Law, marriage, and society in the later middle ages: a look at the english and “franco-belgian” regions

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Charles Donahue, Jr.
    1. The Basic Rules

The rules of the classical canon law on the formation of marriage are well-known and easy to state:1

First, present consent, freely given between parties capable of marriage, made a valid marriage. This marriage was indissoluble — with one exception not relevant here2 — so long as the parties lived.

Second, future consent, freely given between parties capable of marriage, made an indissoluble marriage, if that consent was followed by sexual intercourse between the parties. The two ways of forming a valid marriage were combined, at least in doctrine, by the notion that intercourse following future consent raised a de jure presumption of present consent.

Third, with minor exceptions, any Christian man was capable of marrying any Christian woman provided: (1) that they both were over the age of puberty, (2) that they were not too closely related to each other, and (3) that neither had taken a solemn vow of chastity and that the man was not in major orders. The rules about relationship were complicated, extending as they did to blood relatives, affines and spiritual relatives, but recent research would suggest that they were not so important socially as had once been thought.3>

The most important thing, I would suggest, about the about the rules of the classical canon law on the formation of marriage is not what they require but what they do not require. Although couples were strongly encouraged to have their marriages solemnized, no solemnity or ceremony was necessary for the validity of marriage at any time between Alexander III in the late twelfth century and the council of Trent in 1563. Further, in an age characterized by arranged marriages and by requirements in the secular law that lords consent to the marriages of their vassals and serfs, classical canon law required the consent of no one other than the parties themselves for the validity of a marriage. Finally, in an age of class-consciousness, classical canon law imposed no barrier of status to marriages across classes.4

If these were the rules formation of marriage, what about the dissolution of marriage? Once formed, marriage in medieval canon law was very difficult to get out of, so long as both parties lived. The overwhelming bulk of the canonic writing and of the actual dissolution cases focuses on the formation process itself; someone, be it one of the parties or a church prosecutor, seeks to establish the the marriage was not validly formed in the first place. Hence, the rules of the classical canon law on the formation of marriage are also, for the most part, also the rules about its dissolution. Separation without permission to remarry was also available if one of the parties to the marriage committed adultery, during the period which we are discussing, it became available for cruelty, and perhaps for other reasons as well.

    1. The Difference Between English and Franco-Belgian Medieval Marriage Cases5

As a result of recent work done with the surviving records of the local ecclesiastical courts, it is now possible to examine the application of the rules of the medieval canon of marriage in actual litigation. Much of the research has been done with English records, which are unusually full.6 There has also been work done on the records of the church courts in France, modern Belgium, Germany, Hungary, Poland, Sweden, and Italy.7 Although much more work with this material still needs to be done, I have just completed an obscenely long study of the marriage litigation in five courts: York, Ely, Paris, Cambrai, and Brussels. Hence, in this talk we will confine ourselves to the English and Franco-Belgian records. When I refer awkwardly to “Franco-Belgian,” I am referring, in the case of France, to the region known as the pays de droit coutumier, the region of customary law. We ask the comparative question: Are the patterns of marriage litigation in medieval England and the Franco-Belgian region fundamentally the same or fundamentally different?

There are some remarkable elements of unity. Hardly a sentence of a church court in either region throughout the long period from the formation of the classical law in the twelfth century to the council of Trent in the sixteenth can be shown to violate the classical rules. The common academic training of the principal officers of the church courts and the availability of appeal, in some cases going all the way to the papacy, ensured a basic uniformity of application of the law.

What was different was not the rules that were applied but the kinds of claims that were made before the courts. We can illustrate this difference with two cases, one from an English church court and one from a French. Although these two cases cannot begin to capture the variety of the fact-patterns reflected in the records in the two regions, they might be regarded as modal or typical marriage-formation cases.

