Navigation – Plan du site
Genre et dispenses matrimoniales : représentations et pratiques juridiques et généalogiques au Moyen Âge et à l'époque moderne

The Relativity of Kinship and Gender-Specific Logics in the Context of Marriage Dispensations in the Nineteenth-Century Alps (Diocese of Brixen)

Relativité de la parenté et logiques genrées des dispenses matrimoniales dans les Alpes au xixe siècle (diocèse de Brixen)
Margareth Lanzinger

Résumés

Cette contribution se propose d’examiner, tout d’abord, les spécificités du concept canonique de la parenté et de l’inceste et de le comparer à d’autres religions ou confessions chrétiennes. Le regard se portera ensuite sur des demandes de dispenses matrimoniales du XIXe siècle, qui devaient permettre des unions dans des degrés proches, tant dans la consanguinité que dans l’affinité, dans le diocèse de Brixen (Bressanone), qui se situe de nos jours dans l’actuel Tyrol du Sud en Italie, mais qui englobait également le Tyrol du Nord et de l’Est, tout comme le Vorarlberg en Autriche. Les arguments avancés par les couples de fiancés et les témoins visant à relativiser le lien de parenté feront l’objet d’une analyse précise. La troisième partie se concentre finalement sur la spécificité de genre des motifs de dispenses officiellement reconnus et se propose d’étudier leurs conséquences pratiques. De fait, la plupart des raisons invoquées pour obtenir des dispenses matrimoniales au début de l’époque moderne et au XIXe siècle visaient surtout des femmes, ce qui nous conduit à nous interroger sur ce phénomène en le réintégrant dans une analyse plus globale.

Haut de page

Texte intégral

I would like to thank the editors of this issue Michaël Gasperoni and Jasmin Hauck as well as the anonymous reviewer for their useful comments and valuable references.

  • 1 Cf. Cecilia Cristellon, « Between Sacrament, Sin and Crime: Mixed Marriages and the Roman Church in (...)
  • 2 Cf. Luca Bianchi, « “Cotidiana miracula”, comune corso della natura e dispense al diritto matrimoni (...)
  • 3 Decretum Tametsi, Sessio 24, Caput 5 in Il sacro concilio di Trento con le notizie più precise rigu (...)

1Dispensations have a long history as an instrument of the Catholic Church. In all sorts of situations, they legitimised deviations from the norm. With a dispensation in hand, a vow of chastity could be annulled, or meat could be eaten during Lent; books that were on the Index librorum prohibitorum could be read; the « blemish of illegitimate birth » could be removed for men who wanted to join the clergy; and–last but not least–prohibited marriages could take place. Such prohibitions applied to couples who belonged to different confessions (impedimentum disparitas cultus)1 or were related, at the fourth degree or closer, by blood, marriage (affinity), or godparenthood (impedimentum consanguinitatis, affinitatis, and cognationis spiritualis, respectively). A dispensation was necessary if a bride had previously promised to marry a brother or cousin of the groom–as well as if, conversely, the groom had promised to marry a sister or cousin of the bride (impedimentum publicae honestatis)–or if an illicit sexual relationship had taken place (impedimentum ex copula illicita). In the logic of canon law, dispensations were simultaneously conceived as exceptions and as acts of mercy2. As a result they could not be claimed by legal entitlement. On the contrary, the decision on whether to grant or refuse a requested dispensation was made on a case-by-case basis, and granting one required formal justification. This requirement had been laid down by the Council of Trent (1545–1563): « In contrahendis matrimoniis vel nulla omnino detur dispensatio, vel raro, idque ex causa, & gratia concedatur3 »–with regard to marriage, a dispensation should either not be granted at all or only rarely, for [specified] reasons, and by grace.

  • 4 After the reorganisation in post-Napoleonic Europe, the southern Tyrolean part of the Diocese of Br (...)
  • 5 Cf. Margareth Lanzinger, Verwaltete Verwandtschaft. Eheverbote, kirchliche und staatliche Dispenspr (...)
  • 6 Catalogus personarum ecclesiasticarum Dioecesis Brixinensis ad initium anni MCCCCXXXI, vol. 22 (Bri (...)

2The present article focuses on late eighteenth- to late nineteenth-century requests for dispensations for marriages at close degrees of consanguinity and affinity from the diocese of Brixen, which was based in the northern part of Habsburg Tyrol. It included the northern part of present-day South Tirol (Italy)4 but also today’s North Tyrol as well as East Tyrol and, during the nineteenth century, Vorarlberg (now in Austria)5. Around 1830 it counted 355 000 inhabitants6. From 1831 onward, there exists a large body of dispensation-related documentation. This includes material related to the administrative procedure that had to be followed in order for requests at close degrees of consanguinity and affinity to obtain the required dispensation from Rome. I will focus on the gender-specific logics and attributions that came to bear in connection with dispensation requests. The first part of this article aims to identify the specific characteristics of the canon law concepts of kinship and incest and compare these with other religions and Christian denominations. It then considers the arguments advanced by prospective couples and their witnesses in the hope of minimizing the relatedness of the prospective spouses. Finally, the third part of this article focuses on the gender-specific character of the officially recognised reasons for granting a dispensation.

Concepts of Kinship and Incest–Norm and Practice

  • 7 Bishops were equipped with their various authorities in the form of so-called quinquennial facultie (...)
  • 8 Unequal degrees are the results of the involvement of different generations. The second and third u (...)

3The interrelationship between kinship and incest is best conceived in terms of closeness and distance–perceptions that changed over the centuries. The closer the degree, the stricter were the impediments–at least at first sight. During the period under examination, which runs from the late eighteenth to the late nineteenth century, « close degrees » were defined as those which required a papal dispensation. The division of competence between the papal and the episcopal administrations was by no means clear cut: they differed geographically (by diocese); they changed over time; and they were ultimately dependent on the bishop in question as well as on his rank7. In the diocese of Brixen, the « close degrees » included the second and third unequal degree,8 but in the diocese of Salzburg, for example, they covered only the first and the second degree. These inconsistencies made a clear difference with regard to the effort involved, time, cost and chances of success associated with a request for dispensation, especially since they determined whether a papal or only an episcopal dispensation was necessary.

  • 9 Hofdekret (imperial decree) of 17 January 1783.
  • 10 ‘Normal’ dispensation requests were sent to the Datary and requests involving the honour of the bri (...)
  • 11 See Margareth Lanzinger, « Mariages entre parents, l’économie de mariage et le « bien commun ». La (...)
  • 12 Gérard Delille, « Réflexions sur le “système” européen de la parenté et de l’alliance. Note critiqu (...)
  • 13 Margareth Lanzinger, « Widowers and their Sisters-in-Law: Family Crises, Horizontally Organised Rel (...)

4In addition, it is possible to identify differences related to the extent of secular state involvement. The question was whether the state offered an alternative by the way of civil dispensations and civil marriage, or else interfered in the ecclesiastical administration of dispensations, making the procedure even more complicated. In the diocese of Brixen the latter state of affairs pertained. The Josephine Marriage Patent of 1783 limited the requirement for a dispensation to the first and second degrees (such as marriage to a sister-in-law or a cousin) and compelled Austrian bishops to issue these dispensations based on their own authority9. This implementation of this system was fraught with serious difficulties, especially in so-called ultramontane dioceses like Brixen that were strongly oriented towards Rome. To begin with, the prince-bishop of Brixen–like many other bishops–was not willing to bypass the relevant papal authorities, the Datary and the Apostolic Penitentiary in Rome, which, alongside the Nunciature in Vienna, were the two most important institutions for granting matrimonial dispensations10. To complicate matters still further, local priests refused to celebrate marriages without dispensation in the case of couples related in the third or fourth degree. At the same time, although the Patent of 1783 introduced civil dispensations in addition to religious dispensations, these were mostly a mere formality, since there was no civil marriage in Austria until 1938. This meant that bridal couples continued to be entirely dependent on ecclesiastical grace, except for a few years after 1783 when the power of decision was attributed to the newly competent civil authorities11. Nevertheless, from the late eighteenth century onwards, bridal couples always had to deal with two different and partly competing administrative bodies, both of which they needed to obtain a religious dispensation and a civil dispensation. By way of comparison, civil marriage was introduced in France in 1792 and in 1804 (with the Code civil). As a consequence, the state and church operated separately, and could even go in opposite directions. For example, a law of 1832 authorised the sovereign to accord dispensations for marriages between brothers-in-law and sisters-in-law12. This legislation, which was initially only applicable to the closest possible marriage ties, namely those between uncles and nieces or aunts and nephews, is particularly remarkable because it seems to have been a response to the tightening up of the papal dispensation policy. Unsurprisingly, such marriages–at the first degree of affinityfaced extreme resistance under the papacy of Gregory XVI (1831–1846)13.

