Bigamy and Christian Identity in Late Medieval Champagne. Sara McDougall
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to English ecclesiastical justice, certainly more focused on sexual offenses but nevertheless also touching on marriage.
The work of a handful of scholars, including L. R. Poos and Richard Wunderli, offers discussion of much more regulatory and intrusive English ecclesiastical court action, with much of that action aimed at the marital as well as the sexual practices of the laity.122 Scholarship that focuses more exclusively on marriage litigation also makes at least occasional references to punishment for marital or sexual offenses.123 As Helmholz explains, some marriage litigation involved couples accused of fornication, who risked “humiliating public penance” if they did not marry or at least promise to be automatically married if they ever slept together again.124 In the thirteenth century, church courts punished adultery and fornication with a whipping around the parish church or market, or both, practices that persisted into the fourteenth century in the diocese of Rochester.125 In the fifteenth century, in Canterbury and Rochester, we find instead the use of public procession on a Sunday or Sundays, barefoot and in sackcloth, carrying a burning candle. This punishment does not seem to have been universal in late medieval England: whipping for sexual offenses appears in records from York and Hereford in the late fifteenth century, and we see the use of fines as well, at least for adultery.126 Fines seem to have been made use of most prominently in London: Shannon McSheffrey and Richard Wunderli show the widespread use of fines as punishment for a range of marital and sexual infractions.127
Drawing on records from across England spanning the fourteenth through sixteenth centuries, Poos points to attempts on the part of various local courts—sometimes clearly working in tandem with visitation records—to regulate marriage, suspect cohabitation, and adultery or fornication. Much as in northern France, couples were ordered to separate until they could prove that an absent spouse had died or otherwise prove their marriage was valid.128 For marital and sexual infractions, Poos identifies penance and excommunication as punishment. Sheehan also offers an example of the punishments of excommunication and penance in Ely (and that it was performed, whatever it was).129 In London, according to Wunderli, the commissary court normally punished offenders with public or pecuniary penance. Here, as in fifteenth-century Canterbury and Rochester, public meant a public procession leading to the church, with the penitent in sackcloth and carrying a lighted candle. Public punishment was often commuted to fines, which ranged at a judge’s discretion depending on the wealth of the individual and the severity of the crime.130
As alluded to already, the fourteenth-century court of Bishop Hamo of Rochester punished offenders with beatings or whippings around the church and/or around the market. These punishments are extremely difficult to parse, but for what it is worth it seems on the whole that the court punished “simple” fornication as well as fornication related to clandestine marriage with whippings around the church (only), while adultery and some other marital offenses, meanwhile, often included whippings around both the church and the market. Johnson posits that poor and low-status persons faced beatings, while higher-status persons were punished instead by fines and pilgrimages.131 We can add to that distinction that the court also punished clergy found guilty of sexual offenses with fines and pilgrimages rather than public physical punishment. Lindsay Bryan made use of Bishop Hamo’s register to study 124 cases involving marriage and sexual morals, including a number of ex-officio cases, cases brought ostensibly on accusation, rumor, or as a result of an episcopal visitation.132 Fornication was punished by a fine or by a public beating three times around the church. Adultery was punished by two or three beatings around the market and the church. Sorcery met with six beatings around the church and the market, usury three around the church and one around the market.133 Looking to late medieval Durham, we find once again an emphasis on the prosecution of sexual rather than marital offenses and the use of the archdeacon’s court. In Durham, the prior’s archdeaconal court seems to have done the sentencing and whipping for sexual delicts, delicts that often had ties to marriage and more than a whiff of bigamy about them. To be sure, bigamy is not the focus of the investigation or the explicit reason for punishment in the bulk or even mass of cases studied thus far.134
All this makes England look something more like northern France in its general character and handling of the laity. One difference lies in the English use of whipping or beating, which may well have happened in northern France but is not mentioned in the northern French court records.135 There is additionally a difference in focus, with English courts seemingly more preoccupied with the punishment of sexual offenses, while northern France regulated and punished both illegal marriages and sexual offenses. There are potentially real differences in the numbers, but that is difficult to access. As for public punishment, what Helmholz and Wunderli describe as public penance, the penitent processing to church with a candle, resembles what we sometimes see in Cambrai and Rouen.
All this took place alongside the cases studied by Donahue, civil cases that dissolved bigamous unions and made no discernible mention of prosecuting or punishing the guilty bigamist. It is as if we have visited two parallel worlds, one in which the English punished marital and sexual offenses and one in which they did not. There are many reasons for this. Donahue, for example, could not discuss punishment in any detail for the cases from York, because the sentences did not usually survive. Donahue found only a few references to sentences, but not what any punishment was, and some mention of penance for perjury related to a marriage case.136 The court in Ely studied by Donahue kept a separate register of fines, so some offenders in Ely were presumably fined, or at least could have been fined, but those fines do not play a role in Donahue’s analysis of marriage litigation at Ely, and so we cannot bring them into this discussion. Donahue’s description of court activity does give a vague sense that in Ely the archdeacon did the punishing (or at least warning) when couples lived together and should not (or lived apart and should not), but that the bishop of Ely claimed jurisdiction over defining a marriage as legitimate or not.137 Perhaps even in those latter cases further punishment beyond any fines recorded in the bishop’s register of fines was also handled by the archdeaconal courts. The bishop sentenced to penance a chaplain involved in an illegal solemnization of a marriage (illegal because of a known prior bond).138 According to Donahue, the Ely court imposed a penance for no office cases involving informal marriage. The court did impose penance for a confession of fornication, but “the court did not think that its job was to punish people for having contracted informally.” As Donahue adds, however, there must at the very least have been fees, as all medieval courts, except evidently in Sweden, charged fees.139
All this said, where did bigamy—as found in both marital litigation and adultery prosecution—fit in between these brighter and darker sides of English ecclesiastical justice? We know from Bishop Hamo’s register that a bigamist, like an adulterer, might face the punishment of whipping. Bishop Hamo’s register also includes a handful of precontract cases that do not seem to have resulted in any penances.140 These were usually cases in which the banns of a marriage were interrupted with a claim of a prior bond that the court would subsequently investigate and rule on. There are a few other cases, however, that look something more like punishment for bigamy, though they could easily fall into the broader category of punishment for fornication or adultery, or—if perhaps less frequently—a consummated clandestine marriage. For example, Alice, who had contracted marriage with John and consummated it, later contracted marriage and consummated it with Ralf. The court ordered Alice and John to solemnize their marriage on penalty of excommunication and stipulated that Alice have no communication with Ralf. The court punished John and Alice with three whippings.141 Another example of a bigamy case that resulted in punishment begins with the excommunication of one John, who had failed to perform the required penance for adultery. The court also investigated his “marital projects” with three different women. He admitted that the first marriage was clandestine and that he had also married the next two women in some fashion. John was ordered to solemnize his first marriage and to be whipped three times around the market and the church.142
In short, apart from these few examples, punishment for bigamy is difficult to find in records from medieval England. Moreover, it is, in fact, difficult to say if these punishments noted above did not have more to do with fornication or adultery than bigamy. It is even more difficult to find descriptions of punishment, as well as explicit