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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 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 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 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 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, 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 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 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 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 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 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
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 “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, “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 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 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 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 – 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 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 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
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 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 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 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 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
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 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 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 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.
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 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, 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 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 Rome to do so.” These reports much rather represented “a glorious monument to the care and circumspection that bishops brought to bear in dispensing”. It was Innocent II (1198–1216), “thoroughly intoxicated with the consummate nature of his papal power”, who “snatched” away dispensations for himself, which marked the beginning of dispensation authority’s abuse and “a general corruption of morals”.122 This narrative conformed to the tenor of those efforts toward reforming the Church that had been ongoing from the late seventeenth century.123
Before this backdrop, the papacy of Pius VI (1775–1799) was marked by severe shocks: due to the French Revolution, secularisation measures and the split in the French Catholic Church that hung like a sword of Damocles over the conflicts within the Holy Roman Empire, due to episcopalist tendencies and not least due to Joseph II himself – with whom the “enlightened ideas had even ascended to the imperial throne”. The papal history classic by Franz Xaver Seppelt refers to the pontificate of Pius VI as “the martyrdom of the papacy”. Pius VI travelled to Vienna in 1782 with the intent of persuading the emperor to show greater consideration for church interests. While he was received with all due honours, the pope achieved “almost nothing of substance”. Seppelt concludes: “The Josephine system was upheld unaltered.”124 Looking at the realm of marriage dispensations, however, this assessment becomes less clear.
Not all late eighteenth-century bishops took up a stance that was decidedly critical of the pope, least of all those who generally pursued Rome-oriented policies. What is more, even those who viewed reforms in a fundamentally positive light had their difficulties implementing secular requirements where dispensations were concerned. This was true of Prince-Bishop Joseph von Spaur (1779–1791), for example, who has been characterised as “a decided Josephinist on the bishop’s throne in Brixen”125 and as a Jansenist126 who, though he rejected the Enlightenment, ultimately did back Josephine measures.127 In terms of dispensation practice, however, this view must be qualified. Spaur’s successor, Karl Franz von Lodron (1791–1828), on the other hand, “notorious” at the Viennese Court Chancellery and at the Gubernium in Innsbruck “as a ‘papalist’ and as ‘the Ultramontane’”, “neither answered the letters of the provincial government nor complied with court decrees”.128
The Marriage Patent plunged bishops of Lodron’s persuasion, as well as those who were less opposed to Josephinism, into a conflict: as far as internal church logic was concerned, the call to dispense on one’s own authority in close degrees would only have been legitimate on the basis of an authorisation granted by the pope. Bishops were therefore caught between two ‘masters’. The new requirements also resulted in parallel structures within administrative procedures – and when diocesan consistories explored and tested out detours, civil authorities were forced to react. Last but not least, couples who requested marriage dispensations during this period found themselves in a double-bind between the differing logics of the Church and civil authorities. This situation confronted them with ever new imponderables as the administrative processes were repeatedly changed and adjusted after the fact. During this phase, the granting of dispensations frequently ground to a complete halt. As a consequence, two decades passed during which no routines of obtaining a marriage dispensation developed.
5 No More Dispensations from Rome?
In 1780, Brixen’s Prince-Archbishop Joseph von Spaur was granted the right to dispense marriage projects between blood and affinal kin in the third and fourth equal and unequal degrees “cum pauperibus” – for the simple folk – as point three among the faculties delegated to him.129 That same year, he applied to also be granted dispensatory authorities for the wealthy and the nobility that were mandated in the court decree of 11 May 1782, as he later explained in a detailed letter to the Gubernium.130 In reaction to the Marriage Patent’s entry into force in January 1783, he subsequently charged Giorgio Merenda, the agent in Rome with whom the consistory in Brixen maintained regular contact, with investigating whether it might be possible to have his faculties extended to the second and third unequal degree. In his March 1784 reply, Merenda voiced great scepticism in this regard. He wrote that he had spoken with the competent person, the “officiale deputato”, at the Datary. This official had assured Merenda that he had heard nothing to the effect that such faculties had been conferred upon bishops in German territories. Merenda, not yet satisfied by this response, had gone on to enquire with the secretary responsible for the “Brevi ad Principes”. This second official, as well, knew nothing of the pope’s having granted such authorities to bishops in German-speaking territories. He had told him in confidence that if they were to be granted to one bishop, they would have to be granted to all others. From all this Merenda concluded that such a request would be “dangerous”, which is why he had not made it and would also refrain from doing so unless explicitly instructed to.131 This justificatory rhetoric makes clear the not entirely simple nature of the bishops’ position between ecclesiastical and secular mandates. They were caught in the middle, between state and Church. What is more, this period prior to the early nineteenth-century secularisations saw the bishops of Brixen, Trento and Salzburg themselves playing a dual role, serving both as church representatives and territorial princes.
Inspection of the entries in Brixen’s dispensation registers beginning in 1780 reveals that initially most dispensations in the second and third unequal degree had been granted by the nunciature in Vienna. From 1784 onward, however, there are only scattered indications of this, and it is fair to assume that the bishop himself saw to it beyond that point in time. These dispensations in the second and third unequal degree were mostly for couples from the territory of the Prince-Bishopric of Brixen, in which church rules still applied rather than the state Marriage Patent.132 This realm of episcopal jurisdiction is indicated in the dispensation registers next to the names of the concerned couples by the specifying remark: “Territorii Brixinensis”.133 Evidently, the Prince-Bishop of Brixen’s authority to dispense had been expanded during this period.
For close degrees, bishops’ decisions whether or not to turn to Rome for a dispensation were, for the time being, defined as a matter of conscience under civil law.134 But this relaxation of the Marriage Patent’s rules, which had already started in 1784, posed a problem – namely, that it was coupled with the issuance of a dispensation free of charge. In practice, fulfilment of this demand was impossible.135 It was hence a point that opened up a further field of conflict. If the civil authorities approved the bishop’s “intervening” in Rome, “free of charge” (unentgeltlich) was usually underlined for emphasis in the letters of the Gubernium and the Court Chancellery. Peter Beykircher, a peasant in Sistrans, had been notified by the ordinariate in Brixen that his dispensation could not be obtained for free. In light of this bleak situation, he appealed – in vain – to “the provincial government’s consummate power”, on the basis of which he requested that his “permission to marry” be granted.136 But as an internal report of the Gubernium had noted earlier on in October 1796, such cases permitted no more than a terse conclusion: if the marriage dispensation could not be obtained free of charge in Rome and the bishop was unwilling to grant it on his own authority, the “parties’ requests” would have to “be refused”.137
The Prince-Bishop of Brixen held fast to his position, explaining in a lengthy letter of 1790 how he could “not grant” a dispensation in the second degree “without giving insult to the Holy See”.138 In this, he was not alone. That same year, Vienna once again issued an order to all ordinariates, district offices and the municipal administration of Innsbruck. It provided that bishops were required to dispense on their own authority. This came in reaction to a letter from the consistory in Salzburg, which – years after the Marriage Patent’s entry into force – had requested clarification regarding the currently valid ordinances.139 In the dioceses of Trento and Chur, it was likewise the case that neither the Marriage Patent’s rules on dispensations nor related court decrees and ordinances were adhered to without further ado.
As a consequence, it was difficult during these years to assess one’s chances of being granted a dispensation. The answers from the Gubernium in Innsbruck typically amounted to no more than a standardised reply instructing the couple to first ask the competent diocesan ordinariate for its written pledge to grant them their dispensation on its own authority. This pledge, however, was typically withheld. The Prince-Bishop of Brixen’s tireless refrain was much rather that it was not in his power to dispense in the first and second degrees. The Bishop of Chur likewise had “qualms about [granting] supplicants dispensations on the authority of his own ordinariate” and requested permission to obtain them in Rome.140 In a similar vein, the civil authorities in Trento reported that the prince-bishop had “refused to dispense on the authority of his own ordinariate”. This prompted the representatives of the district office in Rovereto to laconically conclude: “If a bishop does not know his own episcopal rights and doubts the power to which he is actually entitled in accordance with true canonical principles, then the district office can do nothing but hope that he may be enlightened by God’s anointed ones.”141
Franz von Riccabona, deputy to district captain Anton von Zoller at the district office in Bozen, put the dilemma faced by supplicant couples in a nutshell. In reference to a complaint filed by a couple whose request had been effectively refused through its blockage at the submission stage he wrote: “For they say that if the political authorities, for their part, only act on such dispensation requests once the bishop has granted the church dispensation in advance and on his own authority, and if the bishop, for his part, holds that he has no right to grant this marriage dispensation, the result is that such a marriage dispensation is rendered an impossibility.” He concluded that one could hardly “fail to comprehend” such a complaint.142 In the period that followed, however, dispensations from Trento did indeed turn up – albeit absent the required formulation that they had been granted “on the ordinariate’s own authority”.143 Strategies of circumvention were beginning to take hold.
One way of granting a dispensation without giving “insult” to Rome was to have Rome delegate dispensation authorities.144 This was something the state had by no means intended. The initial responses to this around 1790 were quite strict, but the Court Chancellery in Vienna soon did prove willing to accept this to a certain extent. Thomas Dolliner associated the possibility of delegated papal authority with as early an event as Pius VI’s 1782 visit to Vienna, and he characterised it as “regressive” from the standpoint of civil law. Such “regression” had become necessary, he wrote, because the “enforcement” of the state ordinances had faced “unspeakable difficulties stemming from the timidity of the bishops and the prejudices of priests and the people”.145
In the Diocese of Trento, it had initially appeared as if the prince-bishop had begun granting even dispensations in the first degree on his own. However, it turned out that these dispensations had in fact not been granted on his ordinariate’s own authority. In two dispensation certificates from 1790, the name of the prince-bishop – Peter Michael Vigilius von Thun-Hohenstein (1776–1800) – was followed by the tell-tale handwritten formulation “tamquam a Sancta Sede delegatus”, an expression that the ordinariate – as the district captain in Rovereto noted – had “not included on other such dispensations”.146 The Gubernium subsequently withheld the placetum regium and filed these dispensation certificates away. At the next opportunity, the Prince-Bishop of Trento declared he was in no case authorised to dispense in the first and second degrees: Johann Clementi and Dorothea Brugnara had complained about this to the “Sacra Maestà” in a 1793 letter of supplication, “but the Prince-Bishop of Trento literally answered that regarding the first and second degree, he been delegated absolutely no authority to grant such dispensations”.147 One year later, in 1794, the prince-bishop again dispensed and – to the Gubernium’s great consternation – sent the certificate documenting the granted dispensation without having first requested the Gubernium’s permission to grant it. The Gubernium attributed this impropriety to the “supplicant”.148 The problem of steps not being taken in the officially mandated order was to recur frequently during this period.
