against such a union must surely not be feared in this case due to *supra superquadultam aetatem sponsae*".191 After all, she would presumably have no more children. The doubts, expressed here and there in dispensation requests, as to whether the prohibition of affine marriages was justified at all were met by representatives of the Church with silence. Deigning to discuss the matter would have been tantamount to an admission that one could indeed question affinity's incestuous character. An 1883 survey conducted in the Vicariate-General of Feldkirch, which belonged to the Diocese of Brixen, fits into this impression of a communicative strategy that sought to use silence or generic terms to paper over the fact that the concepts to legitimise marriage prohibitions stood in part on shaky ground. Its objective was to ascertain "the effects of marriages concluded on the basis of Roman dispensations" in Vorarlberg's deaneries192 – marriages that also included those between affinal kin.

The interest of medical and natural science researchers in heredity and 'degeneration' could, in principle, have supported the efforts of the Catholic Church to prevent marriages between close kin to the most thorough possible extent. Physicians and natural scientists, after all, held views that provided additional arguments to this effect and were thus, in this specific area, working *in favour of* the Church – in contrast to their confrontational relationship with the Church regarding certain other theories that developed in the natural sciences during that period. What is more, their biological arguments disarmed the appeals to reason by those state-oriented legal scholars who were interested in easing the conclusion of marriages between kin. The problem for the Church was that the natural scientists' and physicians' arguments pertained entirely to consanguine unions. This would have ultimately rendered obsolete the impediment of affinity – and with it the centuries-old position of equating affinity and consanguinity where incest was concerned. Thus, with regard to upholding prohibitions of affinal marriage, the Church became subject to a certain degree of pressure over the course of the nineteenth century.

In terms of the discourse, it seemed as if affinity was indeed being said by the Church to possess some sort of physical character. However, this may also simply have been a strategy of communication that sought to obfuscate the distinction between consanguine and affine marriages and hence render the discourse on the various dangers of the former transferable to affinity, fitting the medical and natural science discourse into the Church's own interpretive

191 diöab, Konsistorialakten 1895, Fasc. 22a, Römische Dispensen, no. 20.

192 Archiv der Diözese Feldkirch (adf), Generalvikariat Matrimonialia (ga), Karton Ehesachen v, 1877–1885, Römische Dispensen iii, 1883, Erhebung über die Auswirkungen der mit Römischer Dispens geschlossenen Ehen. On this see chapter six.

framework. This ambivalent situation could provide an explanation for why church representatives only reluctantly took up the discourse on the dangers of marriages between close blood relatives in the context of dispensation requests and the reasons given for their rejection. Thus, the 'physiological' argument was harnessed in order to more or less biologise the prohibitions of affine marriage while cousin marriage continued to be opposed on primarily moral and ethical grounds all the way into the 1880s.

#### **6 From 'Common' and 'Strange Blood' to Racialisation**

The increase in discursive physiological arguments from the mid-nineteenth century brought with it a stronger emphasis on 'common blood' in contrast to 'strange blood', a term with various connotations depending on the context. In dispensation requests made by widowers seeking to marry their sisters-in-law as well as requests pertaining to consanguine marriage projects, an ever greater role in the argumentation was being played by the 'common blood' or 'blood ties' via which the bride was said to be connected to her nephews and nieces as their aunt or to the children of the widower as a close relative. 'Common blood' was understood as being synonymous with a special kind of closeness and familiarity, with dependability and a feeling of responsibility, and ultimately as a guarantor of good, selfless childcare and childrearing.

The widower Franz Fessler, a master baker in Bregenz, had six children, including a "crippled boy" who required "loving and patient care". Such care, went the reasoning he employed in support of his marriage to Katharina Reichard, a cousin of his deceased wife, could "only be hoped for from a Christian-minded, virtuous and – thanks to her blood ties – all the more close female person".193 Jakob Bertsch from Nenzing in the Vorarlberg deanery of Sonnenberg, who had three children with the youngest being just one-and-a-half years old, intended to marry his sister-in-law Eva Jutz. In their matrimonial examination, Christian Selb, the second witness who was questioned, mentioned as one of his arguments in favour of the marriage that he assumed "the groom desires to marry this sister-in-law of his because he has three children from his first marriage and therefore considers a blood relative to be better and more suitable".194 Johann Michael Dörler, an Imperial-Royal Chancery clerk at the district office in Bregenz, was likewise a widower and had four children. When he submitted his initial request for a dispensation to marry his sister-in-law Paulina Hilbe, his

193 diöab, Konsistorialakten 1851, Fasc. 5a, Römische Dispensen, no. 24.

194 diöab, Konsistorialakten 1858, Fasc. 5a, Römische Dispensen, no. 38.

children were aged between just under one month and eight years. Following the rejection of this request, he addressed a four-page letter of supplication to the Vicariate-General of Feldkirch in July 1865 in which he stated his reasons anew. He explained, among other things, that his request for a dispensation was "in no way based on any dishonest motives", it being "much rather" owed to "the worries of a fearful father who desires to avoid endangering the existence and future of his poor children and to give them a mother who is already partial to them and loves them on account of their blood ties".195 In contrast to such a portrayal, the 'strange' was negatively connoted, implicitly and often also in a way that was quite explicit – classically in the figure of the strange stepmother, who was hence cast in an evil light.196

In nineteenth-century writings on heredity, blood initially represented just one of various elements that were said to have a certain effect on the transference of positive and negative characteristics to offspring.197 Organs, the brain, muscles, one's way of living, morals and character and other things represented further elements that were also deemed relevant.198 The reception of theories from medicine and the natural sciences saw this broad range of factors successively reduced. At the same time, the perception of blood in the discourse around marriage prohibitions shifted toward a more strongly biological understanding.199 The distinction between 'common' and 'strange blood' drove

195 diöab, Konsistorialakten 1865, Fasc. 22a, Römische Dispensen, no. 12. Another supplicant, the aforementioned Wilhelm von Guggenberg, argued in favour of the second marriage with his sister-in-law by stating that "a truly caring stepmother, experience has shown, can hardly be found elsewhere then among one's closest relatives". diöab, Konsistorialakten 1864, Fasc. 22a, Römische Dispensen, no. 8.

196 On this cf. also chapter five.

197 On historical concepts of blood, which were characterised by "humoral-pathological theories of conception" beginning with Aristotle and into the nineteenth century until blood lost its significance as a generative substance with the establishment of the "cellular pathological paradigm" in the mid-nineteenth century before 're-conquering' this status with the rise of serology and blood group research at the end of the nineteenth century, cf. Myriam Spörri, "Moderne Blutsverwandtschaften. Die 'Blutprobe' und die Biologisierung der Vaterschaft in der Weimarer Republik", *L'Homme. z.f.g.* 21, 2 (2010), 33–49, especially 35–41.

198 On the "production of heritability" as an episteme and knowledge formation as well as a biological concept cf. Staffan Müller-Wille and Hans-Jörg Rheinberger, "Heredity – The Formation of an Epistemic Space", in *Heredity Produced*, ed. Müller-Wille/Rheinberger, pp. 3–34.

199 Recent research indicates that blood became a significant substance of relatedness and superseded a more strongly flesh-oriented way of thinking at the transition from the Middle Ages to the early modern period. Guerreau-Jalabert, *Flesh and Blood*, p. 75; for a foundational look at the conception of bodily substances and relatedness in the late Middle Ages and the early modern period cf. Simon Teuscher, "Flesh and Blood in the

these notions forward, and to proponents of exogamous marriage, 'strange' – meaning unrelated – blood was positively connoted: admitting new members into a family was, as already mentioned, a focus in arguments that defended kinship-related marriage impediments.

The Bremen-based jurisprudent Heinrich Spöndlin even held a given society's creative potential to be dependent upon "fresh mixtures of blood": "The lack of original people that so severely afflicts our era is due just as much to the lack of fresh mixtures of blood as it is to an excessive uniformity of upbringing, that all-too-broadly similar *acquired* hereditary nature".200 Starting from this distinction, Spöndlin opposed the prohibition of marriage between affinal kin since one could not speak of a "detrimental concentration of the these hereditary natures" in such cases. What is more, "if the widower takes the sister of his wife and the widow takes the brother of his husband as a spouse", the second marriage would have "the same hereditary natures as the first", hence allowing children and parents to get along "far better": "The sister of the mother will more easily learn to love her nephews and nieces as children then a strange person would be able, and a brother will be more capable of becoming a father to his brother's children than would a third person due to their possession of his own hereditary nature."201 While "hereditary nature" functions here as an equivalent for commonality, the aforementioned "prize question" of 1811 contrasts the terms "isolation" (*Absonderung*), meaning closed circles resulting from intermarriage among kin, and "mixing" (*Vermischung*): "This isolation, however, would necessarily be detrimental to physical and intellectual culture just as it would also be to the populace, while mixing within the citizenry spreads physical and mental strength and power and encourages procreation."202 Even so, the anonymous author

Treatises on the *Arbor Consanguinitatis* (Thirteenth to Sixteenth Century)", in *Blood & Kinship*, ed. Johnson et al., pp. 83–104.

200 Spöndlin, *Ueber das Eheverboth*, pp. 82–83; emphasis letterspaced in the original. His argument regarding "acquired hereditary nature" refers to step-relationships and other relationships not regarded as consanguine to which he ascribes a similar kinship character: "If the suggested expansion of prohibitions in the case of full kinship is based on and hence justified by physical and psychological inheritance, then the absent reason of physical and innate psychological relatedness is replaced by the binding and uniting power of marriage and the significance of family in the case of half-, step- or chosen kinship, and just as the congenital hereditary nature embodies the marriage impediment in the former case, in the latter case it is the one that is *acquired through upbringing*, which constitutes kinship every bit as much as blood does." Ibid., p. 82.

201 Spöndlin, *Ueber das Eheverboth*, pp. 93–94.

202 *Welche canonische Ehehindernisse*, p. 69.

does advocate "by all means" permitting marriages between cousins a few pages later.203

An antagonist here was embodied by the 'others'. The legal scholar Hermann Eichborn, for example, referred to the "numerous examples of degenerate tribes that avoided mixing their own with strange blood" in his 1872 portrayal of the "marriage impediment of consanguinity as defined by canon law".204 Eichborn effected distance here from an example not to be emulated via a diffuse mode of ethnicisation and exoticisation, in which said example was projected onto unspecified far-off 'tribes' as well as via the attribute of 'degeneracy' (*Entartung*). This – during this period and in this context – must be read as an equivalent of the term 'degeneration' (*Degeneration*).

Alongside this, there also existed a notion of 'common blood' in various concentrations, running more or less from high percentages to trace amounts. This was regarded as a consequence of its successive dilution via the repeated new 'mixings' that would occur over the course of generations. This was how Theodor Pachmann justified both the state's reduction of prohibited degrees and the civil method of counting degrees of kinship, which was based on the number of successful procreative acts in between. He assumed that kinship's "inherent connection" would "not be present everywhere in equal intensity", for "[e]ach successive conception results in a renewed mixing of blood and hence weakens blood's commonality".205

Decades prior, in the 1813 edition of his *Handbuch des in Oesterreich geltenden Eherechts*, Thomas Dolliner had discussed marriage prohibitions in degrees ranging out to the fourth. In doing so, he made reference to the justification provided by Pope Innocent III at the Fourth Lateran Council of 1215: Dolliner held that Innocent had perceived there to be a correlation between the four forbidden degrees and the four humours (*humores*).206 At that time,

203 Ibid., p. 72. As a justification for the sensibleness of such a marriage prohibition in earlier times, he refers to *patria potestas*, paternal authority, which – in a legal sense – also extended to already married sons. This, he holds, had made it more probable that such sons would to live in their fathers' households together with other married siblings. This marriage prohibition – as it was applied to siblings and here also extended to cousins – had therefore been about "moral purity" in a context of spatial proximity. But now, he holds, patriarchal authority is no longer possessed of such "efficacy", for which reason he deems this marriage prohibition to be obsolete.

204 Eichborn, *Das Ehehinderniß der Blutsverwandtschaft*, p. 8.

205 Pachmann, *Lehrbuch des Kirchenrechtes*, vol. 2/1, 1851, p. 266.

206 "Quaternarius vero numerus bene congruit prohibitioni conjugii corporalis […] quia quatuor sunt humores in corpore, qui constant ex quatuor elementis", in: Emil Friedberg and Ludwig Richter (eds.), *Corpus Iuris Canonici. Editio Lipsiensis secunda*, part 2: *Decretalium Collectionis* (Graz, 1955) [unaltered reprint of the edition published in Leipzig in 1879],

the objective had been to justify narrowing down the realm of prohibited degrees from seven to four. The underlying problem was that marriage prohibitions beyond the fourth degree of consanguinity and/or affinity could not be considered and duly complied with without great effort.207 The same justification was employed by legal scholars arguing in the Josephine style 570 years later when the issue was paring back marriage prohibitions to the second canonical degree. Pope Innocent's recourse to the *humores* struck Dolliner as a reason that "sounds quite strange". Dolliner himself set more store in the idea that "degeneracy" (*Unarten*) would cease to be an issue further out than four generations. In this regard, he referred to the *Lehrbuch des Naturrechts als einer Philosophie des positiven Rechts*, a textbook on natural law as a philosophy of positive law by Gustav Ritter von Hugo – specifically to a passage from the chapter on "Juridical Anthropology".208

In order to explain what he meant by "degeneracy" (*Unarten*), Dolliner quoted the associated footnote from the abovementioned work by Hugo in a slightly modified form: "It is observed by naturalists that he who is descended from a negro, be it even only in the fourth degree, will necessarily still have something negro-like about him. In farther degrees, however, such characteristics disappear entirely."209 In Hugo's original version, the latter sentence reads as follows: "He who is related in the fifth or greater degrees, however, can indeed be a full European."210 With this, a thread had been spun from the prohibition of kin marriage to theories of heredity whose proofs were sought in their transferral to non-European societies, leading to the racialisation of arguments such as this one. In late nineteenth- and early twentieth-century Brazil, the

Dekretalien Gregor ix., Buch 4, Tit. 14, Cap. 8, Sp. 704. One also finds a quotation of this passage (with "matrimonii" in place of "conjugii") in Dolliner, *Handbuch*, p. 182. On the opinion prevalent at the council cf. also Paul B. Pixton, *The German Episcopacy and the Implementation of the Decrees of the Fourth Lateran-Council 1216–1245: Watchmen on the Tower* (Leiden/New York/Cologne, 1995).

