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CHAPTER 1


Marriage and Remarriage in the Later Middle Ages

Law, Theology, and Culture

The fifteenth-century registers of the Bishop of Troyes’s judicial court tell a strange story.1 Amid the destruction and chaos of the Hundred Years’ War, in the Champagne region of northeastern France people were marrying more often than the law permitted. More curious still, in the course of concerted efforts to restore order in the diocese, the bishop’s judicial court investigated and prosecuted many of these oft-married men and women, detaining them in the bishop’s prison in the course of an investigation and fining the largest number of offenders. Those found to have willfully violated the law in their mode of marrying (almost all men) the court subjected to public punishment and lengthy imprisonment.

That such prosecutions took place at all, let alone with such vigor, will surprise many historians of medieval and early modern France. Historians have not recognized how interventionist northern French church courts could be in matters of remarriage. To be sure, scholars who study the records of local church courts, called officialities, have begun to recognize that northern France served as host to unusually proactive and regulatory ecclesiastical courts.2 But we have not understood two central factors of this regulatory behavior: we have recognized neither the importance of remarriage in this context nor how energetically these courts, and the diocesan court of Troyes in particular, acted to prevent and prosecute bigamy.

My purpose in this chapter is to situate the reader in the legal, theological, cultural, and social context of marriage and remarriage at the end of the Middle Ages, as background to the court action that took place in fifteenth-century Troyes. Beginning with some of the major historiographical trends, I then turn to the theological and legal rules for marriage and marriage symbolism in particular, studying the impact of these rules in late medieval law, court practice, and society. I close with a description of the surviving court records of the officiality of Troyes, the principal sources for this book, and an initial analysis of the bigamy cases found in the these records.

We have known for some time that marriage arrived at something of a crisis point at the end of the Middle Ages. We have known this not least because postmedieval sources say so with such vehemence. For somehow the sixteenth century bursts forth with complaints, criticisms, and the most radical solutions to seemingly all-consuming problems with marriage—problems not only with the canon law of marriage itself and the ecclesiastical courts charged with implementing these rules but also with the behavior of ordinary Christians who married in ways that offended ecclesiastics, theologians, jurists, and reformers of all stripes on both sides of a growing confessional divide.3

What was this crisis about? If the rules governing Christian marriage were to blame, scholarship on medieval law and the family has suggested two possibilities: incest prohibitions and clandestine marriage. This book will offer a third: remarriage.

To begin with incest prohibitions, it might seem natural to suppose that the medieval Church’s infamously expansive prohibitions on marriage between those related by blood, marriage, or spiritual bonds were the principal source of the crisis. In fact, there was a time when many scholars described these incest prohibitions as one of the most burning issues of medieval marriage litigation. Out of all of these rules and regulations that emerged in the Christian Middle Ages, those concerning consanguinity, or blood ties, were long considered the most important aspect of medieval marriage formation and dissolution.4 In particular, the prominent and influential scholars Jack Goody and Georges Duby occupied themselves greatly with explaining and emphasizing medieval concerns over incestuous marriage.5 One can certainly understand why these scholars focused on consanguinity prohibitions and their role in western European marriage practices. Medieval canon law and theological writings offer a wealth of discussion on forbidden, incestuous marriages, accompanied by genealogical trees depicting kinship and expressions of horror over the monstrous children incestuous unions might produce. If we measure the importance of a topic by the sheer volume of treatment in known medieval canonical and theological sources, there is hardly any doubt that the rules on prohibited relationships were of fundamental importance.

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 in Rouen, Cambrai, Paris, and Troyes offer some of the more striking examples of strict legislation on marriage formation, all demanding a great deal of aspiring spouses if they wished to marry without incurring excommunication or other sanctions.17 For example, Paris statutes, issued in the late twelfth century, not only required banns and publicity for marriages contracted in the diocese but also punished by automatic excommunication any couples who violated this rule.18 Statutes issued in Rouen in 1230 threatened excommunication and a fine for any present-tense marriage made elsewhere than at the doors of the church.19 In Troyes, by the fourteenth century and probably well before, we find much the same rules.20