Maximilian Christoph von Rodt, Prince-Bishop of Constance (1775–1799), employed a different formulation in 1791. He refrained from writing that he had granted the dispensation “ex aucthoritate propria” or “on his own authority”, as would have been required, instead – and as the Gubernium saw it, merely – writing “ex aucthoritate apostolica specialiter sibi delgata”, or on the basis of the ecclesiastical power explicitly delegated to him. And with that, the pope was again in play. The Gubernium’s Commission on Spiritual Affairs felt compelled to enquire with the Imperial-Royal Court Chancellery in Vienna “as to the matter of several expressions used by His Excellency the Prince-Bishop of Constance in dispensing marriages in the second degree of consanguinity and affinity”. Vienna did end up granting its approval of the marriage in this specific case, but it also went on to instruct the Bishop of Constance that dispensations for the purpose of lifting marriage impediments could “also be granted based on the Authoritate apostolica received by Your Excellency”.149
The years that followed witnessed frequent criticism of divergent formulations and, analogously, of divergent actions, for the employed variants clearly indicated that consultations with Rome were taking place.150 The Hofstelle in Vienna had grown wary, to say the least. Together with an order to send a list of dispensation cases to Vienna on a semi-annual basis, the court also instructed that the ordinariates’ own dispensation certificates be attached “in order that one might become convinced here, as well, that such documents contain no expressions or clauses that would encroach upon His Imperial Majesty’s rights, as has already quite frequently occurred”.151 But this did not eliminate the problem. In 1803, the Gubernium found cause to send a dispensation certificate issued in Brixen separately to Vienna for inspection. This time, however, the authorities there – represented by the Hofstelle – dismissed such action as overzealousness and pointed out to the Gubernium that dispensations granted free of charge no longer needed to be to submitted.152
A second strategy aimed at circumventing the Marriage Patent’s rules was to organise dispensations via the nunciature in Vienna, which had formerly been responsible for such matters.153 An extant set of seventeenth-century rules for the Viennese nunciature explains that one of the reasons for so many marriage dispensations to be handled there was “perché in Germania sono facili ad imparentarsi fra di loro” – because in German-speaking lands, it was easier to become related (by marriage) with one another.154 The overall circumstances had changed due to the dispute regarding the nunciatures as instances of “foreign” jurisdiction. But despite this difficult situation, the bishops resorted to them once more.155 Beginning in 1793, the records indicate the repeated granting of dispensations by the nunciature.156 For it was via the nunciature, according to the consistory in Brixen, that a dispensation could be obtained “in the swiftest and easiest manner”.157 It was not long, however, before objections to this were voiced.158 It happened that the Prince-Bishop of Brixen submitted two dispensations in the second degree of consanguinity to the Gubernium in order to receive its provincial exequatur. January 1796 saw the Gubernium report that it had, “in the process, noticed that it pleased His Princely Holiness to have such certificates produced by the office of the nunciature in Vienna for a small agency fee”. The reaction to this was harsh, for a court decree of the previous year had explicitly forbidden such intervention by the nunciature. The consistory in Brixen subsequently defended its actions and emphasised how this dispensation’s low cost benefitted the couple, particularly because such a dispensation could not have been obtained for free in Rome. This was confirmed by an enclosed letter from the imperial-royal agent there, a man by the name of von Brunati.159 The suspicion that fees had been charged for dispensations in violation of the directives in force had indeed already been voiced in connection with an earlier request.160
The nunciature had offered a simple pathway to a dispensation particularly in cases where a bride was pregnant or a couple already had one or more children – and at first, the consistories were still successful with this argument vis-à-vis the Hofstelle in Vienna. But this state of affairs did not last long. In response to the dispensation request submitted by the cousins Michael Bacher and Agnes Tschurtschenthalerin, who already had two children, the Gubernium stated in February 1797 that turning to the nunciature in Vienna was “now also forbidden” in such cases.161
In a very long letter written that same year, Brixen’s bishop adamantly pointed out the advantages of nunciatory dispensations. Likely intuiting that this ban would not be lifted or amended anytime soon and clearly in a state of exasperation, he told the provincial government that in light of the circumstances, it would be best to immediately turn down couples seeking dispensations “so that this excess of fruitless written correspondence with the associated errors, detours, irksomeness and a certain measure of sin and vice can be avoided”.162 Indeed, this evoked the onset of a merciless practice: at the next opportunity, the assessment of a request from the Diocese of Brixen by the Commission on Spiritual Affairs at the Innsbruck Gubernium read simply: “Reject, since ordinariate does not dispense”. It was signed, as was most of the provincial government’s official correspondence during these years, by Government Counsellor (Gubernialrat) Josef von Trentinaglia.163 The situation was evidently coming to a head. Once the provincial government in Innsbruck had complained about him in Vienna, the Bishop of Brixen became the direct target of calls to order and threats. He was “so flagrantly” complicating and foiling “the granting of such dispensations”, unlike all other “ordinariates in the Province of Tyrol”,164 went the accusation. This was followed by the lament that the provincial government had “no means at its disposal” to force “this ordinariate to make use of the powers associated with its responsibilities (Berufsbefugnisse)”. As it stood, the Gubernium could “only take pity on the parties whose domestic and spiritual well-being are being disturbed by such pretermission”.165
Early July of 1798 saw the Court Chancellery in Vienna instruct Ferdinand von Bissingen, the Imperial-Royal Provincial Governor in Tyrol, to suggest that the prince-bishop take a more conciliatory stance in the matter of dispensations. Failing which one would “be forced to make the unpleasant assumption” that his refusal had to do merely with the loss of fee revenues.166 His dispensation-related actions were even subjected to a review, which found that he had “deigned to complacently submit [to the pope] for the purpose of receiving papal dispensations” during the mid-1790s. The author of the report by the provincial government in Innsbruck, echoing the note from Vienna quoted above, threatened to “bring these circumstances to the attention of His Imperial Majesty”.167
Despite the French occupation of the Papal States in early 1798, the pope’s removal,168 the various military events of the wartime years and the resulting difficulty in communicating with Rome, the nunciature remained neutralised as an alternative as far as dispensation-granting was concerned. A message from the district office in Bozen in late 1798 to the effect that the Bishop of Brixen had “left over to the papal nunciature in Vienna” the dispensation request of a couple related in the second degree of affinity was immediately followed by an imperial court decree reaffirming the ban on this practice.169 A letter written in March 1799 indicates that the papal nuncio in Vienna was then “interrogated” by the Court Chancellery. The nuncio indicated that “even in the present times and circumstances, which have forced the head of the Church to vacate his residence in Rome”, he had received no general authority from the pope to grant marriage dispensations but had indeed, at the request of several bishops, obtained authorisation “on a case-by-case basis”.170 As a consequence, the Bishop of Brixen was issued the official instruction to turn directly to the pope. He was to present the dispensation brief to the provincial government upon receiving.171
All this notwithstanding, nunciatory dispensations continue to show up in the dispensation register of the Diocese of Brixen after 1795. Grouping the communities from which these couples came by the domains in which they were located, a clear trend becomes visible. Initially, the dispensations’ destinations were mixed: there was a total of four such dispensations in 1795, including two for couples resident in territories ruled by the bishop and two for couples from territories ruled by the provincial government, of which one was marked with the phrase “cum adscripto placeto regio”.172 In 1796, there were six of them – of which three, in the second and third unequal degree, were for couples from areas ruled by the bishop.173 The sole nunciatory dispensation from 1797 contained in the records was for a couple from Felthurns, which was on the territory of the Prince-Bishopric of Brixen.174 1798 makes a similar impression: from that year, two dispensations were granted by the nunciature for couples from Brixen’s territory – from Thurn im Gadertal and from Anras, respectively.175 For 1799, the register contains no dispensations of this type. 1800 and 1801, on the other hand, feature two nunciatory dispensations each – all for couples from the territory ruled by Brixen (territorii Brixinensis).176 The following years reveal no further nunciatory dispensations. In connection with the practice of resorting to the nunciature, it become clear that actions were taking place in parallel and according to two norms: canon law and civil law. The contents of the register also suggest that the ban on turning to the nunciature would seem to have taken hold from 1797 onward in areas ruled by the province.