In July of 1271, Alice Dolling, of Winterbourne Stoke in Wiltshire, appeared before the consistory court of the bishop of Salisbury claiming that she had contracted marriage with William Smith and seeking to have him be adjudged her husband.8 William denied the relationship, and the case was set down for proof. Alice produced three witnesses, all women, who testified that on St. Stephen’s day in 1268, Alice and William had exchanged words of marital consent in the house in which two of the witnesses lived. William excepted that on the day in question he had been attending an all-day guild feast in a village some four miles away, and he produced ten men who testified to that fact. Alice then produced four women who testified that they had seen William in Winterbourne Stoke on that day. The official of Salisbury ruled in favor of Alice, but the case was appealed to the court of Canterbury and reversed on appeal, on the grounds that Alice’s witnesses were biased and inconsistent and that, failing all else, ten witnesses are better than seven.

More than 200 years after Dolling c Smith, Colin Tanneur and Perette Doulsot of Villers in Champagne were cited to appear before the court of the official of the bishop of Châlons-sur-Marne to answer charges by the promotor that they had clandestinely exchanged promises to marry.9 While the judge was interrogating Perette under oath about this charge, she confessed that a month before, Colin had come to her father’s house at night and had talked with her about a marriage contract. After much talk, Colin had sworn by the faith of his body that he would take her to wife and that he would never have anyone else as wife except her, and she promised the same. After this they exchanged tokens of their affection. Since Perette admitted that no one had been present when all this had happened, it was open to Colin to deny the charges, and the case would have failed for want of proof. Colin, however, did not deny the charges but admitted that the events had taken place as described. The couple were fined a pound of wax each “for the clandestinity” and ordered to solemnize their marriage within a week.

Now, there are many differences between Dolling c Smith and Office c Tanneur et Doulsot. The most important from the point of view of the parties is that William Smith firmly did not want to marry Alice Dolling and took his case all the way to the court of Canterbury to ensure that he did not have to do so. By contrast, Colin Tanneur seems to have needed only the nudge provided by the court appearance to get him to the altar. The difference, however, between Franco-Belgian and English marriage cases does not lie in this direction. There are many bitterly contested Franco-Belgian marriage cases, just as there are many English ones that are hardly contested at all.

There are, however, a number of other differences between these two cases that seem to be generally characteristic of marriage litigation in England and in the Franco-Belgian region in the later Middle Ages. First, the English case was an instance case. It was brought by Alice Dolling, and the remedies she sought were for herself alone. The French case was a criminal case, an office case. It was brought by a court officer, a prosecutor, called a promotor, and the parties were ordered to pay a fine and the promotor’s expenses, in addition to being ordered to solemnize the marriage. Now there are office marriage cases in the English records just as there are instance ones in the Franco-Belgian. But the striking thing about the Franco-Belgian records for many jurisdictions is that the office mode in marriage cases seems to dominate the instance, particularly when we reach the fifteenth century.10 The English office cases, moreover, show no evidence of an organized prosecution, of a court officer charged with bringing office cases before the court. Because, a far greater proportion of Franco-Belgian marriage cases are office cases, the judge plays a much more active role in Franco-Belgian marriage cases than he does in England, at least in instance cases.

There is a second difference between these two cases which is characteristic of marriage cases in the two regions. The dispute in Dolling c Smith was a dispute about an alleged marriage formed by words of the present tense, in the terminology of the classical rules, sponsalia per verba de presenti; the dispute in Office c Tanneur et Doulsot was a dispute about a promise of marriage, sponsalia per verba de futuro. Now there are disputes about marriages by words of the future tense in the English records, but they almost always involve allegations that the words were followed by sexual intercourse. Such cases also exist in the Franco-Belgian records, but there are also a great many Franco-Belgian de futuro cases that do not involve allegations of intercourse but simply seek judicial enforcement of a promise of marriage. Cases seeking to enforce a simple promise to marry are very rare in the English records, just as cases seeking to enforce a de presenti marriage are very rare in the Franco-Belgian records.

The first four tables in the handout give the details about the five courts that I have studied. Let us summarize what is found there more impressionistically.

