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“Clandestine” Marriage in the Later Middle Ages: A Reply

Published online by Cambridge University Press:  28 October 2011

Charles Donahue Jr.
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Andrew J. Finch has taken issue in these pages with my interpretation of “clandestine” marriage in the later Middle Ages. He is certainly correct that the phenomenon of “clandestine” marriage in the high and late Middle Ages cannot be given a single explanation. As I said in the first piece that I wrote on the topic: “The cases provide evidence for the proposition that some people were genuinely confused about to whom they were married; that the Alexandrine rules were being used to defraud the innocent; and that they were being used by people to get out of marriages which had become intolerable for reasons quite unrelated to the Alexandrine rules.” And again: “while the reasons why the parties chose to marry informally rather than solemnly is in many cases obscure, there are some cases in which we may conclude that the parties chose informal marriage in order to escape pressure from their families or lords. Howard… and Homans… both suggest that the reason for informal marriage is that the Church was unable to enforce her rules on the ingrained marriage customs of the people. Turlan…, on the other hand, sees as I do informal marriage as a way of escaping both family and ecclesiastical pressure. The two views are not necessarily inconsistent. Varying motivations may have played a part in different places and times and among different individuals.”

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Articles
Information
Law and History Review , Volume 10 , Issue 2 , Fall 1992 , pp. 315 - 322
Copyright
Copyright © the American Society for Legal History, Inc. 1992

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References

1. Finch, Andrew J., “Parental Authority and the Problem of Clandestine Marriage in the Later Middle Ages,” Law and History Review 8 (1990): 189–205CrossRefGoogle Scholar.

2. Donahue, Charles, “The Policy of Alexander the Third's Consent Theory of Marriage,” in Proceedings of the Fourth International Congress of Medieval Canon Law, Monumenta Iuris Canonici C:5 (Città del Vaticano, 1976), 262Google Scholar.

3. Ibid., 268 and n. 62.

4. Journal of Family History 8 (Summer, 1983): 144–58CrossRefGoogle Scholar.

5. Finch, “Parental Authority” 193-94, citing Johnson, C., ed., Registrum Hamonis Hethe, Canterbury and York Society, vols. 48–49 (Oxford, 1914, 1948), 2:911–1043Google Scholar.

6. Donahue, “Social Practice,” 154.

7. Reg. Hethe 918[b], 924[a], 924[b], 932[b], 937[b], 939[b], 940[a], 945[b], 945[c], 946[b], 946[c], 947[a], 947[b], 950[c], 951[a], 951[b], 951[c], 972[e], 973[a], 973[d], 981[b], 992[a], 992[b], 992[c], 998[c], 1016[a], 1016[b], 1021[c], 1038[b].

8. Reg. Hethe 962[b], 969[b], 969[c], 990[a].

9. Compare cases cited in note 7 with Reg. Hethe 931[d], 967[a], 985[b], 1026[d], 1031[b], 1039[a].

10. Norwich, England, Norfolk and Norwich Record Office, DCN/65/1 (3 mm. roll). Cf. ibid., DCN/65/2 to DCN/65/13 (1418 X 1452).

11. Hereford, England, Hereford County Record Office, Acts of Office, O/l (1407-8) to 0/19 (1491-92).

12. Wunderli, Richard M., London Church Courts and Society on the Eve of the Reformation, Speculum Anniversary Monographs 7 (Cambridge, Mass., 1981), 88Google Scholar (italics mine).

13. Canterbury, England, Cathedral Archives and Library, X/8/1 (1395-1410), X/1/1 (1449-57) (both diocesan ex officio act books). See Woodcock, Brian, Medieval Ecclesiastical Courts in the Diocese of Canterbury (Oxford, 1952)Google Scholar. York, England, Borthwick Institute of Historical Research, D/C.AB.l (1387-1494). See Purvis, J. S., A Mediaeval Act Book with Some Account of Ecclesiastical Jurisdiction at York (York, 1943)Google Scholar. Maidstone, England, Kent Archives Office, Drb/Pa/1 (1437-45) to Drb/Pa/5 (1499-1501), Drb/Pwr/1 (1431-82).

14. Finch, “Parental Authority,” 194-96, citing Dupont, G. [et Delisle, L.], éd., “Registre de l'officialité de Cerisy, 1314-1457,” Mémoires de la Société des Antiquaires de Normandie 3e sér., 10(30) (Caen, 1880): 271–662Google Scholar. For a general description of the record, see Donahue, Charles, ed., The Records of the Medieval Ecclesiastical Courts, Part I: The Continent, Comparative Studies in Continental and Anglo-American Legal History 6 (Berlin, 1989), 99–100Google Scholar.

