1 The development of the family and marriage in Europe (Past and Present Publications, Cambridge, 1983)Google Scholar; The oriental, the ancient and the primitive: systems of marriage and the family in the preindustrial societies of Eurasia (Studies in Literacy, Family, Culture and the State, Cambridge, 1990).Google Scholar

2 See the review of The development of the family and marriage in Europe by Houlbrooke, R. A., English Historical Review 99 (1984), 818.Google Scholar

3 See Goody, The oriental, the ancient and the primitive, 409–15, and Richard Saller, ‘European family history and Roman law’, published in this journal.

4 Some communions, living in geographical isolation (Ethiopic Church) or living in a virtual ghetto among other Christians (Amish, Mennonites etc.), have tended to develop family usages that approach theological positions.

5 Since the end of World War II, Western Catholicism has been in the process of developing a theology of the family. The Roman Synod of 1982 on ‘The family’ marks a significant change in this regard and in part illustrates the problem created by the meeting of the Western European notion of the Christian family with the conditions and demands of the missionary areas of the Third World. Formal devotion to the Holy Family and dedication of churches under that title began in the nineteenth century; artists and sculptors explored the theme much earlier. This may be a case where religious art and the religious practice of Christians anticipated the reflection of their theologians.

6 As an example of the problem that the Church's position on marriage creates in the Third World and of the important, and sometimes bitter, discussion that has resulted, see Kirwen, Michael C., African widows: an empirical study of the problems of adapting Western Christian teachings on marriage to the leviratic custom for the care of widows in four rural African societies (Maryknoll, New York, 1979). Note the bibliography, pp. 243–53.Google Scholar

7 Noonan, John, ‘Power to choose’, Viator 4 (1973), 419–34CrossRefGoogle Scholar; Sheehan, Michael M., ‘Choice of marriage partner in the Middle Ages’, Studies in Medieval and Renaissance History 1 (O.S. 11, 1978), 8–14.Google Scholar

8 See Schillebeeckx, Edward C., Secular reality and saving mystery, trans. Smith, N. D. (New York, 1966)Google Scholar, pt. 2, ch. 5, cited by Maxwell, John F., Slavery and the Catholic Church (Chichester, 1975), 29.Google Scholar

9 Not enough attention has been paid to this parallelism: thus the rituals of marriage and of entry into the virginal state developed at the same time from the fourth to the sixth century; regulations protecting the freedom of choice by the principals of a marriage and of one entering religious life developed in the late eleventh and twelfth centuries, etc.; see Sheehan, Michael M., ‘Sexuality, marriage, celibacy and the family in central and northern Italy’, forthcoming.Google Scholar

10 See the remarks of Langlois, Rosaire, ‘Orality and literacy, kinship and marriage: Goody's elusive historical materialism’, Canadian Journal of Sociology 14: 1 (1989), 89–107CrossRefGoogle Scholar, esp. 98–9.

11 For preliminary bibliographical orientation on this important matter, see Herlihy, David, ‘Church property’, in New Catholic Encyclopedia, 3 (1967), 849–53.Google Scholar Although Church property was not to be alienated, when there was danger of seizure by family or lord, modes of ‘alienation’ by donation inter vivos or testament were sometimes used to protect it: see the cases of Benedict Biscop (c. 690) and Bishop Hugh of Lincoln (c. 1200) discussed in Sheehan, Michael M., The will in medieval England (Toronto, 1963), 93, 245–6.Google Scholar The prohibition of succession to ecclesiastical property by the sons of priests, and the withdrawal of benefices from those in minor orders who choose to marry, can be seen as part of the attempt to protect ecclesiastical property at a point where it was especially vulnerable; see Schimmelpfennig, Bernhard, ‘Ex fornicatione nati: studies in the position of priests' sons from the twelfth to the fourteenth century’, Studies in Medieval and Renaissance History, n.s. 2 (1970), 1–50.Google Scholar

12 See Bonfield, Lloyd and Poos, Larry R., ‘The development of the deathbed transfer in medieval English manor courts’, Cambridge Law Journal 47, 3 (November 1988), 405–6.CrossRefGoogle Scholar It is ironical that the tenure that allowed alienation of family property among the Anglo-Saxons was called ius ecclesiasticum; see Sheehan, The will, 84–5.