As ever, both the practices and the rules for marriage formation differed considerably across Europe. We know best, of course, the sorts of marriages that later served as subjects of litigation. Marriage practice in medieval Europe, as many scholars have urged, is best understood as a process, a process that may have begun either in a haystack or with a meeting between parents and a notary and might involve several stages that sometimes involved the local church and sometimes did not. In London, couples often married in the home of the bride’s parents or in another home, in a tavern or in a public hall, and ideally but by no means necessarily in public, with witnesses.21 Marrying couples and their families in London seem to have often skipped a visit to church but nevertheless married with ritual, publicity, and in stages.22 Across England couples often promised to marry in the present tense—that is, saying “I marry you” and sometimes, if they followed through on the marriage, reiterating these promises at the church door.23 In Italy—if one dare generalize about so diverse a place—couples often married in private homes and with a marriage contract drawn up by a notary.24 Marriage in Spain at least sometimes included a blessing in or near a church, at least more often than in Italy, if not perhaps as often as ecclesiastical officials preferred.25 In Sweden, marriage might take place at the church door, but canonical insistence on the free consent of the bride came into conflict with older, secular traditions that required the consent of the bride’s “marriage guardian,” usually her father or closest living adult male relative. A priest who married a couple without the marriage guardian’s consent could face a considerable fine.26 Before the Council of Trent, or before the various Protestant churches changed the rules for marriage formation (or, in the case of England, did not), for the most part officialities became involved only when a party or parties initiated a marriage dispute in court.27

Meanwhile, records from fifteenth-century northern France and Burgundian lands reveal a difference in marriage practice and in marriage regulation. The broadly similar patterns of marriage practice and litigation found in northern France and the Burgundian lands offer many contrasts to marriage practice and litigation found in England, Italy, Spain, Switzerland, and Germany: many contrasts in the rules, in the regulatory attitude of courts, and in social practice. As alluded to already, synodal statutes detailed strikingly high requirements for entrance into marriage without risk of legal penalties, requiring not only publicity and a priest’s blessing but also documentation proving that an aspiring spouse was free of prior marriage bonds.28 Such requirements could, of course, be avoided by means of a clandestine marriage, but those who married without banns, a priest, and some paperwork might face fines and investigation into the validity of the marriage. Even so, many more couples seem to have made use of the church door and the blessing of a priest in northern France than elsewhere, for engagements as well as for marriages.29

Engagements took place in a variety of ways, described in different terms in the court registers. Common practice included an exchange of promises in the future tense made in any number of more or less formal or intimate venues, but the church door and a priest’s blessing seems to have been the intended destination for most marriages.30 Creantare, a Latinate rendering of the French word creanter, was used, at least in Champagne—and in Switzerland and the Savoy region, if evidently nowhere else—to mean a sort of engagement that took place in a home, often over a meal and with family and neighbors present, or in private. A typical informal contract of this type might involve promises to marry toasted with a drink or sealed with a gift such as a flower or a coin.31 These informal promises to marry were technically illegal but were valid and binding forms of engagement nonetheless. The Troyes officiality collected a fair number of fines from couples who had exchanged vows in this way.

Other forms of engagements were made with more formality and publicity. These engagements and marriage often involved Church participation in some form, either full in facie ecclesie vows with the announcement of banns and at a parish church or less public espousals made in a chapel or with the participation of an ordained cleric. Canon law and court registers made use of different terminology for these more formal forms of engagement and marriage, though these differences are difficult to understand. Carole Avignon has argued that the terms “affidationes” and “sponsalia” should have been used for future and present-tense engagements respectively. “Desponsatio” and “sponsalia” in late medieval practice developed different meanings. “Desponsatio” came to mean a marriage, while “sponsalia” still referred to an engagement, consistent with older, Roman usage.32 In any case, the court in Troyes does not seem to have managed always to uphold these distinctions.33

All this reveals considerable local variety. When it comes to the rules and practices of marriage formation, when it comes to the distance between law and court practice and the actual behavior of couples who married, we find with late medieval marriage a complex state of affairs indeed. Depending on when and where a Christian lived, the rules and the social norms differed considerably. Nevertheless, despite all this great variation in local practice, the canon law of marriage did not vary on the validity of clandestine marriage. Canon law, seemingly despite itself, required only an exchange of promises for a marriage to be valid, and so a great number of people who had promised one thing or another were technically married, if they liked it or not, and some people had good reason not to be sure of their marital status.

So was clandestine marriage the dominant factor in marital litigation that thrust the institution of marriage into crisis? And if so, how? It is clear that the availability of clandestine marriage created some problems. But where precisely did these problems with clandestine marriage lie? There is, after all, more than one possibility. Martin Luther and John Calvin both, along with many staunch Catholics, believed that the canon law of marriage posed a major challenge to parental authority. Many scholars have concurred, reading the later Middle Ages largely through Luther’s eyes. Yet careful modern studies of the late medieval sources have provided little support for this belief. Nor do the late medieval sources reveal any widespread problems with the exploitation of clandestine marriage as practiced to conceal a violation of one of the many incest prohibitions. Here again, recent research does not bear out the hypothesis that clandestine marriage—because of incest prohibitions—was the burning issue.