15. Finch, “Parental Authority,” 194-95.

16. Ibid.

17. Donahue, “Social Practice, “ 152 and n. 28.

18. Ibid., 152.

19. Finch, “Parental Authority,” 194.

20. Cerisy 4a, 33a, 40b, 46, 58, 68, 69, 108.

21. Cerisy 86b, 87e.

22. Cerisy 8b, 11a, 11b, 16b, 17a, 18a, 25b (3 cases), 25e (2 cases), 25g, 26e, 35, 60b, 65b, 70.

23. Cerisy 56, 81b.

24. Cerisy 58, 69, 103.

25. Cerisy 40b, 66, 68.

26. Finch, “Parental Authority,” 195.

27. Cerisy 30a, 58.

28. Cerisy 46. Cf. ibid., 11a, 25b.

29. Cerisy 4a, 10a, 40b, 67a, 68, 78. There is also one relationship mentioned in one of the cases (Cerisy 68), which is not a relationship between the parties to the case. That relationship is expressly stated to be one of public espousals.

30. Finch, “Parental Authority,” 195.

31. Ibid.

32. Stated or inferable: Cerisy 10b, couple adjudged sponsi and given license to contract marriage; ibid. 33a, objector “fregisse sponsalia” with the man by allowing herself to be known by another (these sponsalia must be de futuro; if the relationship had been de presenti, this would not be a case of broken espousals but of adultery); ibid. 66, de presenti marriage stated; ibid. 69, objector alleges sponsalia giving rise to the impediment of public honesty (these sponsalia must be de futuro because of the nature of the impediment). Grounds for speculation: ibid. 33, couple adjudged sponsi, and nothing more said; ibid. 50b, couple given license to contract and solemnize marriage, suggesting that they had not already done either; ibid. 67c, same as 33; ibid. 108, same as 50b. No way to tell: ibid. 10b, couple absolved from objector's petition, the grounds of which are not stated; ibid. 30b, couple adjudged husband and wife and ordered to solemnize (could be de presenti or de futuro plus intercourse) notwithstanding the de facto sponsalia one of them contracted with another (not otherwise specified); ibid. 50b, same as 10b except that objector's claim for dos is preserved; ibid. 66, de facto sponsalia raised in opposition cannot stand because they came later (type of sponsalia irrelevant since the prior sponsalia were de presenti); ibid. 67c, same as 10b; ibid. 69, couple confesses to having contracted both de presenti and defuturo (it makes no difference which because the objection is found to lack factual support); ibid. 90, couple adjudged husband and wife and ordered to solemnize (could be de presenti or de futuro plus intercourse), absolved from objector's petition, the grounds of which are not stated; ibid. 103, couple adjudged husband and wife and given license to solemnize (could be de presenti or de futuro plus intercourse), notwithstanding impediment alleged by objector, the grounds of which are not stated; ibid. 108, same as 10b.

33. Donahue, “Social Practice,” 152.

34. Finch, “Parental Authority,” 190. See Lateran IV, c. 51 (1215), in Alberigo, Josephus, et al., eds., Conciliorum oecumenicorum decreta, 3a ed. (Bologna, 1973), 258Google Scholar.

35. Finch, “Parental Authority,” 193.

36. See Helmholz, Richard H., Marriage Litigation in Medieval England (Cambridge, Eng., 1974), 172–78Google Scholar, and sources cited.

37. Finch, “Parental Authority,” 195. See Cerisy 4a, 30b, 66.

38. See generally Donahue, Records.

39. Esmein, Adhémar, Le mariage en droit canonique, 2e éd., mise à jour par Génestal, R. et Dauvillier, J., 2 tom. (Paris, 1929, 1935)Google Scholar. At a minimum the following characterizations of Esmein of the Cerisy cases are mistaken: There is no ground for suggesting that in Cerisy 10a, 30b, 46, 90, 103, or 108 the parties were adjudged husband and wife “en vertu de paroles échangées entre eux” as opposed to "sponsalia suivies de la copula.” Ibid., 208. His citation of Cerisy 58 and 68 as examples of the impediment of public honesty is erroneous. Ibid., 159. Cerisy 58 involves the impediment of crime and a possible impediment of ligamen; Cerisy 68 involves the impediment of affinity by illicit intercourse. There is no ground for the assertion that Cerisy 50b and 90 are examples of competing exchanges of de futuro consent. Ibid., 154. There is some indication that Cerisy 6b is such a case, though less indication than Esmein would have us believe. Ibid., 152, 154.