207 Conc. Lateran iv, can. 50: "Prohibitio copulae conjugalis quartum consanguinitatis et affinitatis gradum non excedat, quoniam in ulterioribus gradibus non potest absque gravi dispendio hujusmodi prohibitio generaliter observari". Quoted in Stapf/Egger, *Vollständiger Pastoralunterricht*, p. 235.

208 Gustav Ritter von Hugo, *Lehrbuch des Naturrechts als einer Philosophie des positiven Rechts*, 2. umgearb. Versuch (Berlin, 1799).

209 Dolliner,*Handbuch*, p. 182; in reference to Gustav Ritter von Hugo,*Lehrbuch des Naturrechts als einer Philosophie des positiven Rechts*, 2. umgearb. Versuch (Berlin, 1799), § 64, 78 (the corresponding footnote is marked with three asterisks). The passage "it is observed by naturalists" is an addition by Dolliner and not present in the original.

210 Hugo, *Lehrbuch des Naturrechts*, p. 78. See for a brief overview of concepts of blood purification and commingling Myriam Spörri, *Reines und gemischtes Blut. Zur Kulturgeschichte der Blutgruppenforschung, 1900–1933* (Bielefeld, 2013), pp. 25–40.

idea of gradual 'purification' over the course of generations leading to eventual whiteness was widespread both as a myth and a political programme known as *branqueamento racial*: if *mestizos* would mate solely with whites, the idea went, they would grow ever-whiter, with Brazil ultimately becoming a white nation.211 This policy was founded on blood, and its colour – black, indigenous or white – was the criterion by which its success was measured.212

Such myths and programmatic notions anticipate how the conceptions of 'common' and 'strange' blood developed as the twentieth century dawned. In this regard, Brigitta Hauser-Schäublin has ascertained: "The notion of race as it was employed in National Socialism would be unthinkable without the idea of common and strange blood."213 This path had already been charted for decades,214 though its continuation – which led to genocide – need not have been. Blood, in the context of racial anthropology, served as a means to identify "races"215 and hence became a "racial characteristic". The route led via "racial hygiene" and hereditary biology-based understandings to the concept of race that National Socialism employed.216 Piero Camporesi speaks of a "rediscovery of blood as a driving force of history in the twentieth century" that "turned in a negative direction" resulting "in a barbarous return to violence".217 One could

211 Cf. Giralda Seyferth, "Colonização, imigração e a questão racial no Brasil", *Revista USP* 53 (2002), 117–149, https://www.revistas.usp.br/revusp/article/view/33192/35930 (last access: May 2022). For this reference, I thank Sol Glik.

indeed draw waves representing blood's presence. A similar phenomenon is the severe segregatory policy aimed at baptised Jews and Muslims and their offspring in Spain from the fifteenth century onward on the basis of the notion of *limpieza de sangre*, purity of the blood, to which they did not conform.218

British authors who defended cousin marriages in the 1870s, even if their starting point was a different one, ended up settling on what was fundamentally the same line of reasoning. Their argument was that it was 'natural' to desire to marry someone who exhibited commonalities with oneself, with 'commonalities' understood here not via metaphors of blood but – at first glance, at least – socio-culturally. At second glance, however, this view featured racist underpinnings: if one assumes the existence of a natural horror towards kin marriage, then one can also assume an equally generalised and far better-founded aversion to marriage with 'foreigners'. These 'foreigners', in a way that was inseparable from the colonial context, were defined by the factor of colour: "God made white men, and God made black men, but the Devil made half-castes." Nancy Anderson has thus hypothesised that in nineteenth-century Great Britain "anxiety about miscegenation" could trump fears related to incest.219 And via a series of linkages, discursive strands focused on 'familiar' and 'foreign' blood spread into colonial contexts and merged with racist arguments of exclusion.

…

One objective of this second chapter has been to introduce the fundamental logics behind the institution of dispensation as well as significant contexts of dispensation practice as it changed: alongside the fundamental character of dispensations as acts of mercy, a decisive role in proceedings that occurred during the period under study was played by the range of marriage prohibitions established in various ways by church and civil authorities along with the associated underlying notions. Also important was the trend toward relaxation of criminal laws pertaining to a realm of incest that, in parallel with the extent of marriage prohibitions, was quite broadly conceived. This chapter has also aimed to shed light on relevant period-specific filters of discourse, relating these to findings from the analysed archival material. The question regarding how love

218 Max Sebastián Hering Torres, *Rassismus in der Vormoderne. Die 'Reinheit des Blutes' im Spanien der Frühen Neuzeit* (Frankfurt a. M./New York, 2006); cf. also Burschel, *Die Erfindung der Reinheit*, especially section vii: "Gutes Blut, böses Blut".

219 Anderson, "The Marriage", p. 84. The author quotes from the article "Kin, The Marriage of the Near", published in *Westminster Review civ* (1875), 147–155.

and passion were spoken of proved challenging in a methodical sense. Signs of a more strongly present love-concept centred on familiar intimacy and similarity of character most certainly can be found in the dispensation requests, but we find equal emphasis placed upon that quality of constancy that was considered essential in early modern marriages as well as good character traits. The codes could vary according to the social milieu, but particularly in bourgeois circles they would also often appear closely interwoven with one another or couched in period-specific terms – such as 'acquaintance' – that were connoted differently than they are today. At the same time, it proved important to think about levels of action as well as talk of love from the standpoint of the logic adhered to by those who authored the sources. Doing so allowed elements of strategic communication to become visible. Identifying such elements is essential when it comes to interpreting this material and understanding the administrative processes as a whole. Moreover, such a multiperspective approach underscores the diversity of notions that characterised the arena of love during the nineteenth century.

From the end of the eighteenth century onward, various discourses were distributed quite broadly in terms of their support of or opposition to either extended and intensified or limited marriage prohibitions. On several points, such as the validity of the taboo of incest between parents, children and siblings or the endorsement of exogamous unions, there existed far-reaching agreement – albeit based on differing lines of argumentation. 'Decency' represented a significant foundation upon which the considerations of both canon law and civil law-oriented authors played out. Hygiene, analogies to the animal world and heredity-related hypotheses, on the other hand, dominate the arguments in writings with an eye to medical and natural research. And clear lines of demarcation can be seen in the attitude towards affinity as a marriage impediment, which England – with the Marriage with a Deceased Wife's Sister Bill of 1835 – saw become a focal point of public debate almost simultaneously with the increased restrictiveness of papal dispensation policy beginning in the 1830s. As we can recognise frequently in dispensation requests, clergymen – including those on the local and regional levels – found it increasingly difficult to justify their stance.

Positions rooted in physiology, medical science and heredity theory began to solidify towards the end of the eighteenth century. They influenced how marriage prohibitions were dealt with in the contexts of both civil and canon law, where the discourse on 'degeneration' became a factor – at first more broadly in tracts and treatises than in actual dispensation proceedings. The views put forth by physicians and representatives of the nascent natural sciences were well suited to reinforcing the Church's position regarding the prohibition of marriage between consanguineous relatives – for the pope, as Joseph de Maistre nonchalantly remarked, did not have the power to dispense from natural laws. However, such arguments' limitation to consanguineous unions eliminated affinity entirely from the spectrum of relevance, an effect that the Catholic Church must have found intolerable despite the obvious brittleness of the prohibitions pertaining to marriage between affinal kin by that point in time. Its reaction spoke volumes: when faced with questions and scrutiny, church representatives responded with silence. An attempt to defend marriage prohibitions between affinal kin would have proven that they *could*, fundamentally, be called into question, and it appears to have been precisely this impression that they wanted to avoid. At the same time, however, there were individual cases where clergymen summarily applied warnings about possible health hazards of consanguine marriage projects to affinal ones in explaining their rejection or approval of dispensation requests.

While champions of marriage prohibitions railed against the "narrowheartedness of familial love", it was precisely prospective couples related by marriage – above all in configurations where a widower desired to marry his sister-in-law, who was simultaneously the aunt of his children – who argued with reference to a number of positive connotations and expectations associated with their 'common blood'. The emphasis on and high regard for 'common blood' simultaneously entails outward demarcation vis-à-vis 'strange blood'. This way of thinking brought about a strand of discourse that would grow more powerful in the late-nineteenth century and eventually culminate in colonial and National Socialist racism.

Chapter 3

### **Church and State in Competition**

Hacia Roma caminan dos pelegrinos, a que los case el Papa, mamita, porque son primos, niña bonita, porque son primos, niña.1

A young couple pilgrimages to Rome in order to be wed by the pope. For, as the Spanish folk song goes on to explain, they are *primos* – first cousins. In the subsequent verses, they do indeed arrive at the Apostolic Palace and enter its audience chamber. The pope asks their names and ages, where they are from and whether they have sinned. All they have done is kissed – and soon after, the wedding bells ring. In this song's telling, close kinship seems not to have represented a serious impediment: the pope apparently exempted them from it with no major bureaucratic obstacles. The great effort here lay much rather in the pilgrimage that they had undertaken, spurred on by the hope of achieving their objective more easily and quickly through the papal offices in Rome than they could have if mediated by their parish, their diocese or third parties. The prospects of being granted dispensations and other mercies directly in Rome were indeed good, and commensurate expectations existed from the Middle Ages into the nineteenth century.2 The most important institution in

∵

1 From *Los pelegrinitos*, Spanish folksong, as transcribed by Federico García Lorca. I thank Fernanda Alfieri for pointing this out to me.

2 An example of this beyond the purely ecclesiastical context would be the so-called Roman marriages due to the economic obstacles that marriage projects faced on the municipal level, obstacles circumvented in this way particularly by couples from Tyrolean territory during the eighteenth and nineteenth centuries. Cf. Margareth Lanzinger, "La scelta del coniuge. Fra amore romantico e matrimoni proibiti", *Storicamente* 6 (2010), http://www.storica

94 Chapter 3

this respect was the Apostolic Penitentiary, which was viewed as the place where one could best and most quickly obtain divine mercy: "quo citius et melius misericordiam Dei consequerentur".3

In Austria, canon law had represented the definitive standard governing how kin marriage was dealt with all the way into the early 1780s. The relevant administrative competencies and decision-making power lay with the Church, which thus held a practical monopoly over the granting of marriage dispensations. But from this point onward, new regulations pertaining to marriage-related matters enacted by the secular authorities caused the situation to fundamentally change. For the Church, such regulations entailed a deep-reaching intrusion into its domain.4 Initial ordinances and decrees had already begun limiting church power over marriage during the late 1770s. That period had also seen it become nearly impossible for related couples to travel to Rome in order to obtain a dispensation and marry – above all because such travel had been made illegal. The only way of turning to turn to Rome that now remained was through the diocesan consistories, and doing so required provincial government permission.

This marked the onset of a phase that, at least in parts of Austria, was to prove turbulent. The process by which 'modern' statehood developed during the period under study is hence not one that can be viewed solely from the perspective of a "'dualistic' tension between the state and society or between 'state administration and self-administration'"5 – for the Church, as a third protagonist, played a role that was not insignificant.6 Dispensation matters were one of several realms in which the Josephine era's power struggle between the

mente.org/07\_dossier/famiglia/scelta\_del\_coniuge.htm (last access: May 2022); Margareth Lanzinger, "Landlessness and Marriage Restrictions: Tyrol and Vorarlberg in the Eighteenth and Nineteenth Centuries", in *Landless Households in Rural Europe 1600–1900*, ed. Christine Fertig, Richard Paping and Henry French (Suffolk, 2022). pp. 243–269.

3 Filippo Tamburini, "Le dispense matrimoniali come fonte storica nei documenti della Penitenzieria apostolica (sec. xiii–xvi)", 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 (Rome, 1986), pp. 9–30, 9.

4 On the fundamental characteristics of marriage's "subjugation" to theological and state priorities cf. Dieter Schwab, "Der Zugriff von Staat und Kirche auf die Ehe – eine historische Reflexion", in *Rechtsgeschichte mit internationalen Perspektiven. Festschrift für Wilhelm Brauneder zum 65. Geburtstag*, ed. Gerald Kohl, Christian Neschwara and Thomas Simon (Vienna, 2008), pp. 615–633.