In point of fact, it was not clandestine marriage but remarriage, as this book will demonstrate, that was the great and burning problem that led to crisis. Inevitably, the canon law of marriage created immense difficulties for abandoned or confused spouses scattered throughout western Europe. In such circumstances, it could be difficult indeed to prove that an absent or reluctant spouse was indeed your spouse. Moreover, remarriage compounded the problem, as many of those men and women entered into new unions, doing so both clandestinely and also publicly. As Church officials themselves recognized, Christians married all too often, binding themselves first to one and then to another spouse and sometimes even yet another, marrying more times than legally possible.

Clandestine marriage certainly played a part. The Church’s own rules on marriage formation contrasted sharply with the rules that virtually prohibited both dissolving any valid marriage and supplementing another spouse while a first lived. The disparity between the ease with which people could marry and the absolute refusal to allow any person, once married, to take another spouse while the first spouse lived set up a stark conflict. It meant in principle that people could easily enter into marriages they might later want to escape, and also that they could easily enter into second marriages despite being already committed elsewhere. This was precisely the objection to clandestine marriage that we find in the mid-sixteenth century at the Council of Trent, which finally declared clandestine marriage invalid. Despite the belief that consent alone made a marriage, man’s bad behavior, “man’s disobedience,” required the Church to change its policies. Clandestine marriage could no longer be allowed because of “those parties who live on in a state of damnation, when, having left their former wife, with whom they had contracted marriage secretly, they publicly marry another, and with her live in perpetual adultery.”34

Out of all of the objections to the canon law of marriage voiced in the sixteenth century, this decree comes closest to describing what the fifteenth-century problem with marriage actually was. Even this ban on clandestine marriage—a ban established because informality could conceal an act of bigamy—does not precisely describe the fundamental cause of the crisis of marriage found in fifteenth-century sources. In northern France, at least, the problem was not so much that people were marrying in secret but that they were marrying and remarrying in public, with the Church’s blessing. They also married and remarried in secret, but the problem was the remarriage itself much more than how publicly or privately the remarriage was made.

This book traces the developing crisis over remarriage as found in fifteenth-century northeastern France, with some reference to the rest of northern France and Burgundian territories. Focusing on this region rather than making a broader geographical study may seem an artificial means to discuss a much larger and more diverse situation of marriage at the end of the Middle Ages. But one of the most important aspects of this crisis of marriage is that it only manifested as crisis, only existed, only mattered, in such places and times as the law on indissolubility and the ban on bigamous marriages was implemented.

Looking to the surviving ecclesiastical court records of northern France, we find evidence of considerable efforts on the part of diocesan officials to prevent marriages made otherwise than with banns and the public blessing of the match by a priest. We also find a large number of cases in which men and women made public and blessed marriages but in which the courts subsequently dissolved or cast into a sort of legal limbo the legitimacy of these marriages. These courts took this drastic step because one or the other spouse had failed to prove their freedom from prior marriage bonds. Finally, the registers of the officiality of Troyes reveal a remarkable number of cases in which men and women found to have willfully married despite being already married faced harsh public punishment and imprisonment for this act of double marriage, a crime we would call bigamy.

It must be emphasized once more that nothing like this crackdown on bigamy is known to have taken place elsewhere in Christian lands before the sixteenth century. Certainly we find the threat of such punishments in ecclesiastical and secular legislation as early as the thirteenth century. It is, however, one thing to threaten people with such punishments, but quite another thing to actually impose it.

In fifteenth-century Troyes, such punishments were actually imposed. Whatever problems clandestine marriage may have caused in fifteenth-century Troyes, bigamy was considered a far more grave problem. As Beatrice Gottlieb, the first scholar to make a full-scale study of marriage litigation in fifteenth-century Troyes and neighboring Châlons-en-Champagne, wrote: “[Bigamy] was unquestionably the worst of all the offenses related to marriage and sex, as can be seen from the penalty … Clandestine marriage, no matter what form it took [in a chapel, at a tavern, using words of the present or future tense] was regarded as less reprehensible.”35

Having identified as the central cause of crisis this conflict over remarriage, which in the diocese of Troyes resulted in the prosecution of bigamy, we must also ask why. Why did northern French courts make such efforts to regulate marriage? Why did northern French couples marry and remarry so often in the first place? Why did marriage matter so much, to the ecclesiastical officials and to the men and women who married and remarried?

