• 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.

• 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 affinity–faced 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.