With this, the situation grew even more dire. In response to a dispensation request made by residents of the Diocese of Trento, the provincial government in Innsbruck itself responded in 1799 by recommending that the diocese turn to the nunciature.177 Vienna, however, remained firm. When the Bishop of Augsburg procured a dispensation via the nunciature in Munich for a couple from present-day North Tyrol in 1803, this dispensation was rejected by Vienna with reference to a Court Chancellery decree and a “supreme resolution”: “In my states, no papal nuncio may exercise jurisdiction in spiritual or church matters.”178 An internal report (Relation) of the Court Chancellery had initially defended this nunciatory dispensation, thus a decision was requested from the emperor. It was during this period that a general “low point of papal diplomacy” was reached. By 1808, there were only two nuncios left in office – in Lisbon and in Vienna.179
From the perspective of the Church, Nuncio Giuseppe Garampi (1776–1785), whom Dries Vanysacker has characterised as “an enlightened ultramontane”,180 had been stationed in Vienna as a “head” to the entire “body” of the Habsburg Monarchy’s secular and regular clergy, as an official to whom – as his secretary wrote – one could turn in all questions of religion, the Church and religious doctrine. His jurisdiction encompassed around 60 dioceses.181 Garampi regarded the Marriage Patent as the most egregious of all measures implemented by the emperor.182 His protests against interventions in religious matters and papal competencies, however, had already begun prior to that point. In response, State Chancellor Kaunitz declared him to be an “ambassador of a foreign power”, as which he had no right to intervene in reforms that were in planning or already implemented.183 Garampi’s successor Giovanni Battista Caprara (1785–1793), who had previously been the nuncio in Lucerne, has been characterised as reserved. He took pains to maintain relations with the emperor. He was viewed as “Francophile” and also came to be referred to as a “Jacobin Cardinal” later on.184 He was followed by Luigi Ruffo (1793–1802), whose term of office played out against the backdrop of the wars against France. It was only Antonio Gabriele Severoli (1802–1816), who once again became active in matters of dispensation. Severoli’s status as a diplomat had been abolished by the Treaty of Schönbrunn in October 1809, but he had been equipped with exceptional authorities whose exercise in church matters was also recognised by the imperial government.185
Altogether, the mid-1790s saw the limitations on action concerning dispensations in close degrees grow increasingly severe, with new or newly popular options being promptly eliminated. In light of this, it is hardly surprising that some bridal couples ended up taking matters into their own hands.
6 Arbitrary Acts – and Their Limitations
In July 1798, the Bishop of Brixen sent a dispensation certificate to the Gubernium in Innsbruck with a request for provincial government approval. Since this document contained an unusual formulation, it was forwarded to Vienna. While the imperial authorities did grant permission to marry, their response expressed objection to the fact that the dispensation certificate had already been issued without the Gubernium first having been asked for permission to turn to Rome. The consistory in Brixen, in responding to this reprimand, stated that they did not feel addressed by it since they had not forwarded this dispensation request to Rome, “it being much rather the parties themselves who found ways to obtain this from His Papal Holiness”.186 The Gubernium then ordered the district office in Schwaz to hold the couple, Franz Schober and Maria Lergethbohrerin, to account.187
This would indicate that couples were now requesting dispensations from the papal authorities on their own and evidently meeting with success. In 1800, the lawyer Philipp von Wörndle pursued this strategy and obtained a dispensation in the first degree of affinity. Since his dispensation had been granted free of charge, the placetum regium was not denied him.188 Among couples who had taken this sort of action and appear in the records from this point onward, some had made unsuccessful dispensation requests years before. The teacher Johann Schöpf of Niederthei in the Ötz Valley and Maria Auerin, who were cousins and had requested a dispensation for the first time nine years prior, finally – in 1800 – received one from the “Apostolic Penitentiary in Venice”,189 to where the papal bureaucracy had temporarily relocated due to the French occupation of the Papal States.190 In 1797, the couple had sent a futile ten page letter of supplication to the Court Commission on Spiritual Affairs as their sole remaining “resort” in what was a muddled situation. In this letter they portrayed in detail their attempts since 1791 to obtain a dispensation, their oscillation between hope and despair, and all of the imponderables of dispensation practice during these years.191 Shortly afterwards, three further dispensation certificates from Brixen followed for couples who had likewise previously been turned down.192 News of the more favourable situation had apparently got round.
Soon, however, restrictions reappeared here, as well. In an 1802 letter to the Prince-Bishop of Brixen, the provincial government stated categorically that Austrian subjects were not permitted to turn directly to Rome for a marriage dispensation.193 But despite all rebukes, there is evidence from the nineteenth century’s initial years indicating that the provincial government continued to be circumvented. Dispensation documents appeared for which permission had never been requested. Vienna reacted with consternation and sent out repeated admonishments to adhere to the official rules.194 In the case of Christian Berthold and Maria Kreszenz Tschoflin of Dalaas in the Diocese of Chur, the Gubernium initially received merely notification by a priest that the two had been granted a dispensation. The dispensation certificate, which the Gubernium requested for inspection in July 1801, revealed to have come directly from Rome. It followed the usual declaration that the diocesan consistory was not authorised to refer Austrian subjects to Rome.195
In 1802, the district office in Bregenz had given the supplicants Joseph Schneider and Maria Hellböckin of Höchst, who were related in the second degree of affinity, its “sanction” to approach the ecclesiastical authorities for a dispensation even though their request had been rejected by the provincial government due to what had been deemed insufficient justification. When the local priest urged procurement of provincial authorisation following the dispensation’s receipt, it became clear that this dispensation had been granted without the involvement of the competent diocesan ordinariate. Rather it came from the papal nuncio who was accredited in Switzerland. In this case, the Gubernium recommended that the dispensation “not be heeded”. Instead, “the parties” were to be instructed to remain entirely within the officially sanctioned channels.196 A later report indicated that this couple’s detour via the papal nunciature in Switzerland197 had come about at the initiative of their priest, who had personally contacted the nunciature in this regard. The parish of Höchst was subject to the patronage of the Princely Abbey of St. Gallen, but neither the Prince-Abbot of St. Gallen nor his judicial vicar felt authorised to dispense on their own authority following rejection of the nunciatory dispensation. The district office in Bregenz recommended that the request be forwarded to the ordinariate in Constance.198 Thus the couple was ultimately able to present their official “ordinariate dispensation of the Prince-Bishopric of Constance” in February 1803.199
These individual initiatives and circumventions of the officially sanctioned channels that ended up leaving behind traces in the records were most probably the proverbial tip of the iceberg. Since Austrian marital law and the corresponding rules on dispensations enjoyed only partial validity in the ecclesiastical territories of Brixen, Salzburg and Trento200 up to their secularisation in 1803, a certain ‘dispensation tourism’ – not unlike the phenomenon of ‘divorce tourism’ – may have arisen everywhere close to the borders of these territories, which offered more favourable conditions in terms of required effort and chances of success.201 After all, it was unquestionably easier during this period to obtain a dispensation in the ecclesiastical principalities, where the usual routes – via the nunciature or via Rome – were still open. These territories were in part fragmented – the Prince-Bishopric of Brixen, most of all, but also the district containing the border regions known as the Welsch Confines (Welsche Konfinen), which meant that the borders to the outside world were numerous and easily crossed.
If a bride and groom were from different legal spheres, they most probably took any available opportunity to exploit such legal plurality, turning to the authority that seemed more promising of success. Problems occurred, however, when authorities from the ‘other’ side were involved or actively intervened. The district office in Rovereto received a dispensation that had been organised directly in Rome for provincial government approval and justified the actions of the diocesan ordinariate on the basis of the groom’s Venetian origins as well as his unfamiliarity with the Austrian legal situation. It proceeded to act as a representative of the bride’s interests: “Even though this behaviour by the ordinariate of Trento does not conform to the existing supreme regulations, it is indeed believed that this fact most likely was not known to the couple, since the groom, whose decision it may have been to take recourse to Rome in order to obtain a dispensation, will have been unfamiliar, as a former subject of Venice, with the provincial laws according to which such recourse is forbidden. We hence express our endorsement of the supplicant’s request, that it may be granted to her.”202
Ambiguities at various hierarchical levels, imbroglios between different legal orders, the conflicted standpoint from which the clerics had to fulfil their official duties and villagers’ policing of one another: all this came together in the commotion surrounding the – valid or invalid? – marriage of Matthias Margoni and Agnes Casari in 1795. The parochial vicar (Kooperator) Johann Jakob Dipauli of Arsio at the Nonsberg, giving the “quaresimale”203 in a “Tridentine community” during Lent, had been told confidentially (“sub rosa”) that “a Tridentine subject” had married “an immediate Austrian subject” to whom he was related in the second degree with only “a preliminary marriage dispensation from the ordinariate”. In doing so, “the fact had remained unknown” that, for the bride, this would “eventuate” the obligation to obtain a provincial dispensation. The priest had therefore asked his superiors to obtain this from the civil authorities after the fact without raising a stir. The regional court in Castelfondo reported this incident to the district office in Bozen, where Dipauli was asked to send the dispensation certificate. Dipauli, however, declared himself incapable of doing so, since he had learned of it “sub sigillo confessionis” – under the seal of confession. In response, the district office had the court in Castelfondo “point out to him the laws in force”, according to which said marriage was invalid. They held that it was thus his obligation to investigate the matter despite the seal of confession. And if he were unwilling to do so, he was to move the “parties” to request provincial permission themselves. Otherwise, threatened the district office, they were forced to open an investigation that would “have the nastiest of consequences” for him and the affected spouses. After that, Dipauli sent the district office in Bozen the ordinariate’s dispensation along with a report and a request.204
The mistake was explained by pointing out that, for one thing, the father of the bride had been unfamiliar with the provincial laws. After all, explicated the Gubernium in a report to “His Majesty”, the bride’s place of residence at the Nonsberg was a “mixed community of Austrian and Tridentine subjects” with houses “belonging partly to the [Tyrolean] province and partly to [episcopal] Tridentine territory”. In the latter, a church dispensation sufficed in order to conclude a valid marriage; in the former, provincial government permission was required. In this case, the father of the bride had come under Austrian rule just a few days before her marriage because he had moved from the Tridentine part of the house to provincial jurisdiction.205 What is more, according to the district office’s own report, the marriage had taken place on Tridentine territory where the groom was a resident, and it had been concluded by a local priest who was not required to be familiar with Austrian laws. Ultimately, therefore, the couple had concluded this marriage bona fide, in good faith, and hence without the intention of circumventing any administrative steps or legal requirements. The district office once again emphasised the “legal ignorance of this couple” and their relations as well as the “inadvertence” of their infraction and requested that the provincial dispensation be granted after the fact. The final paragraph of the district office’s extensive report objected to the opinion – evidently expressed by the regional court in Castelfondo – that a provincial dispensation would not be necessary since the couple was related in the second and third unequal degree.206
In fact, marriage prohibitions according to the Josephine Marriage Patent and legal code extended only to the second degree, as the Court Chancellery confirmed. This case hence required no dispensation at all, as far as the state was concerned – neither from the Church nor from the provincial government. So was all this fuss ultimately pointless? In principle, yes – but from the Viennese standpoint, there was indeed still one point of reproach: the dispensation had been illicitly requested from and granted by the nunciature.207 The institutional overzealousness exhibited in this case reflects the overall situation, which was characterised by hypervigilance and a considerable degree of uncertainty.