5 Krosigk, *Bürger in die Verwaltung*, p. 11.

6 On areas of conflict between Church, state and society during this period cf. Karl-Egon Lönne, *Politischer Katholizismus im 19. und 20. Jahrhundert* (Frankfurt a. M., 1986), chapter 2.

pope and the emperor played out.7 Bureaucratic procedures changed, with civil administrative bodies now also becoming involved. Political authorities on the provincial level, in this case the provincial government in Innsbruck, served as hubs of communication between diocesan ordinariates, district offices (*Kreisämter*) as the "mainsprings of the overall political machinery"8 and the office at the imperial court in Vienna known as the *Hofstelle*. Lawgivers' efforts to standardise as many procedures as possible9 gave rise to that many more questions in actual practice. These were to be clarified via a "system of enquiries at court in cases of doubt". This can be viewed as an expression of both the growing "omnipotence of the ruler" and a belief in the inadequacy of lower-level administrative bodies that implemented policy.10 The overall bureaucratic burden grew apace.

In his volume on the history of Austrian marital law, Adalbert Theodor Michel commented trenchantly on the confusing situation during these years: "The most interesting chapter in the history of marital law during the period under discussion here is that of the imperial-royal ordinances regarding

7 Concerning Josephinism, the following are a few recently published volumes that cover the current state of research as well as the various concepts while also containing references to a range of further literature: Peter Hersche, *Muße und Verschwendung. Europäische Gesellschaft und Kultur* (Freiburg i. Breisgau et al., 2006) and Wolfgang Schmale, Renate Zedinger and Jean Mondot (eds.), *Josephinismus – eine Bilanz / Échecs et réussites du Joséphisme* (Bochum, 2008), with overviews by Helmut Reinalter, "Josephinismus als Aufgeklärter Absolutismus – ein Forschungsproblem? Gesellschaftlicher Strukturwandel und theresianisch-josephinische Reformen", in ibid., 19–33; Christoph Gnant, "Der Josephinismus und das Heilige Römische Reich. 'Territorialer Etatismus' und josephinische Reichspolitik", in ibid., 35–51. On the climate that arose with the onset of Empress Maria Theresia's reforms cf. for example Umberto Dell'Orto, *La nunziatura a Vienna di Giuseppe Garampi 1776–1785* (Città del Vaticano, 1995), pp. 14–42.

8 Joseph Kropatschek, *Oestreichs Staatsverfassung, vereinbart mit den zusammengezogenen bestehenden Gesetzten* […], vol. 1 (Vienna, 1794), quoted in Reinhard Stauber, *Der Zentralstaat an seinen Grenzen. Administrative Integration, Herrschaftswechsel und politische Kultur im südlichen Alpenraum 1750–1820* (Göttingen, 2001), p. 237. The right of codetermination, emphasised by Stauber, that the district captains (*Kreishauptmänner*) enjoyed in the administrative realm particularly when it came to handling individual cases, can be largely confirmed from the standpoint of dispensation-related matters. Here, as well, their reports and recommendations were often forwarded by the Innsbruck government to Vienna "entirely unaltered or with but a few comments added". Ibid., pp. 240–241. On bureaucracy cf. also Peter G.M. Dickson, "Monarchy and Bureaucracy in Late Eighteenth-Century Austria", *The English Historical Review* 110, 436 (1995), 323–367.

9 Altogether, Dickson specifies the figure of just under 5,400 decrees issued between 1781 and 1795. The lion's share, at 1,263, pertained to spiritual matters. Cf. Dickson, "Monarchy and Bureaucracy", p. 354.

10 Gernot Kocher, "Die Rechtsreformen Joseph ii.", in *Josephinismus als Aufgeklärter Absolutismus*, ed. Helmut Reinalter (Vienna, 2008), pp. 125–161, 128.

marriage dispensations. These consisted mostly of half-measures and were not always generally announced; they sought to avoid conflicts with the Church and reconcile diametrically opposed principles; they quite naturally failed to achieve this end but did indeed damage esteem for the legal framework itself, for whose amendment or removal there was a lack of courage. This material is, moreover, difficult to navigate."11

Heuristically, such a period of upheaval offers insights into the 'production of the social'. When procedures depart from the routine and competition arises between interests and views, protagonists justify, explain and above all experiment. It follows that in the situation at issue here, violations of the declared regime were bound to occur. This chapter can hence also be read in light of the question as to the Josephine reforms' implementation and actual practice. Despite the numerous publications on this era, there are still under-researched aspects, in particular with respect to the reactions of affected parties.12

#### **1 The** *placetum regium* **– A 'formalité si humiliante pour l'Eglise'**

As a matter of principle, Rome was the competent authority where marriage dispensations in the close degrees of consanguinity and affinity were concerned. During the early modern period, a dispensation could be obtained in several ways. From the vantage point of the early nineteenth century, Thomas Dolliner characterised this "first epoch" – perhaps a bit too generously – as one that had offered numerous courses of action from which to choose: "It was typical to permit neither the secular authorities nor the bishop to know anything about the matter. He who required a marriage impediment to be lifted either went to Rome himself, sent someone there in his stead or turned to the papal nuncio or another Roman agent and obtained a dispensation in that way. He could then, upon presenting this dispensation, be married by a priest."13 During the final decades of the eighteenth century, however, couples who were closely related by blood or affinity no longer enjoyed these options. The question of by whom a dispensation had to be granted had become a bone

11 Adalbert Theodor Michel, *Beiträge zur Geschichte des österreichischen Eherechtes* (Graz, 1870), p. 59.

12 On this cf. Hersche, *Muße und Verschwendung*, vol. 2, pp. 1013–1015; for Germany during this period cf. Hull, *Sexuality, State, and Civil Society*.

13 Thomas Dolliner, "Erläuterung des 83. § des bürgerlichen Gesetzbuches über die Ehe-Dispensen", in *Materialien für Gesetzkunde und Rechtspflege in den Oesterreichischen Erbstaaten*, ed. Carl Joseph Pratobevera (Vienna, 1815), pp. 56–99, 57.

of contention in the competition between ecclesiastical and secular power.14 It began with 'recourse' to Rome being made generally – and thus also where dispensations were concerned – subject to state control: this now required the *placetum regium*, a writ of permission to turn to the Roman Curia issued by the competent provincial government.

In her ordinance of 27 September 1777, Empress Maria Theresia declared it "forbidden and a severely punishable offense for any and all persons to travel personally to Rome on account of a dispensation case in marriage situations *without provincial government permission*".15 Both laypeople and clergy were thus prohibited from "dealing directly with Rome".16 Prior to the submission of a given dispensation request to Rome, the *placetum regium* had to be obtained from the competent provincial government. This policy was justified in an ordinance of 11 May 1782 with reference to the rules laid down by the Council of Trent. It provided that dispensation in the close degrees was to "take place but seldomly" and, moreover, only for a select group of people. On this basis, the 1782 ordinance – which was representative of Joseph II's self-understanding – concluded that "such motivations, however", could "be scrutinised and assessed with greatest assurance by the authorities of the state alone". Therefore, all those who desired to request a dispensation in the close degrees were from then on to *first* "effectuate" permission from the provincial government and only then turn to the competent bishop.17

In the eyes of the Church, this was perceived as a "formalité si humiliante" – an extremely humiliating formality that representatives of the clergy found neither necessary nor sensible. It was "absolument superflue", absolutely superfluous and ultimately dangerous, an enslavement of the Church. With these words the Archbishop-Elector of Trier, Clemens Wenceslaus of Saxony,

14 On this cf. also Margareth Lanzinger, "Staatliches und kirchliches Recht in Konkurrenz. Verwandtenenehen und Dispenspraxis im Tirol des ausgehenden 18. Jahrhunderts", *Geschichte und Region / Storia e Regione* 20, 2 (2011), 73–91.

15 "Verordnung vom 27. September 1777", in *Sammlung der Kaiserlich-Königlichen Landesfürstlichen Gesetze und Verordnungen in Publico-Ecclesiasticis vom Jahre 1767 bis Ende 1782* (Vienna, 1782), pp. 104–105, 104; emphasis added. On this see also Johannes Mühlsteiger, *Der Geist des Josephinischen Eherechtes* (Vienna/Munich,1967), pp. 43–47.

16 Michel, *Beiträge zur Geschichte*, p. 8. Cf. also Christian Steeb and Birgit Strimitzer, "Österreichs diplomatische Vertretung am Heiligen Stuhl im Spiegel der k. (u.) k. Vatikanpolitik im 19. Jahrhundert", in *Österreich und der Heilige Stuhl im 19. und 20. Jahrhundert*, ed. Hans Paarhammer and Alfred Rinnerthaler (Frankfurt a. M. et al., 2002), pp. 35–63.

17 "Verordnung vom 11. Mai 1782", in *Sammlung in Publico-Ecclesiasticis vom Jahre 1767 bis Ende 1782*, pp. 203–205, 204. On the Tridentine equivalent see Jemolo, *Il matrimonio*, p. 64.

presented his view on the matter in written correspondence with his "cousin"18 Joseph II. This written exchange was published in 1782.19 Joseph II's brief and concise argument for his position was that he needed to be informed of decisions being made by the Vatican so that he would be in a position to influence them.20 The *placetum regium* was to remain a mandatory in connection with Roman dispensation requests until the mid-nineteenth century. Obtaining it was, for the most part, a formality – albeit one laden with great symbolic significance.

This step towards stringent provincial political control also entailed the centralisation of dispensation-granting policy overall.21 Since the Middle Ages, setting out for Rome on account of various matters and even from quite far off had been common practice not only in Spain but also in German-speaking lands, above all in the context of penal and expiatory pilgrimages.22 Hans Hochenegg points to the common letters of indulgence "with numerous attached seal impressions of Roman cardinals" that pilgrims to Rome procured there for parish churches and brotherhoods in Tyrol.23 And it was surely also the case that some couples chose to travel directly to Rome on account of marital and dispensation-related business. At any rate, one of the arguments

18 Clemens Wenceslaus of Saxony was a son of Archduchess Maria Josepha, a daughter of Emperor Joseph I.

19 Österreichisches Staatsarchiv (östa), Haus-, Hof- und Staatsarchiv (HHStA), Rom Varia 1778–1784, K. 58, Ins. 2. Correspondence entre S. Maj. L'Emperéur Joseph ii. et S.A.R. L'Electeur de Tréve touchant les édits impériaux en matiere de religion (Philadelphia, 1782), pp. 4–5.

in favour of intervening in such matters was that it could "not possibly be of no concern to the state if its citizens" had to "undertake arduous journeys to distant lands at great cost and with all manner of detours in order to request the necessary dispensation".24 Less direct channels had likewise seen frequent use. For instance, supplications also reached the Roman Curia via so-called procurators. Ludwig Schmugge puts the number of supplications from across the Catholic world that reached the Apostolic Penitentiary and were registered by the scribes there between 1455 and 1492 at an impressive 114,480. 6,387 of them originated from the territory of the Holy Roman Empire.25 A circular of the Diocese of Brixen sent out to its secular and regular clergy26 on 3 November 1777 instructed that dispensations not obtained via the diocesan ordinariate were henceforth no longer to be accepted. This piece of writing was directed "primarily" to the "superiors of their orders".27 Alongside papal envoys and ordinariates, it was primarily monastic orders to whom special papal authorities were delegated during the early modern period. Even so, it would seem that they were invested with few, if any, competencies relevant to marriage dispensations excepting in the context of missions.28 For this reason, it is fair to assume that they acted above all as intermediaries.

As research conducted by Marina D'Amelia has shown, however, obtaining a dispensation directly in Rome was not exactly easy. The Apostolic Datary, in particular, demonstrated no interest in reducing the degree of uncertainty or striving for more standardised procedures. It was much rather the case, she writes, that information on the rules of play and on the financial outlays that were actually necessary beyond the chancery fees, which were accessible as printed lists, was lacking. According to D'Amelia, the entire complex

24 *Ernst Valentin Schwaigers rechtliche Abhandlung von dem Rechte und der Pflicht der Bischöfe in allen Fällen zu dispensiren da der Landesfürst die Dispensreserven abschaffet. Nebst angehängten Lehrsätzen aus der gesammten Rechtsgelehrsamkeit* (Vienna, 1784), pp. 62–63.

25 Schmugge, *Ehen vor Gericht*, p. 15.

26 The distinction between secular and regular clergy lies in the former's territorial localisation and administration of the sacraments, for which reason they performed a public function similar to the one assumed by registrars later on. The latter included members of orders subject only to the authority of their abbots and the rules of their orders and abbeys. That is why they were "extra- or a-territorial" in actual practice and called upon to assume responsibilities such as missioning. Cf. Elena Brambilla, *La giustizia intollerante. Inquisizione e tribunali confessionali in Europa, secoli iv–xviii* (Rome, 2006), pp. 21–22.

27 Copy of the circular of 3 November 1777, tla Innsbruck, Jüngeres Gubernium, Gubernialratsprotokolle, Ecclesiastica, Fasc. 212, 1783 (Jan.–Feb.), Ein- und Auslauf, vol. 2, no. 42.