  • 14 Francis X. Wahl, The Matrimonial Impediments of Consanguinity and Affinity. An Historical Synopsis (...)
  • 15 Regarding consanguinity, a dispensation was only impossible among first degree blood relatives – in (...)
  • 16 Dispensation in the third and fourth degree were granted by the bishop and from the 1850s onwards b (...)
  • 17 Cf. A[dhémar] Esmein, Le mariage en droit canonique (Paris: Larose et Forcel, 1891), vol. 2; Willia (...)

5In contrast to this kind of official state intervention, in the diocese of Brixen during the period 1831 to 1890, for which the preserved dispensation records are complete, Roman dispensations were not only required for marriages between first cousins (second degree of consanguinity) but also in the second and third unequal degree. The second and third unequal degrees of consanguinity pertained if the bride or bridegroom was not a cousin but the son or daughter of a cousin–unequal because « one is farther removed from the common ancestor than the other14 ». Among the unequal degrees were also unions between uncle and niece (first and second unequal degree of consanguinity), which occurs only very rarely in the examined dispensation requests, whereas there are no cases of aunt and nephew in the present sample at all15. Parallel to such combinations were marriage projects ranging from the first to the second and third unequal degree of affinity (rather than consanguinity), which likewise required a dispensation from Rome16. These ran from unions between a widower and a sister of his deceased wife or between a widow and the brother of her deceased husband (first degree of affinity) all the way to unions with the daughter of a cousin of the deceased wife, or with a son of a cousin of the deceased husband (second and third unequal degree of affinity)17.

  • 18 Cf. David Warren Sabean, Simon Teuscher and Jon Mathieu (eds.), Kinship in Europe. Approaches to Lo (...)
  • 19 Cf. Michaël Gasperoni, « Reconsidering Matrimonial Practices and Endogamy in the Early Modern Perio (...)
  • 20 The « slowly rising number of dispensations granted for marriages at close degrees » among ordinary (...)

6Generally, in the eighteenth century, the overwhelming majority of dispensations which were granted still referred to the third and fourth degree, and this is reflected in the dispensation registers of the diocese of Brixen. Nonetheless, at the same time, a slowly rising number of dispensations granted for marriages at close degrees becomes evident. This result accords with the findings of other research projects18, although regional differences have to be taken into account19. Most of these concern dispensations in the second and third unequal degree, but also at the second degree of consanguinity and, finally, at the first degree of affinity (see table 1), with the prospective couples coming from all social milieus20. While the entries in the dispensation registers contain only dispensations granted and provide only limited information about the bridal couples, the picture becomes more colourful when the focus is moved to the documentation produced in the context of the administrative procedure, which also includes rejected requests for dispensation.

  • 21 Diözesanarchiv Brixen (DIÖAB), Registratura Dispensation[um] Matrimonial[ium] inc[o]hoata anno 1690 (...)

Table 1. Marriage dispensations granted in the diocese of Brixen 1705–1805 (selected years): close degrees compared to total numbers21

Table 1. Marriage dispensations granted in the diocese of Brixen 1705–1805 (selected years): close degrees compared to total numbers21

* some entries do not specify the degree
eci =
ex copula illicita

  • 22 Decretum Tametsi, Sessio 24, Caput 5, in Il sacro concilio di Trento, op. cit., p. 284.

7This would suggest that dispensations at « close degrees » were no longer limited to aristocratic circles and to marital alliances in the public interest. These were the two exceptions specified by the Council of Trent: « In secundo gradu nunquam dispenseretur, nisi inter magnos Principes, & ob publicam causam22 ». This norm had evidently been quite influential throughout the early modern period, for during the sixteenth and seventeenth centuries, the granting of dispensations to non-aristocrats was typically limited to the more distant third and fourth degrees. From the period between 1564 and 1630 (that is, immediately following the Council of Trent), Raul Merzario analysed 493 dispensations from the diocese of Como. The lion’s share of these, namely 74.43 percent, were dispensations at the fourth degree, while 19.47 percent were at the third and fourth unequal degree, 6.29 percent were at the third degree, and 0.81 percent were at the second and third unequal degree. This is to say that in the nineteenth-century diocese of Brixen, the category of « close degrees » and of « Roman dispensations » included those relations beyond the limit for grantable requests which pertained in the sixteenth and seventeenth centuries in the diocese of Como.

  • 23 Raul Merzario, Il paese stretto. Strategie matrimoniali nella diocesi di Como, secoli XVI-XVIII (To (...)
  • 24 Cf., Gérard Delille, L’economia di Dio. Famiglia e mercato tra cristianesimo, ebraismo, Islam, Roma (...)
  • 25 Hugo Willrich, Das Haus des Herodes zwischen Jerusalem und Rom (Heidelberg: Universitätsbuchhandlun (...)
  • 26 Cf. Mitterauer, « Christianity and Endogamie », art. cit., p. 299; Françoise Héritier, Two Sisters (...)

8It is not insignificant that the dispensations granted at the second and third unequal degree in Merzario’s study were exclusively in cases of affinity23. As we shall see, this would seem to indicate gender-specific logics. In theory, the specific character of the Christian and/or Catholic conception of forbidden degrees of kinship was embodied by a principle of construction that was identical both for men and women, and for cases of consanguinity and affinity. On the other hand, the scriptural basis upon which the rules prohibiting incest were based was all formulated in a one-sided and situational manner: in short, they always addressed men (frequently with reference to Lev. 18: 6-18)24. And other religions and confessions did indeed do things differently in this regard. John the Baptist, for instance, accused Herod Antipas as follows: « You have no right to your brother’s wife »–who was also his niece25. Their close blood kinship was apparently less important than their affinity, in terms of which only one relationship, that between widower and sister-in-law, was relevant, and not that (analogous to this) between widow and brother-in-law. Such prohibitions were only systematised over the course of time. Marrying the sister of one’s deceased wife (sororate marriage) was first condemned in the Christian context at the Synod of Elvira in 307, while a marriage to the brother of one’s deceased husband (levirate marriage) was first condemned a little later on at the Synod of Neo-Caesaria (314-325)26.

9In the Jewish context, this equation did not exist in the same way: levirate marriage enjoyed a special status. The marriage with the deceased brother’s wife was indeed forbidden, but the widow had to marry her husband’s brother if her husband had died without leaving behind a son. The children from such a union were then considered children of the former marriage. The first-born son was given the role of continuing the family name and line of descent, linked to the inheritance of property:

  • 27 Deuteronomy 25. 5-6. Cf. Mitterauer, « Christianity and Endogamy », art. cit., p. 311.

When brothers live together and one of them dies without leaving a son, his widow shall not marry outside the family. Her husband’s brother shall have intercourse with her; he shall take her in marriage and do his duty by her as her husband’s brother. The first son she bears shall perpetuate the dead brother’s name so that it may not be blotted out from Israel27.

  • 28 In practice, this marriage pattern could differ considerably. Cf. Kenneth R. Stow, « The Jewish Fam (...)

10The underlying logic here supported, at least theoretically, the uninterrupted continuation of the male line28.

  • 29 Cf. Nancy F. Anderson, « The “Marriage with a Deceased Wife’s Sister Bill” Controversy: Incest Anxi (...)
  • 30 Anderson, « The Marriage », art. cit., p. 67; Leonore Davidoff, Thicker than Water. Siblings and Th (...)
  • 31 Cf. Morris, « Incest or Survival Strategy », art. cit., pp. 239-240, at p. 256.
  • 32 On this, Polly Morris writes: « The marriage of affines could have served to preserve or consolidat (...)
  • 33 Cf. Margaret Morganroth Gullette, « The Puzzling Case of the Deceased Wife’s Sister: Nineteenth-Cen (...)
  • 34 Cf. Gullette, « The Puzzling Case », art. cit., pp. 149-150.

