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Historians today discuss the rules and regulations followed by medieval church courts by focusing on the development of so-called “Romano-canonical” procedure during the formative period of Roman and canon law from the time of Gratian (around 1140) to the completion, in the 1270s, of the most successful handbook on the subject, the Speculum iudiciale of William Durand. The guidelines laid down in the Speculum summarize more than a century of systematic effort at the schools of Bologna and elsewhere to strike a balance between, on the one hand, the obligation of judges to investigate the facts of a case unilaterally and, on the other, the right of defendants and adversaries to a fair trial. The specifics worked out by contemporaries have fascinated modern observers, not least for their innovative features. In twelfth- and thirteenth-century jurisprudence, demands of due process, the double jeopardy clause, presumption of innocence, and other fundamental standards of justice in the West found their first coherent expression. Simultaneously, though, research has operated under the erroneous assumption that manuals like the Speculum iudiciale were meant to cover the whole range of mechanisms shaping ecclesiastical adjudication.
Over the course of the “long twelfth century,” the law of the western Church was transformed in ways which made it look very different from what it had been before. To denote the most fundamental aspect of that change, historians have used the word “systematization,” which accurately describes key developments in the intellectual life of the period. However, events that culminated in the appearance of the Concordia discordantium canonum (around 1140) and secured its author, Gratian, distinction as “the father of the systematic study of canon law,” can also be understood in terms of “reinvention,” which appropriately points to a qualitative break away from older legal practices. To speak of canon law as having been “reinvented” acknowledges that some form of it had been in place earlier on. “Systematization,” on the other hand, figures in the modern western mind as an expression that lacks distinctiveness in connection with legal matters. Audiences today are surrounded by a juristic culture that grew out of Gratian’s pioneering effort, and his approach to individual norms as elements of a logically coherent system is now considered to be the only plausible one.
The preceding six chapters progressively abandon their original focus. Regular recourse to marriage litigation in the late medieval ecclesiastical courts forms the initial concern before a shift occurs when the treatment of the causae matrimoniales in Southern jurisdictions comes into view. In the Franco-Germanic and English churches of the North, judges handled large numbers of enforcement claims, annulments, and separations, prompting modern observers to explore the data quantitatively. The Italian material, on the other hand, has favored typological approaches as daily demand for adjudication was far more modest. The Iberian documentation, finally, does not invite statistics or legal categorization because every piece of historical testimony constitutes a rare find.
The relative scarcity of matrimonial proceedings in England (and perhaps Normandy) resulted from administrative arrangements. It does not highlight differences separating the area from the rest of the North. English diocesan officials did not exercise exclusive rights of first instance jurisdiction over matrimony. Diocesan officials operated in a distinct environment because they had to compete with countless tribunals for rights of adjudication. Commissaries and exempt judges went on rounds of supervision, setting up vetting stations, especially for allegations that did not attain legal levels of proof. Unilateral marriage claims were normally decided on the spot and before they could reach central locations. If records from visited and permanent seats of English church justice are read in conjunction, on the other hand, they yield quantities of marriage cases resembling those from Paris or Cambrai. The treatment of cases was again exceptional in that multiple proceedings on account of identical charges were often staged in the same diocese. The rules of canonical jurisprudence envisioned three tiers of appellate hierarchy at a maximum. In Anglo-Norman practice, the revision of prior rulings could pass many more times between commissaries, deans, and higher dignitaries.
The chapter explores marriage litigation in Northern France and the German-speaking regions. It utilizes a distinction from late medieval Xanten between “simple” and “double” suits. The former pitted claimant against defendant, the latter showed several parties competing for the same partner. The preponderance of simple petitions especially in Germany is indicative of judges passively waiting for litigants to approach them. In fifteenth-century Cambrai and Brussels, the bishop installed a promoter for expert management of the accusations. He served to support persons whose case he found worthwhile or acted as instigator like a modern state attorney. Double proceedings at Cambrai nearly matched the simple ones and considerably outnumbered them at Brussels. Most of the multiparty suits arose when couples had their wedding banns announced in the parish church. At that moment, a person identified as the “opponent” in the sources came forward and objected to the validity of the proposed union. Regardless of the promoter, the courts of the North adjudicated in uniform fashion. They confronted many dozens if not hundreds of marriage cases. A mere handful of them met juristic criteria. The rest would stay within the limits of pastoral concern and lead to certain defeat.
