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Parental Authority and the Problem of Clandestine Marriage in the Later Middle Ages

Published online by Cambridge University Press:  28 October 2011

Extract

Since the last century canon-legal historians and, more recently, social historians have examined a variety of questions concerning the social and legal aspects of marriage in the later medieval period. Particular significance has been given to the synthesis by Alexander III of existing sacramental and legal opinion concerning marriage in the twelfth century. His synthesis produced a doctrine in which marriage was viewed as a purely consensual union. Any two legally entitled adults could contract marriage by words of mutual consent. A twofold distinction existed in the nature and intent of these words. On the one hand, a binding and immediately effective union was created through the exchange of words of present consent (per verba de praesenti). Neither publicity, nor church solemnization, nor indeed consummation added anything to the validity and permanence of such a contract. On the other hand, a promise to marry was expressed by words of future consent (per verba de futuro), which might be terminated by the agreement of the parties or by a subsequent de praesenti contract. If, however, a de futuro contract was followed by intercourse, it took upon itself the legal mantle of a de praesenti contract, and what was initially only a promise to marry was transformed into a binding marriage.

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Articles
Copyright
Copyright © the American Society for Legal History, Inc. 1990

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References

Notes

1. Donahue, C., “The Canon Law on the Formation of Marriage and Social Practice in the Later Middle Ages,” Journal of Family History 8 (1983): 144–58CrossRefGoogle Scholar.

2. Donahue, C., “The Policy of Alexander the Third's Consent Theory of Marriage,” in Proceedings of the Fourth International Congress of Medieval Canon Law Monumenta Juris Canonici, Series c, Subsidia, vol. 5 (Vatican City, 1976), 270–79Google Scholar; idem, “The Case of the Man Who Fell Into the Tiber: The Roman Law of Marriage at the Time of the Glossators,” American Journal of Legal History 12 (1978): 48–53.

3. Donahue, “Canon Law,” 145, 157.

4. Ibid., 147–52.

5. Ibid., 149.

6. Ibid., 154 n.40, 155.

7. Ibid., 150.

8. Donahue, “The Case of the Man Who Fell Into the Tiber,” 50f.

9. Donahue, “Canon Law,” 153f.

10. Ibid., 147, 155–57; Donahue, “The Case of the Man Who Fell Into the Tiber,” 51f.

11. Johnson, C., ed., Registrum Hamonis Hethe 2 vols. (Canterbury and York Society 48–49, 1914 and 1948), 2: 9111043Google Scholar.

12. Kelly, H. A., “Clandestine Marriage and Chaucer's Troilus,” Viator 4 (1973): 435–57CrossRefGoogle Scholar.

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14. Ibid. 2:980.

15. Ibid. 2:916f, 975.

16. Ibid. 2:918f, 950, 967, 969f, 1026, 1039.

17. This was the usual penance assigned in cases of fornication at Rochester. Certain English diocesan statutes also prescribed fustigation as a suitable penance for clandestinity. Sheehan, M. M., “Marriage Theory and Practice in the Conciliar Legislation and Diocesan Statutes of Medieval England,” Mediaeval Studies 40 (1978): 438CrossRefGoogle Scholar.

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19. Ibid., 243, 265, 268, 345.

20. Ibid., 4a, 10a, 30a, 40b, 46.

21. Ibid., 58, 68.

22. Ibid., 67a, 78.

23. Ibid., 30b, 66, 69, 90, 103.

24. Ibid., 10b, 33a, 50b, 67c, 108.

25. O. Pontal, Les statuts synodaux français du XIIIe siècle, vol. 1: Les statuts de Paris et le synodal de l'Ouest (XIIe siècle) (Collection de documents inédits sur l'histoire de France. Section de philologie et d'histoire jusqu'à 1610. Série in-8e, vol. 9; Paris, 1971), 66; Sheehan, “Marriage Theory and Practice,” 426.

26. Dupont, Registre, 4a, b, 69b, 375d, h.

27. Esmein, A., Le Mariage en droit canonique, 2 vols. (Paris, 1891; reprint New York, 1968), 1:141, 145, 181, 184Google Scholar.

28. She informed the plaintiff that she would have unum magnum stercus before she would have her son in sponsum. Dupont, Registre, 164b.

