Bigamy and Christian Identity in Late Medieval Champagne. Sara McDougall
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century, we find evidence of such handling of bigamy in northern France and Burgundian territories. We find scattered cases from throughout these dioceses in which bigamists met with harsh punishment. The punishments are always the harshest handed down for any matrimonial offense. The largest number of cases has so far been found in records from Troyes.
It seems, therefore, that Troyes stood alone among local courts in its handling of bigamy. Harsh punishments aside, only one other venue, by no means local, has been shown by current scholarship to have adhered to the same standards for preventing potentially bigamous remarriage as found in Troyes and throughout northern France and Burgundian lands. As Ludwig Schmugge has shown, the papal penitentiary seemed to be in agreement with the standards of proof before remarriage required most notably by the officiality of Troyes, found seemingly nowhere else in Christian Europe in the fifteenth century.
At the level of the papal penitentiary, which considered petitions for annulments and dispensations, granted with the pope’s delegated jurisdiction, Schmugge has found a number of petitions related to bigamy.108 Schmugge identifies, first, cases of missing persons and, second, cases of marriages contracted bigamously. These cases demonstrate that the laws governing remarriage were consistently upheld. In these cases, the penitentiary did not allow spouses of a missing husband or wife to remarry without proof, no matter how long they had waited. Those who had contracted a bigamous marriage found that second marriage dissolved by the penitentiary. Interestingly, if this first spouse subsequently died, the bigamists were often successful in their petitions to remarry the spouse they had previously married bigamously. This was the only concession the penitentiary allowed those who had contracted concurrent marriages.109 If Troyes was in fact the only fifteenth-century court to punish bigamists so frequently, the court’s efforts at preventing and dissolving bigamous marriages, more broadly present in northern France and Burgundian lands, were in accord with the actions of the papal penitentiary.
Our current scholarship thus suggests that northern France and the papal penitentiary stood alone in their strict attitude toward potentially bigamous remarriages and that Troyes stood completely alone in consistently inflicting harsh punishment on certain male bigamists. Perhaps that is the case. The matter, however, is not quite so clear, for there are too many silences and lacunae in our current understanding of the surviving sources. All this raises once more the question of the evident exceptionality of the handling of bigamy in fifteenth-century Troyes.
How exceptional was the prosecution of bigamy found in Troyes? Modern scholarship on fifteenth-century officiality records seems to show that bigamy was of slight concern elsewhere in Europe. Scholarship on England, Germany, Spain, and Italy particularly encourages this perception. To be sure, in all of these places many people seem to have married more often, or at least more confusedly, than they should have. Their ecclesiastical courts, however, do not seem to have been interested in punishing bigamous offenders beyond a fine or the requirement that any prior bond be recognized as the valid marriage.110 That the officiality of Troyes prosecuted and punished bigamists stands out as exceptional. However, this evident exceptionality requires some qualification and may require some revision.
On the surface, it seems to be the case for England, Italy, Germany, and Spain that ecclesiastical courts did not subject bigamists to criminal prosecution or punishment. Instead, as Martine Charageat explains for Saragossa, in the fifteenth century bigamy was treated more as a civil matter, as a violation of a contract, than as a crime against the sacrament of marriage.111 Beginning in the last decades of the fifteenth century in Spain and in the first decades of the sixteenth century in Italy, bigamy began to be prosecuted as a crime against the sacrament.112 Only in fifteenth-century Troyes can we find the sort of criminal prosecution and punishment of bigamy that is otherwise a feature of the sixteenth or seventeenth century in Catholic lands. We must recognize, however, that we currently have at best an incomplete knowledge of ecclesiastical court criminal proceedings in Spain, Italy, and Germany, and our knowledge even of the extensively studied English criminal cases is limited with respect to bigamy.
To begin with Italy and Spain, scholars have located and studied Italian medieval officiality records only from Lucca, Venice, and Pisa; and only Saragossa and Barcelona for Spain.113 With the exception of Barcelona—and it is a limited exception—criminal cases do not form a part of these studies. Even the scholarship on Barcelona cannot tell us much, since only a handful of fifteenth-century criminal records from the ecclesiastical court have survived. The criminal cases of Saragossa, meanwhile, remain sealed. The cases in Lucca have only just been made available to scholars. For Venice, criminal records from the fifteenth century have not survived. The Pisan records date to the thirteenth century and are not concerned with criminal matters.114 All this certainly implies that bigamists could have been punished by officialities in Italy or Spain; secular courts may well also have done some punishing. This should not be taken to mean, however, that ecclesiastical courts would have fully ceded jurisdiction. Even in the sixteenth century in Spain, some bigamy cases made their way to ecclesiastical courts rather than to the Inquisition (and sometimes in addition to the Inquisition).115
The case of Spain is particularly important, because of the evidence we have for both ecclesiastical and secular sanctions for bigamy, as well as evidence for harsh sanctions on the part of the secular courts. Additionally, if only beginning at the very close of the fifteenth century, it is in Spain that we find the earliest evidence of the enforcement of these punishments for bigamists by secular courts. In Aragon, convicted bigamists typically faced imprisonment.116 In Castile, bigamists met a punishment derived from Roman law, banishment to an island, and sometimes also the punishment of branding on the face with a q (or maybe not a q but a b or a cross, or two parallel lines, or a 10).117 For this, too, we have evidence of enforcement, but not before the final decades of the fifteenth century.118
German officialities, meanwhile, appear on the other end of a spectrum from the criminal prosecutions found in Troyes. These courts may well not have punished bigamy largely because they, if Augsburg is any example, lacked jurisdiction over all criminal matters.119 As explained above, it is also from Germany, from the court in Regensburg, that we have evidence of the most open attitude toward potentially bigamous marriage found in any surviving ecclesiastical court records.120 German courts, then, might be assumed to have had the least interest in punishing bigamy as a crime, either because they could not, as with Augsburg, or because they did not think of bigamy as a crime, as, perhaps, with Regensburg.
It seems most likely, then, based on the current state of research, to assume that bigamy prosecutions and punishments in ecclesiastical courts at least possibly happened in Spain and Italy and that they were far less likely to have taken place in German courts.
English courts, best-known of all medieval officialities, offer a more complicated story. Scholarship on medieval marriage litigation in England, particularly that of Charles Donahue, has on the whole presented ecclesiastical courts as user-friendly and rather gentle in their handling of the matrimonial projects of the laity, especially as compared to their counterparts in northern France or Cambrai and Brussels. There is certainly something to this comparison—indeed, a great deal to it.121 However, it is important to recognize that scholars have focused on different kinds of cases and brought different concerns to the study of officialities in England and in France. This has perhaps exaggerated the differences between the courts of the two countries. Even as most of the scholarship on marriage litigation presents a friendly picture of the English ecclesiastical courts, many of these courts assigned penalties of fines or other penances, including a not inconsiderable amount of corporal punishment, largely for sexual offenses. This sort of punitive behavior does not appear to have so often directly involved marriage cases as found in northern France or Cambrai, but it did take place and was certainly sometimes attached to marriage suits. There is therefore some cause for caution in maintaining the description of English and northern French litigation as so very different, especially if we broaden our view to include sexual offenses alongside the marriage litigation so skillfully analyzed by Donahue. Civil suits involving marriage certainly came before English courts at the behest of parties who did not seem to suffer for it as much or as often as they would have in northern France, but there is nevertheless more to this English story, including