Known references to medieval marriage litigation in the kingdom of Castile are very rare, and information about it seems most readily available in the Roman registers of the Apostolic Penitentiary. Based on this testimony, it is possible to conclude that the typology of cases handled in Castilian bishoprics did not depart from what was common experience in church tribunals of the Latin West. At the same time, ecclesiastical control over marriage formation in Castilian society was minimal, and belief in marital consent as the collective concern of families was paramount. In addition, legislation provided support for alternative forms of intimate partnership. Often introduced under the names of barragania and mancebía, they defied sacramental permanence and monogamy by legalizing relations that were temporary and non-exclusive. Local (and Aragonese) notaries also registered service contracts stipulating sexual favors for a period against payment of a dowry. They articulated obligations of cohabitation with clergy in the sacred orders and husbands to a different woman, or they recorded the consensual breakup of couples short of priestly approval. The notarial output is clearly reflective of arrangements that altogether ignored church claims to undiminished jurisdiction over the validity of spousal ties.
In a village of fourteenth-century England, there is rumor about an affair. People described as good and upright in the community fill the air with gossip. A certain couple is engaged in fornication, they tell the bishop’s judge on his visit to check on talk about sinful behavior. The alleged offenders, whose names may have been Michael and Mary, are summoned before the traveling court where Michael readily admits that the charge is true. Mary’s sworn statement reveals an important difference, however, because in her opinion intercourse did not occur until the two had traded promises to marry.
Italian instances of adjudication rarely exceeded annual totals in the single digits. The few plaintiffs who did approach ecclesiastical officials were usually well-prepared from a legal standpoint. They encountered decent prospects of winning by avoiding the launch of suits without written and witness testimony. Regular supervision of the English kind was completely unknown. Although episcopal visitations brought domestic partnerships to the attention of prelates, they were undertaken too intermittently to sustain regular inquiries. Disinterest may have been tied to the fact that judgement did not imply secondary judicial benefits. Damage claims on account of sex out of wedlock were normally reserved to secular justice. As a result, public notaries assumed overriding importance when the conclusion of marital contracts was celebrated. The exact value and delivery of bridal dowries and counter-gifts had to be authenticated for future reference in endowment disputes reserved to civil and not ecclesiastical judges. Also attesting to the principal concern of elders and relatives with asset control was the recourse to papal authority for dispensation from impediments to the union. The process could skip church verification altogether in favor of automatic settlement and registration at the hands of laymen.
The chapter concentrates on two late medieval archives. The first preserves “act-books” or logs of daily court activity and annual fiscal information from the archdeaconry of Xanten on the Lower Rhine. The second keeps registers of sentences and the dossiers of complete suits or “cause papers” assembled by the bishop’s tribunal of Basel in Switzerland. Their examination establishes what Christians from both regions expected canonical adjudication to deliver in disputes over the validity of marriages. The ordinary judges of Basel and Xanten were heavily involved in inquests that did not exceed preliminaries from a legal standpoint. Decisions emanating from their activities found with greatest frequency that a supposed spousal union failed to rise to the level of lawful proof. Many of the defeated plaintiffs at Xanten were ready to take advantage of the outcome by bringing another suit in the same venue. Women who lost their claim to a spouse often returned to sue the winner for alimony, bridal money, or to compensate for the loss of their virginity.
From a numerical perspective, ecclesiastical court activity in Catalonia aligns well with the Italian evidence. What distinguishes pastoral intervention is the abundance of surviving visitation registers. Beginning soon after 1300, diocesan prelates toured their parishes and had juries of clergy and laymen respond to questionnaires itemizing sinful behavior. Against Northern convention, they did not probe into mere episodes of intercourse and concentrated on sustained sexual partnerships like concubinage. Disciplinary measures were usually of a spiritual kind and depended for implementation on voluntary submission or neighborhood pressure. Two levels of excommunication could be inflicted on those unwilling to adjust their domestic situation to canonical demands. If absolution was granted, the commutation of penances into monetary payment only applied as elsewhere in the South to laity living under the bishop’s secular lordship. Adherence to the injunctions of visiting clerics appears to have been lackluster, unless hearsay about the impediments of consanguinity and affinity triggered judicial scrutiny, created demand for papal dispensations, or necessitated their formal execution.
From the establishment of a coherent doctrine on sacramental marriage to the eve of the Reformation, late medieval church courts were used for marriage cases in a variety of ways. Ranging widely across Western Europe, including the Upper and Lower Rhine regions, England, Italy, Catalonia, and Castile, this study explores the stark discrepancies in practice between the North of Europe and the South. Wolfgang P. Müller draws attention to the existence of public penitential proceedings in the North and their absence in the South, and explains the difference in demand, as well as highlighting variations in how individuals obtained written documentation of their marital status. Integrating legal and theological perspectives on marriage with late medieval social history, Müller addresses critical questions around the relationship between the church and medieval marriage, and what this reveals about both institutions.