While some eighteenth-century bishops had themselves laid claim to extensive authorities to dispense, others were unwilling to use the powers accorded to them by civil laws to dispense in close degrees on their own. They also proved unwilling to simply adhere to the new state-imposed rules concerning marriage prohibitions among consanguineous and affinal kin. The positions on both sides had hardened after just a few years, with practically no willingness to partake of the logic of their opposites – even if, as the years went by, a certain acceptance of church peculiarities did arise here and there among protagonists on the side of the state. This meant that the rules of the Church remained more or less superordinate to those of civil law. From the standpoint of canonical logic, both of the two major civil reforms – the limitation of the degrees requiring dispensation to the first and second as well as the obligation of the bishops to dispense on their own authority in these remaining close degrees – represented instances of massive state overreach. From this perspective, legitimacy and authority were inseparably linked with Rome, while the episcopalist and state church view attributed legitimacy and authenticity to the model of a decentrally organised territorial Church, conceived of as being similar to the Church of early Christianity. The conflict was over what had to be respected – the rights reserved to the pope or episcopal authorities. It was thus that a bone of contention within the Church itself became intertwined with power political interests of the state.
Actions on the level of the Gubernium and, in part, at the district offices were obviously characterised by quite some zeal, but certain district captains also took the side of the couples and repeatedly suggested pragmatic solutions – albeit to little success. The expansion of what Rudolf Pranzl has termed “the episcopal sphere of action”, a realm that also included dispensation authorities, was certainly meant to make bishops independent of Rome. But the flipside of this, which has become more than clear in this chapter, was that they became all the more dependent on and controllable by state bureaucrats.208 Moreover, it cannot be said – in view of actual dispensation-granting practice during the final decades of the eighteenth century and the initial years of the nineteenth – that the Marriage Patent’s legal reforms had succeeded in easing marriage for couples closely related by blood or by affinity; instead, the opposite was the case.
We should bear in mind that this space of legal and political competition was overshadowed by the problematic eventuality of invalid marriages. For the affected couples this meant a life lived “in sin” according to the standpoint of the Church. In the absence of a dispensation, a marriage between consanguineous or affinal kin out to and including the fourth degree was invalid under canon law, as was an episcopal dispensation in the close degrees without authorisation from the pope. The marriage was invalid from a civil standpoint if the procedures mandated by civil law were not adhered to, including the three obligatory banns of marriage in the couple’s community of residence and the requirement that a marriage had to be concluded in the presence of the priest “in whose parish or part thereof the couple resides”.209 An instrument of power that must not be underestimated was how the Church used the notions of conscience, sin and damnation. In his study on divorce, Dirk Blasius points out that “the churches’ grip on people’s everyday lives and everyday conflicts” was relaxed “only quite gradually”, and that the nineteenth century therefore still left the churches with “a power that featured great definitional capacity when it came to shaping societies’ internal relationships”.210 Even many years after the Marriage Patent had been decreed, complaints about non-compliance still arose211 – and some of these would seem to suggest that indifference to it was, in fact, widespread. In 1800, the district office in Bozen complained about the curates of the Diocese of Trento for “concerning themselves” but little with the Marriage Patent’s rules.212
Not only was the March 1804 promulgation of the Marriage Patent on the territory of the dioceses of Brixen and Trento associated with secularisation, as part of which it took effect in these former prince-bishoprics. It also encountered copiously evident resistance on the part of the Church. The explanation issued along with it read as follows: “Since in the districts of Trento and Brixen breach of promise lawsuits still exist that may result in collisions with the state with regard to dispensations concerning the banns of marriage or other matters that would affect the validity of the marriages themselves, it has been deemed highly necessary to promulgate the supreme Marriage Patent as well as the associated regulations without delay in the districts of Trento and Brixen.”213
From the perspective of the dispensation practice that existed in the dioceses during the nineteenth century, Joseph II’s liberal forays in the realm of civil law must be considered a failure.214 Everything that he had attempted to abolish or change during the years preceding and following 1783 recurred in the 1820s and 1830s – and hence long before the Concordat of 1855 – as the renewed routine, already present unremarked and unopposed.215 Bridal couples in the dioceses of Brixen, Chur, Salzburg and Trento submitted dispensation requests in the third and fourth degrees throughout the entire nineteenth century.216 The requests in the close degrees, for their part, were handled mainly by the church authorities in Rome, and money continued to flow there without further objection. The demand for “congruence between civil and canon marital law” – and hence also the matter of divergences in terms of marriage impediments – remained on the Church’s agenda. It was also dealt with at the Austrian Conference of Bishops in Vienna in early 1849 and was later included in one of their petitions to the Ministry of the Interior.217
From this perspective, but also even just with an eye to dispensation-granting practice during the two decades following introduction of the Josephine Marriage Patent of 1783, the question of the enforcement, implementation and appropriation of law arises.218 Politics is not a “one-dimensional act or process in which decrees, governance, decisions take place in a top-down manner”, but is rather based on a participatory “act of understanding”, as Ute Frevert puts it.219 However, such an act – which, in combination with a certain willingness to accept it, constitutes a prerequisite for implementation – is hardly possible if the notions of the participating protagonists are diametrically opposed to whatever is being ordained and if said ordinances contradict their own logics. Incompatible parallel structures that emerged as a result persisted over decades. The main reason for this was the existence of a specific situation in which canon and civil law represented two opposed and equally institutionalised normative complexes connected with powerful institutions. Both of these two power centres on the same territory were capable of getting their way with regard to their respective, differently constructed marriage prohibitions and divergent understandings of dispensation-granting, enforcing their own respective laws and partially ignoring or circumventing the laws of the opposing side. Individual initiatives, obstinacy and persistence on the part of the clergy kept things in flow despite the countless ordinances, admonitions, rebukes and threats. At times, the Court Chancellery in Vienna worried about provincial government “reputation”, viewing it as being under threat of “degradation” when, for instance, it issued a “Court Authorisation for Recourse to Rome”, which, however, the diocesan ordinariate subsequently did not put to use.220 Cases where couples themselves set out in search of possible options and took advantage of them in order to reach their objectives clearly show how agency was present more broadly than just in the various hierarchical levels within the state and church institutions.221
When sizeable parts of Tyrol – including the diocesan seat of Brixen and the Gubernium’s seat of Innsbruck – came under Bavarian rule in 1806, their documents ceased to be routed via the Viennese Court Chancellery. Permission to turn to Rome for a papal dispensation now once again came from Innsbruck – in a way that was quite obligingly automatic. The request of Johann Müller – a smith at the Royal Ironworks in Jenbach – and his sister-in-law Katharina Hußlin, for example, was forwarded by the district office in Schwaz to the Gubernium, which in turn forwarded it to the ordinariate in Brixen together with the remark that “should the ordinariate desire to apply for a papal dispensation, provincial authorisation is herewith granted”.222 For the years of 1807 and 1808, the records concerning dispensations handled by the Gubernium are sparse. Pope Pius VII was imprisoned in Fontainebleau after having been taken prisoner by Napoleon in 1806. The series contains nothing between 1809 and 1813, followed by only a few requests submitted in 1814. With the end of Bavarian rule223 and the pope’s liberation, “supreme permission to turn to the papal court” was once again required. The exceptional dispensation authorities with which the pope had invested bishops during his period of captivity were “now to expire”, as was communicated to authorities including the ordinariate in Brixen and the consistory in Salzburg. This also made it once again necessary to turn to the provincial government for authorisation to turn to Rome. At the same time, it was made known that only Imperial-Royal Agent Andreoli was authorised to conduct this Roman “business”.224
The examination of the dispensation registers of the Diocese of Brixen for the years between 1806 and 1814 shows that dispensations in the second and third unequal degree were granted by the bishop, some of them with the note that it had been done auctoritate ordinaria. For one couple related by blood in the second and third unequal degree, an April 1809 dispensation includes the explanation that episcopal authority had been exercised due to the difficulty of recourse to Rome.225 For couple configurations in close degrees, one continues to see the note indicating that Rome had dispensed – a Sede Apostolica dispensati sunt – frequently also with a reference to the placetum regium.226 Between three and five such dispensations are recorded for each year. During the first half of 1810, these were also granted by the bishop himself with the explanation that “ex certis causis”, for certain reasons, it had been impossible to turn to the Holy See at that time.227 Only dispensations ex auctoritate ordinaria occurred between 1811 and 1814, with Roman dispensations reappearing not before 1815.228
…
This chapter has analysed administrative practice during a particularly conflict- ridden period. It has pointed out how and with what consequences the state involved itself with matters relating to marriage prohibitions and dispensations during the eighteenth century’s final decades, breaking into a domain that had previously been administrated solely by the Church. Initial ordinances – promulgated even before the pivotal Marriage Patent of 1783 – aimed to centralise procedures by stipulating that only the consistories of the respective dioceses could forward dispensation requests to Rome. This requirement intended to eliminate all other mediatory channels as well as journeys to Rome by the couples themselves in order to obtain dispensations in person. Such journeys, not uncommon during the early modern period, were certainly onerous and entailed numerous additional hurdles presented by the papal bureaucracy upon arrival. Even so, this option had still represented a sphere of action – one that was now eliminated and/or made a punishable offence if prospective couples attempted to exploit it. At the same time, any ‘recourse’ to Rome as well as the decisions made there still needed to be approved via issuance of the placetum regium by the competent provincial government.