11The Anglican Church likewise made a strong distinction between sororate and levirate marriage during the nineteenth century. However, the norm as well as the debate and actual practice in Victorian England from the 1830s onward focused on sororate marriage. The focal point of ongoing debate was the « Marriage with a Deceased Wife’s Sister Bill ». This material was revisited and debated regularly by the English Parliament from 1842 all the way up to 190729. On its surface and in a legal sense, it was (also) about ensuring the inheritance rights of children, for which the legitimate marriage of the parents was a prerequisite. The legal uncertainty in this regard went back to the reign of Henry VIII and a rule established in 153330. On this basis, a marriage within the forbidden degrees of kinship could be annulled by an ecclesiastical court at any point in time during the lifetimes of the marital partners. The monitoring of such infractions at a parish level does not seem to have been particularly assiduous, however. And there is also evidence that couples sought to circumvent possible knowledge regarding their being too closely related by having their marriages performed in larger, neighbouring parishes31. This primarily involved marital unions between sister- and brother-in-law, since the Anglican Church did not prohibit those between cousins32. But in couplings that were sensitive in terms of family and inheritance policy, such forbidden marriages represented a risk, which was subsequently eliminated through legislation. It was in this spirit that the « Marriage with a Deceased Wife’s Sister Bill » of 1835 declared all marriages between brother- and sister-in-law performed up to 31 August 1835 to be valid. However, all future unions within the forbidden degrees were declared to be null and void, although what these degrees were was not explicitly defined33. Researchers assume that thousands of middle- and upper-class couples then got married in other countries or regions that were more liberal in terms of marriage prohibitions: in German territories, in Danish Altona, or in the notorious Scottish border town of Gretna Green34.

  • 35 Anderson, « The Marriage », art. cit., pp. 68-69.
  • 36 In the 1830s and 1840s 40 percent of unmarried women between the ages of 21 and 44 lived in the hou (...)
  • 37 Ibid., pp. 74, 77.
  • 38 Ibid., pp. 84-85.
  • 39 First Report of the Commissioners Appointed to Inquire into the State and Operation of the Law of M (...)
  • 40 Cf. Claudia Jarzebowski, Inzest. Verwandtschaft und Sexualität im 18. Jahrhundert (Köln/Weimar/Wien (...)

12Nancy F. Anderson views the suspected links between this affine combination and the feared consequences of incest as the key to interpreting the duration and intensity of the debate on eliminating this marriage prohibition35. Such fears were based on the social proximity involved when the single sister lived under the same roof as the married sister and her husband, which was a common pattern particularly in middle- and upper-class households36. The concern was that the possibility of a later marriage between the husband and the single sister would introduce sexuality into the immediate family circle. This marriage prohibition was therefore viewed as a cordon sanitaire preserving the « dignity and purity » of family life. Its elimination, it was held, would entail that a « flaming torch of sensual and inordinate desire would fill the sanctuary with smoke » and « transform a consecrated Church into a menagerie of wild beasts37 ». It was also the case in England that marriage with the brother of one’s deceased husband was also forbidden until 192138, but compared with sororate marriage, this possibility was a non-issue, in public discourse as in actual practice. An 1847 survey of five English districts put the number of marriages in the forbidden degrees at 1 364, of which 90 percent were between widowers and their sisters-in-law39. In Protestant contexts, the degrees that were forbidden varied from national church to national church. And in some places, prohibitions on marriage between in-laws in the collateral line were eliminated comparatively early on–in Prussia, for instance, in 174040.

« Strong » and « Weak » Kinship Ties?

  • 41 Cf. Lanzinger, « Widowers and their Sisters-in-Law », art. cit.

13The disproportionally greater significance of couples formed of a widower and his sister-in-law can also be ascertained in the late eighteenth-century Catholic context in terms of the number of dispensations requested41. This was despite the fact that canon law made no distinctions in terms of relative severity: it was in equal measure that consanguinity and affinity were subject to marriage prohibitions, and these prohibitions also applied equally to the men and the women in the various possible couples. Distinctions were made with reference to different criteria, specifically according to how closely the two were related and according to the social status of the couple applying for a dispensation. Even so, requests for dispensation do contain traces and clues which point to a differing set of priorities, which extended to prospective couples, witnesses, and even the local clergy.

14As we have seen, Raul Merzario has ascertained for the second half of the sixteenth century and for the first half of the seventeenth century that dispensations in the closer degrees–meaning the second and third unequal degree and the second degree–were more readily granted to affine couples than to those related by blood (see table 2 and 3). The context here was a mountainous region with high out-migration of men.

  • 42 Merzario, Il paese stretto, op. cit., pp. 54-55, 121.

Table 2: Marriage dispensations granted in the Diocese of Como (1564-1630)42

Table 2: Marriage dispensations granted in the Diocese of Como (1564-1630)42

78.50 percent of the total number of dispensations (493) concern consanguinity, 21.50 percent affinity

  • 43 Ibid., pp. 97, 121.

Table 3: Marriage dispensations granted in the Diocese of Como (1631-1655)43

Table 3: Marriage dispensations granted in the Diocese of Como (1631-1655)43

84.52 percent of the total number of dispensations (491) concern consanguinity, 15.48 percent affinity

  • 44 Historically, the remarriage rates of men were far higher than those of women. Nevertheless, there (...)
  • 45 Merzario, Il paese stretto, op. cit., p. 20. On this, see also Jean-Marie Gouesse, « Parenté, famil (...)

15In Merzario’s view, a possible explanatory context here was that affine kinship was thought of as « coming from the women ». He quotes a witness who expressed himself to this effect. But it is presumably also related to the fact that, for his examined period as in the other contexts we have examined, the majority of affine marriages were between a widower and a relative of his deceased wife44. In contrast, consanguinity was thought of primarily as coming from the men. And if it did indeed come from the women, it was viewed as weaker and less binding: « meno vincolante45 ».

  • 46 Lanzinger, Verwaltete Verwandtschaft, op. cit., p. 333. For the diocese of Brixen, dispensation req (...)
  • 47 Paolo Mantegazza, Studi sui matrimoni consanguinei (Milano: Gaetano Brigola Editore, 1868), pp. 38- (...)

16In the diocese of Brixen, the requests by closely related couples are split about half-and-half between consanguineous and affine cases. Of 2 142 requests in total for the period 1831 to 1890, 48 percent are for consanguine and 51 percent are for affine unions; the remaining one percent consists of consanguine-affine mixes as well as a very few requests that were not taken very far and thus contain no indication of how the prospective couples were related46. These dispensation requests do not reveal distinctions between stronger or weaker relatedness according to sex. But they do document frequent attempts to play down relatedness by affinity. The fact that kinship by marriage was repeatedly viewed by both prospective couples and local clergymen as being « less » close than blood kinship may be associated with the intensification in the nineteenth century of medical and heredity theory-related discourse, which focused on consanguinity. In this context, gendered assumptions can be found in the work of the famous Italian neurologist, psychologist and anthropologist Paolo Mantegazza. He described a kind of hierarchy of risk of marriage between kin, indicating at what point intermarriage became dangerous. He claimed that the most dangerous form of intermarriage was between the offspring of two sisters followed by the marriage of the son of a brother and the daughter of a sister or vice versa, and finally by the marriage of the offspring of two brothers47.

  • 48 The idea that siblings with the same parents are more closely related than siblings with different (...)
  • 49 DIÖAB, Konsistorialakten 1847, fasc. 31a, Römische Dispensen, no. 7.
  • 50 Tiroler Landesarchiv Innsbruck (TLA), Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1790-1793 (...)

