A History of Matrimonial Institutions, Vol. 2 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 2 of 3
Howard, George Elliott
Families; Marriage -- History
The facility with which dispensations could be secured is
illustrated by a Scotch case in 1426-28. On April 11, 1426,
Pope Martin V. granted a dispensation to Alexander of Hume
and Marion of Lander to marry, though of double fourth degree
of consanguinity. Curiously enough, perhaps because this
dispensation had not yet been received, on Oct. 6, 1427, Hume
appeared before the rector sitting as judge and proposed that
his marriage could not stand of right because of consanguinity.
The marriage was therefore pronounced null and void, and the
parties were given license to marry whom they pleased. On the
fourth day of the following January Hume and his former wife
presented a petition to the papal see, announcing that, aware of
their consanguinity, they had contracted marriage _per verba de
praesenti_ and begotten children; that when their ordinary heard
of the consanguinity he rightly celebrated a divorce, which they
obeyed; but they feared scandal, and for this and other reasons
they desired to be joined in marriage. The pope therefore granted
another dispensation and declared their offspring legitimate:
_Hist. Manuscripts Commission, XII. Report_, App. VIII, 122,
123. In another case, 1459, the earl of Rothes declares on oath
that he had within the last year obtained certain knowledge of
the impediment of consanguinity as set forth in his libel, and
that formerly, for the space of thirteen years after birth of the
last of his living children, he was altogether ignorant of it:
_ibid._, _IV. Report_, 507.]
Nevertheless, the Council of Trent introduced no essential change in
the divorce law of the Catholic church.[167] A vain attempt was made
to remedy the evils arising in the confusion of terms.[168] Anathema
was pronounced against those who should deny the indissolubility
of wedlock as a necessary consequence of its sacramental nature;
and a like curse was fulminated against any who shall dare to
say that the church errs in allowing divorce _quoad torum et
cohabitationem_, temporarily or perpetually, for any cause besides
unfaithfulness.[169] But neither at the council nor since has there
ever been made any essential change in the law relating to the papal
power of dispensation.[170]
[Footnote 167: In general see CIGOI, _Unauflösbarkeit_, 149 ff.;
PERRONE, _De mat. christ._, III, 376 ff., 389 ff., 398 ff.;
GODOLPHIN, _Repartorium canonicum_, 61, 62, 492-512; ESMEIN,
_Le mariage en droit canonique_, II, 295 ff., 308 ff.; SCHULTE,
_Lehrbuch_, 359-61; LECKY, _Democracy and Liberty_, II, 193,
196, 197; GLASSON, _Le mariage civil et le divorce_, 216, 217;
SCHEURL, _Das gem. deut. Eherecht_, 275, 276, where the canons
adopted at the twenty-fourth session are given.]
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