28 On this cf. Leo Mergentheim, *Die Quinquennalfakultäten pro foro externo. Ihre Entstehung und Einführung in deutschen Bistümern*, vol. 2 (Stuttgart, 1908 [reprint Amsterdam, 1965]), pp. 3–38.

surrounding the granting of mercies ultimately had the appearance of one big labyrinth. This notwithstanding, it was common knowledge among Catholics that the pope possessed the authority to grant mercy in countless matters. And in order to actually obtain such mercy, one needed agents and intermediaries on location. Such persons might live there and have access to the Datary, or be sent to Rome for this specific purpose. Rivers of bribe money flowed, and it repeatedly occurred that dispensation briefs were forged.29 Marina D'Amelia looks at the sixteenth and seventeenth centuries, but we may assume that the situation she depicted most probably remained somewhat valid thereafter as well. And before this backdrop, standardised procedures – with the diocesan bureaucracies as the main protagonists – that saved supplicants the trip to Rome may indeed have delivered a certain degree of relief. However, this centralisation also entailed that closely related couples' marriage projects had now become entirely dependent upon the willingness of local and regional clergymen, the competent diocesan consistory and provincial government as well as the Court Chancellery in Vienna to support their dispensation requests.

Despite all the changes that were made, it proved impossible to fully eliminate unauthorised journeys to Rome. Those who dared to go this route could, however, expect to face punitive measures. Joseph Schuster and Maria Nockerin from the court district of Altrasen in the Puster Valley, who were cousins, had "gone personally to Rome" in 1785 in order to receive a dispensation, "following effectuation of which" they had themselves married on the spot. Once returned home, the couple was arrested and "placed in separate and solitary but quite moderate confinement". The provincial government in Innsbruck was made aware of this incident and, in turn, informed the Court Chancellery (*Hofkanzlei*) in Vienna. In April 1785, the Court Chancellery confirmed the legality of the action taken against the couple and instructed the provincial government to also forward the Roman marriage certificate "without delay" for its inspection. This evidently failed to occur, for there followed in July of the same year a renewed demand to send a report including the "certificate of the coupling that actually occurred in Rome" and to do so "without any delay", since the couple would have to be confined until a decision had been made at the highest level. This decision was then issued in August 1785: his Majesty had "mercifully deigned, this time, to permit the civil contract30

29 Marina D'Amelia, "Agenti e intermediari tra negozi curiali e merci false (Roma tra Cinque e Seicento)", *Quaderni storici* 124 (2007), 43–78, 44–46.

30 The definition of marriage as a 'civil contract' is the core element of the Josephine Marriage Patent of 1783, which did not institute civil marriage as such but did serve as a document from which the legal prerequisites for and consequences of marriage were

between Joseph Schuster and Maria Nockerin to be revalidated, on which basis the two may be united by their proper priest". The wedding therefore had to be repeated even though this couple had been married in Saint Peter's Basilica, the absolute centre of the Catholic world – but not by the couple's own priest – as the Marriage Patent of 1783 prescribed – and without the secular procedure of the obligatory three banns of marriage.31 As punishment for their "travel outside the country without permission from the authorities", the couple was obligated to perform public service – albeit only for six weeks, in light of their prior confinement – which had to be completed before they could be "re-coupled".32

In the 1820s, the civil authorities in Innsbruck issued an explicit call for deaneries to monitor their people. The context was the so-called jubilee, the holy year declared every quarter-century, during which an extraordinary indulgence could be obtained. Such a year gave cause for many Catholics to make the pilgrimage to Rome – and, in doing so, to get other things done as well. "Priests from a neighbouring diocese" had allowed themselves to be enticed into "giving a peasant who was pilgrimaging to Rome letters and supplications addressed to the Holy See for the purpose of requesting spiritual authorities and the extension thereof, dispensations, etc.". For this reason, the Imperial-Royal Provincial Presidium had ordered that the Diocese of Brixen admonish its clergy, "on the occasion of this year's jubilee in Rome, to refrain from using this association with the Holy See in a way that runs counter to the hierarchy in general or to Austrian church law in particular". The diocesan consistory deemed this worry to be unfounded. Moreover, it held that publication of "such a general admonishment" would only awaken "the temptation to bypass proper channels". It therefore decided that its deans should "be called upon to appropriately monitor this matter in complete secrecy".33

The civil authorities became active not only at the beginning of dispensation proceedings but also upon the arrival of a dispensation brief from Rome. An ordinance dated 26 March 1781 stipulates that "since all bulls, briefs or other ordinances issued by the Holy See may relate to the *statum publicum*, we deem it necessary that their content always be submitted to us following their issue but prior to their further promulgation for the purpose of granting

derived, these being the sole domain of the state from this point onward. The obligatory banns of marriage were hence also among those things that were now subject to civil law.

31 Marriage Patent of 1783, §§ 29 and 31.

32 tla Innsbruck, Jüngeres Gubernium, Geistliche Sachen, Fasc. 434, 1785, Akten und Protokolle, file no. 6.596, no. 1.072; file no. 10.895, no. 1.731; file no. 12.086, no. 1.902 ½.

33 adf, ga, Ehesachen i, 1820–1850, 1825, Fasc. 58.

our provincial government *Placiti Regii* or *Exequatur*".34 This ordinance specified the provincial governments as the competent bodies. Accordingly, dispensations – issued in the form of papal briefs – were to first be transmitted by the diocesan ordinariates to the competent provincial governments. Here, they had to be endorsed with the word *exequatur*, "be it executed", before the weddings thus permitted could go forward. The provincial government's own dispensation was issued in the process. This civil dispensation was required because the Marriage Patent forbade marriages between blood and affinal relatives within the second degree, hence representing an instance of civil prohibition that likewise needed to be lifted.

Bishops, however, repeatedly acted according to their own judgement. And in such cases, the tone in which the proper procedures were explained to them and insisted upon was quite firm. It was not only the clergymen of the consistory in Brixen, faithful to Rome, who proved unruly; likewise loath to submit to the various and sundry legal reforms were bishops whose dioceses lay only partly on Austrian territory during the late eighteenth century.35 The government in Innsbruck repeatedly received orders from Vienna to forward instructions on such matters. In a letter of 12 May 1804, for example, the Court Chancellery called the Bishop of Augsburg to order with regard to dispensation briefs: "Since no use of a Roman document may be made prior to the request and issuance of the *placetum regium*, the *Gubernium* is to demand from the Augsburg ordinariate the papal dispensation brief in the original, most importantly, as well as to issue the *placetum regium* in the usual form insofar as the content of said brief does not contradict provincial laws. It is only once this has occurred that the ordinariate may act upon the authorisation contained in the dispensation issued to it by the Holy See and the government may grant permission to the specified bridal couple for the valid conclusion of their civil marriage contract."36

The directives regarding the appropriate procedures changed relatively soon, in the context of the dispute over bishops' authority to dispense and the intended independence from Rome where marriage dispensations were concerned. Since the bishops did not accede to these directives without further ado, it was first necessary to obtain written commitments from them that

34 Ordinance of 26 March 1781, in *Sammlung in Publico-Ecclesiasticis vom Jahre 1767 bis Ende 1782*, pp. 124–125, 124.

35 The affected areas included parts of the dioceses of Augsburg, Chur, Constance and St. Gallen. A map showing these areas can be found in Josef Gelmi, *Geschichte der Kirche in Tirol. Nord-, Ost- und Südtirol* (Innsbruck/Vienna/Bolzano, 2001), p. 235.

36 tla Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1804, Fasc. no. 318, no. 66.

they would dispense on their own authority. Therefore, bridal couples had to supply a declaration by the bishop to this effect along with their dispensation requests. If this had been done, the provincial government was authorised to grant them permission to marry. Each year in October, which marked the conclusion of the "military year", an index of the granted marriage dispensations was to be sent to Vienna.37 Five years later, however, a new set of rules went into effect that marked a return to centralism. Now, "in cases where the bishops dispense on the authority of their own office, the *placetum* for an episcopal dispensation" was "no longer to be issued by the provincial government, but always to be requested from this *Directorio*".38 The reference here was to the Court Chancellery in Vienna, which evidently desired to exercise control itself and thus once again had to be informed and consulted prior to the granting of dispensations. In the intervening years, in particular immediately following promulgation of the Marriage Patent of 1783, it was therefore civil authorities that evaluated whether couples were worthy of dispensation. As a result, special standards were brought to bear.

#### **2 State Dispensation Policy under the Banner of 'the Common Good'**

In order for a marriage between close blood or affinal kin to go forward, the prospective couple not only needed to submit a dispensation request – which had to go through a lengthy administrative process – but also to sufficiently justify a marriage project such as their own. On the side of the Church, there existed a catalogue of officially recognised reasons: the so-called canonical reasons for dispensation.39 But as a consequence of the Josephine reforms, the early 1780s saw the insertion of the civil authorities as a mandatory first stop where consanguineous and affinal kin also had to "indicate their motivations". According to an ordinance of 11 May 1782, the provincial government was to evaluate whether these were of "sufficient weight" and either endorse the request or, if the stated motivations were insufficient, summarily reject it in the interest of avoiding "pointless paperwork".40

37 Court decree of 8 February 1790, tla Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1790–1793, Fasc. no. 1.622, 1790, no. 7.

38 tla Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1794–1795, Fasc. no. 312, 1795, no. 17. Letter of the Imperial Court Chancellery in Vienna to the Upper Austrian Gubernium dated 2 January 1795.

39 On this see chapter four.

40 Ordinance of 11 May 1782, in *Sammlung in Publico-Ecclesiasticis vom Jahre 1767 bis Ende 1782*, pp. 203–205, 204.

The reasons listed in the ordinance and now accepted by the state in connection with a marriage dispensation were not new. For, interestingly enough, these reasons were modelled after the Church's requirements as they referred to the corresponding rules laid down by the Council of Trent, albeit in reverse order: dispensations were to be "granted but rarely, and if so, due to publicam causam & inter magnos Principes" – when in the public interest and among great princes.41 The sixteenth-century view had been that kin marriages should serve above all to afford nobles and others of high station marriages of an appropriate status. However, the state ordinance at issue here was promulgated during an era in which more and more prospective couples from the most varied social backgrounds were requesting dispensations. Before this backdrop, the 'enlightened' state's recourse to decisions by the Council of Trent does seem anachronistic. In order to justify these new secular powers, the Josephine ordinance further stressed that such "motivations and the truth of the underlying claims" could "be scrutinised with the greatest degree of assurance by the authorities of the state alone".

In the wake of the Marriage Patent's introduction in 1783, the authorities in Innsbruck responsible for such evaluations included the Upper Austrian Fiscal Office,42 which then forwarded them to the *Gubernium*. In this initial phase, the supplicant couples were evaluated rather strictly in terms of their worthiness of dispensation. In keeping with the quoted ordinance, the only reasons recognised in actual practice were "public utility" and high social status. At the beginning of February 1783, the dispensation certificate permitting Cajetan Zignoli from Sacco in the Diocese of Trento to marry his sister-in-law arrived in Innsbruck. The internal report of the Fiscal Office explained that Zignoli had "applied for this dispensation two years before, at which time it was permissible to effectuate such dispensations in Rome", but had only been granted it following the Marriage Patent's issuance. In view of this situation, the office recommended granting the *placetum regium* – but not without pointing out that if Cajetan Zignoli had applied to take recourse to Rome now, his application

41 The public interest, or common good, was also a topic in canon law, albeit more as a theoretical foundation than in concrete dispensation practice: Brandhuber von Etschfeld, referring to the canonist Florens in *Über Dispensation und Dispensationsrecht*, pp. 66–67, specified three "reasons upon which a dispensation should be based": *misericordia* or *charitas*, *utilitas*, and *necessitas*, quoted in Florens Franciscus, *De dispensationibus ecclesiasticis praefatio in apieriendis juris scholis publice habita* (Parisiis, 1648), p. 17; on this cf. also Baura, *La dispensa canonica*, pp. 66–67; Jemolo, *Il matrimonio*, p. 64.

42 During this period, Upper Austria – *Austria superior* – was an administrative unit comprised of Tyrol, Further Austria – Austria's possessions in south-western Germany (Vorderösterreich) – and Vorarlberg.

"would have been summarily refused". After all, this dispensation was "neither for persons of high estate" nor was it foreseeable "how public utility would be served by it".43 It was with this same justification that, in May 1783, the request by Anton Rungger, a court usher in Neumarkt who desired to marry a niece of his deceased wife, was rejected "since it involves neither persons of high estate nor public utility".44 For a time, things were to continue in this way.45

In the first edition of his handbook on Austrian marital law (1813), Thomas Dolliner criticised church marriage prohibitions by arguing that these subjected "the innate freedom of the subjects to marry according to their preferences" to limitations that were unnecessary, "without utility and without reasonable cause". At the same time, they also – to the detriment of the state – exacerbated the difficulty of achieving "marital unions in smaller communities where nearly all families tend to be closely or distantly related with each other, particularly in remote valleys with little contact with the rest of the country into which outsiders are rarely pleased to marry".46 Dolliner probably had in mind the obligation to obtain a dispensation in the third and fourth degree, which had been eliminated by that point in civil law. But where the first and second degree were concerned, the civil servants of the *Gubernium* did not necessarily have this clientele in mind. It was apparent that civil authorities had difficulty with the fact that marriage projects in close degrees were now arising increasingly often in less wealthy circles, among women and men from the agrarian, trade and commercial milieus, and not only from towns but also in villages and valleys.

