Moreover, the forbidden degrees of relationship are also natural subjects for litigation and of considerable importance for two other reasons. First, the western Church’s definition of forbidden degrees poses a major social mystery. Medieval canon law, especially before 1215, included among the prohibited relationships for a marriage so many different types of blood, marital, sexual, or spiritual relationships that the rules, if applied, would have made legitimate marriage a rather difficult feat in most parts of Europe.6 Even after 1215, for a legally binding marriage a man still had to avoid marrying not only blood kin extended as far as four degrees but also close relatives of a prior spouse or relations of those who had married his own close blood kin, close relatives of former sexual partners, close relatives of his godparents, close relations by adoption, and also close relations of someone he had previously promised to marry. This necessarily meant that he found himself excluded from marrying many of the people at all close to him. With incest prohibitions drawn so broadly, we might expect to see a good deal of litigation, and indeed we do see some. This litigation arose in two main different ways. It might involve seeking a papal dispensation to stay married in spite of an impediment of this kind; or, to move to our second example, a party might initiate litigation to prove the existence of an impediment so as to render a marriage null and void.
It would be a mistake, however, to think that all of that litigation ran counter to the wishes of those whose marriages were dissolved. In fact, the Church’s incest prohibitions played an extremely important role in permitting at least some medieval Christians to avoid the harsher consequences of a rule that is central to this book: the Christian ban on divorce with a right to remarry. Duby recognized that medieval nobles and royalty exploited the prohibition on consanguine marriages as a de facto tool for divorce.7 Faced with evidence of an existing consanguine marriage, popes of the eleventh and twelfth centuries preferred to dissolve a marriage rather than allow an incestuous couple to remain together. Far from representing a purely harsh imposition of Christian values on a reluctant faithful, this papal practice actually served to relieve much of the pressure caused by the ban on divorce. Heirless or otherwise unhappily married kings and nobles often took advantage of these ecclesiastical laws and priorities, demanding the nullification of unwanted marriages on questionable (and sometimes not so questionable) grounds of consanguinity.8
One might also assume that similar patterns of behavior could be found among ordinary men and women of the fifteenth century, the medieval Christians who serve as the main subjects of this book. Would not these nonnobles similarly exploit marriage law to allow for an escape from unwanted marriages and the freedom to remarry legally? If making supplication to the papal curia proved too expensive a venture (and one that more often served as a source for dispensations to stay married despite an impediment rather than annulments of marriages on the grounds of an impediment), bishops had the power to dissolve incestuous or indeed otherwise invalid marriages. If the incest prohibitions affected ordinary lives as they affected noble and royal lives, we could expect some evidence of this behavior to survive in officiality records. Indeed, the great historian of the common law F. W. Maitland offered an argument much like that of Georges Duby, speculating that medieval officialities provided litigants with an easy nullification on the grounds of consanguinity.9
All this might lead us to expect that the marriage litigation found in fifteenth-century officiality registers would have largely concerned questions of incest. However, legal and social historians specializing in the study of the officialities have proven Maitland wrong.10 Not only, they have concluded, did officialities not serve as a convenient site for the dissolution of an unwanted marriage, but the complicated rules of incest played a small role at best in any of the surviving records of the officialities under consideration.11
Whatever place consanguinity had in the pondering of canonists or theologians, it seems to have played a surprisingly limited role in the social practice of the lower orders of society. In fact, no scholars working with officiality records have found any significant number of cases involving the complicated laws of prohibited relationships, not in England, France, the Low Countries, Italy, or Germany.12 This finding is of considerable interest. Did most people then really avoid marrying within forbidden degrees, even including the strictures on marrying those related by marriage ties or by godparentage? Even including the ban on marrying a close relative of a prior sexual partner? If so, it shows remarkable, indeed almost impossibly fastidious compliance with the canonical rules of marriage formation, or at least a strikingly strong incest taboo.
It seems more likely that many people did marry within forbidden degrees but for some reason did not litigate over it. Moreover, courts did not bother and perhaps even preferred not to prosecute it. We need a better understanding of the absence of incest in these court records to be sure. Nevertheless, it is striking that incest prosecutions are scarcely to be found in surviving officiality records. This is especially true because, as we shall see, court officials and married couples certainly found occasion to litigate over marriage formation, to contest the grounds of Christian identity and authority in practice and in the courtroom. However, our evidence reflects concerns other than incest.
If incest prohibitions did not serve as an important topic of nonnoble fifteenth-century marriage litigation, what did? Having for the most part dispensed with the idea that incest rules played a role in the crisis of marriage at the level of diocesan courts, scholars have taken up another problem of some renown, that of clandestine or informal marriage.13 In medieval western Europe, based upon rules formulated by Pope Alexander III in the late twelfth century, Christian doctrine declared that marriage could be indissolubly made by an exchange of promises. Saying “I marry you” (words of the present tense) or saying “I will marry you” followed by intercourse (a marriage made in the future tense) created a valid marriage regardless of the venue, the presence or absence of a priest or witnesses, with or without a contract, banns, or any other means of publicity or solemnity, such as the blessing of a priest at the doors of a church. Men and women could thus validly and indissolubly marry in secret, with no witnesses to later confirm that a marriage had in fact taken place.
This allowed, of course, for a wide range of fraud, deceit, and considerable confusion. The availability of clandestine marriage posed, in theory, more than one possible danger. People who entered into a clandestine marriage might knowingly or not violate some incest prohibition, as they had married without public announcement of their intentions and without giving any party the opportunity to object or to investigate their genealogy or their marital or sexual history. Young people might clandestinely marry without parental consent. A dishonest or inconstant spouse might later abandon the match when it no longer suited them, perhaps leaving a pregnant woman in a difficult position, or conversely leaving a man deprived of the woman he considered his lawful wife. So Martin Luther would later complain, and he was far from alone.14 Finally, the availability of clandestine marriage might make it easier for people who were already married to enter into a second, bigamous union. If the first marriage had been made in secret, how to prove it so as to prevent the second? If the second marriage was made in secret, who would be there to object?
In all these respects, clandestine marriage seemed to invite trouble. Even as medieval Church officials continued to insist on the primacy of free consent for Christian marriage, they expressed considerable concern over the opportunities for abuse that clandestine marriage allowed. Indeed, at the seminal Fourth Lateran Council in 1215, Pope Innocent III forbade all marriages made without publicity and investigation where deemed necessary and without the prior and repeated announcement of banns made in the churches of the home parishes of aspiring spouses.15 To forbid, however, was not to invalidate marriages made by more informal promises. While Innocent III prohibited marriages based purely on consent, these marriages still remained valid and binding unions. The distinction between forbidden and invalid may seem forced, but it meant a great deal in that these clandestine marriages, while illegal acts, still resulted in valid unions that nevertheless bound a couple for life.
Local legislation on clandestine marriage often included more strict rules than the legislation issued by the papacy, sometimes extending even to engagements.16 Nevertheless, local legislation did not invalidate these marriages either. The synodal statutes issued