The provisions of the Josephine Marriage Patent had been meant to ease conditions and included both a reduction of the degrees requiring dispensation and authorisation for bishops to dispense in the close degrees of consanguinity and affinity. And yet, they proved enormously difficult to implement in parts of the dioceses of Augsburg, Brixen, Chur, Constance, Salzburg and Trento, which fell within the territory ruled by the Gubernium in Innsbruck. For one thing, state authorities had become involved in these proceedings for the first time. This touched off a lengthy, change-ridden process of attributing and negotiating competencies while also giving rise to highly elaborate enquiries and requests for clarification plus other correspondence with the Imperial Court Chancellery in Vienna. On the other hand, the bishops here – in contrast to the proponents of a state church – found themselves embroiled in a massive conflict of loyalties. Despite state demands to the contrary, they attempted by all possible means to continue fulfilling their obligations to the pope and ensure that Rome, as a decision-making instance that Joseph II aimed to nullify to the greatest possible extent where dispensations were concerned, would continue to play a role. The objective of denying the church jurisdiction – synonymous with a ‘foreign’ jurisdiction – its sphere of action and efficacy on state territory was also and not insignificantly aimed at the apostolic nunciatures, which had been functioning as important and inexpensive points of contact for sensitive and urgent dispensation requests and whose use was henceforth forbidden.
The power struggle between Church and state that left its traces in the records of the Innsbruck Gubernium manifested itself in a wide diversity of complaints, in the civil authorities’ wavering between indecision, pragmatism and hard decisions, in structurally induced conflicts with village priests and bishops who failed to adhere to the rules, and above all in great unpredictability for prospective couples closely related by blood or by marriage. During this phase, such couples could predict neither how their cases would be decided nor by whom and according to what logic such decisions would effectively be made. This becomes particularly obvious during the years when the provincial governments were primarily responsible for deciding if dispensation requests were sufficiently justified on the basis of whether the proposed unions would serve the ‘common good’ – a criterion that hardly anyone could fulfil. It is most striking how this criterion conformed to the dispensation rules of the Council of Trent (1545–1563), therefore standing paradigmatically for the half-heartedness of dispensation matters’ and marital law’s “nationalisation”. This also goes for the Marriage Patent as a whole, which legally defined marriage as a civil contract but still left the ability to wed people within the domain of the Church – an arrangement that was one of the more significant factors underlying some difficulties experienced in the implementation of state dispensation rules. If, for instance, priests refused to marry couples related in the third or fourth degree without a dispensation, the alternative of civil marriage simply did not exist. Based on the complaints received by district offices, it is fair to conclude that clerics on the local level employed strategies of circumvention in order to continue fulfilling the obligations regarding dispensation that were entailed by canon law. At the same time, however, members of the clergy were called upon to do their utmost to prevent the contradictions between church and state law from becoming visible – an ultimately impossible tightrope act.
This situation escalated to the point where the processing of dispensation requests came to an almost complete standstill: if a bishop – and the one in Brixen seems to have been particularly tenacious – did not wish to grant dispensations to close-degree couples on his own and simultaneously needed – de facto impossible – assurance from the papal authorities that dispensations would be granted free of charge in order to be permitted to turn to Rome, such requests were effectively blocked and therefore had to be denied. We must assume a certain amount of ‘dispensation tourism’ since Austrian territory, where the Josephine Marriage Patent was in force, was intermixed with the territories of Brixen and Trento, where canon law held sway. The borders between the various domains occasionally divided communities and, in extreme cases, even individual houses, which made it easy to switch from one domain and hence one legal realm to another. And for the years around the turn of the eighteenth to the nineteenth century, which saw papal offices moved to Venice as a consequence of the Papal States’ occupation by the French, the archival material contains traces of couples who had successfully – if, in principle, ‘illegally’ – applied for dispensations on their own. Viewed altogether, then, a period of over twenty years was characterised by uncertainty on the part of both civil and ecclesiastical administrators as well as supplicants when it came to dispensation practice. Accordingly, this chapter has shown the obstacles and contradictions, implications and limitations of the Josephine reforms pertaining to marriage dispensations in both ecclesiastical and civil administrative practice as well as in terms of their consequences for the affected couples. The state’s efforts to simplify the required procedures must be viewed as having ultimately failed. As a result, the state also failed to achieve the potentially related effect of presenting itself in a positive light vis-à-vis ecclesiastical power and dominance.
From Los pelegrinitos, Spanish folksong, as transcribed by Federico García Lorca. I thank Fernanda Alfieri for pointing this out to me.
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.storicamente.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.
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.
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.
Krosigk, Bürger in die Verwaltung, p. 11.
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.
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.
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.
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.
Gernot Kocher, “Die Rechtsreformen Joseph II.”, in Josephinismus als Aufgeklärter Absolutismus, ed. Helmut Reinalter (Vienna, 2008), pp. 125–161, 128.
Adalbert Theodor Michel, Beiträge zur Geschichte des österreichischen Eherechtes (Graz, 1870), p. 59.
On this cf. Hersche, Muße und Verschwendung, vol. 2, pp. 1013–1015; for Germany during this period cf. Hull, Sexuality, State, and Civil Society.
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.
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.
“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.
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.
“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.
Clemens Wenceslaus of Saxony was a son of Archduchess Maria Josepha, a daughter of Emperor Joseph I.
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.
ÖSTA, HHStA, Rom Varia 1778–1784, K. 58, Ins. 2. Correspondence entre S. Maj. L’Emperéur, p. 18: “Quant au Placitum regium il m’a paru, que quand le Chef (comme Elle l’apelle,) visible de l’Eglise, fait émaner quelqu’ordre du Vatican aux fideles de mes Etats, leur Chef, très palpable & réel comme moi, en doit être instruit & y influer pour quelque chose.” The placetum regium is assumed to have originated from the principle formulated in medieval canon law as “Quod omnes tangit debet ab omnibus approbari”, from which it follows that the assent of those who hold secular power, as representatives of the people, is necessary in order that decisions by the Church be considered binding. Cf. Rudolf Pranzl, “Das Verhältnis von Staat und Kirche/Religion im theresianisch-josephinischen Zeitalter”, in Josephinismus als Aufgeklärter Absolutismus, ed. Reinalter, pp. 17–52, 35.
This is a point where control and centralisation undeniably converge. Helmut Reinalter perceives the question of control as being in the foreground “in the battle for the supremacy of state power over that of the Church”. Reinalter, “Josephinismus als Aufgeklärter Absolutismus – ein Forschungsproblem”, p. 23.
Cf. Louis Carlen, “Straf- und Sühnewallfahrten nach Rom”, in Recht und Geschichte. Festschrift Hermann Baltl zum 70. Geburtstag, ed. Helfried Valentinitsch (Graz, 1988), pp. 131–153.
Hans Hochenegg, “Wallfahrten über die Landesgrenzen. Ein Beitrag zur religiösen Volkskunde”, Tiroler Heimat 12 (1948), 7–23, 10.
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.
Schmugge, Ehen vor Gericht, p. 15.
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.
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.
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.
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.
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 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.
Marriage Patent of 1783, §§ 29 and 31.
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.
ADF, GA, Ehesachen I, 1820–1850, 1825, Fasc. 58.
Ordinance of 26 March 1781, in Sammlung in Publico-Ecclesiasticis vom Jahre 1767 bis Ende 1782, pp. 124–125, 124.
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.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1804, Fasc. no. 318, no. 66.
Court decree of 8 February 1790, TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1790–1793, Fasc. no. 1.622, 1790, no. 7.
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.
On this see chapter four.
Ordinance of 11 May 1782, in Sammlung in Publico-Ecclesiasticis vom Jahre 1767 bis Ende 1782, pp. 203–205, 204.
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.
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.
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.
TLA Innsbruck, Jüngeres Gubernium, Gubernialratsprotokolle, Ecclesiastica, Fasc. 213, 1783 (March–July), Ein- und Auslauf, vol. 7, no. 964.
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.
Dolliner, Handbuch, p. 188.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64, Ehesachen, Fasc. 314, 1798, no. 156.
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).
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.
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.
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.
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.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1786–1789, Fasc. no. 1.621, 1789, no. 18.
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.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1786–1789, Fasc. no. 1.621, 1788, no. 4.
Ibid., no. 24; emphasis added.
Ibid., no. 23.
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.
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 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.
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.
[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.
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.
[Horten], Ist es wahr, pp. 133–134.
Ibid., p. 135.
Ibid., pp. 144–156.
Ibid., p. 157.
Ibid., p. 161.
Ibid., p. 164.
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).
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.
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.
TLA Innsbruck, Protokoll Geistliche Kommission, 1785, part 1, no. 1.022, fos. 123–124.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1790–1793, Fasc. no. 1.622, 1792, no. 12.
Court decree of 4 September 1783, quoted in Michel, Beiträge zur Geschichte, p. 25.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1794–1795, Fasc. no. 312, 1794, no. 90.
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.
Ibid., letter from the Imperial-Royal Judge and Warden of Naudersberg, dated 23 February 1792, emphasis underlined in the original.
Cf. ibid., letter from the administrator to the judge of Glurns and Mals, dated 8 March 1792.
Ibid., reply to the aforementioned notification by the Oberinntal district office, dated 29 March 1792.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1797–1798, Fasc. no. 314, 1798, no. 14.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1786–1789, Fasc. no. 1.621, 1788, no. 19.
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.
Ordinance of 11 May 1782, in Sammlung in Publico-Ecclesiasticis vom Jahre 1767 bis Ende 1782, pp. 203–205, 203–204.
Cf. TLA Innsbruck, Protocolla cum Indice in Geistlichen Co[mmissi]ons-Sachen vom ersten Jänner bis Ende Juni 1784, 17 March 1784, fol. 299.
TLA Innsbruck, Protocolla cum Indice in Geistlichen Co[mmissi]ons-Sachen vom 1. Juli 1785 bis Ende Juni 1786, 12 November 1785, fol. 1819.
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.
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.
Michel, Beiträge zur Geschichte, pp. 39–40.
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.
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 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”.
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.
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.
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.
Examined from a political and diplomatic perspective in Mühlsteiger, Der Geist des Josephinischen Eherechtes, pp. 36–41, 48–73.
