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13.09.16, Schmugge, Marriage on Trial

13.09.16, Schmugge, Marriage on Trial

Ludwig Schmugge has spent the last twenty years immersing himself in the archives of the papal penitentiary for the later Middle Ages and producing a series of important works, both editions and monographs. We are fortunate now to have this English translation of one of his recent works. Recent years have seen the publication in English of a great deal of work on marriage and the church courts in England and France, but other important work on Italian and German jurisdictions has remained inaccessible to the Anglophone reader.

Schmugge suggests that Martin Luther made a "fundamental mistake" in calling marriage a secular rather than an ecclesiastical matter (1). Although it is debatable whether it was mistaken as a prescription, it was erroneous as a description of the situation in Luther's time and before. The church courts are largely where marriage was treated, although as Schmugge shows the secular courts were not uninvolved. Schmugge's work complements recent and older work by Charles Donahue Jr., Richard Helmholz, Shannon McSheffrey, Frederick Pedersen, Sara McDougall, Carol Avignon, Jeremy Goldberg, Sara Butler and others (much of which is not listed in the bibliography, even work published before the 2008 German edition), not just because it deals with the German lands but also because it deals with papal jurisdiction rather than the local episcopal or archidiaconal courts. Dispensations to allow marriage despite impediments, as well as certain other cases, could only be granted by the Pope, or in special situations by those to whom he had delegated powers. Not everyone had the wherewithal to bring a case to Rome, but Schmugge shows that not only the wealthy availed themselves of the opportunity (44).

Schmugge begins with a chapter on the "treasures" of the Papal Pardon Office, how the apostolic penitentiary worked and what kinds of records survive: 114,480 supplications between 1455 and 1492, the majority dealing with marriage. A particularly appealing feature of the book, both in this chapter and throughout, is the inclusion of photographs of some of the manuscripts involved. They are reproduced smaller than life-size, not always the full page, and difficult to read without magnification. Nevertheless, it is quite wonderful for a scholarly, a general, or a student audience to have this reminder that the documents Schmugge discusses are physical objects, and to see just what the papal dispensations mentioned in, for example, the historical television drama The White Queen would have looked like.

The second chapter gives an outline of marriage law as applied in the supplications he has studied for this work, those from the German empire. This chapter serves as a good introduction to the canon law of marriage illustrated with concrete cases. In general, he finds, the law in application conformed to that as set out in treatises, but there was a good deal of flexibility and accommodation to reality. Schmugge raises here a question he will take up later in the book: the extent to which the average person was aware of his or her kin to the fourth degree of relationship (76-77). When people claimed to have found out about a prohibited relationship after their marriage, was this true, or was it an excuse? Notably, most of the cases he discusses did not involve people discovering a relationship in order to dissolve an unhappy or otherwise undesirable marriage. Rather, they involved people seeking dispensations after the fact, in order to remain married. Schmugge suggests that "most couples that had married clandestinely knew about an existing impediment but did not admit it" (93). These people may have figured that it was easier to seek forgiveness than permission, and proceeded with the marriage with the idea of dealing with the impediment later, when the separation of a couple who had children might cause a public scandal (117). Knowledge of these impediments may be a reason why clandestine marriage was so widespread. As Schmugge suggests later, in very few cases clandestine marriage was trumped up to obtain a divorce (339).

The core of the book is the 150-page chapter entitled "Stories from the Roman Supplications." The subheadings divide it into manageable pieces which could be very useful for class discussions. The supplications provide enough information to make the characters come alive in Schmugge's writing. In many of them there is a lengthy record including processes in lower courts. In addition to telling stories, Schmugge also aggregates them into quantitative data, which enable him to conclude, for example, that episcopal officials took an active role in initiating marriage cases only at the very end of the fifteenth century (114-115). Among the many other interesting points that emerge from Schmugge's sources is the use of the wife's fama as an argument in favor of a dispensation for an already-married couple (118). This evidence that people would view a woman differently if her marriage were declared invalid (or at least that supplicants thought this was a plausible argument to make) is an important piece of evidence about the importance of formal marriage in the fifteenth century. Some of his cases also provide evidence that people did understand the canon law, or at least thought they did (133; see also 341-342). And details like the surprising number of cases involving castration of priests (182-184) are bound to be fascinating to many. Schmugge also discusses the treatment of marriage cases in the secular courts in several jurisdictions (240-249); for scholars interested in the history of marriage or the history of legal practice this material is indispensable.