17The idea behind this assumption is that one inherits more characteristics, both good and bad, from the mother and from female ancestors than from the father and from male ancestors. And occasionally, attempts were also made to play down the « strength » of cousin marriages in dispensation applications–namely when the relationship-generating ancestors were half-siblings–« single-tie » (einbändig) rather than « double-tie » (beidbändig) siblings, in the language of the time48. For instance, the priest of Graun in the Vinschgau valley near the Swiss border, in formulating his letter to the deanery of Mals in February 1847, wrote that Ciprian Stainer and Monika Priet, who were related at the second and third unequal degree, were only « single-tie » blood relatives, for « they have a common male ancestor but two different female ancestors on account of the male ancestor’s being married twice49 ». This argument had already been seen in the late eighteenth century, when the state administration became more deeply involved in the administration of dispensation issuance as a consequence of the Josephine Marriage Patent of 1783. In the January 1791 supplication letter of the cousins Tadeus Luz and Maria Anna Luzin, for example, point three reads: « [This union] is affected by the marriage prohibition, however, only in terms of the single tie that bound their fathers as brothers in life ». From which they concluded: « It is quite understandable, then, that a dispensation could be more easily hoped for in this case than in the case of the impediment that results from double-tie siblinghood50 ». The consistory of the diocese of Brixen, however, steadfastly rejected all arguments of this type. In fact, neither canon law nor the civil law made a distinction between siblings and half-siblings in this regard.

Canonical Reasons for Granting Dispensations and Gender-Specific Logics

  • 51 Dictum Gratiani, C. 5, C. I, q. 7: « Nisi rigor disciplinae quandoque relaxetur ex dispensatione mi (...)
  • 52 Cf. « Neueste offizielle Instruktion über Ehedispensgesuche », Brixner Diözesanblatt, 22, 1878, pp. (...)
  • 53 Ibid., pp. 131-135.
  • 54 If a granted dispensation was based on false statements of the bridal couple it was invalid, as was (...)

18Dispensations, as stated above, could only be granted for recognised reasons. And canon law explicitly defined just what counted as such a reason. Over the centuries, the list of these officially recognised, so-called « canonical reasons » for granting a dispensation grew considerably in length. Starting from the six reasons mentioned by Gratian in the twelfth century51, the number rose via intermediate stages to the sixteen reasons in total decreed by the Sacred Congregation for the Propagation of the Faith in May 187752. And in 1901, the Apostolic Datary issued an even more detailed list that encompassed a full twenty-eight reasons for which dispensations could be granted53. Sufficient justification was the basis for the legitimacy of dispensation-granting and/or for the validity of a granted dispensation54, and thus for allowing a marriage to proceed. Individually, the canonical reasons for dispensations were of differing weight. As a general rule, the closer the degree of consanguinity or affinity, the weightier the applicable reasons had to be.

  • 55 If women could find no other groom of comparable social status in their place of residence, they we (...)

19Most of the classic reasons for granting dispensations which were valid during the early modern period and the nineteenth century were aimed at women, in the sense that they served primarily to raise women’s chances of finding a partner by enlarging the circle of eligible men to include consanguine and affinal kin. No gender-specific orientation can be discerned in justifications for granting dispensations in terms of conflicts over wealth (lites de bonis), preservation of the peace (bonum pacis), reinstatement of an invalid marriage (revalidatio matrimonii), the danger of « defecting » from the true faith (periculum defectionis a fide), and outstanding services to the church (excellentia meritorium). But all other such justifications were–by definition or explicitly–aimed at women: the narrow confines of a community (angustia loci) 55, the advanced age of the bride (aetas superadulta sponsae), absent or insufficient dowry (deficientia aut incompetentia dotis), the damaged reputation of the woman (infamia mulieris), previous sexual intercourse and pregnancy (copula et praegnantia), and the widow’s economically difficult situation (paupertas viduae). The underlying concern is that women should enter a marriage because it would guarantee an honourable life.

  • 56 Margherita Pelaja, « Marriage by Exception: Marriage Dispensations and Ecclesiastical Policies in N (...)
  • 57 Daniela Lombardi, Storia del matrimonio. Dal Medioevo a oggi (Bologna: Il Mulino, 2008), p. 122, sp (...)

20This list alone makes clear that a woman’s honour and/or its restoration was of great importance in defining the limits of acceptable justifications for granting a dispensation56. The reasons for dispensations were generally categorised as « honourable » or « dishonourable » ones; honour was defined in terms of sexuality, which–according to the Catholic norm–was only permissible and legitimate within a marriage. Premarital sexual activity and pregnancy, as well as all-too-close, all-too-intimate « familiarity », were damaging to a woman’s reputation and reduced–at least in terms of the norm and the discourse–her chances of finding someone to marry. At the same time the prevailing view was that « [m]arriage fixes everything57 ». For the church, this gave rise to an ambiguous situation, which is reflected in how dispensation cases were handled. The high clergy of the diocese emphasised again and again that dispensations were to be granted above all to couples who had led morally impeccable lives. If the prospective bride was or thought she was pregnant and sought to « put herself in honour » by marrying as quickly as possible, this contradicted that very norm. In the diocese of Brixen–at least up to the mid-1850s–it was, in practice, advantageous (if not without risk) for the bridal couple to indicate that they had become all too familiar with one another, that they had had sexual relations (copula incestuosa), and that the woman had become pregnant or suspected she was pregnant. This gave rise to a certain pressure, perceived above all by the local clergy (and less so by the higher-ranked clergymen of the consistory), to restore an « orderly » situation via a marriage between the two. This was not, however, something on which prospective couples could rely. Above all, they had to declare under oath that they had not crossed the red line represented by incest simply in order to obtain a dispensation more easily. Such intent would have fundamentally and permanently precluded their receiving one.

  • 58 DIÖAB, Konsistorialakten 1863, fasc. 22a, Römische Dispensen, no. 57.
  • 59 DIÖAB, Konsistorialakten 1863, fasc. 22a, Römische Dispensen, no. 57.

21The stubbornly held belief among the public, despite all efforts to prevent precisely this impression from arising, was that previous sexual relations could benefit a dispensation request. If the couples’ assertions to this effect are to be believed, a few such admissions were even made on purely strategic grounds–without actually being true58. Regarding Severin Hämmerle from Lustenau, the local clergyman reported the following in June 1863: « He was persuaded to make this false claim by somebody who told him that dispensations are granted with certainty and immediately in cases of sins of the flesh59 ». The investigation subsequently ordered by the diocesan chancery in Brixen found that a total of four men–including the father of the bride–had been the originators of this rumour.

  • 60 In Austria, a centralisation of the dispensation procedure had already taken place in the 1770s. Su (...)
  • 61 DIÖAB, Konsistorialakten 1833, fasc. 5a, Römische Dispensen, no.24.
  • 62 It is probably no coincidence that the introduction of this moral policy coincided with the 1854 de (...)
  • 63 In January 1861, for example, Alois Dillinger and his sister-in-law Maria Glatzl received permissio (...)

22Especially during the 1830s and 1840s, the deans of the diocese of Brixen frequently made a theme of this ambivalence, structurally inherent as it was in the practice of dispensation. Since the most efficient way to avoid a « public outrage » was via marriage, out-of-wedlock pregnancy was, in practice, quite frequently beneficial to a dispensation request. This put clergymen in an awkward position, however, above all when refusing requests by couples of sterling reputation. When such couples pointed to successful dispensation requests familiar to them that had been granted under entirely different moral circumstances, clergymen found it difficult to defend their position. The dispensation request of Davis Müller and Kreszentia Heim was rejected by the archiepiscopal consistory in Brixen with the argument that it would have no chance of success in Rome60. The dean presented once again the situation of the applicants in the letter which he addressed to the episcopal ordinariate, describing them as « righteous good Christians ». He ended with the warning that several cases of dispensations which had been granted in the local area might give « the impression that only those who led a bad life got a dispensation61 ». But with the onset of a period of increasing moralism in the mid-1850s62, procedures changed drastically. In 1860 a decree was issued that compelled the local-level clergy as well as deans to turn away applicant-couples in which the bride was pregnant until « they had done penance for their offence63 ». Such couples were then assigned veritable « penance programmes » in addition to months of waiting, during which time they were to avoid all contact with each other. This was accompanied by a new temporal regime. Dispensations were no longer to be requested via the fastest possible route–via the Apostolic Nunciature in Vienna or the Penitentiary in Rome instead of the Datary–in order to avoid public « outrage ». Instead, such dispensation requests were kept at the episcopal consistory until the bride had given birth, after which they were transmitted to Rome only if the couple had completed their « penance programme » and « probationary period » in a satisfactory manner.