29. Ibid., 60b.

30. Ibid., 244, 309c, d.

31. Finch, A., “Cerisy and Rochester: The Civil and Criminal Business of Two Ecclesiastical Courts in the Later Middle Ages” (M.A. diss. University of York, 1986), chap. 3, p. 20fGoogle Scholar. The dissertation is paginated by chapters.

32. Dupont, Registre, 25f.

33. Petit, J., ed., Registre des causes civiles de l'officialité episcopal de Paris, 1384–87 (Paris, 1919), 200Google Scholar.

34. Ibid., 73, 85, 381, 385, 400, 440.

35. Ibid., 100.

36. Finch, “Cerisy and Rochester,” chap. 3 passim.

37. Ibid., chap. 2, pp. 23–32.

38. Cf. Helmholz, R. H., Marriage Litigation in Medieval England (Cambridge, 1974), 183fGoogle Scholar; Houlbrooke, R. A., Church Courts and the People on the Eve of the Reformation, 1520–1570 (Oxford 1979), 64–67, 78fGoogle Scholar; Kelly, “Clandestine Marriage,” 442.

39. Lefebvre-Teillard, A., Les Officialisés à la veille du concile de Trente (Bibliothèque d'histoire du droit et droit romain, 19; Paris, 1973), 110, 148, 151fGoogle Scholar.

40. Helmholz, Marriage Litigation, 165–68.

41. Houlbrooke, Church Courts, 165–68.

42. Ibid., 62f.

43. Donahue, “The Canon Law,” 151.

44. Goldberg, P. J. P., “Marriage, migration, servanthood and life-cycle in Yorkshire towns of the later Middle Ages: Some York cause paper evidence,” Continuity and Change 1 (1986), 158–60CrossRefGoogle Scholar.

45. Three matrimonial causes from Pisa in the second quarter of the thirteenth century demonstrate clearly how these factors could combine to lessen or enhance parental authority. In Jacopina c. Bonfilio Laniolo, the impression is one of a great deal of individual freedom and informality. The alleged marriage took place beside a public fountain when Bonfilio suddenly came up to Jacopina and asked her to be his wife. The woman then took him by his right hand and had the presence of mind to inform those standing around of what had just occurred. Bonfilio later sent her a ring of silver and they lived together as man and wife for ten years. Neither Bonfilio nor Jacopina were natives of Pisa, though the man maintained some contact with his parents in Sens. Socially, they represent the lowest echelon of Pisan society. One witness described himself as pauper homo, and another said that he was laborator terrarum. Bonfilio himself was described as having no craft (artem), but instead he earned his living by impersonating a Minorite or a hermit. He was said to have a small following as the result of this. He lived with Jacopina in lodgings. A different picture concerning the availability of individual choice is revealed by the other two examples. In Contissa filia Aliotti de Vico c. Ugolino Truffe, the woman had been betrothed while infra annos nubiles. On attaining her legal majority at the age of twelve, she repudiated the match, alleging that Ugolino already had a wife. She was represented by a proctor. The court found in her favor. Finally, in Sardinea filia Ugolini Vernacci c. Juncta filium Martini de Piro, the woman claimed that she had only entered into the union because of coercion on the part of her parents et aliorum amicorum suorum. Judgment was also given in her favor. In both cases the defendants were given leave to appeal to the Dolezalek, Papal Curia. G., Das Imbreviarturbuch des erzbischöflichen Gerichtsnotars Hubaldus aus Pisa, Mai bis August 1230 (Cologne, 1969), 129–32, 133f, 136fGoogle Scholar. For examples of social factors affecting consent in sixteenth-century Normandy and England, see Gouesse, J.-M., “La formation du couple en Basse-Normandie,” Dix-septieme siècle 102–3 (1974): 44–58, 52–54, esp. p. 54Google Scholar; Spufford, M., “Puritanism and Social Control?” in Order and Disorder in Early Modern England 1500–1750, ed. Fletcher, A. and Stevenson, J. (Cambridge, 1985), 48Google Scholar.

