did not accept this voluntary theory. A third school presupposed that vows as well as sexual intercourse were necessary ingredients for turning a relation into marriage. During the pontificate of Alexander III, himself one of the greatest canon law professors of the twelfth century, the doctrine favoured the voluntary theory. According to mainstream canon teaching, marriage was established by the mutual and free vows of the spouses but “consummated” - made final - by the spouses’ first sexual activity together. It is important to notice that canon law took for granted that the spouses gave marriage to one another.29 Formal rites such as the public exchange of vows and rings in the church did not add any significant quality to the validity of marriage, though publicity was more or less favoured by canon lawyers.30 The main problem for canon law on matrimony had to do with impediments to entering marriage. Marriage was not possible when one spouse was already married or had taken an ecclesiastical vow to live in celibacy. Nor was it possible where the spouses were too closely related. The consequence of such positions was that the rules concerning impediments to matrimony predetermined the question of legitimacy. If the two parents had exchanged matrimonial vows in good faith that no impediment to their marriage had come to their prior knowledge, their child must be judged legitimate. In cases where a couple had known of some “dissolving” impediment and still begot a child, the illegitimacy of their offspring followed automatically. The child became a spurius. Thus, children could be grouped together into three categories: those who were unquestionably legitimate; those who could attain legitimacy mainly by their parents’ subsequent marriage; and, finally, those to whom no remedy could 127 29 J. Freisen, Geschichte des kanonischen Eherechts bis zum Verfall der Glossenlitteratur. (Paderborn 1963/1893: Scientia Schöning.) K. Michaelis, Das abendländische Eherecht im Übergang vom späten Mittelalter zur Neuzeit. Göttingen 1989: Vandenhoeck & Ruprecht. 30 Mayali (1990), 73.
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