The Day Consent Became Paperwork

Here is a fact about medieval Europe that sounds like a mistake and is not. A man and a woman could marry each other. No priest, no church, no witnesses, no document: words of present consent, exchanged between the two of them, created a valid and binding marriage in the eyes of canon law.

This was not a loophole. It followed from the theology, which held consent to be the thing that makes a marriage, and it had enormous consequences.

Consider what a marriage without a record means in a society where marriage determines inheritance. A man who has married informally and wishes to marry better can deny the first marriage. A woman can claim a marriage that the man denies. Children's legitimacy, and therefore their claims on land, rest on which account a court believes. Church courts spent centuries adjudicating exactly these disputes, with witnesses recalling words spoken years earlier at a doorway or in an orchard.

The Council of Trent closed it in 1563.

The decree known by its opening word, Tametsi, in the twenty-fourth session, made clandestinity an impediment: a marriage contracted without the parish priest and two or more witnesses was no longer irregular but invalid, and the marriage was to be entered in a register. Consent did not stop mattering. It stopped being sufficient. From that point, in the regions where the decree was promulgated, a Catholic marriage was an event with institutional proof attached.

Protestant Europe took longer and arrived at the same place by a civil route.

In England, informal marriage remained a live problem into the eighteenth century, with a trade in quick weddings around the Fleet prison in London performed by clergy outside parish discipline. Parliament's answer was the Marriage Act of 1753, titled an act for the better preventing of clandestine marriages and in force from March 1754. It required the ceremony to take place in a parish church after banns or by licence, insisted on registration, and made marriage of anyone under twenty-one void without parental consent. Quakers and Jews were exempted; nobody else was.

And then the geography did what geography does to any rule with a border.

The act was English. Scotland's law continued to recognise irregular marriage, required no residence and no parental consent, and set much lower ages. So English couples who could not marry at home travelled north, stopping at the first villages across the line, and from about 1770 one of them, Gretna Green, became the name of the practice. A statute written to make marriage harder to contract informally created a tourist industry in contracting it informally fifteen miles away.

What should we make of the reforms?

The case for them is strong and worth stating without irony. They protected people, mostly women, from a marriage that could be denied, and children from a legitimacy that could be litigated. They made bigamy detectable. They gave the parties something to point at.

The cost is equally plain. Requiring a priest, a parish, banns read publicly for three weeks and a parent's permission under twenty-one converts a decision belonging to two people into a decision their families and community can obstruct. Elopement exists as a category because the formalities exist. The reforms made consent provable by making it public, and publicity is exactly what a couple marrying against their families' wishes cannot afford.

One last debt, and it is ours rather than theirs.

Nearly everything we know quantitatively about historical marriage comes from the registers these rules created. Ages at first marriage, remarriage after widowhood, the share of people who never married, illegitimacy rates, the effect of harvest failures on wedding numbers: all of it is counted from parish books that exist because two sixteenth and eighteenth-century reforms demanded a written entry. The history of love in Europe is legible to us for an administrative reason.