Ordinance of 4 September 1781, in Sammlung in Publico-Ecclesiasticis vom Jahre 1767 bis Ende 1782, pp. 132–133, 132.
Ordinance of 11 May 1782, in Sammlung in Publico-Ecclesiasticis vom Jahre 1767 bis Ende 1782, pp. 203–205, 203–204.
Hersche, Muße und Verschwendung, vol. 2, p. 977.
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.
Cf. Brandhuber von Etschfeld, Über Dispensation und Dispensationsrecht, p. 83.
On this cf. for example a contemporary dissertation that defends provincial governments’ right to do so: Ernst Valentin Schwaigers rechtliche Abhandlung.
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.
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.
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.
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.
“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”.
Brandhuber von Etschfeld, Über Dispensation und Dispensationsrecht, p. 62.
Adriano Prosperi, Tribunali della coscienza. Inquisitori, confessori, missionari (Turin, 1996), p. 656.
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.
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.
Divine law prohibited marriage in the ascending and descending straight line – that is, between parents, children, children’s children, etc.
Mejer, Die Propaganda, p. 560.
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 the consciences of the flock and power politics in his chapter entitled “Foro interno, foro esterno”. Prosperi, Tribunali della coscienza, pp. 476–484.
Mejer, Die Propaganda, pp. 560–561.
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.
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.
Ostinelli, “L’offerta della grazia”, pp. 532–533, 541–544.
The complaints against the Curia’s claims to authority voiced in 1769 by the bishops of Trier, Mainz and Cologne included criticism of the papal right “to maintain nunciatures in Germany that are equipped with various authorities that interfere with those of the episcopate”. They held that the nunciatures should limit themselves to diplomatic representation. And in 1785, when Pius VI established a permanent nunciature in Munich that affected the jurisdictional powers of 17 bishops, there arose the so-called Nunciature dispute in which the Bishops of Mainz and Salzburg played key roles. The emperor intervened in Rome, which reacted “with both surprise and consternation”. The demand to eliminate the nunciatures or at least their jurisdiction was also made in the 1786 Punctation of Ems. Alfred Stefan Weiß, “‘Dem Pabste brach darüber das Herz …’. Salzburgs Beziehungen zu Rom unter Erzbischof Colloredo – ein gespanntes Verhältnis?”, in Salzburg und der Heilige Stuhl im 19. und 20. Jahrhundert. Festgabe zum 75. Geburtstag von Erzbischof Georg Eder, ed. Hans Paarhammer and Alfred Rinnerthaler (Frankfurt a. M. et al., 2003), pp. 433–460, 443–453; Burkhard Roberg, “Verkehrung der Fronten? Bartolomeo Pacca und der Nuntiaturstreit 1785–1794”, in Kurie und Politik. Stand und Perspektiven der Nuntiaturforschung, ed. Alexander Koller (Tübingen, 1998), pp. 376–394; Pierre Blet, Histoire de la représentation diplomatique du Saint Siège des origines a l’aube du XIXe siècle (Città del Vaticano, 1982), chapter 20. For a general look at the climate of mind cf. Umberto Dell’Orto, “Die Wiener Nuntiatur im 18. Jahrhundert unter besonderer Berücksichtigung der Nuntiatur von Giuseppe Garampi (1776–1785)”, in Kurie und Politik, ed. Koller, pp. 175–207.
Cf. Georg May, Die Auseinandersetzungen zwischen den Mainzer Erzbischöfen und dem Heiligen Stuhl um die Dispensbefugnis im 18. Jahrhundert (Frankfurt a. M. et al., 2007).
Salzburg’s Archbishop Colloredo became “a driving force behind the German episcopalistic- national church movement”. At the Congress of Ems in 1786, it was Salzburg that pushed “most radically for a decidedly episcopalist programme aimed at the rigorous limitation of papal power”. The Punctation formulated on this occasion regarding church reform, though it “did correspond to the emperor’s plans for a state church in many respects”, was ultimately not implemented. The emperor’s involvement in this matter was only half-hearted, “since he also had to fear condemnation of his efforts towards a state church”. Alfred Stefan Weiß, “Josephinismus in Salzburg? Ein Beispiel der kirchlichen Reformtätigkeit”, in Josephinismus – eine Bilanz, ed. Schmale/Zedinger/Mondot, pp. 93–114, 100–101; cf. also Ludwig Hammermayer, “Die letzte Epoche des Erzstifts Salzburg. Politik und Kirchenpolitik unter Erzbischof Graf Hieronymus Colloredo (1772–1803)”, in Geschichte Salzburgs. Stadt und Land, vol. II/2, ed. Heinz Dopsch and Hans Spatzenegger (Salzburg, 1988), pp. 453–535, 464–470.
To summarise the events preceding this: Johann Nikolaus von Hontheim, the Bishop of Trier, had expressed the “desire to give rise to a German national system of church law similar to that of the Gallic Church” in his tract De statu ecclesiae et legitima potestate Romane Pontificis liber singularis ad reuniendos dissidentes in religione christianos compositus, which was published under the pseudonym of Justinus Febronius in 1763. The pope’s authorities were to be limited to “representation and supervision, admonition and reprimand”, which did not include the right to exercise powers of dispensation in dioceses other than his own. A further stage in this conflict, featuring an initial instance of collective action, was represented by the complaints of the imperial church regarding the Curia’s claims to power brought forward by representatives of the Rhenish archdioceses of Trier, Mainz and Cologne under von Hontheim’s leadership. Weiß, “Dem Pabste brach darüber das Herz”, pp. 442–444; cf. also Franz Xaver Seppelt, Papstgeschichte von den Anfängen bis zur Gegenwart, 5th ed. (Munich, 1949), p. 276.
The same narrative, with reference to the French canonist Louis Thomassin (1619–1695), can also be found towards the end of the nineteenth century in the writings of Brandhuber von Etschfeld, for example, who viewed episcopalism as “merely a product of man’s insatiable hubris”. Brandhuber von Etschfeld, Über Dispensation und Dispensationsrecht, p. 50. His further chronology notes that the centralisation of dispensation law had been completed in thirteenth-century Rome and that the Gallic Church had begun opposing it as early as the sixteenth century (ibid., pp. 28–29). The Belgian canonist Zeger Bernhard van Espen (1646–1728), wrote von Etschfeld, was the first figure outside of France to oppose papal dispensation law. His student was Nikolaus von Hontheim, also known as Febronius (ibid., pp. 37–38).
Gründliche Entwicklung der Emser Dispens- und Nuntiaturstreitigkeiten zur Rechtfertigung des Verfahrens der vier deutschen Erzbischöfe wider die Anmaßungen des römischen Hofes samt einer Prüfung des Fürstbischöflich speyerischen Antwortschreibens an S.e. Kurfürstliche Gnaden zu Mainz in Betref [sic] der Emser Punkte ([n.p.], 1788), pp. 65–67. In the 22 points of the Punctation of Ems, the bishops demanded “the independence of episcopal power from papal power, the elimination of exemptions and quinquennial faculties, the elimination of the nunciatures in their entirety or at least in terms of their competing jurisdiction, the bishops’ right of disposal over pious foundations, an episcopal right of consent to papal bulls and briefs, and the settlement of church legal proceedings by domestic judges”. Weiß, “Dem Pabste brach darüber das Herz”, p. 449. On the previous history of papal primacy cf. the recent work Matthias Schrör, Metropolitangewalt und papstgeschichtliche Wende (Husum, 2009).
On this cf. Hersche, Muße und Verschwendung, vol. 2, pp. 952–1012. On the situation of the German Reich Church and the Church in France in the context of secularisation cf. Lönne, Politischer Katholizismus, pp. 31–50.
Seppelt, Papstgeschichte, pp. 276–277.
Paul Rainer, Die Diözese Brixen im Vormärz. Ein Beitrag zur Kirchengeschichte Tirols 1815–1848, PhD thesis, University of Vienna, 1968, p. 14; cf. also Dell’Orto, La nunziatura a Vienna, p. 26.
Cf. Hersche, Muße und Verschwendung, vol. 2, p. 955.
Cf. Gelmi, Geschichte der Kirche in Tirol, pp. 225–229.
Rainer, Die Diözese Brixen, p. 16.
Cf. DIÖAB, Konsistorialcodices Romana, ab anno 1764, fos. 96–101, 97.
Cf. TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1790–1793, Fasc. no. 1.622, 1790, no. 1. Cf. also DIÖAB, Konsistorialcodices Romana, ab anno 1764, pp. 123–129, 125.
“Il medesimo m’ha assicurato, che non è al di Lui Notizia, che ad alcuno de Vescovi della Germania sia stata mandata facoltà alcuna di dispensare sopra il grado in 3° quando tocca il Secondo. Non contento di ciò ho parlato con M[onsi]g[no]r Segretario de Brevi ad Principes per sentire dal medesimo se mai ad alcuno de Vescovi di Germania per Breve ad Principes fosse stata mandata dal Papa in dirittura una tal facoltà. Mi assicurò di nò. Il medesimo, con cui ho servitù particolare, in discorso mi disse, che se nostro Signore concede ad uno de Vescovi di Germania tal facoltà, deve indispensabilmente allora concederla a tutti li altri. Da ciò io deduco essere cosa assai pericolosa di fare una tal istanza; e questa io non ho fatta in vista di ciò, ne la farò senza ordine espresso”. DIÖAB, Konsistorialcodices Romana, ab anno 1764, pp. 151–152.
Late eighteenth-century state regulations, including the various provisions of the Marriage Patent, only applied to Austrian subjects – who, during the period under study, included the inhabitants of the Oberinntal, Unterinntal and Wipptal districts, as well as those of Puster Valley, Burggrafenamt and Vinschgau, An Etsch and Eisack and finally An den Welschen Konfinen with its seat in Rovereto. They did not apply to those who resided within the territorial domains of the three ecclesiastical principalities, these being the Prince-Bishoprics of Brixen and Trento and the Prince-Archbishopric of Salzburg.
