Bigamy and Christian Identity in Late Medieval Champagne. Sara McDougall
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to handle couples entering into second marriages who sought the nuptial blessing despite the prohibition. Apparently, these priests often granted their parishioners’ requests and presumably were often well paid for their willingness to grant their parishioners’ wishes. This happened so often, in fact, that the commissions given papal legates and nuncios regularly included the power to dispense clerics from the irregularity they fell into by giving the nuptial blessing at second marriages.73 The work of Jean-Baptiste Molin and Protais Mutembe on marriage rituals in France offers further evidence of the importance of the nuptial blessing. In northern France, priests seeking to avoid incurring irregularity and to appease their parishioners conferred different blessings to replace the forbidden one and recited the new benediction at a different point in the ritual.74
Deprived or granted some form of the nuptial blessing, in northern France, widows and widowers who remarried also faced considerable legal difficulties. Certainly canon law in no way prohibited the remarriage of widows or widowers, despite the great importance attributed to the ideal of monogamous marriage. Nevertheless, beginning in the late twelfth century, papal letters placed heavy and indeed—if implemented fully—potentially insurmountable obstacles in the path of those men and women who wished to enter into remarriages. To be sure, according to Church doctrine, a widow could remarry without fear of ecclesiastical prosecution. But in defining who was a widow, canonists settled on a lawyerly requirement. According to the canon law of the late twelfth century and thereafter, a widow was a woman who could provide proof that her husband had died. Without such proof, however, those already married to a living spouse, a spouse not proven to be dead, could not enter into any other marriages. The bonds of matrimony could only be dissolved by proven death. To understand the impact of these rules on widows and widowers—illegitimate or legitimate—we must review the medieval canon law of marriage and remarriage in more detail.
The central texts on marriage from the “classical” period of canon law are found in two main collections of medieval canon law: several chapters from the compilation of canons known as Gratian’s Decretum (now believed to have been compiled in two recensions, probably by two different men, both known to posterity as Gratian) and book 4 of the five supplemental books known collectively as the Liber Extra, a collection of decretals prepared by Raymond of Peñafort (d. 1275) and published by Pope Gregory IX in 1234. As we will see, the handling of remarriage underwent a considerable shift.75
On the subject of absent and missing spouses, Gratian offered papal letters that allowed remarriage on the grounds of belief, of good faith. If the spouse left behind believed her husband had died and remarried on that basis, she was without fault as long as she left the second husband and returned to the first as soon as she learned he still lived. Gratian’s selected texts urged forgiveness for a wife who had remarried on the presumption that her absent and missing husband had died. As long as she left her second husband and returned to the first, she could not be prosecuted as an adulteress.76 This forgiving rule, however, left unresolved how long an abandoned wife ought to wait before remarriage and what might constitute an acceptable reason to assume that her spouse had died.
That gap provided ample space for subsequent interpretations of the laws.77 At the close of the twelfth century, amid preparations for the Third Crusade, Pope Lucius III (1181–85), writing ostensibly “to all Christians held in captivity by Saracens” but answering the requests of wives left behind, argued that “a wife should not remarry without knowing for certain of her spouse’s death, and indeed nor should a husband.”78 The letter of Lucius III originally allowed remarriage only if the abandoned spouse had “complete certainty” about the death of the missing spouse. However, Raymond excluded this certain knowledge, an improbably ambitious state of mind in these matters, from the text he included in the collection of decretals.79 The successor to Lucius III, Pope Clement III (1187–91), required something more than certainty of mind. Responding to the petitions of women who had waited more than seven years for their absent husbands’ return, Clement ordered these women to wait until they had “certain news” of death, however long it may take.80 Now, instead of belief, there is a requirement of “certain news.” Instead of “complete certainty” we have a requirement of external evidence. This, then, was how the marital designs of men and women with absent spouses ought to be handled henceforth. “Certain news” meant full proof, which was obtained, for example, with the sworn testimony of two witnesses to a death or documentary evidence.
Raymond of Peñafort provided further commentary on the subject of remarriage in his “Summa” on marriage. As Raymond explained, a wife could not remarry without proof of death, without having “good reason” to think her husband had died. “Regardless of her youth,” if her husband had gone to fight the Saracens or in another faraway place, she could not remarry unless she was certain he had died. This certainty required, for Raymond, the oath of the missing man’s commander or of his friends who knew that he had died.81 Raymond thus placed an imposing obstacle in the path of those married to absent spouses who wished to remarry.
Thirteenth-century secular law offers a mixed record in upholding these rules. In Spain, with evident disregard for the Church’s position on remarriage, the Siete Partidas allowed for the presumption of death after ten years of absence.82 In northern France, meanwhile, the Coutumes de Beauvaisis of Philippe de Beaumanoir (1250–96) offered strict allegiance to the canon law discussed above. As de Beaumanoir wrote, it used to be said that wives whose husbands had left the country could remarry after seven years. But “because of the dangers that resulted,” the Church ordered that no married woman could remarry without certain news of her husband’s death, no matter how long he stayed away. Wives who nevertheless remarried by means of false testimony or some other manner were concubines and their children bastards.83
To return to canon law and to commentary, canonists commenting on the decretals offered a range of views on remarriage, but they generally agreed that full proof posed too heavy a burden for spouses with absent partners and allowed remarriage on a presumption, ideally one adjudicated in court and with a judge’s assessment of the likelihood of life or death. According to these commentators and as found in the most important commentary, the Glossa ordinaria, a reasonable presumption of death was all that was necessary to allow for remarriage. Hostiensis, perhaps the most celebrated canonist of the thirteenth century (c. 1200–1271) and a most “humane” scholar,84 offered a practical, flexible, and compassionate interpretation of the laws in his Summa aurea, arguing that a reasonable presumption of the death of a first husband was all that should be required for a second marriage, which arrived when it was generally believed that the first husband had perished.85 Hostiensis recognized that not everyone agreed with this view but maintained that he was more nearly correct than they. Nevertheless, in the Lectura, written later in life (1270–71), Hostiensis warned strongly against remarriage without sufficient cause to presume an absent spouse had died.86
In the fifteenth century we find a voice of dissent. Nicolao de Tedeschi (1386–1445), bishop of Naples and an extremely influential canonist known as Panormitanus, required evidence for remarriage in the strictest of terms. In calling for a “certificate of death,” Panormitanus insisted that canon law should not ever presume that a missing person has died. Instead, the law should presume that a person will live a hundred years.87 Perhaps once a missing spouse’s hundredth birthday had passed, any surviving spouse might then remarry. If something of an outlier among the commentators, the strict requirement offered by Panormitanus had its advocates in the realm of local law and legal practice.
Let us turn now to local law. However important these works of legal commentary such as the Glossa ordinaria or the work of Hostiensis might be to the minds of canonists, their efforts at mitigating the strict rules for remarriage were either unknown or discounted in the making of synodal statutes in much of northern France and in Burgundian lands. As found beginning in the thirteenth century, the diocesan legislation of northern France handled the question of remarriage with far more severity than that proposed in much of the classical, central canon law texts, and certainly with much more severity than found in much of the commentary written on these laws.
Thus the statutes of Rouen, Paris, Cambrai, and Troyes required documentation