As we move forward from the latter part of the thirteenth century, the English cases continue to show the pattern of Dolling c Smith.11 Cases seeking to establish that a marriage has in fact taken place are by far the most common form of marriage litigation. Within that large group, allegations of a de presenti marriage which in one way or another lacked the normal solemnity or ceremony are the most common source of litigation. Now, as Richard Helmholz and others have noted, the number and proportion of this type of case, indeed, of marriage cases generally, seem to decline in the English records toward the end of the fifteenth century.12 Other types of cases seem to occupy more of the courts’ time, and within the marriage cases the number and proportion of annulment and separation cases seem to be on the increase. But the de presenti informal marriage case remained an important topic of litigation in the English church courts throughout the Middle Ages and beyond.13

The Franco-Belgian pattern is more complicated, perhaps because the surviving records give us only tantalizing glimpses. Nonetheless, the contrast with England is striking. In the Franco-Belgian region there are very few de presenti marriage cases for the whole of the Middle Ages. There are also comparatively few instance marriage cases (with the notable exception of the register of the official of the bishop of Paris from the late fourteenth century). A substantial majority of the cases, both instance and office, concern de futuro espousals, some followed by intercourse, some where the promise alone is sought to be enforced.14 The other major topic of litigation about marriage is separation cases, of which there are very few in England.

We are dealing here with patterns of litigation, not with absolutes. The question is not whether one could allege a de presenti marriage in an instance case before a Franco-Belgian court in the fifteenth century. The evidence suggests that one could. The typical pattern of litigation, however, excludes such cases. There are practically none in the largely instance cases before the official of Paris in the late fourteenth century. There are a few, but very few, in the largely office cases at Cambrai and Brussels in middle of the fifteenth century. I have found none in the, once more largely office, cases in the episcopal courts of Châlons-sur-Marne and Troyes and in the court of the Paris archdeacon in the latter part of the fifteenth century. The number of such cases also seems to have declined in England, but it declined in comparison with what it had been previously; it never approached the level that the Franco-Belgian records show.

These differences have been known for some time. There is one more that has appeared in the course of research for the book, although I hesitate to put it forward too firmly because all the surviving records from the two regions have not been subjected to the numerical analysis that we did for the five courts with which we dealt in the book. If, however, we assume that York, Ely, Paris, Cambrai and Brussels are typical, in the English courts plaintiffs seeking to establish a marriage had a much higher success rate than did either plaintiffs or promotors in the Franco-Belgian courts. In the case of separation and divorce, particularly the former, there are so few cases in the English courts that one cannot speak of a statistical success rate, but the few cases that there are suggest that it was much more difficult to get a separation in England than it was in the Franco-Belgian region. Hence, success rates in spousals litigation in the Franco-Belgian region are low, those in separation litigation are high; the opposite is certainly the case in England so far as spousals litigation is concerned and seems to be the case in England so far as separation litigation is concerned. Once more, if the somewhat lower success rates in spousals litigation at York in the fifteenth century can be generalized, the English seem to have been moving in the Franco-Belgian direction in that century, but as is the case with cases of de presenti marriage, the movement in this direction comes no place near to reaching equivalent results.

We have a better idea of why the Franco-Belgian region might have showed these characteristics than we do why the English might have begun to move in the Franco-Belgian direction in the fifteenth century. Synodal legislation of the Franco-Belgian region on the topic of clandestine marriage was quite different from what it was in England.15 In the Franco-Belgian region, but not in England, informal marriage without any aggravating factor was, in many places, punished by automatic excommunication. In some dioceses, including Châlons and Cambrai, penalties could be imposed for failure to publicize promises of marriage (verba de futuro) and for failure to proceed to solemnization of the promised marriage within a fixed period. This local legislation might have had an effect on the types of cases brought before the Franco-Belgian courts, but it is unlikely that it had so great an effect that it alone could have produced the striking differences that we in the records of cases in the two regions. Even if it did, that simply puts the social question at one remove: why did the society of the Franco-Belgian region in the later Middle Ages create legal institutions so different from those in England?16

The differences between the English and Franco-Belgian records, we would suggest, are not just differences in litigation patterns and legal institutions; they also reflect differences in how the English and Franco-Belgians got married.17 (There is a leap in the argument here that we might want to discuss in the question period.) More people, I am asserting, in England engaged in de presenti informal marriage than in the Franco-Belgian region; more people in the Franco-Belgian region made contracts to marry than in England. Why should there be these differences? Is there any way to explain all of these phenomena at once? Are they in any way connected?

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