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Consummation 197
can be dissolved before the consummation of the marriage, say by
entering a religious order’ (emphasis added). The single word ‘say’
(puta) has large implications. It indicates that entry into a religious
order may not be the only reason for dissolving an unconsummated
marriage.
It is probably significant that William of Pagula was a trained
canon lawyer. The influence of canon lawyers was surely central
in the development we have analysed, for by and large canonists
admitted the theory behind Martin V’s decision long before
his pontificate, whereas the weight of theological opinion seems to
have been rather against it. This might seem like a stereotyped
clash between pragmatic lawyers and idealistic theologians, but in
fact the canon-law reasoning is highly theological, and furthermore
symbolically theological. The analysis of the views about ‘bigamy’
of Hostiensis should have prepared us for this. He is perhaps the
best person to analyse in this connection too, for his influence and
reputation were enormous—he even gets a mention in Dante’s Paradiso
(12. 82–97). His opinion would have carried great weight
with subsequent canon lawyers and popes.
The symbolic rationale in detail: Hostiensis
A remarkable passage is printed below as Document 4. 1. It follows
a long and complex discussion in which symbolism also figures
largely, but to follow its twists and turns would be a distraction from
the central points stated in the passage selected. This passage has its
twists and turns too: sometimes the canonist narrows the focus to
dissolution by entry into an order, at other moments he is thinking
about the general power to dissolve, but really he seems to have both
in mind. Hostiensis concludes, towards the end of the analysis, that
the pope has the power to dissolve unconsummated marriages provided
that the partners consent. The implication is that he can do
this with his ‘unbounded’ (absoluta) power even without a special
reason. However, the rule that a marriage can be dissolved before
consummation by one partner’s entry into a religious order is a
much more normal thing, coming within the pope’s bounded (ordinata)
power. Hostiensis assimilates this to the papacy’s power to
Joyce, Christian Marriage, 431–6 (noting important exceptions in each camp).
Pointed out by J. A. Brundage, Medieval Canon Law (London etc., 1995), 214.
For Hostiensis’s discussion of the issue in his other synthesis, the Summa aurea,
see Joyce, Christian Marriage, 432–3.