DIÖAB, Dispensationes matrimoniales ab anno 1774 usque ad annum 1794 inclusive, pp. 193–195; ibid., Dispensationes matrimoniales ab anno 1795 usque ad annum 1829 inclusive, 1–3.
Cf. TLA Innsbruck, Jüngeres Gubernium, Geistliche Sachen, Fasc. 433, 1784, Akten, no. 1,282 and, almost identically, no. 6,546: “Since, moreover, every bishop is free to dispose over all this himself or have Rome dispose over it, as he sees fit in accordance with his conscience, without His Majesty demanding a reckoning insofar as nothing counter to his declared supreme will be done, […].”
Adalbert Theodor Michel, looking back, writes that the “elimination of these ‘payments sent abroad’” was suggested, “but dropped at the behest of the Directorium on 4 July 1794”. Official reports from Count Heržan, the ambassador in Rome, indicate that it had been “by no means established” in the agreement reached between Pius VI and Joseph II in 1782 “that the marriage dispensations still reserved to the pope should simply be issued free of charged by the Apostolic Penitentiary”. It was also emphasised, writes Michel, “that the fees sent to Rome from all over Austria, averaged over several years, amounted to the paltry total of just 1,000 scudi annually, while all other Catholic countries sent incomparably greater sums there – with Portugal paying 12,000 scudi and Spain double that amount in just a single month”. Michel, Beiträge zur Geschichte, p. 39.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1799–1800, Fasc. no. 315, 1798, no. 12.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1796, Fasc. no. 313, no. 40. Here, the Gubernium had sent Brixen the following response: “It cannot be permitted that the parties be financially burdened in the case of marriage dispensations such as requested by Sebastian Tusch. If it, therefore, were impossible to obtain the dispensation from Rome, and the Most Reverend Prince-Bishop of Brixen wished not to use his own power to dispense, as is done by so many other ordinaries without a second thought, the requests of those supplicants who desire dispensation would be refused – as must necessarily occur if an episcopal or a gratuitous Roman dispensation is not granted.”
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1790–1793, Fasc. no. 1.622, 1790, no. 1, report: “Geistliche Sache” [Spiritual Matter] of 25 February 1790. The associated dispensation proceedings for Karl Anton Weller of Sterzing had already been underway for four years.
Cf. ibid., no. 7, letter of the Salzburg consistory dated 10 March 1790.
Ibid., no. 24.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1790–1793, Fasc. no. 1.622, 1791, no. 1.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1796, Fasc. no. 313, no. 2.
Cf. TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1790–1793, Fasc. no. 1.622, 1791, no. 20.
On the delegation of dispensatory authority cf. Brandhuber von Etschfeld, Über Dispensation und Dispensationsrecht, pp. 53–72.
Dolliner, “Erläuterung des 83. §”, pp. 60–61.
One of these couples was Anton Girardelli and Maria Gobbi, and the other was Anton Martinelli and Katharina Tonioli; both couples were related in the second degree of consanguinity. TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1790–1793, Fasc. no. 1.622, 1792, no. 38.
Ibid., 1793, no. 26. “Ma il Vescovo Principe di Trento vocalmente rispose, di non tenere per il Grado primo e secondo Delegazione alcuna per emender simile Dispensa”. Letter of 3 June 1794 to the district administration office of Rovereto, signed by Trentinaglia. In the rough draft, the final passage reads: “[…] we would be willing to process, at this point, supreme dispensations that may possibly be received”.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1794–1795, Fasc. no. 312, 1794, no. 28.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1790–1793, Fasc. no. 1.622, 1791, no. 22 and 1792, no. 3.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1794–1795, Fasc. no. 312, 1794, no. 50.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1796, Fasc. no. 313, no. 86.
Cf. TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1803, Fasc. no. 317, no. 122. The prince-bishop had declared that he had “obtained the special authority from Rome to grant this couple the aforementioned dispensation only with exceptional effort”.
A look at the older Brixen register reveals that the majority of the dispensations not granted by the bishop and above all those touching the second degree had gone via the nunciature in Vienna. Certain dispensations bear the additional remark: “ex commissione ap[osto]l[i]ca romana”. Cf. DIÖAB, Registratura Dispensation[um] Matrimonial[ium] inc[o]hoata anno 1690 [until 1730]; ibid., Registratura Dispensation[um] Matrimonial[ium] inc[o]hoata anno 1733 usque ad annum 1752; as well as ibid., Registratura Dispensation[um] Matrimonial[ium] anno 1753 usque ad annum 1768.
Archivio dell’Ufficio delle celebrazioni liturgiche del Sommo Pontefice, vol. 47, Regolamento per la famiglia del nunzio di Vienna, fol. 344, quoted in Alexander Koller, “Nuntienalltag. Überlegungen zur Lebenswelt eines kirchlichen Diplomatenhaushalts im 16. und 17. Jahrhundert”, in Impulse für eine religiöse Alltagsgeschichte des Donau-Alpen-Adria-Raumes, ed. Rupert Klieber and Hermann Hold (Vienna/Cologne/Weimar, 2005), pp. 95–108, 99. An impression of the extent of dispensation-related activities is also provided by the marriage dispensation registers mentioned in an inventory of the Archive of the Apostolic Nuncio in Vienna compiled by Walter Wagner. Walter Wagner, “Die Bestände des Archivio della Nunziatura Vienna bis 1792”, Römische Historische Mitteilungen 2 (1957/58), 82–203.
On the nunciatory faculties, which had become more important with the establishment of permanent nunciatures beginning in 1513 cf. Mergentheim, Die Quinquennalfakultäten, pp. 42–46, regarding marriage dispensations ibid., pp. 95–100.
One of the first enquiries came in December 1793 from the “district office of the Welsch Confines”; it pertains to a dispensation in the second degree of affinity. The cause for this enquiry was “that the Reverend Ordinary of Trento has stated that the granting of same lies beyond his power”. TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 57 Placetum Regium, 1790–1793, Fasc. no. 1.622, 1793, no. 32.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1794–1795, Fasc. no. 312, 1794, no. 3.
Corresponding court resolutions were decreed in 1795: the court resolution of 22 May 1795 announced that dispensation briefs were, in the future, “to be granted by Rome directly to the ordinariates and no longer to be decreed by the nunciature, which can no longer be conceded jurisdiction in the Imperial-Royal hereditary lands”. By way of a court resolution of 12 June 1795, the Imperial-Royal Privy Court and State Chancellery instructed Cardinal Heržan in Rome to the effect “that all papal briefs, bulls, and other such issuances are no longer to be sent via the Roman nunciature here [in Vienna], but rather directly to the ordinariates”, and that in cases of non-compliance – as threatened in the court resolution quoted above – the Placetum regium would be refused. Joh[ann] Schwerdling, Praktische Anwendung aller vom Antritte der Regierung Sr. kaiserl. königl. apostol. Majestät Franz II. bis 1. Jäner 1798 für die gesammten Erbländer in geistlichen Sachen (Publico ecclesiasticis) ergangenen Verordnungen, 3rd ed. (Krems, 1816), § 189–191, 448 and § 42–43, 37–38.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1796, Fasc. no. 313, no. 9.
In a relatively laborious dispensation case from the Diocese of Trento, the dispensation document submitted to the Gubernium was rejected in part because “everything shows quite unambiguously that the supplicants did not come through the process without having to pay any fees”. TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1796, Fasc. no. 313, no. 2.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1797–1798, Fasc. no. 314, 1797, no. 6. Cf. also ibid., no. 89.
Ibid., no. 6.
Ibid., no. 8. This request had been submitted by Anton Giner, a 53-year-old “pork butcher” from Innsbruck, and his widowed sister-in-law Elisabeth Suiterin, who had two children. The Bishop of Brixen not only argued that it was not within “our powers” to grant such a dispensation but also that “the motivations of the supplicant” were in this case insufficient to be granted a dispensation “by the Holy See”.
In a subsequent letter, the Bishop of Brixen’s remarks on the matter were that “the behaviour of the same” could “not be [his] standard” because he would have to “take sole responsibility for his actions” while also being “un[willing] to investigate the pathways via which the same have obtained their authority”. TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1799–1800, Fasc. no. 315, 1799, no. 45.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1797–1798, Fasc. no. 314, 1798, no. 12, report of the Gubernium to the Imperial-Royal Court Chancellery in Vienna of 13 June 1798.
Ibid., letter from Vienna dated 28 June 1798.
Ibid.
General Berthier had arrived in Rome on 10 February 1798. The city was turned over to him and the Republic proclaimed on 15 February, with Pius VI (1775–1799) being declared deposed. Berthier had been ordered to permit the pope to flee, but the pope refused. Berthier was then commanded to take him away. “Without any preparation, this weak and ill old man [he was 80 years old at the time – M.L.] was placed in a stagecoach and first brought to Siena, then (on 30 May 1798) to the Carthusian monastery near Florence”. In 1799, upon the beginning of the War of the Second Coalition, he was ultimately sent on via Parma, Tortona and Turin, thereafter being carried on a simple litter over Mt. Genèvre to Briançon, Grenoble and Valence, where he died on 29 August 1799. Seppelt, Papstgeschichte, p. 279.
The dispensation request at issue had been submitted by Michael and Anna Kröß from the court district of Sarnthein, who were related in the second degree of affinity. This couple does not appear in the dispensation register. TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1799–1800, Fasc. no. 315, 1799, no. 30.
According to his faculties, however, the nuncio Giuseppe Garampi (1776–1785) was indeed fundamentally permitted to grant dispensations to “poor” couples, who included everyone except the nobility and the wealthy, and to converts in the second degree as well as to all supplicants in the more distant third and the fourth degrees. Dell’Orto, La nunziatura a Vienna, p. 51.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1799–1800, Fasc. no. 315, 1799, no. 45.
DIÖAB, Dispensationes matrimoniales ab anno 1795, p. 2, 7, 11–12.
Cf. ibid., p. 17, 23–24, 27.
Cf. ibid., p. 45.
Cf. ibid., pp. 59–60.
Ibid., p. 87, 91, 100, 102.
