What did the Roman lawyers mean when they spoke of ius? The question is an important one not only for an understanding of Roman legal concepts but also for the history of Western law generally. Beginning in the twelfth century and extending to today, the texts of Roman law have been studied with an assiduity second only to that devoted to the Bible. A concept as fundamental as ius could not fail to have influenced Western legal thought, particularly because, in many periods, those who studied the Roman texts also sought to apply what they learned in those texts to the law of their own time. The question is not only important, it is also difficult. The word “ius” in Latin (like droit in French, Recht in German, etc.) is ambiguous. It can mean a whole body of normative rules, a legal order, as well as “right,” in any of the many senses of the English word. (The absence of this ambiguity in English is more than compensated for by the notorious ambiguity of the word “law,” which can mean either lex, in the sense of statute or rule, or ius, in the sense of the body of normative rules.)

Although the word “right” is not so ambiguous in English as is the word “ius” in Latin (and its counterparts in most Western languages), it is ambiguous.

The approach that we have taken to these cases so far is the traditional historian's one of trying to tell a story. We found that it may be possible to tell stories from this type of case material, but it is difficult. The litigation context distorts the story, particularly if one is trying to tell a story of what happened, as opposed to the story of what happened in the litigation. There is a further difficulty for the historian who is seeking to discover the social context of Alexander's rules: Frequently the particular makes us lose sight of the general. We suggested that there were many cases like Dolling c Smith and like Merton c Midelton, but there are not many cases like Ingoly c Midelton. Indeed, it is the only York case I have found in which two formal marriages are dissolved on the basis of an informal precontract prior to either one of them, and it is one of only a handful in which there is such strong evidence that considerations far different from those that are found in Alexander's decisions played a dominant role in the decision. Tiryngton c Moryz may be such a case as well, but in the end, we had doubts. We were able to construct a plausible version of a story in which the precontract did happen, and of course the couple, so far as we can tell, never obtained a final judgment.

THE RULES AND THEIR APPLICATION

Our examination in some depth of marriage litigation in five medieval church courts has revealed relatively few cases that dealt with the complicated rules, outlined in Chapter 1, about the marriage of relatives. This finding may be surprising to some readers. A view popularized by F. W. Maitland in a footnote (but which had roots going back to the Reformation) holds that the medieval incest rules were so complicated and so extensive that all medieval marriages were dissoluble as a practical matter, because virtually any couple could get a divorce by showing some hitherto unsuspected relationship between them. This view was founded on more than speculation. Medieval history offers a number of examples of highly visible divorces granted or sought on the ground of incest: Robert the Pious and Bertha of Burgundy in the eleventh century, Eleanor of Aquitaine and Louis VII of France in the twelfth, Philip Augustus and Ingeborg of Denmark in the thirteenth.

Even before the analyses presented in this book, research had cast considerable doubt upon this view. What research had shown was the danger of writing legal history from causes célèbres. The visible is not necessarily the usual; high politics affects both the law and its application in ways that make it difficult, if not impossible, to draw conclusions about the normal from the spectacular.

At the end of Chapter 3, we suggested, tentatively, that the York court in the later fourteenth century played a role that allowed it to redress, at least to some extent, the imbalance in power between women and men that prevailed in the period. Assuming that this is correct, two questions immediately come to mind: First, if the court's role had this effect in the cases that were litigated, did it have any effect on people who did not litigate? Obviously our records do not give us any direct evidence to answer this question, and the picture that we get from other types of records, both of medieval marriage and of gender relations, is very different from what we see in the court records. Nonetheless, perhaps with more courage than wisdom, we will eventually suggest that what this court and others like it were doing did have an effect beyond the effect on the parties to the cases, albeit over a very long term and with considerable crosscurrents that make it seem at times as if the effect were not there at all.

Second, once again assuming that the York court was having this effect, was the court aware of it? Certainly no one connected with the court would have put it in these terms, but then no one in the fourteenth-century court of York was familiar with the terms of historical sociology.

INTRODUCTION

In the late Middle Ages, the diocese of Cambrai was large. It extended from the county of Cambrai in the southwest, across a large swath in the central part of modern Belgium, to Antwerp in the northeast. It thus included, in addition to Cambrai itself, the towns of Valenciennes (Nord), Mons, the part of Tournai on the right bank of the Scheldt, and Brussels. A survey in the fifteenth century counted 1,029 parishes, divided into 18 deaneries and 6 archdeaconries. The official, who held court at Cambrai, was assisted by a delegate at Brussels. In 1448, the official at Brussels became an official principal, equal in rank to that at Cambrai. The jurisdiction of the official at Brussels covered the three northern archdeaconries, that of Antwerp, Brussels, and Brabant, roughly corresponding to the Flemish-speaking areas, while the official in Cambrai retained jurisdiction over the three southern archdeaconries, Cambrai, Valenciennes, and Hainault, roughly corresponding to the French-speaking areas.

These officialities have left a collection of registers of sentences, dating from the middle of the fifteenth century. Those from the city of Cambrai bear dates from 1438 to 1453, though there are gaps, while that from Brussels bears dates from 1448 to 1459 and seems to be complete. The sentences thus allow us to see the activity of the officials of Cambrai both before and after the division of the diocese and that of the officials of Brussels just after the division of the diocese.