I want to distinguish first between the robust "Yes Means Yes/No Means No" idea of consent in modern feminist and increasingly mainstream discourse, and the use of consent when talking historically about entering into marriage. Jeanne d'Albret was twelve years old when she was physically carried, sobbing, to the altar in 1541. We would not consider this willing consent today, and yet it very much was.

When we talk about "what makes a marriage valid" in the western tradition, historically, there are generally three possible components: consent of the parties, consummation, and ritual (ceremony, vows, announcing the banns, whatever form this may take). There are also two levels to consider: pure legal and popular opinion.

In ancient Rome, consent became the basis for determining a marriage. This is because at this time, marriage was first and foremost a financial contract and arrangement. It was an institution to streamline the inheritance of property and only practiced between men and women of the same, property-owning class. Financial transactions--dowry being the most famous--were outward manifestations of the "consent" at the core. And yes, consent in many cases would be between the families of the couple, rather than the people themselves.

And yet, the story is a bit more complicated. While consent is the legal requirement, marriage also carried the expectation that the couple would have children (as its purpose was to ensure proper inheritance lines). So the idea that consummation and further sex marked a marriage was implicit. Also implicit, of course, was the understanding that marriage meant ongoing consent to sexual intercourse with one's spouse. This relates directly to the ancient-medieval-early modern (in some jurisdictions) understanding of rape as a property crime against a woman's father or husband. A man cannot steal from himself, after all.

One of the innovations of Christianity, or specifically the Christianized Roman Empire, was the expansion of the legal institution of marriage beyond the propertied classes. In addition to the first (mostly ineffective) attempts to outlaw concubinage, this marked a shift into seeing marriage primarily as a way to regulate sex, not (exclusively) money/property. In Medieval Households, David Herlihy talks a little bit about ways this shift manifested itself culturally in the early Middle Ages. He describes two common types of ceremony. Especially in Gaul, it was common for the marker of "marriage" to be a priest blessing the couple while they lay in bed. In Italy, the blessing given on the steps of the church was more popular. The first ceremony reflects an implicit understanding that consummation marks a marriage; the second, consent. In both cases, the role of the Church in giving credence to the marriage (through the priest's blessing) is another important factor.

Localized and ambiguous definitions of what marked a marriage continued throughout the early Middle Ages. It was not until the great systematization efforts of the twelfth century reached canon law as well as theology that the Church worked out an official definition of marriage. And it didn't happen overnight.

12C scholars inherited two traditions of piecemeal canon law on marriage (papal letters, local synods, theological treatises, and so forth). Paris theologian Peter Lombard, of Sentences fame, usually gets the credit for the first articulation of "consent theory"--that is, the idea that the only thing necessary for a valid marriage is the consent of the parties. Gratian, the mysterious figure behind the Decretum, actually argued for consummation as the defining marker of marriage.

Why did a Paris theologian's ideas gain sway over the arguments of one of, if not the single, most important figures in the history of canon law? There were some contributing ideas in the background, to be sure. One of the big movements of the twelfth century was to define the number and nature of the official sacraments. This placed emphasis on the sacramental nature of marriage, and, well, the medieval Church wanted to keep sex and sexy things as far away from God's-grace-in-ritual as possible. The invention and explosion in popularity of romance literature, with its courtly love traditions and often-adulterous pairings, suggests a zeitgeist of attention to the feelings and orientation of the individuals in question (albeit properly constrained, and punished when not).

But the real problem was Mary and Joseph.

The medieval Church was full-in on Mary's perpetual virginity. In order for her marriage to Joseph to be a marriage, consummation could not be the defining marker.

James Brundage sees Alexander III's bull Veniens ad nos as the "triumph of mutual consent." The decree made the exchange of consent the only thing necessary to make a valid marriage. This is usually seen as a power play on the Church's part to a large extent: an effort to prevent parents from meddling in arranged marriages and thus manipulating property inheritance (the Church being Europe's single largest landholder). "Force and fear" imposed by parents pressing their children into betrothal and marriage, under canon law, actually nullified consent.

The interesting thing about Alexander's ruling, though, was the removal of the Church from a necessary role in a valid marriage. Clandestine marriage--perhaps the ultimate he said/she said--was the unavoidable potential (and, we know, not infrequent) outcome. To try to limit this, canon law distinguished between "licit" and "illicit" marriages. All of these were real, valid marriages and the parties involved were held to the laws binding married couples (adultery, inheritance, no such thing as spousal rape, etc), but an illicit or clandestine marriage would result in excommunication.

I said earlier that Christians popularized the idea of marriage to regulate sex. Indeed, this was the grounds by which the Church justified its involvement in unions--canon law, not civil, was the primary regulator of sex and marriage throughout the Middle Ages. So lest it seem odd that the Church would then turn around and take sex out of the definition of marriage by focusing solely on consent, rest assured that not even Alexander III himself would let that one go.

Alexander also laid out a whole host of ways that consummation could still play a role in making a marriage valid--for example, if two people had given their consent when one was underage (12 for girls, 14 for boys), consummation after the appropriate age ("of consent") would validate the union. And, of course, there is the infamous invention of the "marriage debt"--the idea that husbands and wives owed each other sex, basically on demand (except in a church, on Sundays, on feast days, in ways that couldn't produce a child...). Marriage automatically meant consent to sex with one's spouse for all time.

So consent marked the legal existence of a valid marriage. In the public view/common practice, it seems that consummation continued to play an important role. And public ceremonies--whether that meant on the church steps, or a private/domestic ceremony followed by attending Mass together (in public)--with the blessing of a priest were standard practice. Parents at all levels of society, even the peasantry, tried mightily to micromanage their children's marriage plans, and mostly succeeded. Jeanne d'Albret, the little princess who sobbed her way to the altar, was definitely pressured into the marriage "by force and fear," yet the Catholic Church^1 of her day looked the other way (the hand of King Francis in arranging this marriage probably played a role).

But with a deep background in Roman tradition and early, piecemeal canon law, the blossoming of intellectual life in the twelfth century marked the victory of consent as the true marker of marriage.

~~

^1 As queen of Navarre, Jeanne converted to Calvinism and proceeded to convert her entire country. Take that.