The documentation from these initial years following the Marriage Patent's introduction is rather vague on how it was organised. Beginning around 1786,

43 tla Innsbruck, Jüngeres Gubernium, Gubernialratsprotokolle, Ecclesiastica, Fasc. 212, 1783 (Jan.–Feb.), Ein- und Auslauf, vol. 6, no. 251. Just how convoluted the decision-making pathways during this period were is documented by the entries in tla Innsbruck, Protokolle der Geistlichen Commissions-Sachen vom 21. Februar 1782 bis 19. Februar 1783, Kommissions Protokoll in Ecclesiasticis vom 8. Januar 1783, no. 14, vom 12. Februar 1783, unnumbered tla Innsbruck, Protocolla in Geistlichen Co[mmissi]ons-Sachen vom 19. Februar bis Ende Dezember 1783, Kommissions Protokoll in Geistlichen Sachen vom 16. April 1783, no. 531.

44 tla Innsbruck, Jüngeres Gubernium, Gubernialratsprotokolle, Ecclesiastica, Fasc. 213, 1783 (March–July), Ein- und Auslauf, vol. 7, no. 964.

45 Cf. also the request, likewise rejected in light of the ordinance of May 1782, of Anton Schächtle from the dominion of Sonnenberg in Vorarlberg, who desired to marry his cousin Theresia Schächtlin: requests in the second degree, "wherever no obvious utility is present and no persons of high estate are involved", were "only to be summarily refused". tla Innsbruck, Hofregistratur, Älteres Gubernium, Reihe L, Publica, Politica, 1783, Fasc. 220, Pos. 29–32, Ein- und Auslauf, Pos. 31, Ehebewilligungen, no. 993.

46 Dolliner, *Handbuch*, p. 188.

"persons of high estate" – at least as an explicit reference – faded into the background, but estates as categories of social stratification did remain present in people's minds. The district office in Bruneck, when asked to evaluate the marriage project of the peasant Jakob Mutschlechner and his cousin Agnes Harrasserin in 1798, was loath to support the granting of a dispensation, arguing instead that "among the peasantry", this was inadvisable both on general principles and "due to the great sensation" to which it would give rise.47 The notion that certain marriage configurations should remain reserved for those of higher standing would seem to have persisted as one of those inconsistencies that were paradigmatic of this era. This was a fundamental contradiction of so-called enlightened absolutism, which was not only personified by the monarch but had also come to permeate various state bureaucracies.48

Beginning in the mid-1780s, the question of whether *evidens ratio boni publici* was present – namely whether the planned marriage would promote the "general well-being of the state"49 – came into focus, providing a basis for the evaluations issued by the Fiscal Office and the *Gubernium*'s Commission on Spiritual Affairs.50 The district offices endorsed and supported dispensation requests, emphasising their worthiness of consideration and forbearance. Exactly what was meant by the "general well-being of the state", however, remained rather diffuse. This was contrasted with mere "private benefit" – which was grounds

47 tla Innsbruck, Jüngeres Gubernium, Hauptgruppe 64, Ehesachen, Fasc. 314, 1798, no. 156.

48 On this cf. Reinalter, "Josephinismus als Aufgeklärter Absolutismus – ein Forschungsproblem", p. 30. With regard to the abovementioned contradiction, he writes: "While the Enlightenment exhibited an at least incipient tendency towards overcoming estatist structures, absolutism was based on estatist structures and persisted in conserving them." This finding of a certain ambivalence holds true here, even if the term 'absolutism' needs to be viewed in a critical light. On this see the classic work Reinhard Blänkner, *'Absolutismus'. Eine begriffsgeschichtliche Studie zur politischen Theorie und zur Geschichtswissenschaft in Deutschland, 1830–1870*, 2nd ed. (Frankfurt a. M. et al., 2011).

49 This – "das Gemeine Wohl des Staates" – is how the Latin expression was rendered in German in one dispensation request. tla Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1786–1789, Fasc. no. 1.621, 1786, no. 8.

50 In the context of Joseph ii's dissolution of numerous monasteries, a Commission on Spiritual Affairs had been established on the basis of a Court Chamber decree of 31 January 1782 that, "under the chairmanship of the head of the provincial government and including the chamber representatives and advisers" as well as two committees of prelates or clergymen, was to meet once a week – or twice, if needed – and send its protocols to the Imperial-Royal Court Chamber. The topics covered by these protocols diversified rather quickly and came to encompass a wide range of spiritual matters including enquiries regarding dispensations. Later on, beginning in 1786, the reports on dispensation-related matters were filed and archived separately. tla Innsbruck, Protokolle der Geistlichen Commissions-Sachen vom 21. Februar 1782 bis 19. Februar 1783, initial entry in this volume.

for a request's denial.51 In some cases, the benefit that might accrue to the state was at least implied. The request of the seal office controller Johann Peter von Tausch, for instance, was endorsed because a fortune of 8,000 gulden might otherwise "leave the country": were his bride to remain unmarried and die without issue, this sum would go to her relatives in Bavaria. Even so, the Office of the Chamber Procurator in Innsbruck deemed the stated grounds – which also included the fact that the groom was a widower and had a small child – to be insufficient. As a result, it forwarded the matter to the Court Chancellery in Vienna in a very extensive report. Included was a certificate from the city judge in Klausen confirming the mentioned sum of money. The Court Chancellery in Vienna instructed that this request was "only to be rejected".52

Better luck was had by Joseph Anton Rist of Heimenkirch, which belonged to the Further Austrian domain of Bregenz-Hohenegg that was to pass to Bavaria in the nineteenth century. He desired to marry his uncle's widow Theresia Dempflin. Like his deceased uncle, who had lived in Wengen in the southern German Allgäu region, Rist worked in the carrying trade and thus possessed similar occupational experience. It was therefore also to be expected that the widow would be "a housewife exceptionally well suited to his line of business". More importantly, however, she possessed a fortune of 10,000 gulden, which their marriage would "bring into Austrian territory, thereby augmenting the amount of domestic taxable wealth". Furthermore, "the carriage of his uncle would also be brought into the country along with the widow" and added to his own. "Through this expansion of commercial transport, the nourishment of the subjects in Vorarlberg would be improved whilst toll proceeds would rise". But if the widow were to marry elsewhere, it was to be feared that the "useful carriage trade would easily veer off of domestic roads, crossing the border and continuing on through the Holy Roman Empire". The Court Chancellery subsequently ordered that Joseph Anton Rist "present a clear declaration" by the ordinariate that it would dispense on its own authority.53 This was one of the few positively evaluated requests from these years that were also accepted

51 Evaluation of 17 July 1786, prepared by Johann de Lama and addressed to the provincial government, tla Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1786–1789, Fasc. no. 1.621, 1786, no. 8.

52 Ibid., 1788, no. 1. Johann Peter von Tausch did not give up: in 1790, he made a renewed attempt. This time, after initially being confronted with the declaration that the bishop in Brixen would not dispense on his own authority, he received permission from Vienna to apply in Rome. tla Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1790–1793, Fasc. no. 1.622, 1790, no. 17 and no. 21.

53 tla Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1786–1789, Fasc. no. 1.621, 1789, no. 18.

in Vienna. Among them is a further request whose success – in light of the social status of the supplicants, Count Felix von Spaur and Countess Mariana von Kuen Bellasi – will hardly have been a mere coincidence.54

It was in vain, on the other hand, when prospective couples from other social milieus attempted to make explicit arguments with reference to the common good in their letters of supplication. Anton Firler, a farmhand who desired to marry his uncle's widow, wrote that the two would unite capital worth 3,000 gulden and thus be able to ensure the "well-being" of her five fatherless children. He claimed to have also acquired all of the necessary farming and viticultural knowledge. Regarding his diligence and industriousness, he invoked "his spiritual and worldly superiors" as witnesses. And finally, he referred to his good upbringing and closed with the following: "For all of the reasons mentioned above, the undersigned entertains the pleasant notion that even consideration of the common good will support this most humble request; in that, among other things, this is about maintaining certain plots of land in a fruitful state, as well as about raising several children to become useful citizens of the world." The district office in Bozen sent this request to Innsbruck along with the brief comment that it was doing so based "on great mercy alone". And in Innsbruck, despite the explicit reference to the "common good" and "useful citizens of the world", it was rejected on account of its featuring "no sufficient grounds for support".55

The master red tanner Anton Wopfner, who sought to marry the widow of his deceased brother, suffered a similar fate. According to a report by the Commission adviser, he justified his intent as follows: "because, 1st of all, he has now been handed the leatherworking and -selling business of his deceased brother as well as the widow and her two underage children to care for and raise; 2nd of all, the widow is very experienced in the leather trade and thus

54 Ibid., no. 40. The following "motivations" are mentioned in their request: "1st, because neither commands a large income, for which reason the groom would have difficulty obtaining a wealthy bride without having to satisfy great and onerous demands, while the bride, with her very moderate marriage portion, would be very hard-pressed to find a respectable opportunity, and 2nd, on the other hand, this equal union will perhaps give rise to mutual satisfaction and relief, and 3rd, well-run holdings and the other benefits of marriage would flow of their own accord, particularly because, 4th, there is no great difference in age between them and, finally, 5th, because they had believed to have received assurance of being able to obtain a dispensation from their reverend ordinary". Unfortunately, the records from these years do not contain the correspondence with the diocesan ordinariates, for which reason they provide no indication of the courses subsequently taken by the various requests.

55 tla Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1786–1789, Fasc. no. 1.621, 1788, no. 4.

essential to him in carrying it forward, and because 3rd of all, were he to marry otherwise, he would have to turn out this woman along with her two underage children and also pay out to them the fatherly inheritance, thereby becoming incapable of continuing this leather business that is so beneficial to the public since he could not possibly continue running it together with this widow in a decent way without being united in marriage due to his already-made declaration of love". His request likewise referred to the "public" – but the evaluators ruled in a similarly terse manner: "Since the present case involves the first degree of affinity, and no evident reason for dispensation in terms of the *actual common good* pertains, the supplicant and his supplication can only be refused in accordance with the existing imperial regulations."56 For the most part, dispensation requests centred on the ways in which the planned marriages would favour the economic advancement of peasants, tradesmen or small merchants. It would seem that arguments of this type were thought to have the best chances of resulting in success.

It counted just as little when a couple already had a child, as did the affinal couple Johann Jakob Fink and Anna Maria Einslin from Sulzberg: the utility of their "marriage to each other […] and the conceived child", stated the evaluation, was "precisely not" to be viewed as "such a one that would have an obvious influence on the common good".57 And the request of the peasant Simon Pacher and Agnes Tschurtschenthalerin, who had two children, evoked an indignant response from the Court Chancellery in Vienna, which instructed the *Gubernium* in Innsbruck to respond to the prospective couple "only in the negative and, in the future, to independently and summarily reject such impermissible supplications, in no case supporting them and thereby fuelling the proliferation of superfluous paperwork".58

Beginning in 1790, it was once again the bishops' verdicts that were decisive. If they agreed to dispense on their own authority, the provincial governments had to grant their permission to marry "without further ado". This marked the end of the state's role in evaluating dispensation requests, with the abstract and hardly satisfiable criterion of 'the common good' hence waning in its significance – even if it still would be referred to here and there in recommendations and reports.59 Overall, the logic of the civil authorities –

56 Ibid., no. 24; emphasis added.

57 Ibid., no. 23.

58 Ibid., no. 29. The vast amounts of written correspondence are a frequent theme. Reinhard Stauber views this "proliferation of written matter" as a "hydra" of Habsburg administration. Stauber, *Der Zentralstaat*, pp. 233–234.

59 The district captain in Bozen, for example, concluded a very lengthy letter of endorsement in June 1795 by mentioning the "interest of the state" and utility: "If one regards this

especially at the higher levels of the provincial government and the Court Chancellery – had been beholden to markedly different considerations than the needs of those men and women who submitted requests. The primacy of economic arguments in the 1780s requests that they evaluated was likely owed to the hope that these would go furthest in satisfying the new state requirements. Such substantive emphases, which can be identified as situational and contextual, make clear yet again how letters of recommendation and supplication did not simply serve to represent real life situations but were indeed oriented toward the presumed expectations of the recipients and accordingly focused on certain aspects.

#### **3 The Extent of Marriage Prohibitions: To the Second or to the Fourth Degree?**

The Marriage Patent of 16 January 1783 limited the obligation to apply for a dispensation to marry to the first and second canonical degrees, thus allowing two degrees that were classified as forbidden by canon law.60 The treatise *Ist es wahr, daß die k. k. Verordnungen in Ehesachen dem Sakramente entgegen stehen – Is It True That the Imperial-Royal Ordinances Pertaining to Marriage Contradict the Sacrament* –, published anonymously in 1785 and attributed to Johann Bernhard Horton (1735–1786), takes up civil law's point of view in its extensive arguments in favour of lifting these religious prohibitions, characterising it as having been imposed by a "foreign power".61 "The population of the states" and hence "the most important basis of general well-being", it

marriage with consideration for the interest of the state, it would appear to be useful on account of its provision of a destitute person with sustenance while also, in light of how the groom is wealthy and the bride poorer, achieving the intended more even distribution of wealth." tla Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1796, Fasc. no. 313, no. 2.