  • 64 Accordingly, Cecilia Cristellon interprets marriage courts’ frequent siding with women primarily as (...)
  • 65 On the dispensation reasons that were oriented towards women, see also Edith Saurer, « Stiefmütter (...)

23From the Church’s point of view, marriage functioned as an ethical and moral prophylaxis. Alongside the convent, a marriage was the place where women were meant to be and could count on being cared for64. It was for this reason that dispensations were granted in cases of absent or insufficient dowry, so that the husband could be a man related by blood or by affinity if no other could be found. This view also informed that of angustia loci, the narrow confines of one’s community65. This latter reason also was aimed at preserving women’s social status: if they were unable to find a suitable man in their place of birth or residence, the circle of possible marriage partners could be expanded to include blood and affinal kin. Said suitability was defined in terms of the socioeconomic criterion of a marriage that was at least roughly befitting of one’s social status: women were not to be forced to marry below their social rank. In dispensation-related practice, this can be seen most clearly in the arguments advanced by women from rural elites, which were usually fairly narrow on the local level.

  • 66 Cf. Elisabeth Mantl, Heirat als Privileg. Obrigkeitliche Heiratsbeschränkungen in Tirol und Vorarlb (...)
  • 67 Archiv der Erzdiözese Salzburg (AES), Kasten 22/35 Ehe-Dispensen 1841–1846 und 1883–1890, 1842, Dis (...)
  • 68 AES, Kasten 22/39 Päpstliche Ehe-Dispensen 1868–1877, 1876, Dispensation Request of Josef Dreier an (...)

24The advanced age of the bride–a reason for granting a dispensation that took effect (only for a first marriage, not for the remarriage of a widow) from the age of 24–once again clearly illustrates the early modern and Roman modelling of the reasons for dispensation. As in the case of insufficient dowry and the narrow confines of one’s local community, the advanced age of the bride numbered among the most frequently specified reasons for a dispensation. Monika Priet, mentioned in the previous section, was 31 years old when she applied for her dispensation, and Maria Anna Luz was a full 37. In this, neither of them was exceptional. The average age at which women entered into their first marriages in the German-speaking part of Tirol and in Vorarlberg between 1828 and 1836 was 28.6, for the period between 1855 and 1863 it was 30.2, and it continued rising right up to the end of the century66. So from a regional perspective, the (by Rome’s definition) « old » bride of 24 was actually a rather young one. In the correspondence between local clergy, deans, and the consistory in Brixen (which was otherwise typically a font of reprimands and rebukes), one finds no remarks or correctives to the effect that simply being above 24 really could not, in the regional context, be considered a reason for a woman’s chances of marriage to worsen drastically. The dispensation documents of the diocese of Salzburg, on the other hand, do reveal occasional hesitations on this point–such as one comment that the supplicant was 28 years old and thus « certainly in aetate superadulta according to canon law, but in fact still at a good age at which the hope for another accommodation [here, synonymous with another marriage] need by no means already be considered distant67 ». And in the case of another supplicant, 33-year-old Anna Luxner, the clergyman recommended granting a dispensation for the planned marriage, « even though her age probably would not, in actual local practice, make it more difficult to find a different marriage68 ». So in contrast to the diocese of Brixen, such remarks in cases handled by the Salzburg consistory did occasionally break with the purely instrumental use of this reason for granting a dispensation.

25Further aggravating the disconnect between the accepted reasons for granting dispensation and social realities was the fact that their orientation towards archetypical female attributes and roles frequently clashed with the concrete situations of men–for example, of widowers with small children who needed someone to reliably care for the children and run their households, and of single men in difficult household situations. In this respect, institutional logics and the logics of everyday life drifted impossibly far apart. It was frequently a female relative who provided support when things got difficult in such situations, and this not infrequently gave rise to marriage projects. But for widowers and for single men, the official catalogue of legitimate reasons gave no justification for a dispensation on the grounds of onerous circumstances. During phases of more restrictive dispensation-related practices–such as during the 1830s and 1840s–requests that argued mainly from the male standpoint were often refused « for lack of sufficient canonical reasons for a dispensation ». This attitude derived from a conception of gender that viewed the need for support as concerning exclusively women or only being worthy of recognition as a justification for a dispensation in a woman’s case. A consequence of this was that even in cases where a man was in need, the requests sent on to Rome–insofar as the consistory in Brixen was willing to fully endorse them–referred to the endangered honour of the woman and featured stories entirely different from the testimony of the local priest, the witnesses, the groom and the bride. Emphasis was instead placed on the long and already « dangerous » acquaintance of the two. If the dispensation were not to be granted and the marriage were not to proceed, the argument went, the bride would assuredly have to remain unmarried and her reputation would suffer, which could give rise to great public outrage. The standard formula for this was: « certe innupta et diffamata remanere deberet »–which, in turn, was based on the significance of marriage for the reputation and honour of women.

  • 69 DIÖA Brixen, Konsistorialakten 1843, fasc. 5a Römische Dispensen, no. 12.

26Such reinterpretation is abundantly obvious in the case of Joseph Singer, a sexton from Grammais in the deanery of Imst in what is now North Tirol69. He was single and 45 years of age when he requested a dispensation that would allow him to marry his cousin. Singer was in an awkward situation: he needed a « neat and tidy person » to « maintain his household », not least due to his responsibility for the « church laundry » and « caring for the church linens ». He had previously been assisted by two older sisters, who were also unmarried, but their health no longer allowed them to do so. Singer also had to care for a mentally impaired brother who was incapable of working and also lived in his household. He could not rely upon his two other sisters since one of them had married into a large farm and was herself in need of help due to her large brood of small children, while the other had already spent many years as a housekeeper for a curate and would hardly be willing to leave this « good position » for his benefit. His letter of supplication went on to mention that he could not afford to employ a maidservant. So if he were unable to marry his cousin Maria Anna Wechner, who was the only woman in the entire community whom he thought suitable, he would probably have to sell the house that he had inherited from his parents. So much for the scenario as it figures in Singer’s request for dispensation, which quite probably contains the odd exaggeration. About the bride, one learns only that she would meet the desired expectations and requirements.

27Simply rejecting the dispensation request of a man who, like his father before him, had served the church « tirelessly, loyally, and sincerely » would not have been opportune. But what dispensation reasons could be sent on to Rome? If one reads the letter addressed ad sedem apolstolicam one hardly recognises the life situation that Joseph Singer had originally described: the letter states that there was insufficient wealth for a dowry on the part of the bride, that she was already over 24 years of age, and that the narrow confines of the community afforded her no selection of marriageable men « paris conditionis » (of the same social status) who were neither blood nor affinal kin. Furthermore, there existed « affection » (translatable as love) between the supplicants, as well as a long and « dangerous » acquaintance. So if this dispensation were not granted and if the marriage were thus unable to proceed, it was argued, she would surely have to remain unmarried and lose her reputation: « certe innupta et diffamata remanere deberet ». And that would result in a great outrage. Joseph Singer’s household with three people in need of care–and for that matter his anything-but-rosy general situation–went entirely unmentioned because they did not translate into officially recognised reasons for a dispensation. Viewed as a whole, then, the motivation behind this marriage project that he himself had formulated–which was indeed very much stronger–was in no way reflected by the letter that was sent to Rome. With regards to how we treat the source material, this strongly implies that documents transmitted to and archived in Rome must, wherever possible, be linked to diocese-level material in order to capture perspectives from the everyday life of that time that would otherwise remain hidden behind stereotypical justifications.

