Skip to content
IUScholarWorks Journals
22.04.20 Müller, Marriage Litigation in the Western Church, 1215-1517

22.04.20 Müller, Marriage Litigation in the Western Church, 1215-1517

In his most recent monograph, Wolfgang Müller reassesses the established narrative of marriage litigation in the Middle Ages. This narrative, fleshed out by scholars such as Richard Helmholz in particular, focuses keenly on the medieval church courts as the arbiter of marital litigation, arbitration which was grounded in the principles of the ordo iudiciarius (due process). Rather, Müller argues, in areas such as Franco-Germanic and English territories of the north, a large number of cases took on a penitential format as opposed to following the procedures of the ordo iudiciarius. In southern territories, such as in Italy and Iberia, public notaries played a critical role in the arbitration of marriage disputes. While the title of the work indicates a chronological coverage of the thirteenth through early sixteenth centuries, the thirteenth century is relevant only in so far as it provides the framework for standard canonical procedure and thought against which Müller’s evidence is contextualized. The records upon which the work relies largely date from the late fourteenth and into the sixteenth centuries.

Part I: The North (Chapters 1-3) treats church courts in the dioceses of the Franco-Germanic region and England. These dioceses are Paris, Cambrai, Brussels, Xanten, Basel, Augsburg, Regensburg, Canterbury, Rochester, Ely, and York. Müller argues that northern regions adjudicated more cases regarding the sacramental validity of a marriage, and cases involving spousal cohabitation, than dioceses in the south. Northern regions, unlike those in the south, allowed the use of evidence deriving from hearsay and unsupported allegations, neither of which were admissible in proceedings governed by the ordo iudiciarius. Such evidence was admissible in penitential investigations, which in turn demonstrates that a clear separation between penitential and judicial forums did not exist in the north. This slippage afforded greater agency, especially for women, in marital litigation. The plaintiff, typically a woman, might lose her initial case, an outcome that was anticipated and even expected, but it was a necessary loss in order for her to proceed to the next step: seeking monetary compensation. A woman’s plea may not have been successful, but she could come away from the proceeding being able to plead for monetary compensation for defloration and for financial support of her children born out of wedlock.

Müller finds similar procedural mechanisms woven throughout the church courts in the Franco-Germanic and English regions: parties swore oaths concerning the truths being told, the plaintiff and defendant had incompatible depositions, neither party could present corroborating witnesses and the allegations were quickly dismissed for lack of legal support, and finally the parties’ consciences were admonished to determine whether sacramental ties existed. Stated another way, allegations that did not satisfy legal criteria by way of open confession in court, eyewitness testimony, or written documentation were bound to stay within the forum of conscience. As a result, the adjudication of marital cases in the courts possessed penitential rather than judicial characteristics. Chapter 1 (pp. 23-54) focuses on marriage cases adjudicated in the ecclesiastical courts of Xanten and Basel and illustrates the wider trend that the “contentious forum” was not used to establish the existence of a canonical marriage. Very few cases relied on the type of evidence required in a judicial venue. In Basel, for example, male plaintiffs tended to assume that vague verbal exchanges meant consent to marriage. Further, a large number of marital cases were resolved by rejecting the accusation and followed by the swearing of a decisory oath (iuramentum litisdecisorium) before the case was dismissed. This dismissal paved the way to seek damages for loss of virginity or the expenses of childbearing and childrearing. In Xanten, the case of Mechteld Wevels v. Arnold Kutom reveals such a process. Mechteld charged that she was legitimately married to Arnold. Her claim was rejected for lack of evidence and Arnold was vindicated without further fanfare. This process, however, was necessary in order for Mechteld to sue for defloration and receive compensation, which she did (35-38). Chapter 2, “Franco-Germanic Adjudication” (55-83), continues to pull on this thread by focusing on enforcement and annulment claims in the forum of conscience, claims in which the legitimacy of a sponsalia, apromise to marry in the future (de futuro), was in question. Simple suits, largely brought by women, petitioning for the contract to be enforced were largely unsuccessful and such cases could not lead to liability suits. However, when simple suits were coupled with defloration cases, particularly cases with pregnancy, the chances of winning the case improved as the burden of proof shifted to the male defendant.