60 Blood kinship up to and including the second canonical degree encompassed marriages between uncle and niece as well as between aunt and nephew (first and second unequal degree), which were possible only very rarely, as well as between first cousins (second degree). Affine configurations included unions between step-parents and step-children (first lineal degree), which were ineligible for dispensation, as well as with a sister (first degree), a niece (first and second unequal degree) or a cousin (second degree) of a deceased wife or, conversely, with a brother, nephew or cousin of a deceased husband.

61 [Johann Bernhard Horten], *Ist es wahr, daß die k. k. Verordnungen in Ehesachen dem Sakramente entgegen stehen?* (Vienna, 1785), p. 3. This is also referred to in the deliberations of Dolliner, *Handbuch*, p. 188.

holds, depends upon the "encouragement and easing" of marriage.62 And it is "without need, to no end and out of sheer arbitrariness" that the prohibitions extend "as far as they do". This, it concludes, represents a violation of human freedom. The "impeccable inclinations of the subjects" are limited by force, surreptitiously undermining their happiness.63 The law, asserts this book's author, saddles one with "the obligation" to seek out all relatives extending to the fourth degree, for "one cannot guard against something if one does not know in advance from what one is to guard oneself".64

The author goes on to describe and elaborate upon the difficulties and exertions entailed during this period by the project of researching one's own "forebears" back to one's great-great-grandparents with something almost like relish.65 This might be easy for "old noble houses", he states, but among the "other classes of subjects" it requires great effort to ascertain the birthplaces and marriage locations of sixty "forebears".66 "How many journeys must he not undertake, how much time must he not fritter away and how much additional expense must he not incur?"67 This is necessary, he writes, even just to reconstruct one's blood relatives, with affinal kin being even more difficult if not impossible. The result is "the sad but indeed logical consequence that among so many thousand marriages existing in every state excepting marriages between old noble families, not a single person can enjoy the comfort of reliable assurance".68 After all, a fraught aspect of marriage prohibitions was that an overlooked marriage impediment would render a marriage null and void. Horton accordingly pointed out how the extent of canon law's marriage impediments resulted in constant incertitude regarding the validity of a marriage while state-imposed laws offered legal assurance.

From now on, marriages between blood and affinal kin in the third and fourth degrees could be concluded unhindered. But this did not actually solve the problem, for the fact that such marriages were still considered invalid by the Church rendered the state's limits on the obligation to procure a dispensation a double-edged sword. The fact that this change would not be simply

62 The elimination of marriage impediments was viewed by eighteenth-century population theorists such as Johann Peter Süßmilch as being an urgent priority in the interest of promoting the "felicity of the state". Cf. Josef Ehmer, *Heiratsverhalten, Sozialstruktur, ökonomischer Wandel. England und Mitteleuropa in der Formationsperiode des Kapitalismus* (Göttingen, 1991), pp. 34–36.

63 [Horten], *Ist es wahr*, pp. 133–134.

64 Ibid., p. 135.

65 Ibid., pp. 144–156.

66 Ibid., p. 157.

67 Ibid., p. 161.

68 Ibid., p. 164.

accepted seems to have become evident rather soon. For as early as the version of the Marriage Patent that was printed for distribution to the dioceses, a passage was added at the end that contained an additional, after-the-fact resolution by the court. This resolution left open the option of a church dispensation in the degrees upon which state restrictions had just been removed – an almost immediate partial walk back, as it were. "Parties that, *due to an excessively sensitive conscience*, turn to the bishops for a dispensation in a degree not prohibited by the aforegoing patent should be granted the requested dispensations always and free of charge",69 the resolution states.

It is difficult to assess the extent to which men and women related in the third and fourth degrees actually did experience inner moral conflict over the prospect of marrying without a dispensation and the number of people who could bring themselves to view these relaxed restrictions as a welcome removal of bureaucratic obstacles. What is documented is that such dispensation requests continued to be submitted70 – and, above all, that local clergymen applied massive pressure. In Tyrol, church representatives were altogether highly reluctant towards the Josephine reforms and changes. As far as the act of marriage was concerned, they still did have the reins firmly in hand since there was no alternative to a church wedding and thus also no escape from the grasp and influence of the Church in the context of marriage. At the same time, the state also found itself needing to bring its own administrators into line. A court decree of 31 May 1783 made it clear that people who were unhindered by a marriage impediment "must never be instructed to turn to their ordinariate", since they were now free to decide on their own whether they would turn to their bishop.71

69 Court resolution of 6 March 1783, quoted in Joseph Kropatschek, *Handbuch aller unter der Regierung des Kaisers Joseph ii. für die k. k. Erbländer ergangenen Verordnungen und Gesetze in einer sistematischen Verbindung*, vol. 2, 1780–1784 (Vienna, 1785), p. 170. These ordinances and laws are accessible via *Alex – historische Rechts- und Gesetzestexte online*, a portal of the Austrian National Library, at http://alex.onb.ac.at/ in the section "Justizgesetzsammlung", which covers the period of 1780–1848 (last access: May 2022).

70 In April of 1783, for example, two couples – the one consanguineous in the second and third unequal degree, the other related by marriage in the second and third unequal degree – applied to the provincial authorities for the *placetum regium* "to obtain marriage dispensations". They were officially informed that they could "be pleased" in light of the lately "expressed imperial volition" and were "no longer affected by this prohibition on marriage". tla Innsbruck, Jüngeres Gubernium, Gubernialratsprotokolle, Ecclesiastica, Fasc. 213, 1783 (March–July), Ein- und Auslauf, vol. 4, unnumbered.

71 This decree was intended to convey "knowledge and according procedures". tla Innsbruck, Protocolla in Geistlichen Co[mmissi]ons-Sachen vom 19. Februar bis Ende Dezember 1783, 18 June 1783, fol. 400.

The obligation to observe this "highest ordinance" was "to be borne in mind". If prospective couples were to complain to the *Gubernium* that "the priest refuses to unite them", the provincial government was to "use such means of compulsion as are necessary to elicit the priest's blessing".72 A wide range of complaints to this effect were sent by district offices to Innsbruck: in 1792, the Oberinnthal district office reported "that in the court district of Naudersberg and Glurns, couples related by blood or by marriage in the third and fourth degrees are always directed by the priests to obtain dispensations from their vicariate or ordinariate". The district office requested instructions on "how this practice can best be remedied without raising a stir". Its report also indicated that "clerical rule by force is becoming more prevalent": "In the Diocese of Brixen, as far as this district office is aware, every priest has been explicitly delegated the power to dispense in cases involving such kinship."73 This would mean that the diocesan ordinariate had more or less granted dispensation authorities to its lowest-level clergymen as an emergency measure.

The quoted enquiry addresses a problem that was rather pressing at that time and indeed unsolvable under the new rules: the incompatibility between canon and civil law was to be prevented from becoming all that clear in public, "among the people", and raising an attendant stir – which, considering how things stood, was no simple task. In September 1783, the bishops had accordingly been admonished "to guard most carefully against provoking a collision" with regard to the validity of marriages. They should, at the same time, "refrain from making things difficult for bridal couples or withholding priestly support and eliminate all delays and unpleasantness in administering the sacrament in those cases where the Marriage Patent permits the marriage to be concluded and where, therefore, no legal hindrance exists".74

Sebastian Hueber from Innichen was a supplicant who complained to the *Gubernium*. On the occasion of his planned 1794 marriage to Anna Valtiner, with whom he was related in the second and third unequal degree, the "princely episcopal consistory in Brixen foisted upon him a dispensation, granting it at no cost but refusing to afford him a priestly blessing should it be refused". In a very lengthy reply, the priest was guaranteed protection should he wed the couple without a dispensation. At the same time, he was warned of the "conflict between the supreme provincial government and the pastorate" that would be entailed by "episcopal behaviour" counter to "the supreme ordinances". For

72 tla Innsbruck, Protokoll Geistliche Kommission, 1785, part 1, no. 1.022, fos. 123–124.

73 tla Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1790–1793, Fasc. no. 1.622, 1792, no. 12.

74 Court decree of 4 September 1783, quoted in Michel, *Beiträge zur Geschichte*, p. 25.

this would "give rise to quite a stir" among "the people", from whom "such collisions" would not remain concealed. This was followed by an appeal for the bishop, "in the future" to adhere to the provincial government's laws, "which are intended for to the good of the people without the slightest reduction of true clerical rights", and to refrain from "contributing to unrest among the people" with his "untimely interspersions and one-sided dispositions".75

The explanations demanded of local clergymen who had refused to carry out weddings indicate their continued adherence to the position that the prohibition of marriage in the third and fourth degrees had "at all times been maintained by the Church". For this reason, the priests had been instructed by the bishops "to request dispensation".76 In practice, they had evidently reinterpreted the aforementioned "may"-passage in the addendum to the Marriage Patent as a "must"-passage. The Imperial-Royal Judge and Warden (*Pfleger*) of Naudersberg commented on this in the style of an enlightened civil servant: "As for the second matter, the clergymen are lost in a dense thicket of confusion, since they are interpreting advice provided by the lawgiver for the timid of soul in an entirely erroneous manner. For the law obligates nobody to turn to the sacred authorities for dispensation; it is much rather the case that the unenlightened have the option of procuring a dispensation from the clergy in order to calm their weak souls, as the law's wording only too clearly indicates. Who, then, would allow themselves to attach to the words *can* and *may* the literal meanings of *should* and *must*?" Such dispensations, he concluded, were accordingly "an unnecessary thing" and retained "only for the timid of soul".77 The administrator in the office of the judge (*Landrichteramtsverwalter*) of Glurns and Mals, for his part, indicated that the clergymen did not dare wed a couple without a dispensation.78

Instructions were subsequently sent to the bishops involved in these cases, those of Brixen and Chur, to "adhere to the existing marriage regulations more precisely than before".79 This was not to remain the only admonishment in this matter, for the ordinariate in Brixen was unimpressed and continued to accord canon law a superordinate role. A 1798 complaint elicited the following

75 tla Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1794–1795, Fasc. no. 312, 1794, no. 90.

76 tla Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1790–1793, Fasc. no. 1.622, 1792, no. 12, letter from the parish priest of Haid, dated 21 February 1792.

77 Ibid., letter from the Imperial-Royal Judge and Warden of Naudersberg, dated 23 February 1792, emphasis underlined in the original.

78 Cf. ibid., letter from the administrator to the judge of Glurns and Mals, dated 8 March 1792.

79 Ibid., reply to the aforementioned notification by the Oberinntal district office, dated 29 March 1792.

terse reaction from the bishop's side: "Whether dispensation in the third degree of blood relation was necessary is something that we, as *Ordinarius*, must ourselves know."80 But the secular institution of the district office in Schwaz also forwarded a dispensation request – that of master baker Franz Rummler and Anna Schnaggerin – to the *Gubernium*. It then received the lecturing answer that in this case, "as a consequence of the supreme Marriage Patent", no dispensation was necessary, and that the district office would now "know how to act without needing to request further instructions in similar cases in the future".81

Divergent positions also existed with regard to the second and third unequal degree according to the canonical counting method. The Church dealt with such intermediate degrees on the basis of the closer degree, thus focusing on the second degree in this configuration. The Marriage Patent, on the other hand, stipulated that the second and third unequal degree should be treated like the third degree and thus as one where no dispensation was necessary.82 As a result, skirmishes and uncertainty also arose in this regard. The ordinance of 11 May 1782 had mentioned marriage impediments adjacent to the second degree but refrained from demanding that Rome also cede dispensation authority in these cases.83 And on this basis, the Prince-Bishop of Brixen attempted to continue handling such couple configurations according to church logics and norms.84 The Bishop of Augsburg was sent instructions to "pose no further obstacles" to the unequal second- and third-degree relatives Simon Maldoner and Ursula Lechleitnerin from Stanzach in the Lech Valley, since this degree was "outside of those marriage impediments that require dispensation by the diocesan consistories". In order to make this request more

81 tla Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1786–1789, Fasc. no. 1.621, 1788, no. 19.

80 tla Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1797–1798, Fasc. no. 314, 1798, no. 14.

82 The Bishop of Brixen obtained assurance regarding the church position from the agent Giorgio Merenda in Rome, who confirmed to him that it was generally agreed that the more distant degree "is pulled towards" the closer one. "In tanto io le dirò, che sembra ad ogni uno insussistente secondo il Gius commune, come in deto foglio Pro-memoria, che il grado più remoto tragga a se il più prossimo. Tutti bensì convengono, che il più prossimo grado trae a se il più remoto, e siccome, quando nel grado terzo concorre il secondo, questo è il più prossimo, cosi il secondo deve tirare a se il terzo perché il più rimoto e con distinto ossequio mi confermo." diöab, Konsistorialcodices Romana, ab anno 1764 inclusive Mense Majo usque ad annum 1861, pp. 151–152, 152.