Conclusion

28In summary, it must first be stated that there were considerable religious and confessional differences in terms of the breadth, type, and formulation of the degrees of kinship within which marriage was forbidden in eighteenth- and nineteenth-century European context. Second, it needs to be said that–in the context of Catholicism and canon law–both the norm and the higher church authorities’ actual practice in the region examined here during the nineteenth century assumed the equation of consanguinity and affinity and did not assert that the weight of relatedness was relative in terms of gender-specific criteria or step-constellations. This notwithstanding, some prospective couples, witnesses, and even local clergymen involved in applications for dispensation did attempt to bring such arguments into play. Thirdly, officially recognised gender-specific reasons for granting a dispensation did indeed structure these requests and with them couples’ chances of obtaining one. In particular, officially approved reasons for acceptance were largely aimed at women, in the sense that they sought to provide access to marriage as the place where women were intended to be. This, in turn, was based on the paradigm organised around the defence of their (sexual) honour, which could have difficult consequences for local clergy.

29In conclusion, kinship, which has repeatedly been discounted in the context of modern European history, did indeed still play a significant role at the end of the eighteenth century and into the nineteenth century: as a system of knowledge, which provided ordering structures and means of orientation; and as a category that defined inclusion and exclusion. Kinship should therefore be viewed as a significant structuring principle of social relationships beyond those between generations and within relations between men and women. Furthermore, in the Austrian context, kinship, which had been an uncontested category and object of canon law for centuries in the shape of incest prohibitions and dispensations, became a category and an object of state policy, even in a context where civil marriage was not introduced.

30It has long been clear how discourses and opinions derived from theology, law, medicine and the natural sciences demonstrate how contested kinship was amongst scholars and practitioners of scientific disciplines from the late eighteenth century onwards. Representatives of religious confessions and states proposed and negotiated a comparably wide range of views. That said, in the end, in the nineteenth-century diocese of Brixen, the episcopal consistory was largely able to assert its power of definition and its authority in the administration of requests of dispensation for marriage in prohibited degrees. The greatest challenge to that authority was the perseverance of the couples who sought them.

Haut de page

Notes

1 Cf. Cecilia Cristellon, « Between Sacrament, Sin and Crime: Mixed Marriages and the Roman Church in Early Modern Europe », Gender & History, 29, 3, 2017, pp. 605-621; Dagmar Freist, Glaube - Liebe – Zwietracht. Religiös-konfessionell gemischte Ehen in der frühen Neuzeit (Berlin/ Boston: De Gruyter Oldenbourg, 2017).

2 Cf. Luca Bianchi, « “Cotidiana miracula”, comune corso della natura e dispense al diritto matrimoniale: il miracolo fra Agostino e Tommaso d’Aquino », Quaderni storici, 131, 2009, pp. 313-328.

3 Decretum Tametsi, Sessio 24, Caput 5 in Il sacro concilio di Trento con le notizie più precise riguardante la sua intimazione a ciascuna delle sessioni. Nuova traduzione italiana col testo latino a fronte (Venezia: Eredi Baglioni, 1822), p. 284.

4 After the reorganisation in post-Napoleonic Europe, the southern Tyrolean part of the Diocese of Brixen comprised the northern part of the Eisack valley, the Puster valley and the Obervinschgau near the Swiss border. The southern and central parts with Bolzano and Merano belonged to the Diocese of Trent.

5 Cf. Margareth Lanzinger, Verwaltete Verwandtschaft. Eheverbote, kirchliche und staatliche Dispenspraxis im 18. und 19. Jahrhundert (Wien/Köln/Weimar: Böhlau), esp. ch. 3.

6 Catalogus personarum ecclesiasticarum Dioecesis Brixinensis ad initium anni MCCCCXXXI, vol. 22 (Brixen: Weger, 1831), p. 352.

7 Bishops were equipped with their various authorities in the form of so-called quinquennial faculties.

8 Unequal degrees are the results of the involvement of different generations. The second and third unequal degree applies if the bride is not a bridegroom’s cousin but the daughter of a cousin.

9 Hofdekret (imperial decree) of 17 January 1783.

10 ‘Normal’ dispensation requests were sent to the Datary and requests involving the honour of the bride or secret information (for example pregnancy) were sent to the Apostolic Penitentiary. The Apostolic Nunciature in Vienna offered a viable alternative, especially in the eighteenth century, in so far as dispensations could be obtained very quickly and with very low costs. Joseph II tried to reduce the competence of granting dispensations of the Viennese Nunciature in the 1780s because it was seen as a foreign power. In the nineteenth century the Nunciature was used again for urgent emergencies. See Lanzinger, Verwaltete Verwandtschaft, op. cit., ch. 2 and 3.

11 See Margareth Lanzinger, « Mariages entre parents, l’économie de mariage et le « bien commun ». La politique de dispense de l’Etat dans l’Autriche de l’Ancien Régime finissant », in Anna Bellavitis, Laura Casella and Dorit Raines (eds.), Construire les liens de famille dans l’Europe moderne (Clamecy: Presses Universitaires de Rouen et de Havre, 2013), pp. 69-83.

12 Gérard Delille, « Réflexions sur le “système” européen de la parenté et de l’alliance. Note critique », Annales HSS, 56, 2, 2001, pp. 369-380, 376-377.

13 Margareth Lanzinger, « Widowers and their Sisters-in-Law: Family Crises, Horizontally Organised Relationships and Affinal Relatives in the Nineteenth Century », The History of the Family, Published online: 24 June 2016, http://dx.doi.org/10.1080/ 1081602X.2016.1176586.

14 Francis X. Wahl, The Matrimonial Impediments of Consanguinity and Affinity. An Historical Synopsis and Commentary (Washington: The Catholic University of America, 1934), pp. 3-4.

15 Regarding consanguinity, a dispensation was only impossible among first degree blood relatives – in direct line (e. g. between parents and children etc.) as well as in collateral line (between siblings). Cf., Wolfgang Dannerbauer, Praktisches Geschäftsbuch für den Curat-Clerus Oesterreichs (Wien, Carl Fromme: 1893), p. 251. The Prussian law code of 1794 wasvery liberal: it limited the prohibited degrees to first-degree blood relatives as well as to first degree in-laws and step-relatives in the direct line, i.e. marriages between parents and children, among siblings, between parents-in-law and children-in-law and marriages between step-parents and step-children. Though, in the case of an intended marriage with an aunt or a sister of another direct ancestor who was older than the groom, a specific state permit was necessary. Allgemeines Landrecht für die Preußischen Staaten, 1794, zweiter Teil, erster Titel, §§ 3-8.

16 Dispensation in the third and fourth degree were granted by the bishop and from the 1850s onwards by the deans – responsible for a number of parishes.

17 Cf. A[dhémar] Esmein, Le mariage en droit canonique (Paris: Larose et Forcel, 1891), vol. 2; William A. O’Mara, Canonical Causes for Matrimonial Dispensation. An Historical Synopsis and Commentary (Washington: Catholic University of America, 1935).

18 Cf. David Warren Sabean, Simon Teuscher and Jon Mathieu (eds.), Kinship in Europe. Approaches to Long-Term Development (1300-1900) (New York/Oxford: Berghahn, 2007). For a critical commentary on this volume see François-Joseph Ruggiu, « Histoire de la parenté ou anthropologie historique de la parenté? Autour de Kinship in Europe. », Annales de démographie historique, 1, n° 119, 2010, pp. 223-256. For the Swiss Nunciature of Luzern see Jon Mathieu, « Verwandtschaft als historischer Faktor. Schweizer Fallstudien und Trends, 1500-1900 », Historische Anthropologie, 10, 2, 2002, pp. 225-244, 239, table 2. For Lower Austria and Vienna see Edith Saurer, « Stiefmütter und Stiefsöhne. Endogamieverbote zwischen kanonischem und zivilem Recht am Beispiel Österreichs (1790-1850) », in Ute Gerhard (ed.), Frauen in der Geschichte des Rechts. Von der Frühen Neuzeit bis zur Gegenwart (München: Beck, 1997), pp. 345-366, at pp. 358-359. For France and Spain see Jean-Marie Gouesse, « Mariages de proches parents (XVIe-XXe siècle). Esquisse d’une conjoncture », in Le modèle familial Européen. Normes, déviances, contrôle du pouvoir. Actes des séminaires organisés par l’École française de Rome et l’Università di Roma (Roma: École française de Rome, 1986), pp. 31-61, p. 37. For Italy see Gérard Delille, Famille et propriété dans le Royaume de Naples (XVe–XIXe siècle) (Rome/Paris: École Française de Rome, 1985).

