
The bishop seems not to have waited for the usual three years
of cohabitation (to test whether the impotence was permanent)
before judging the case. The marriage annulled, the man married
another woman. Evidently she died, so he married again. Then
that wife died, and so he married yet again; Garcܤa seems to have
J. Pignatelli, Consultationes canonicae, i (Venice, 1736), consultation 148, pp.
184–6 at 186. I was led to this important source by Joyce, Christian Marriage,
446 n. 2. On Pignatelli see H. Hurter, Nomenclator literarius theologiae Catholicae
theologos exhibens aetate, natione, disciplinis distinctos, 3rd edn. (5 vols.; Innsbruck,
1903–13; repr. New York, n.d.), iv. Aetas recens: Seculum secundum post celebratum
Concilium Tridentinum. Ab anno 1664–1763 (1910), 264–5.