While Chapter 3, “England” (84-113), reinforces the conclusions of Chapters 1 and 2, namely that the adjudication of marital cases in the courts of England possessed penitential rather than judicial characteristics, Müller is attentive to differences. A key difference lay in managing the first and second instances of adjudication. The Franco-Germanic regions relied on the standard progression of ecclesiastical jurisdiction: the bishop’s court possessed ordinary jurisdiction with appeals made to the archbishop’s court, with the pope or his judge serving as the supreme instance of adjudication. England, however, did not necessarily follow these precepts with judicial business going from one ecclesiastical tribunal to another. The registers of Ely, for example, suggest that a good amount of first-instance business did not reach the courts of the English bishops. Rather England relied on lower church courts run by rural deans, archdeacons, or commissaries of bishops (commissarius generalis) and exempt prelates. Their principal mission was pastoral, aimed at the salvation of individual souls. Because the officialis most often judged in the second instance, English cases at the bishop’s court were far fewer in number than those in the Franco-Germanic regions, but the cases these courts did adjudicate were more litigious. Furthermore, the gender bias did not tilt against women as it did in Franco-Germanic regions.

Part II: The South (Chapters 4-6) treats church courts in the dioceses of Venice, Lucca, Vic, Girona, Barcelona, and Seville. Müller notes a number of differences between these geographic regions. First and foremost is a progressive dwindling of marriage litigation by area. Church courts in Italy heard fewer enforcement and annulment cases than church courts in the north; church courts in Castile heard fewer such cases than those in Italy; and church courts in Castile-León heard the fewest cases. Two intertwined reasons are highlighted to explain this phenomenon. The first is that the Church did not exercise exclusive control over marriage litigation. The second is the role played by the notariate in the south in the drawing up of the marital contract and in the arbitration of breaches of that contract. Chapter 4, “Italy: Canonical Marriage on the Sidelines” (117-149), notes the absence of the penitential characteristics of litigation. In lieu of the synodal court of the Franco-Germanic regions or the lower tribunals in England, Italian tribunals of the first instance rarely investigated allegations that fell short of the juristic standards required by the ordo iudiciarius. Rather, the public notary, mixing canonistic and Roman legal traditions, brokered a large number of marital contracts. Unlike in the north where the litigation was between the man and the woman, in places such as Lucca, families were more involved in the formation of marriage, interfering in consent and controlling dowry transactions. The families of alleged husbands sought to gain the dowry and those of brides to withhold or recover it.

Chapter 5, “Top-Down Pastoral Action in Catalonia” (150-182), demonstrates the significant but different roles played by episcopal visitations and notaries. The visitation records in the archdiocese of Tarragona, especially in the dioceses of Girona and Vic, suggest that matrimonial irregularities--sustained sexual partnerships like long-term concubinage and cohabitation with children--were of interest. Such unions were punished with major and minor excommunication unless the union disbanded or a solemn marriage took place. Yet the imposition of non-spiritual sanctions, such as monetary penalties, on the excommunicated depended upon whether the bishop possessed feudal lordship over the subject. The ability of a bishop to impose penalties that extended beyond the spiritual depended upon whether he also possessed civil authority. The influence of church courts was curbed further by notaries, to whom people turned for the drawing up of marital contracts and in cases of marriage litigation. Because families played an integral role in the formation of marriages, dowries were central to wider inheritance strategies.