83 Ordinance of 11 May 1782, in *Sammlung in Publico-Ecclesiasticis vom Jahre 1767 bis Ende 1782*, pp. 203–205, 203–204.

84 Cf. tla Innsbruck, Protocolla cum Indice in Geistlichen Co[mmissi]ons-Sachen vom ersten Jänner bis Ende Juni 1784, 17 March 1784, fol. 299.

convincing, the bishop was threatened with "the imposition of punitive measures" should he fail to comply.85

Given the extent of the diocesan territories subject to the *Gubernium* in Innsbruck and the relative commonness of marriage projects in the third and fourth degrees, rather few complaints actually reached the provincial government. Some grievances probably got stuck at the lower administrative levels. And who were the people who complained? Sebastian Hueber from the market town of Innichen, who had turned with his complaint to the *Gubernium* as quoted above, may well have been representative of this apparently rather small group. He was a merchant from a well-regarded family in his town, and his father, grandfather, brothers and cousins had spent decades and generations performing various functions at the regional court: as court officials, apprentice clerks and scribes. He was hence surrounded by relatives who were quite familiar with law, legal innovations and proceedings.86

In April 1791, eight years after the Marriage Patent's introduction, Joseph II's successor Leopold II (1790–1792) had an evaluation performed in reaction to various complaints emanating from the bishops. The resulting report indicated that alongside promises of marriage, dispensations in the prohibited degrees were the area affected by the Marriage Patent that was causing the greatest amount of difficulty. It ascertained that "secular authorities are now actually wielding their exclusive power over this civil contractual matter" and that this exercise of power only extended up to and including the second collateral degree. Despite this ascertainment, there does seem to have been discussion as to whether it made sense to leave things that way. Ultimately, however, the report found it "inadvisable to now once again extend prohibitions to further degrees than are specified in the Marriage Patent, for such inconsistency, as it were, would expose itself, seeming as if born of doubt regarding the legitimacy of exclusive lawgiving authority on this point and hence seeking remediation by bringing secular law into unison with formerly valid canon law; furthermore, such a step would in part serve to provoke nothing but suspicion and unease with regard to marriages concluded in those degrees that had been legally permitted during the intervening eight years; and on the other hand, there is no sufficient reason in and of itself to once again disrupt the existing

85 tla Innsbruck, Protocolla cum Indice in Geistlichen Co[mmissi]ons-Sachen vom 1. Juli 1785 bis Ende Juni 1786, 12 November 1785, fol. 1819.

86 On this cf. also Margareth Lanzinger, "Von der Macht der Linie zur Gegenseitigkeit Heiratskontrakte in den Südtiroler Gerichten Welsberg und Innichen 1750–1850", in Margareth Lanzinger, Gunda Barth-Scalmani, Ellinor Forster and Gertrude Langer-Ostrawsky, *Aushandeln von Ehe. Heiratsverträge der Neuzeit im europäischen Vergleich*, 2nd ed. (Cologne/Weimar/Vienna, 2015), pp. 205–326, 210–212.

freedom in terms of what is now legally permitted".87 Changing the rules laid down in the Marriage Patent, this line of argument held, would have served primarily to damage general esteem for civil law and the lawgiver while also giving rise to new uncertainties.

In his history of Austrian marital law, Adalbert Theodor Michel wrote on Tyrol that "there were several cases in which clerical opposition to secular marriage laws made necessary intervention by the highest government bodies and even the emperor himself" – and before providing an example, he ascertained: "Here, however, the resulting intervention was strict. When, namely, the Bishop of Augsburg (1794) forbade a priest to wed a couple related in the 3rd degree touching the 2nd without a dispensation from the Church, the emperor contradicted the opinion of the *Direktorium* – which had requested permission to impose forceful sanctions on the bishop – and commanded that the priest's access to his temporalities be blocked until he had provided his priestly blessing."88 A court decree of November 1783 had actually mandated that bishops' access to their temporalities – these being the worldly rights and incomes associated with a church office – be blocked if they refused to grant dispensations to those couples who were permitted to marry according to the Marriage Patent.89 Ascertaining the extent to which this occurred would require a separate investigation.90

87 östa, Allgemeines Verwaltungsarchiv (ava), Alter Cultus, Ehesachen und Taufen, K. 9, 1781–1805, no. 851, fol. 5–5'. This report's final version can be found under the title, "Kolowrat an Leopold ii: Über die Zuständigkeit des Staates in Eheangelegenheiten" [Kolowrat to Leopold ii: On the Competence of the State in Matters of Marriage], final draft of 26 June 1791, in: Ferdinand Maaß, *Der Josephinismus. Quellen zu seiner Geschichte in Österreich 1760–1850. Amtliche Dokumente aus dem Haus-, Hof- und Staatsarchiv und dem Allgemeinen Verwaltungsarchiv in Vienna*, vol. 4: Der Spätjosephinismus 1790–1820 (Vienna, 1957), pp. 224–230, 227.

88 Michel, *Beiträge zur Geschichte*, pp. 39–40.

89 Cf. tla Innsbruck, Protocolla in Geistlichen Co[mmissi]ons-Sachen vom 19. Februar bis Ende Dezember 1783, fol. 847, no. 2.678. One finds a reference here to a court decree of 1 November, presented on 12 November. Cf. also the ordinance of 4 September 1781, in: *Sammlung in Publico-Ecclesiasticis vom Jahre 1767 bis Ende 1782*, pp. 132–133, 133.

90 In Michel, *Beiträge zur Geschichte*, pp. 85–88 (here: 85–86), a "Lecture of the Imperial-Royal Directorium" of 18 May 1797 is printed that makes a theme of this question in light of a dispensation that the Viennese "Cardinal-Archbishop" had refused to grant on his own authority due to "timidness of conscience"; this lecture allows us to make out the associated ambivalences. In a man "over 80 years old", it holds, this should not be considered "recalcitrance", since he will have simply found it difficult to depart from "preconceived opinions". In a case of conscience, it continued, "blockage of access to temporalities" would be a "problematic step" – "particularly in our times, where the clergy and their chief overseer deserve that all reasonable measures be taken to spare them in the eyes of the people". Regarding the priest, the "blockage of his incomes would be even

The Josephine Code of 1786 upheld the rules contained in the Marriage Patent. Regarding the case of collateral kin, article 17 of its third part stipulated that the "inability" to marry was to extend no further than "to marriage between brother and sister, then between a brother and the daughter of his brother or sister, as well as between a sister and the son of her brother or sister, and to marriage between the children of siblings". Parallel to this, article 19 lists the marriage prohibitions affecting affinal kin. No reference is made to church dispensations, however, not even in connection with the close degrees.91 According to article 20, in cases where "very important reasons are present" that would make such a marriage "advisable", it should be "always brought to the attention of the provincial government, whose decisions are to be complied with".92 In the Marriage Patent of 1783, this passage regarding notification of the provincial government had continued as follows: "and only upon having received permission from the same may a sacred court then be turned to".93 These divergent formulations once again illustrate how the rule itself had not changed while the associated administrative procedures indeed had within just a few short years.

#### **4 Authorisations to Dispense: Divergent and Conflicting Logics**

The move to narrow the scope of the obligation to obtain a dispensation to the second degree weighed less than a further mandate contained in the

91 Thomas Dolliner writes that this "silence on the part of the law" was out of an intent to "remove the point of reference" that clergymen "had previously had in cases of importunate applications to obtain a spiritual dispensation for abolished canonical marriage impediments". At the same time, there was also an intent to "gradually expunge the memory of these defunct marriage impediments, in this way clearing away the previous fodder for uneasiness of conscience among unknowing bridal couples". Dolliner's assessment of the effect here is sober: he remarks that the third chapter of the Josephine Code had "not been particularly well advertised" to the clergy. "They hence took no note …". Dolliner, "Erläuterung des 83. §", p. 71.

more inappropriate", since he was merely obeying the command of his superior. He would thereby be induced, "by way of political compulsion, to disobey" his superior, a "precarious collision" that should be "avoided by a wise civil administration in any way possible".

92 Josephine Code or General Civil Code, Patent of 1 November 1786, in *Joseph des Zweyten Römischen Kaysers Gesetze und Verfassungen im Justiz-Fache. Für Böhmen, Mähren, Schlesien, Oesterreich ob und unter der Enns, Steyermark, Kärnthen, Krain, Görz, Gradisca, Triest, Tyrol und die Vorlande. In dem sechsten Jahre seiner Regierung*. Jahrgang von 1786 bis 1786, 2. Fortsetzung 1786 (Vienna, 1817), no. 591, pp. 71–129.

93 Marriage Patent of 1783, § 16. The previously mentioned report for Leopold ii (originally dated 30 April 1791) pointed out this inconsistency. östa, ava, Alter Cultus, Ehesachen und Taufen, Karton 9, 1781–1805, no. 851, fol. 6; Maaß, *Der Josephinismus*, vol. 4, pp. 224–230, 227.

Marriage Patent: it provided that bishops were to grant dispensations in the close degrees on their own authority, circumventing the papal authorities in Rome. The arguments raised on the secular end were financial in nature: it was pointed out that flows of money to the pope – that is, abroad – were to be eliminated. However, the primary aim behind empowering and obligating the bishops to dispense on their own authority in the close degrees was to reduce the influence of the pope and hence of a "foreign" jurisdiction.94 Even prior to the Marriage Patent, there had been ordinances pointing in this direction: an ordinance of September 1781 instructed the bishops on the basis of "provincial government power" that they were "from now on to dispense" in matters of marriage "*jure proprio* if reasons are present and, insofar as no impediment stemming from divine or natural law pertains", in all cases of "other canonical impediments" in return for moderate registry fees and "without waiting for a papal or other dispensation". The argument in favour of this held that it was "a matter of immense urgency to the state, for the most imperative reasons, that the bishops suitably employ their God-given powers of office". The "best interest of the state" demanded that bishops "exercise their office alone" in these matters, doing so "free from any foreign influence".95 An ordinance of May 1782 called upon the bishops to obtain for themselves certain authorities of dispensation for the rest of their lives, authorities that would cover all of Roman dispensation logic's socially stratified categories: for the higher-ranking "nobiles & ditiores" in the prohibited degrees of consanguinity and affinity as well as for the general populace in the usual form "Forma consueta" – meaning in the fourth and third degrees, as this had already been the case "pro Pauperibus", for the "poor".96 This group encompassed all people who earned a living through their own labour.

In his study, Peter Hersche counts "the state-church relationship, externally relevant questions of jurisdiction and church organisation and the 'abduction of funds' to Rome for taxes and dispensations" as being among those "things that older research, which concentrated on political issues and paid little attention to cultural history, often placed all too far in the foreground". In Catholic states, reformed absolutism battled the Baroque "as a matter of principle, with determination and in all areas" in the interest of achieving the exact opposite of a culture of "leisure and waste", which represented the central target of its

94 Examined from a political and diplomatic perspective in Mühlsteiger, *Der Geist des Josephinischen Eherechtes*, pp. 36–41, 48–73.

95 Ordinance of 4 September 1781, in *Sammlung in Publico-Ecclesiasticis vom Jahre 1767 bis Ende 1782*, pp. 132–133, 132.

96 Ordinance of 11 May 1782, in *Sammlung in Publico-Ecclesiasticis vom Jahre 1767 bis Ende 1782*, pp. 203–205, 203–204.

reform efforts.97 In this conception, papal dispensations probably fell into the category of "waste". The Church, for its part, likely viewed marriage prohibitions as a norm that it needed to convey not only in terms of content but also in terms of form. After all, the secular demand for episcopal powers of dispensation degraded the significance of marriage prohibitions in the close degrees, putting them practically on a par with the third and fourth degrees. As a result, it made for a simpler procedure. It is fair to assume that this, in the Church's point of view, diminished the weight and implications of the dispensations themselves and hence the prohibition of kin marriage as well as the associated definition of incest. The act of mercy and its exceptional character98 likewise waned in significance due to this elimination of administrative effort and the associated costs. In the symbolic realm, these elements were critical to the representation of ecclesiastical power and the attendant monopoly on the administration of mercy – and a diocesan ordinariate was hardly in a position to stage something comparable.

Viewing papal dispensations simply in terms of unnecessary effort and wasted money obscures both the cultural dimension of this phenomenon and the significance attributed to marriage prohibitions and hence marriage itself in the logic of those times. The fact that a dispensation could be achieved only with effort and capital outlay – and, even then, was anything but a sure thing – was certainly meant to dissuade and deter people from making such requests.99 On the other hand, an act of mercy wrung from the hands of this institution was fit to evoke a feeling of eternal gratitude and indebtedness. This, in turn, benefitted the Church in the form of symbolic and material acknowledgement. It thus ultimately had the effect of propping up the system, something that the Church doubtless also intended. To be sure, official justifications surrounding the question of dispensation authority were dominated by legal and political positions on both sides. The legal discussion revolved around matters including the question of whether a provincial government was permitted to

97 Hersche, *Muße und Verschwendung*, vol. 2, p. 977.

98 The state viewed the "power to make an exception" as a power that could not be done without. This is evident in the April 1791 report to Emperor Leopold ii mentioned earlier, which held that it would be "salubrious" for absolutely no more provincial government dispensations to be granted in the prohibited degrees in order to accustom "the people that much more to observing the law", although it ultimately refrained from recommending this "since it would be unseemly for the law to be written such that the lawgiver denies himself all power to make an exception". östa, ava, Alter Cultus, Ehesachen und Taufen, Karton 9, 1781–1805, no. 851, fol. 7; Maaß, *Der Josephinismus*, vol. 4, pp. 224–230, 227.