“In light of the circumstances, the diocesan ordinariate has been most graciously permitted to itself request papal indulgence for the supplicant couple, which would hardly be obtainable in the present situation were it not to take place via the nuncio in Vienna.” TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1799–1800 Fasc. no. 315, 1799, no. 82.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1803, Fasc. no. 317, no. 132 as well as ÖSTA, AVA, Alter Cultus, Ehesachen und Taufen, K. 9, 1781–1805, no. 18.431. The nunciature in Munich, established in 1785, was vacant between 1800 and 1818, but the papal special envoy Annibale della Genga did exercise rights of papal jurisdiction in 1800, 1803, 1806 and 1807, since he was present in Bavaria in connection with the Imperial Diet in Regensburg and the Concordat negotiations. Cf. Michael F. Feldkamp, “Apostolische Nuntiatur, München”, in Historisches Lexikon Bayerns, http://www.historisches-lexikon-bayerns.de/artikel/artikel_44502 (last access: May 2022).
Fabrizio Rossi, Der Vatikan. Politik und Organisation, 5th ed. (Munich, 2005), p. 68. At the Congress of Vienna, nuncios were re-installed and made equal in status to papal legates.
Dries Vanysacker, Cardinal Giuseppe Garampi (1725–1792). An Enlightened Ultramonane (Brussels et al., 1995).
Dell’Orto, La nunziatura a Vienna, p. 50; cf. also Donato Squicciarini, Die apostolischen Nuntien in Wien, 2nd ed. (Vatican City, 2000), p. 48, 225–229.
Cf. Dell’Orto, La nunziatura a Vienna, p. 467. On the following pages the author also sketches out the reactions of several bishops.
Squicciarini, Die apostolischen Nuntien, p. 227. On Kaunitz, who is often referred to as the ‘father of Josephinism’ cf. Hersche, Muße und Verschwendung, vol. 2, pp. 983–984.
Squicciarini, Die apostolischen Nuntien, pp. 230–235.
Cf. ibid., pp. 239–242.
A note to this effect can be found in the 1798 section of the Brixen dispensation register. The nunciature in Vienna is specified as the issuing authority, immediately followed by the added remark that this dispensation had been procured by the couple themselves: “Ex Nunciatura Viennensi. NB ab ipsis oratoribus hac dispensatio procurata fuit.” DIÖAB, Dispensationes matrimoniales ab anno 1795 usque ad annum 1829 inclusive, p. 59.
Cf. TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1797–1798, Fasc. no. 314, 1798, no. 130.
Cf. TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1799–1800, Fasc. no. 315, 1800, no. 63.
Ibid., no. 64.
Pius VII (1800–1823) had been elected at a conclave in Venice under Austria’s protection. It was on 3 July 1800 that he entered Rome. The Concordat of 15 July 1801 and a papal bull of 29 November 1801 restored “absolute papal power”; bishops who did not consent were removed from office – a measure that Franz Xaver Seppelt interpreted as “a deadly blow to Gallicanism”, which had been viewed as a danger fit to cause a schism in the Church. Seppelt, Papstgeschichte, pp. 280–284, quote 283.
Cf. TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1797–1798, Fasc. no. 314, 1797, no. 136.
Cf. TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1799–1800, Fasc. no. 315, 1800, no. 73; cf. also ibid., no. 83.
Cf. TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1801–1802, Fasc. no. 316, 1802, no. 42.
Cf. ibid., no. 96. In the case dealt with in this particular source, an enquiry had been sent to Vienna due to the suspicion “that this dispensation has been obtained by the parties from the papal nuncio to the Imperial-Royal Court, since the officium spirituale of Trento [declares] itself to be merely an Executor deputatus”.
Cf. TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1801–1802, Fasc. no. 316, 1801, no. 39.
Ibid., 1802, no. 102.
Jon Mathieu has shown that the nunciature in Lucerne, established in 1586, approved dispensation requests “almost without exception”. Mathieu, “Verwandtschaft als historischer Faktor”, p. 241.
Cf. TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1801–1802, Fasc. no. 316, 1802, no. 194.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1803, Fasc. no. 317, no. 48.
On measures towards stronger territorial integration of the Prince-Bishopric of Trento during the period at issue here cf. the contribution by Marco Meriggi, “Il principato vescovile dal 1776 alla secolarizzazione”, in Storia del Trentino, vol. 4: L’età moderna, ed. Marco Bellabarba and Giuseppe Olmi (Bologna, 2002), pp. 127–156. This is to say that there was quite generally a situation of competition over sovereignty that must be considered as part of the context within which marriage dispensation matters were handled.
Cf. for example Margarete Grandner and Ulrike Harmat, “Begrenzt verliebt. Gesetzliche Ehehindernisse und die Grenze zwischen Österreich und Ungarn”, in Liebe und Widerstand. Ambivalenzen historischer Geschlechterbeziehungen, ed. Ingrid Bauer, Christa Hämmerle and Gabriella Hauch (Vienna/Cologne/Weimar, 2005), pp. 287–304.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1801–1802, Fasc. no. 316, 1802, no. 170.
The sermons that were prescribed during Lent.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1794–1795, Fasc. no. 312, 1795, no. 78. Letter from the district office in Bozen dated 15 June 1795.
Ibid., letter from the Innsbruck Gubernium to the Imperial Court Chancellery in Vienna dated 26 June 1795.
Ibid., letter from the district office in Bozen dated 15 June 1795.
Ibid., letter from the Imperial Court Chancellery in Vienna dated 10 July 1795.
Pranzl, “Das Verhältnis von Staat und Kirche”, p. 36.
Marriage Patent of 1783, §§ 31 and 29.
Dirk Blasius, Ehescheidung in Deutschland 1794–1945 (Göttingen, 1987), p. 73.
Cf. TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1799–1800, Fasc. no. 315, 1799, no. 173.
Ibid., 1800, no. 49.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1804, Fasc. no. 318, no. 63.
Cf. more generally on this topic Derek Beales, Enlightenment and Reform in Eighteenth Century Europe (London, 2005), especially chapter 11 and 12.
It was thus that Michel, in Beiträge zur Geschichte, pp. 60–62, ascertained the following with regard to the period after the General Civil Code (the ABGB) had taken effect: “Meanwhile, this matter had come to look different in practice than it had been envisioned when the a.b.G.B. was authored. […] Regarding dispensations”, authorities oriented themselves “once again universally according to the difference between the marriage impediments”. Which was to say: “In the case of a purely ecclesiastical marriage impediments, the authorities refrained from all interference, for which reason it was left to the parties to obtain an ecclesiastical dispensation in the interest of their own peace of mind. […] But if it was, finally, about a marriage impediment that was identically defined in civil and canon law, the dispensation request was always referred by the provincial government to the ordinariate and handled according to the opinions of the latter. […] And in those cases where an ordinary held a papal dispensation to be necessary, the parties had to obtain such via their diocesan bishop and the appointed imperial-royal agent in Rome.”
Early nineteenth-century dispensation requests in the third and fourth degrees also occurred in the Venetian Province, while spot checks of individual years for Lower Austria indicate that none were made there in 1820, for instance, and various other years featured only very few. Cf. Saurer, “Formen von Verwandtschaft und Liebe”, p. 261, 267.
Erika Weinzierl-Fischer, Die österreichischen Konkordate von 1855 und 1933 (Vienna, 1960), p. 42.
Not only the enactment but also the enforcement of norms is a question of power. Enacting norms is not the same thing as their enforcement. Both, however, must be viewed in relation to instances of resistance and possible avenues of circumvention. On this cf. Achim Landwehr, Policey im Alltag. Die Implementation frühneuzeitlicher Policeyordnungen in Leonberg (Frankfurt a. M., 2000); Jürgen Schlumbohm, “Gesetze, die nicht durchgesetzt werden – ein Strukturmerkmal des frühneuzeitlichen Staates?”, Geschichte und Gesellschaft 23 (1997), 647–663.
Ute Frevert, “Neue Politikgeschichte: Konzepte und Herausforderungen”, in Neue Politikgeschichte. Perspektiven einer historischen Politikforschung, ed. Ute Frevert and Heinz- Gerhard Haupt (Frankfurt a. M./New York, 2005), pp. 7–26, 15.
ÖSTA, AVA, Alter Cultus, Ehesachen und Taufen, Karton 9, 1781–1805, no. 4.339. This case involved a dispensation request in the first degree of affinity by a couple from the Diocese of Trento: Jakob Mayr of Stein am Ritten, a peasant and innkeeper, and his sister-in-law Theresia Gasserin.
On the “institutionally anchored concept of power” in political and social history as well as on the concept of power viewed from the perspective of cultural history “as a dynamic and reciprocal occurrence” cf. Achim Landwehr, “Diskurs – Macht – Wissen. Perspektiven einer Kulturgeschichte des Politischen”, Archiv für Kulturgeschichte 85, 1 (2003), 71–117, 88–89, 110–113.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1805–1808, Fasc. no. 319, 1807, no. 34.
TLA Innsbruck, Jüngeres Gubernium, Hauptgruppe 64 Ehesachen, 1814, Fasc. no. 320, no. 8.481.
A corresponding notice from the Imperial-Royal Provisional General Commissariat of 6 August 1814 entitled “Die Behandlung der mit dem Päpstlichen Stuhle anfallenden Geschäfte” [The Handling of Business with the Holy See], which was also sent to the regional courts, can be found in Vorarlberger Landesarchiv (VLA) Bregenz, Landgericht Bezau Akten, box 35, II.49.
Cf. DIÖAB, Dispensationes matrimoniales ab anno 1795 usque ad annum 1829 inclusive, p. 203, 19 April 1809.
Cf. for example ibid., p. 176, 31 January 1807; p. 205, 24 June 1809.
Ibid., p. 217, 28 May 1810; p. 219, 20 June 1810.
Cf. ibid., p. 270, 20 January 1815. This is the first dispensation to once again come from Rome – bearing the remark: “a Sede Ap[osto]l[i]ca impetrata est dispensatio”.