19 Cf. Michaël Gasperoni, « Reconsidering Matrimonial Practices and Endogamy in the Early Modern Period. The Case of Central Italy (San Marino, Romagna and Marche) », in Dionigi Albera, Luigi Lorenzetti and Jon Mathieu (eds.), Reframing the History of Family and Kinship: From the Alps towards Europe (Bern et. al.: Peter Lang, 2016), pp. 203-232. In the rural parishes of San Marino, for example, most of the dispensations granted between 1670 and 1850 « concern marriages at the border of the prohibition, and they are very rarely below the third degree » (p. 213).

20 The « slowly rising number of dispensations granted for marriages at close degrees » among ordinary people indicates the evolution of a new phenomenon in itself. As a result, to link these figures to marriage rates and/or population figures does not make sense. In 1788, for example, a state official as well as a male rural servant, three peasants, a master baker of a small town and a tanner submitted a dispensation request in the first or second degree of affinity or consanguinity to the provincial government in Innsbruck. Tiroler Landesarchiv Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1786-1789, lfd. Fasz. Nr. 1621, no. 1, 4, 8, 13, 19, 23 and 24. This series begins in 1786 and covers the entire territory of historic Tyrol, not only the Diocese of Brixen – subsequent to the Josephine Marriage Patent of 1783.

21 Diözesanarchiv Brixen (DIÖAB), Registratura Dispensation[um] Matrimonial[ium] inc[o]hoata anno 1690 [up to 1730]; ibidem, Registratura Dispensation[um] Matrimonial[ium] inc[o]hoata anno 1733 usque ad annum 1752; ibidem, Registratura Dispensation[um] Matrimonial[ium] anno 1753 usque ad annum 1768; ibidem, Dispensationes matrimoniales ab anno 1774 usque ad annum 1794 inclusive.

22 Decretum Tametsi, Sessio 24, Caput 5, in Il sacro concilio di Trento, op. cit., p. 284.

23 Raul Merzario, Il paese stretto. Strategie matrimoniali nella diocesi di Como, secoli XVI-XVIII (Torino: Einaudi, 1981), pp. 54-55. Cf. Jutta Sperling, « Marriage at the Time of the Council of Trent (1560-70): Clandestine Marriages, Kinship Prohibitions and Dowry Exchange in European Comparison », Journal of Early Modern History, 8, 1-2, 2004, pp. 67-108, at pp. 85-104.

24 Cf., Gérard Delille, L’economia di Dio. Famiglia e mercato tra cristianesimo, ebraismo, Islam, Roma, Salerno Editrice, 2013, p. 31-38. He states: « I divieti di sposare determinate persone riguardano gli uomini, mai le donne, che sono coinvolte sempre solo in modo indiretto. » Hence, the impediment is always formulated « partendo sempre da un Ego maschile e distinguendo i sessi. […] Per capire il senso e la portata di ciascun divieto bisogna dunque sempre porsi la domanda “L’impedimento vale per il corrispondente femminile […] di Ego?” » (p. 33-34).

25 Hugo Willrich, Das Haus des Herodes zwischen Jerusalem und Rom (Heidelberg: Universitätsbuchhandlung, 1929), pp. 141-142, cit. by Michael Mitterauer, « Christianity and Endogamie », Continuity and Change, 6, 3, 1991, pp. 295-333, at p. 296.

26 Cf. Mitterauer, « Christianity and Endogamie », art. cit., p. 299; Françoise Héritier, Two Sisters and Their Mother. The Anthropology of Incest (New York: Zone Books, 1999), pp. 79-125.

27 Deuteronomy 25. 5-6. Cf. Mitterauer, « Christianity and Endogamy », art. cit., p. 311.

28 In practice, this marriage pattern could differ considerably. Cf. Kenneth R. Stow, « The Jewish Family in the Rhineland in the High Middle Ages: Form and Function », The American Historical Review, 92, 5, 1987, pp. 1085-1110, at p. 1099: « In the case of leviratic marriage, for instance, a clause guaranteeing the freeing of a childless widow from the obligation of marrying her brother-in-law became a fixture in marriage contracts. »

29 Cf. Nancy F. Anderson, « The “Marriage with a Deceased Wife’s Sister Bill” Controversy: Incest Anxiety and the Defense of Family Purity in Victorian England », Journal of British Studies, 21, 2, 1982, pp. 67-86, p.68; Sybil Wolfram, In-Laws and Outlaws: Kinship and Marriage in England (London/Sydney: Croom Helm, 1987), pp. 30-40.

30 Anderson, « The Marriage », art. cit., p. 67; Leonore Davidoff, Thicker than Water. Siblings and Their Relations, 1780-1920 (Oxford: Oxford University Press, 2012), pp. 216-217; Polly Morris, « Incest or Survival Strategy? Plebeian Marriage within the Prohibited Degrees in Somerset, 1730-1835 », Journal of the History of Sexuality, 2, 2, 1991, pp. 235-265, at p. 237.

31 Cf. Morris, « Incest or Survival Strategy », art. cit., pp. 239-240, at p. 256.

32 On this, Polly Morris writes: « The marriage of affines could have served to preserve or consolidate property, but, unlike the perfectly legal unions of first cousins, affinal marriages were vulnerable to legal attack by disgruntled heirs. » Ibid., p. 248.

33 Cf. Margaret Morganroth Gullette, « The Puzzling Case of the Deceased Wife’s Sister: Nineteenth-Century England Deals with a Second-Chance Plot », Representations, 31, 2, 1990, pp. 142-166, at p. 151; Wolfram, In-Laws, op. cit., pp. 21-30.

34 Cf. Gullette, « The Puzzling Case », art. cit., pp. 149-150.

35 Anderson, « The Marriage », art. cit., pp. 68-69.

36 In the 1830s and 1840s 40 percent of unmarried women between the ages of 21 and 44 lived in the household of a married sister. Ibid., p. 73.

37 Ibid., pp. 74, 77.

38 Ibid., pp. 84-85.

39 First Report of the Commissioners Appointed to Inquire into the State and Operation of the Law of Marriage, as Relating to the Prohibited Degrees of Affinity, and to Marriages Solemnized Abroad or in the British Colonies; with Minutes of Evidence, Appendix and Index in Parliamentary Papers, 1847-8, XXVIII, X-XI, cited from Charlotte Frew, « Marriage to a Deceased Wife’s Sister and the Origins of Lord Lyndhurst’s Act », Journal for Higher Degree Research Students in the Social Sciences and Humanities, 3, 2003, pp. 1-12, URL: http://www.arts.mq.edu.au/documents/2_Charlotte_Frew.pdf, p. 3, accessed 21 Dec. 2017; cf. Gullette, « The Puzzling Case », art. cit., p. 143-144.

40 Cf. Claudia Jarzebowski, Inzest. Verwandtschaft und Sexualität im 18. Jahrhundert (Köln/Weimar/Wien: Böhlau, 2005), p. 113.

41 Cf. Lanzinger, « Widowers and their Sisters-in-Law », art. cit.

42 Merzario, Il paese stretto, op. cit., pp. 54-55, 121.

43 Ibid., pp. 97, 121.

44 Historically, the remarriage rates of men were far higher than those of women. Nevertheless, there was evidently a certain concentration on the couples consisting of a widower and sister-in-law in the nineteenth-century German-speaking world when compared to the constellation of widow and brother-in-law. See Antoinette Fauve-Chamoux, « Revisiting the Decline of Remarriage in Early-Modern Europe: The Case of Rheims in France ». The History of the Family, 15, 2010, pp. 283-297, at p. 291; Lanzinger, « Widowers and their Sisters-in-Law », art. cit., p. 177.