99 Cf. Brandhuber von Etschfeld, *Über Dispensation und Dispensationsrecht*, p. 83.

intervene in laws not of its own making.100 Canon law authorities spoke out unequivocally against this: the laws of the Church, they held, had been decreed by the popes. "Who, then, should have the right to dispense from universally valid church laws if not the pope?"101

Within the Church, the rules that specified the couple configurations for which dispensation requests had to be sent to Rome and those for which such requests could be handled by bishops were generally not uniform. Instead they depended on which powers had been delegated by the pope to each individual bishop. Popes had been delegating various dispensatory powers to the bishops since the seventeenth century.102 In certain territories, the respective authorisations were regularly granted. In German lands, these authorisations were valid for five years each; in the Austrian territories, they were at first granted for periods determined by the Propaganda Fide and thereafter likewise for five years at a time. This is why they were referred to as "quinquennial faculties".103 The extent of the dispensation authorities delegated to bishops would seem to have depended on multiple factors: on the rank of the bishop104 and especially on conditions in the diocese – such as being on an island or far from Rome or characterised by a specific situation, as was the case in confessionally mixed territories and in so-called mission areas.

100 On this cf. for example a contemporary dissertation that defends provincial governments' right to do so: *Ernst Valentin Schwaigers rechtliche Abhandlung*.

101 Brandhuber von Etschfeld, *Über Dispensation und Dispensationsrecht*, p. 43. This is also emphasised by Johann Kutschker in the fifth volume of his work on marital law, which was published in 1857 – after the Concordat had entered effect. Johann Kutschker, *Das Eherecht der katholischen Kirche nach seiner Theorie und Praxis mit besonderer Berücksichtigung der in Österreich zu Recht bestehenden Gesetze*, vol. 5 (Vienna, 1857), pp. 3–4.

102 Cf. Brandhuber von Etschfeld, *Über Dispensation und Dispensationsrecht*, pp. 53–61; on the dispensation authorities of bishops cf. also Kutschker, *Das Eherecht der katholischen Kirche*, vol. 5, pp. 9–18.

103 Cf. Brandhuber von Etschfeld, *Über Dispensation und Dispensationsrecht*, p. 56; cf. also Kutschker, *Das Eherecht der katholischen Kirche*, vol. 5, pp. 40–70. The German quinquennial faculties can be traced back to the *facultates septemtrionales*, which the Jesuits were granted as 'Counter-Reformatory authorities' for Germany. Bishops' and nuncios' faculties likewise number among their predecessors. Cf. Mergentheim, *Die Quinquennalfakultäten*, p. 28, 31. On the procedure of compiling lists of assigned faculties *( formulae)* for the various dioceses that took place at a congregation that convened in 1634 to make revisions cf. ibid., pp. 68–80 as well as ibid., pp. 83–111 on the *formula X* and the quinquennial text for the German lands.

104 Mergentheim, for example, points out that the seventeenth century saw the Bishop and Cardinal of Augsburg as well as the Bishop and Cardinal of Trento "delegated a pure privilege, containing marriage dispensations, among other things", on account of their "outstanding political position in the Church". Mergentheim, *Die Quinquennalfakultäten*, pp. 85–88.

Chur's Bishop Heinrich von Hewen (1491–1509), for example, was invested with the authority to grant marriage dispensations in the third and fourth degrees of consanguinity and affinity early on. The stated reasons for this were classic: the remote communities nestled in the diocese's mountains and forests, the population's inexperience and lack of knowledge in legal matters and a degree of poverty that made it impossible for them to turn to the Roman Curia. An additional argument was the worry, inseparably linked with the history of marriage prohibitions and dispensations, that men would enter into marriages in the prohibited degrees despite their being forbidden and use these marriages' legal invalidity as an excuse to separate from their brides later on, giving rise to sensation and scandal.105 Such authorisations usually, as was the case in Chur, included the authority to dispense in the third and fourth degrees – *pro pauperibus*, for the broader populace. Beyond such commonly granted authorities, bishops were also permitted to dispense in cases of the "interruption of communications with the Holy See", that is when a dispensation request could only be sent to the papal authorities with great difficulty or in urgent cases where a delay would entail serious or irreversible harm.106 Particularly this last point left open a discretionary margin that should not be underestimated – provided there was a will to exploit it.

The special conditions that justified expanded ecclesiastical dispensation authorities included remoteness. A well-known case of this type was Corsica. It was an "abuso gravissimo", a highly serious abuse, as one missionary described the frequently seen practice there of marriages between close relatives as early as the sixteenth century.107 But it was especially "mission areas", *terrae missionis*, that were equipped with particular rights, rights that extended far back through history, in order to avoid endangering the success of their missionary

105 "In civitate et dyocesi Curiensi et eiusdem dyocesis locis montuosis et silvestribus habitant quamplures rudes et iuris ignari […] vel propter paupertatem et impossibilitatem ex certis causis accendendum ad curiam romanam aut alias, pocius in sic de facto contractis matrimoniis remanent, quam quod ab eorum uxoribus se separere velint, eciam propter scandala, que exinde subsequerentur […]." Cf. Copia dispensandi in tercio et quarto gradibus, printed as a supplement in Oskar Vasella, "Untersuchungen über die Bildungsverhältnisse im Bistum Chur mit besonderer Berücksichtigung des Klerus. Vom Ausgang des 13. Jahrhunderts bis um 1530", *Jahresbericht der Historisch-Antiquarischen Gesellschaft von Graubünden* 62 (1932), 1–211, 183–184. Michel, in *Beiträge zur Geschichte*, p. 62, writes that the bishops and archbishops in the "German-Slavic provinces" of Austria possessed "far-reaching *Facultates dispensandi*" and use these "mostly such that the parties had to incur neither noteworthy investments of money and time nor any inconvenience".

106 Brandhuber von Etschfeld, *Über Dispensation und Dispensationsrecht*, p. 62.

107 Adriano Prosperi, *Tribunali della coscienza. Inquisitori, confessori, missionari*(Turin, 1996), p. 656.

work.108 This also entailed "certain relaxations" with regard to marriage and especially marriage prohibitions associated with consanguinity and affinity.109 Such relaxations were based on a legal understanding according to which the salvation of souls, *salus animarum*, was the Church's primary aim. Generally applicable rules and principles could therefore be relaxed in order to achieve this objective wherever local conditions made it necessary.

To those who had converted to Catholicism "in the distant districts of the Saracen and heathen lands", the so-called neophytes, a Jesuit faculty of 1549 was applied. It provided which dispensations could be granted for marriages that had already been concluded in the prohibited degrees, albeit not for those that had been concluded against divine law: "in gradibus illicitis non contra ius divinum de iam contractis dispensari posse".110 In 1563, Pius IV (1559–1565) expanded this exception further: in India and in the Orient as a whole, it was also to be valid for new marriage projects.111 Alexander VIII (1689–1691) excepted the first degree of consanguinity and affinity from this exemption with an explicit ban. Clement XII (1730–1740) made possible dispensations in the first degree of affinity "ex illicita copula in linea recta", at first only if they fell within the *forum conscientiae* – the realm of conscience.112 Later on, this authority was expanded to apply generally. The French Capuchins in Brazil,

108 Cf. Mergentheim, *Die Quinquennalfakultäten*, pp. 13–16; Bendetta Albani, *Sposarsi nel nuovo mondo. Politica, dottina e pratiche della concessione di dispense matrimoniali tra la Nuova Spagna e la Santa Sede (1585–1670)*, PhD thesis, Univesità degli Studi di Roma "Tor Vergata", 2008–2009.

109 Otto Mejer, *Die Propaganda, ihre Provinzen und ihr Recht. Mit besonderer Rücksicht auf Deutschland*, part 2 (Göttingen/Leipzig, 1853), p. 560. Gregory xv had founded the Propaganda Fide in 1622 as a congregation responsible for missionary work.

110 Divine law prohibited marriage in the ascending and descending straight line – that is, between parents, children, children's children, etc.

111 Mejer, *Die Propaganda*, p. 560.

112 Canon law distinguishes between a *forum externum* and a *forum internum*. The former relates to that which was brought before an ecclesiastical court or handled according to officially defined administrative procedures but was not subject to secrecy, while the *forum internum*, also called *forum conscientiae*, *forum poenitentiae* or *forum poenitentiale*, was internal to the Church. This is to say that, just like confession, it fell within the realm of conscience and penance and was immune to access by external parties such as state authorities. A detailed discussion of this can be found in Antonio Mostaza, "Forum internum – Forum externum. (En torno a la naturaleza jurídica del fuero interno)", *Revista española de derecho canonico* 23, 65 (1967), 253–331. Cf. also Gabriella Zarri, "Die tridentinische Ehe", in *Das Konzil von Trient und die Moderne*, ed. Paolo Prodi (Berlin, 2001), pp. 343–379, 377–378. She concludes that the secularisation of marriage and hence the post-Tridentine growth of the Church's power over the *forum conscientiae* were interrelated. "Control over conscience lends church authority great power over the institution of marriage". Ibid., p. 378. Adriano Prosperi, as well, discusses overlaps between access to

having found some among the "savages" who had "married entirely without regard to degree prohibitions", were given permission to grant dispensations all the way to the second collateral degree. This authority was also delegated to the Bishop of Québec in 1766. "It is this far that one goes in mission areas", was how Otto Mejer concluded his comments on expanded dispensation authorities. In a footnote, he adds that Breslau (Wrocław), Culm (Chełmno) and Posen (Poznań) had also been granted faculties extending inward to the second degree of consanguinity and to the first and second unequal degree of affinity, "but only in a certain number of cases".113 During the nineteenth century, such contingents were also possessed by the confessionally mixed diocese of Chur.

According to Matthias Pulte, who has examined the retroactive effects of mission law on generally applicable church law, "the relaxation of marriage prohibitions based on consanguinity and affinity" was "of outstanding significance for the project of spreading the faith" in mission areas.114 In connection with eased dispensation-granting, mention should be made of faculties that could include the granting of marriage dispensations – usually in certain degrees and in specified numbers – with which legates and nuncios are documented to have been invested since the Middle Ages.115 Regarding delegated and sub-delegated dispensation authorities, Paolo Ostinelli emphasises "the ramification of the canon law system" and points to the continual relationship between the centre and the periphery.116 Possible retroactive effects on the centre would also be worth querying. But whatever the case may have been, these parallel structures were targeted for elimination in late eighteenth-century Austria. The dispute concerning nunciatures – and, above all, concerning nunciatures' jurisdiction – as permanent representatives of the Holy See was thus

the consciences of the flock and power politics in his chapter entitled "Foro interno, foro esterno". Prosperi, *Tribunali della coscienza*, pp. 476–484.

113 Mejer, *Die Propaganda*, pp. 560–561.

114 Mattias Pulte, *Das Missionsrecht ein Vorreiter des universalen Kirchenrechts. Rechtliche Einflüsse aus den Missionen auf die konziliare und nachkonziliare Gesetzgebung der lateinischen Kirche* (Nettetal, 2006), p. 203.

115 Cf. Schmugge, *Ehen vor Gericht*, pp. 34–35; more general and with references to further literature is Werner Maleczek, "Die päpstlichen Legaten im 14. und 15. Jahrhundert", in *Gesandtschafts- und Botenwesen im spätmittelalterlichen Europa*, ed. Rainer C. Schwinges and Klaus Wriedt (Ostfildern, 2003), pp. 33–86; Paolo Ostinelli, "L'offerta della grazia. Dispense e assoluzioni concesse da vescovi e inviati pontifici in Lombardia nel xv secolo", in *Päpste, Pilger, Pönitentiarie. Festschrift für Ludwig Schmugge zum 65. Geburtstag*, ed. Andreas Meyer, Constanze Rendtel and Maria Wittmer-Butsch (Tübingen, 2004), pp. 531–549.

116 Ostinelli, "L'offerta della grazia", pp. 532–533, 541–544.

part of the conflict over dispensation authorities117 and had a massive effect on actual dispensation practice.

Part and parcel of the "Nunciature dispute" were conflicts over whether bishops were authorised to dispense in the close degrees or, conversely, this authority constituted a reserved right of the pope. Alongside Joseph II, several German bishops – the Archbishops of Mainz,118 Cologne and Trier as well as the Archbishop of Salzburg119 – had taken up this position even earlier on as part of their push for a state church that would be more independent of

Rome.120 In support of the dispensation authority that they demanded, they argued based on history121 and, consistently, in the same vein as the 1788 tract on *Justifying the Actions of the Four German Archbishops Counter to the Impositions of the Roman Court*. This document refers to an "episcopal era" and "pure church discipline in the handling of dispensations". "Just as every bishop has been entrusted by God himself with the governance of his Church in order that he directly exercise spiritual power over his flock; as he knows best the needs of his sheep, knows by which means they can be helped, and has, as it were, everything in view; nothing would be more natural than for the bishops themselves to make exceptions to the law in urgent cases or to dispense, just as they did in the initial centuries of the Christian Church, during which apostolic simplicity and pure church discipline blossomed, where the generally held view was that every matter must be settled in its own diocese or at least in its own province. Such cases were, of course, extremely rare, but there is nonetheless no shortage of examples."

Later on, the tract points out, the bishops had handled dispensation-related matters collectively at their annual synods – which changed nothing about their "original authority to dispense". "The bishops indeed did frequently report important dispensation cases to the pope; but certainly not because they failed to recognise their own authority to dispense and were waiting for