Sometimes Schmugge's wish to tell a good story seems to run away with him. It is not entirely correct that a typical young man would know "that going to bed with a woman did not mean he had to marry her afterwards, even if beforehand he was effusive and promised to marry his love" (174), or at least, if he did know that, he was wrong. Depending on how such a promise was phrased--and on her response--sexual intercourse could turn it into a binding marriage, as Schmugge states elsewhere (91-92, 203). The rhetorical question "How might a spiritual court have examined the issue of paternity in an age before the existence of DNA analysis?" (179) goes entirely unanswered, even though Schmugge certainly knows the answer (with oaths and witnesses).

The fourth chapter looks at ecclesiastical courts within the German lands. For the diocese of Constance, for example, Schmugge is able to trace some of the same cases before they went to Rome, or after they were referred to episcopal courts for resolution. In most of the dioceses in question the local records do not link up so neatly with the records of the penitentiary, but Schmugge is still able to note peculiarities of process and differences in frequency of different types of cases across the region.

This fascinating book nevertheless raises several fundamental questions. The first has to do with the selection of cases. Of course looking at all the extant cases from the period would have been too big a job and "the German empire" is fine as a principle of selection. He frequently refers to the area under study as "Germany" or "German," sometimes in quotation marks and sometimes not. This is a convenient shorthand, yet potentially confusing to readers since the empire was far from coextensive with modern Germany. And, when he refers to "all of German-speaking middle Europe" (107) it is not clear whether he is talking about the same group of sources or a subset, since the diocese of Utrecht was also part of the empire and part of the study. It would have been useful to explain what constituted the German empire in this period and to what extent it can be equated with cultural German-ness.

The second and more problematic issue is the degree of credence that Schmugge gives to the details of the supplications. Where Charles Donahue Jr. treats the English court records with which he deals as "story-patterns," [1] Schmugge treats his simply as "stories." He not only does not question their truth as records of the behavior of historical actors, he directly asserts their value as such: "Admittedly some of the stories from the supplication register…sound like fantastical poetical fictions. But they aren't! ...we encounter in the supplications men and women of flesh and blood, who really lived and whose narratives we can thoroughly trust because their verity had to stand up to an investigation before the episcopal court in their homeland. The explanations of the suppliants could not deviate from the facts that could be verified in partibus; otherwise the wish for absolution and dispensation would not be able to be fulfilled..." (167-168). But Donahue shows with persuasive examples that in the English courts some of the stories put forward did not reflect very closely at all the facts on the ground. Sometimes it was a matter of people sticking to formulaic fact patterns, and sometimes the case as presented was a cover for other kinds of negotiations going on backstage. And when one party disagreed with the other, and brought forward contrary witnesses, surely at least one of them can be said to have deviated from the facts. Although Schmugge certainly recognizes that people shaped their stories to fit legal loopholes (125), he elsewhere suggests that people's concerns must have been real, otherwise they would not have taken all the trouble to make a supplication to Rome; and yet, that does not mean their claims were true in detail. Even the cases that were not adversarial, where both spouses together sought a dispensation, may have been shaped by what people thought they needed to say to get what they wanted. Certainly Schmugge shows that many supplicants had the sophistication to know what the law demanded.



1. Charles Donahue Jr., Law, Marriage, and Society in the Later Middle Ages: Arguments about Marriage in Five Courts (Cambridge: Cambridge University Press, 2007), 90ff.