Paying particular attention to Castile-León, Chapter 6, “Domestic Partnerships of Iberia” (183-214), continues the argument that church courts did not possess exclusive jurisdiction over the validity of marriage. Records of requests from the archbishop of Seville to the Apostolic Penitentiary point to couples who actively requested papal dispensations from the impediments of consanguinity and affinity. However, we also have records of other unions, which, while inferior to a solemn marriage, were lawful and fell under secular jurisdiction. For example, the Castilian legal collection the Siete Partidas(1260s) guaranteed to a woman (barragana) dowry and hereditary succession of her children when she entered into the temporary partnership known as barragania. Other civil living arrangements also existed. The amancebamiento afforded opportunities for unions to those otherwise ineligible to wed in an ecclesiastical sense. Customary service contracts negotiated sexual duties for the woman in exchange for promises of a dowry as compensation. In both instances, the contracts, facilitated by a notary, focused on itemized material obligations and exact timelines. If arbitration was needed, families turned to the signing notary or to secular courts of the town and crown. Concerns about the dos, arras, and property in common were couched in the language of civil law and the stipulations of the enforcement were laid out in the agreements recorded by notaries. Breaches of the arraignment were taken to secular, not ecclesiastical, court.

The work concludes with a tremendously helpful bibliography and appendix. The Bibliography includes an impressive list of primary sources (pp. 246-250) consisting of letters, registers of cause papers (individual suits) and tribunals, act-books (logs of daily court activity as well as fiscal information compiled by officiales), notarial records, visitation records, manuals, and juridical treatises and commentaries. The lengthy Appendix (pp. 218-245) is a true treasure. It provides a list of outcomes for registered and concluded marriage cases by area (north or south) and then subdivided by location. In the Franco-Germanic regions of the north, outcomes are listed for Paris, Cambrai (with Brussels), Basel, Augsburg, and Regensburg. In England, outcomes are listed for Ely and Rochester. In the Italian region of the south, outcomes are listed for Venice and Lucca. For each location a footnote supplies the source of the information and sometimes explicitly the method of reference. For example, the note for Paris indicates the method of reference as column number and, if necessary, order of appearance. Augsburg gives the reference as folio and entry. References in the Regensburg and Venice outcomes are to folio. Outcomes in Ely are by case number and, in brackets, the number of the register entry. For outcomes in Rochester the references are in page numbers. Outcomes in Lucca are referenced by volume and folio number. The note to Cambrai (with Brussels) does not state explicitly the method of reference, but the bibliographic citation in the note to the register indicates “no.” which leads one to surmise the references are to case number. Basel gives no indication of the reference, but the bibliographic citation is to pages. The dioceses of Augsburg and Regensburg adjudicated the greatest number of cases with Cambrai following just behind. The dioceses in England and Italy adjudicated far fewer cases than those in the Franco-Germanic region. Each diocese is divided into subcategories by the type of sentence (i.e., the definitive judgement and approved settlement): enforcement claims (which could come in the “simple” variety with one plaintiff or the “double” variety with multiple plaintiffs or with several accusations); annulments; enforcements and annulments; separations; cohabitation requests; dispensations. Definitions for each type of sentence are provided on p. 218. A list of abbreviations (p. 219) provides a guide to understanding the proceedings: f = female (plaintiff); m = male (plaintiff); prom = promotor, official accuser; d = damage claim by female defendant or plaintiff (for child support, bridal money, etc.). Under each type of sentence, the chart provides the case, the plaintiff (f, m, prom) and whether s/he won or lost. At the end of each type of sentence a tabulation is provided of wins and losses by plaintiff. The diocese ends with a tabulation of types of sentences.

Marriage Litigation in the Western Church takes us into the world of marriage litigation that fell outside of the judicial forum dominated by the ordo iudiciarius. People had a need for arbitration, but the form that arbitration took differed. In the north, arbitration took on penitential characteristics by allowing forms of proof unaccepted by the ordo. While women often failed in this form of arbitration, their initial failure allowed them to sue for monetary compensation. In the south, marriage was more business orientated with families playing an active role in using dowry and property to navigate inheritance strategies. Church courts did not dominate the adjudication of disputes, but rather shared space both with notaries who drew up marriage contracts and arbitrated breaches of those contracts, and, in the case of Iberia, with secular authorities who legislated on other types of unions. Müller has done a great service in reminding us that litigation is not always neat and it does not always take place in a juridical arena.