46. Goldberg, P. J. P., “Female Labour, Service, and Marriage in the Late Medieval Urban North,” Northern History 22 (1986): 27CrossRefGoogle Scholar; Houlbrooke, Church Courts, 62f; Pommeray, L., L'officialité archidiaconale de Paris aux xve–xvie siècles (Paris, 1933), 345Google Scholar.

47. One rector was given authority to absolve any of his parishioners who had incurred excommunication in this way. The parishioners had petitioned the bishop to allow this, since “many” of the villagers had suffered this penalty for being parties to or present at clandestine marriages. Hitherto, they had had to go elsewhere to be absolved. This had caused much inconvenience and disruption to their affairs. (Hillgarth, J. N. and Silano, G., eds., The Register Notule Communium 14 of the Diocese of Barcelona (1345–1348) (Subsidia mediaevalia 13; Toronto, 1983), 232Google Scholar; see also 61, 63, 70–3, 80).

48. Sheehan, “Marriage Theory and Practice,” 458; idem, “Marriage and Family in English Conciliar and Synodal Legislation,” in Essays in Honour of Anton Charles Pegis, ed. J. R. O'Donnell (Toronto, 1974), 9f. See also Noonan, J. T., “Power to Choose,” Viator 4 (1973): 429CrossRefGoogle Scholar.

49. Johnson, , Registrum Hamonis 2: 914, 955, 980, 984, 991Google Scholar; Levy, J.-P., “L'officialité de Paris et les questions familiales à la fin du xive siècle,” Études d'histoire de droit canonique dediées à Gabriel le Bras, 2 vols. (Paris, 1965), 2:1265–94Google Scholar. For a discussion of the role played by arbitration in the general legal process, see Powell, E., “Arbitration and the Law in England in the Late Middle Ages,” Transactions of the Royal Historical Society, 5th series, 33 (1983): 4968CrossRefGoogle Scholar.

50. Pommeray, L'officialité archidiaconale, 313–17, 323–25, 335f; Pontal, Statuts synodaux, 66f, 101, 180; Sheehan, “Marriage Theory and Practice,” 17, 422, 432f, 435–37, 459.

51. Bannister, A. T., ed., “Visitation Returns of the Diocese of Hereford in 1397,” English Historical Review 44 (1929): 284, 446, 448Google Scholar; Ibid. 45 (1930): 448, 451, 452, 453, 454, 455, 458; Bonet, J. M. Martí i, ed., “Els processos de les Visites Pastorals del primer any de pontificant de Ponç de gualba (a. 1303),” Processos de l'Arxiu Diocesà de Barcelona (Barcelona, 1984), 61, 84Google Scholar. Unfortunately, Bannister's edition of the Hereford visitation return is incomplete. A number of cases relating to sexual morality have been omitted entirely and in general the subsequent actions of the court in dealing with offenders do not appear in the edition.

52. Bannister, , “Visitation Returns,” 44:287, 289, 445Google Scholar; Ibid., 45:446, 448, 456, 457f, 40, 462; Martí i Bonet, Els processos, 55, 73, 78.

53. Martí i Bonet, Els processos, 57f, 81, 89, 95. One of the priests in the officiality of Cerisy was defamed for charging for the celebration of sponsalia during 1341. Dupont, Registre, 215b.

54. Powicke, F. W. and Cheney, C. R., Councils and Synods with Other Documents Relating to the English Church, 2 vols. (Oxford, 1964), l:65f, 116, 174, 310, 360, 615, 643Google Scholar; Wilkins, D., Concilia Magnae Britanniae et Hiberniae, 4 vols. (London 1737; reprint Brussels, 1964), 2:553fGoogle Scholar.

55. Pommeray, L'officialité archidiaconale, 312f.

56. Bossy, J., Christianity in the West, 1400–1700 (Oxford, 1985), 23Google Scholar.

57. Dupont, Registre, 68; Johnson, , Registrum Hamonis 2: 1016, 1031, 1039Google Scholar; Pommeray, L'officialité archidiaconale, 338.

58. Helmholz, Marriage Litigation, 72f; Houlbrooke, Church Courts, 57; Safley, T. M., “Marital Litigation in the Diocese of Constance, 1551–1620,” The Sixteenth Century Journal 12 (1981): 69fCrossRefGoogle Scholar.