45 Merzario, Il paese stretto, op. cit., p. 20. On this, see also Jean-Marie Gouesse, « Parenté, famille et mariage en Normandie aux XVIIe et XVIIIe siècles », Annales ESC, 27, 4-5, 1972, p. 1139-1154, 1143: « l’empêchement de mariage pour consanguinité vient des hommes; il ne vient pas des femmes ».

46 Lanzinger, Verwaltete Verwandtschaft, op. cit., p. 333. For the diocese of Brixen, dispensation requests regarding spiritual kinship are not preserved systematically. They often coincide with requests for affinal marriages in the nineteenth century.

47 Paolo Mantegazza, Studi sui matrimoni consanguinei (Milano: Gaetano Brigola Editore, 1868), pp. 38-39, cited from Raul Merzario, « Land, Kinship and Consanguineous Marriage in Italy from the Seventeenth to the Nineteenth Century », Journal of Family History, 15, 4, 1990, pp. 529-546, at p. 531. Francis Devay, « Professeur de clinique interne à l’école de Médicine de Lyon », referred to ancient Athens when he pointed out that « Les anciens […] établissaient un degré plus intime de consanguinité lorsqu’elle provenait de la mère […]; il y était permis d’épouser la demi-sœur par le père ou cousine consanguine, et non d’épouser la demi-sœur par la mère ou cousine utérine. ». Francis Devay, Du danger des mariages consanguins au point de vue sanitaire (Paris: Labé, 1857), pp. 18-19.

48 The idea that siblings with the same parents are more closely related than siblings with different parents is also found in « Arab marriage » , although in this case milk is also found among the substances that constitute kinship. Laurent S. Barry writes: « Des germains complets étant ainsi les plus “proches” parents possibles ». Idem, « Les modes de composition de l’alliance. Le “mariage arabe“ », L’Homme, 147, 1998, pp. 17-50, at p. 43, note 31.

49 DIÖAB, Konsistorialakten 1847, fasc. 31a, Römische Dispensen, no. 7.

50 Tiroler Landesarchiv Innsbruck (TLA), Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1790-1793, lfd. Fasz. Nr. 1.622, 1792, Nr. 3, Letter of Supplication by Tadeus Luz and Maria Anna Luzin of 28 January 1791.

51 Dictum Gratiani, C. 5, C. I, q. 7: « Nisi rigor disciplinae quandoque relaxetur ex dispensatione misericordiae. Multorum enim crimina sunt damnabilia, quae tamen Ecclesia tolerat pro tempore, pro persona, intuitu pietatis, vel necessitatis, sive utilitatis, et pro eventu rei. » Cited from O’Mara, Canonical Causes, op. cit., pp. 28-29.

52 Cf. « Neueste offizielle Instruktion über Ehedispensgesuche », Brixner Diözesanblatt, 22, 1878, pp. 33-38; O’Mara, Canonical Causes, op. cit., pp. 72-130.

53 Ibid., pp. 131-135.

54 If a granted dispensation was based on false statements of the bridal couple it was invalid, as was the marriage itself in terms of religious norms. This was held to be a matter of personal conscience. In addition, an incorrect statement of the forbidden degrees invalidated a dispensation.

55 If women could find no other groom of comparable social status in their place of residence, they were then to be allowed to marry a man who was a blood relative or related by marriage – in order to avoid remaining unmarried.

56 Margherita Pelaja, « Marriage by Exception: Marriage Dispensations and Ecclesiastical Policies in Nineteenth-Century Rome », Journal of Modern Italian Studies, 1, 2, 1996, pp. 223-244.

57 Daniela Lombardi, Storia del matrimonio. Dal Medioevo a oggi (Bologna: Il Mulino, 2008), p. 122, speaks of « un’efficace forma di protezione delle donne nubili gravide, che col matrimonio sanavano ogni macchia del proprio passato ».

58 DIÖAB, Konsistorialakten 1863, fasc. 22a, Römische Dispensen, no. 57.

59 DIÖAB, Konsistorialakten 1863, fasc. 22a, Römische Dispensen, no. 57.

60 In Austria, a centralisation of the dispensation procedure had already taken place in the 1770s. Subsequently, it was strictly forbidden for dispensation requests addressed to Rome to use any other route than tha t which led from the local priest to the dean and from there to the episcopal consistory. The episcopal consistory in Brixen had the effect of a bottleneck. Only promising requests were transmitted to Rome.

61 DIÖAB, Konsistorialakten 1833, fasc. 5a, Römische Dispensen, no.24.

62 It is probably no coincidence that the introduction of this moral policy coincided with the 1854 declaration of the dogma of the Immaculate Conception.

63 In January 1861, for example, Alois Dillinger and his sister-in-law Maria Glatzl received permission to record the matrimonial examination (examen matrimoniale) at the deanery of Dornbirn in Vorarlberg. But the dean came to know that « they have committed carnal sin » and that the bride was pregnant. « At that point », as the dean wrote in his letter to the archiepiscopal consistory in Brixen, « the examination was immediately interrupted. » And he referred to the decree issued by the episcopal ordinariate on 17 February 1860 (no. 418). In this case the Roman dispensation was granted only one year later, in January 1862. DIÖAB, Konsistorialakten 1861, fasc. 22a, Römische Dispensen, no. 54.

64 Accordingly, Cecilia Cristellon interprets marriage courts’ frequent siding with women primarily as their advocation of the institution of marriage. Cristellon, La carità e l’eros, op. cit., pp. 37-39.

65 On the dispensation reasons that were oriented towards women, see also Edith Saurer, « Stiefmütter und Stiefsöhne. Endogamieverbote zwischen kanonischem und zivilem Recht am Beispiel Österreichs (1790-1850) », in Ute Gerhard (ed.), Frauen in der Geschichte des Rechts. Von der Frühen Neuzeit bis zur Gegenwart (München: Beck, 1997), pp. 345-366, at pp. 356-357.

66 Cf. Elisabeth Mantl, Heirat als Privileg. Obrigkeitliche Heiratsbeschränkungen in Tirol und Vorarlberg 1820–1920 (Wien/München: Verlag für Geschichte und Politik/Oldenbourg, 1997), p. 33.

67 Archiv der Erzdiözese Salzburg (AES), Kasten 22/35 Ehe-Dispensen 1841–1846 und 1883–1890, 1842, Dispensation Request of Jakob Schindler and Ludovika Gordon.

68 AES, Kasten 22/39 Päpstliche Ehe-Dispensen 1868–1877, 1876, Dispensation Request of Josef Dreier and Anna Luxner.

69 DIÖA Brixen, Konsistorialakten 1843, fasc. 5a Römische Dispensen, no. 12.

Haut de page

Table des illustrations

Titre Table 1. Marriage dispensations granted in the diocese of Brixen 1705–1805 (selected years): close degrees compared to total numbers21
Légende * some entries do not specify the degreeeci = ex copula illicita
URL http://journals.openedition.org/genrehistoire/docannexe/image/3036/img-1.png
Fichier image/png, 74k
Titre Table 2: Marriage dispensations granted in the Diocese of Como (1564-1630)42
Légende 78.50 percent of the total number of dispensations (493) concern consanguinity, 21.50 percent affinity
URL http://journals.openedition.org/genrehistoire/docannexe/image/3036/img-2.png
Fichier image/png, 23k
Titre Table 3: Marriage dispensations granted in the Diocese of Como (1631-1655)43
Légende 84.52 percent of the total number of dispensations (491) concern consanguinity, 15.48 percent affinity
URL http://journals.openedition.org/genrehistoire/docannexe/image/3036/img-3.png
Fichier image/png, 40k
Haut de page

Pour citer cet article

Référence électronique

Margareth Lanzinger, « The Relativity of Kinship and Gender-Specific Logics in the Context of Marriage Dispensations in the Nineteenth-Century Alps (Diocese of Brixen) », Genre & Histoire [En ligne], 21 | Printemps 2018, mis en ligne le 01 septembre 2018, consulté le 17 décembre 2018. URL : http://journals.openedition.org/genrehistoire/3036

Haut de page

Droits d’auteur

Licence Creative Commons
Genre & histoire est mis à disposition selon les termes de la licence Creative Commons Attribution - Pas d'Utilisation Commerciale - Pas de Modification 4.0 International.

Haut de page