13 Dictionnaire de droit canonique, see under ‘consanguinité’, 2 233–6.

14 c.1 1: ‘Et ut de consanguinitate sua nullus uxorem ducent, usque ad septimam generacionem, vel quousque parentela cognosci poterit...’ (Sacrorum conciliorum nova et amplissima collectio, ed. J. D. Mansi, 31 vols. [Florence and Venice, 1759–1798; henceforth cited as Mansi], 19: 1026).

15 Mansi, 21:283, 530–31.

16 Dict. p. C 35, qq 2–3, c 19.

17 See Bouchard, Constance B., ‘Consanguinity and noble marriages in the tenth and eleventh centuries’, Speculum 56 (1981), 268–87CrossRefGoogle ScholarPubMed, and Gieysztor, Aleksander, ‘Le tradizioni locali e le influenze ecclesiastiche nel matrimonio in Polonia nei secoli X-XIII’, in Il matrimonio nella società altomedievale. XXIV Settimana di studio del. Centro italiano di studi sull' alto medioevo, Spoleto, 22–28 aprile 1976 (Spoleto, 1977), I: 321–46.Google Scholar

18 Cited Dictionnaire de droit canonique, 2:236.

19 See Thomae de Chobham summa confessorum, ed. F. Broomfield (Louvain, 1968), xlvi–xlix,Google Scholar and Sheehan, Michael M., ‘Marriage theory and practice in the conciliar legislation and diocesan statutes of medieval England’, Medieval Studies 40 (1978), 441–2;Google Scholar cf. Diebold, Etienne, ‘L' application en France du canon 51 du IVe Latran d'après les anciens status synodaux’, L'année canonique 2 (1953), 187–95.Google Scholar

20 See the more developed argument along this line in Michael Mitterauer, ‘Endogamy and early Christian marriage law’ in this journal.

21 ‘Non debet reprehensibile judicari, si secundum varietatem temporum statuta quandoque varientur humana, praesertim cum urgens necessitas vel videns utilitas id exposcit, quoniam ipse Deus ex iis, quae in Veteri Tetamento statuerat, nonnulla mutavit in Novo.’ Mansi 22: 1035–6. See Lefebvre, Charles, ‘Evolution de la doctrine canonique du marriage en fonction des situations de fait et des requêtes de chrétiens’, Revue de droit canonique 29 (1979) 60–78.Google Scholar

22 It has been pointed out that dispensation was available only to the aristocracy, a small portion of society. That objection is not of consequence, however, because it is the devolution of the property of precisely this group that is under discussion here.

23 On papal strategy in the grant of dispensation during its quarrel with the Hohenstaufens, see Kroppmann, Hubert, Ehedispensübung und Stauferkamp unter Innocenz IV: Ein Beitrag zur Geschichte des päpstlichen Ehedispensrechtes (Abhandlungen zur mittleren und neueren Geschichte 79, Berlin 1937).Google Scholar

24 See the citation of the suggestions of Jean-Louis Flandrin and the more general discussion of this matter in Mitterauer, ‘Endogamy and early Christian marriage’. Furthermore, many ecclesiastics and ecclesiastical institutions enjoyed feudal lordship: the failure of a vassal family to provide an heir was not without benefit to its lord.

25 Thus St Augustine, who in listing the goods of marriage usually assigned the first position to children, insisted that divorce and remarriage for the purpose of engendering a child was not permitted; see De bono conjugali, ch. 15, ed. Josef Zycha (Corpus scriptorum ecclesiasticorum Latinorum Vol. 11, sect. 5, pars 3 [Vienna, 1900]), 209–11.Google Scholar With the more developed examination of mode of establishment of the marriage bond, a declaration of nullity, based on impotence, became a possibility: see Murray, Jacqueline, ‘On the origins and role of “wise women” in causes for annulment on the grounds of male impotence’, Journal of Medieval History 16 (1990), 235–49.CrossRefGoogle Scholar

26 On other sources for these doctrines and their significance in the development of a different understanding of marriage, see Gaudemet, Jean, ‘Le legs du droit roman en matière matrimoniale’ in Il matrimonio (see n. 17), 1: 137–79Google Scholar, and Brown, Peter, The body and society: men, women and sexual renunciation in early Christianity (New York, 1988), 17–25.Google Scholar

27 See Brundage, James A., ‘Concubinage and marriage in medieval canon law’, Journal of Medieval History 1 (1975), 1–17CrossRefGoogle Scholar, and Sheehan, Michael M., ‘Theory and practice: marriage of the unfree and the poor in medieval society’, Mediaeval Studies 50 (1988), 457–87.CrossRefGoogle Scholar

28 See the discussion of free choice of spouse below.

29 See X 4.17: Qui filii sint legitimi, and Piekoszewski, Jam, La légitimation des enfants naturels simples par le marriage subséquent (Paris, 1951).Google Scholar

30 See R. H. Helmholz, ‘Bastardy litigation in medieval England’, American Journal of Legal History (1969), 360–83Google Scholar, and Barton, J. L. ‘Nullity of marriage and illegitimacy in the England of the middle ages’, in Legal history studies, 1972. Papers presented to the Legal History Conference, Aberystwyth 18–21 July 1972, ed. Dafydd, Jenkins (Cardiff, 1972), 28–49.Google Scholar

31 See The development of the family, 296, index, under the heading ‘adoption’, and The oriental, the ancient and the primitive, 433–4. In the latter volume, however, Professor Goody notes that in late Republican and early Imperial Rome little use of adoption was made (416); see Saller, ‘European family history and Roman law’ in this journal.

32 The tradition of fostering was well known and frequently practised. Much as the fosterling was drawn into the family, however, he did not become heir; On the other hand he contributed to the continuation of the family in some cases by marrying its heiress; see Goody, The European family, 196–7, and The Oriental, 469.

33 See Roger Aubenas ‘L'adoption en Provence au moyen âge (XlVe-XVIe siècles)’ Revue historique de droit français et étranger 4e sér. 13 (1934), 700–26. The article begins with a brief discussion of the ‘accepted notion’ that adoption was rejected by customary law.

34 Decretum Gratiani C 30, q 3, c 6; X 4.2.1, 4.17.6. See Dictionnaire de droit canonique under the heading ‘adoption’, 1: 219–20.

35 Glanvill knew that both canon law and Roman law provided the possibility of adoption (7.15): Tractatus de legibus et consuetudinibus regni Angliae qui Glanvilla vocatur, ed. D. G. D. Hall (Oxford, 1965), 88 and nn. 1, 3.Google Scholar The attitude to adoption found in the medieval Corpus iuris canonici reappears in the Codes of 1918 and 1983: Codex iuris canoni (Vatican City, 1918)Google Scholar, cc. 1059, 1080; Codex iuris canoni (Vatican City, 1983)Google Scholar, cc.110, 877:3, 1094.

36 Professor Goody's Observations on ‘upper’ and ‘lower’ families (The oriental, the ancient and the primitive, 476–7) are significant here. On some English manors, peasants who did not have children could arrange for the succession to their tenement by the person they chose. Even more interesting, in cases where a child, who would ordinarily have succeeded, refused to promise to care for a father or mother who held the property, the tenant was allowed to arrange for succession by a stranger, to the exclusion of the heir by the blood; see Bonfield and Poos, ‘The development of the deathbed transfer’ heir by blood; see Bonfield and Poos, ‘The development of the deathbed transfer’ (above, n. 12), 408–27, and Clark, Elaine, ‘Some aspects of social security in medieval England’, Journal of Family History 7 (1982), 307–20.CrossRefGoogle Scholar

37 ‘Ultima heredes aliquorum sunt eorum domini’ (Glanvill 7.17, ed. Hall, 91).

38 See The oriental, the ancient and the primitive, 482. Brundage, James A., Law, Sex, and Christian society in medieval Europe (Chicago, 1987). esp. pp. 229–416CrossRefGoogle Scholar, discusses in great detail the evolution in the eleventh and twelfth centuries of canon law's position regarding freedom of choice: that is, the principle that intending spouses (in the absence of impediments such as pre-contract) were legally free to marry regardless of parental or seigneurial opposition.

39 The lord's right to an important role in servile marriage remained a major area of discussion until at least 1250. See Sheehan, ‘Theory and practice’ (above, n. 27).

40 See the conclusions to Sheehan, Michael M., ‘The formation and stability of marriage’, Medieval Studies 33 (1971), 263.Google Scholar