We cannot understand this behavior without extensive recourse to law and to theology extending far back before the fifteenth century. Actual records of prosecution emerge only from the surviving sources of the later Middle Ages, but laws against bigamy date back to antiquity. We must also immerse ourselves not only in what is sometimes referred to as the legal culture of a court and community but also in the culture of the community more broadly. We must understand what marriage meant in late medieval Troyes, as found in its laws, its theological traditions, and its culture, high and low. We must, in short, understand the place of bigamy within the Christian tradition. The role of bigamy and of the laws prohibiting it in the Middle Ages has received little scholarly attention. It is, however, of fundamental importance, both for an understanding of marriage in the later Middle Ages and for the history of marriage in the West.

The exaltation of monogamy and the ban on bigamy proved central tenets of Christian identity at the end of the Middle Ages, but their origins trace back far earlier. Bigamy was important above all because monogamy was so important to Christian marriage and to Christian identity, identity as defined by the Church Fathers in late antiquity and their Western successors. It is important to emphasize that the ideal of monogamy, central to the Christian definition of marriage, had a tremendous impact not only on married couples but also on clergy. The symbolic power of the ideal of monogamy played a role in all manner of vows and obligations. Many different status and societal relationships were symbolically understood as marriages, and all marriages had to emulate the model, monogamous marriages of Adam and Eve and Christ and the Church, about which a great deal more follows.

Recent scholarship, most notably that of David d’Avray, has shown the importance of marriage symbolism in medieval law and theology and its dissemination in medieval society.36 As I argue, this marriage symbolism also played a central role in the practice and prosecution of those Christians who married while already married to a living spouse. Indeed, such double marriages shook this symbolism at its core. The ecclesiastical court and perhaps even the community understood few other actions taken by a married person as such a challenge to the fundamentals of Christian marriage, its core values of monogamy and indissolubility.

In the Christian tradition, remarriage in any form was a problematic act. Christians were, in principle, supposed to marry only once. This rule applied both to laity and to clergy, and to all forms of remarriage: successive, concurrent, and figurative. Marriage was always ideally a singular and exclusive event. We gain a great deal in recognizing the ways in which the symbolic nature of all of these forms of marriage derived from the same roots.

The Christian tradition set forth two models for what Christian marriage should be, one from the Old Testament and one from the New. First, marriage had to resemble the union of Adam and Eve in the Garden of Eden. As recounted in the Book of Genesis, God created Eve from one of Adam’s ribs and joined the couple together, in a phrase constantly repeated throughout the Middle Ages, as “two in one flesh.”37 This first model marriage, instituted in paradise by God and blessed with the injunction “increase and multiply,” implied that Christians, if they could not live a life of sworn celibacy, should marry, one man to one woman, chastely united as two in one flesh, as closely and inseparably joined as in the model marriage of Adam and Eve.

Christian marriage was to resemble not only the Old Testament model of Adam and Eve but also the New Testament model of the union of Christ and the Church. Here the key text was the fifth chapter of Ephesians, which instructed Christians to imitate God.38 In particular, Ephesians compared marriage between a man and a woman to the symbolic “marriage” of Christ and the Church. Both marriages, earthly and spiritual, required love and submission, with husbands the head of their wives just as Christ was the head of the Church. All those who married should follow the model of Christ and Church. As the Church married only Christ and no other gods, so too should Christians take only one spouse.

In late antiquity the Church Fathers drew upon both these models in forming a definition of marriage as an exclusive, monogamous bond, one that could not be divided and one that should not be repeated.39 Just as priests and monastics were to consecrate themselves to the Church in an indissoluble bond, so laypeople ought to consecrate themselves once, if at all, but only once, to a marriage. To quote Saint Jerome:

The creation of the first man should teach us to reject more marriages than one. There was but one Adam and but one Eve; in fact the woman was fashioned from a rib of Adam. Thus divided they were subsequently joined together in marriage; in the words of scripture “the twain shall be one flesh,” not two or three. “Therefore shall a man leave his father and his mother, and shall cleave unto his wife.” Certainly it is not said “to his wives.” Paul in explaining the passage refers it to Christ and the church; making the first Adam a monogamist in the flesh and the second [that is; Christ] a monogamist in the spirit.40

Jerome was not alone in this view. The orthodox view shared among the Church Fathers, even as they expressed more or less extreme views on the subject, was clearly that Christian marriage ought to be this singular and indivisible bond. In insisting on this definition of marriage, they confronted a problem that was not precisely the same as that of late medieval bigamy: the problem of polygamy, which manifestly violated their definition of marriage. In particular, the polygamy of the Old Testament patriarchs seemed to pose a challenge to the Christian insistence on monogamy. Indeed, the patriarch Jacob had two wives and two concubines, and King Solomon had hundreds of each. As the Church Fathers claimed, however, the polygamy of the patriarchs was not to be understood as an example to follow but rather as a sign. Jacob’s marriages to Leah and Rachel, for example, prefigured Christ’s marriage to the Old and New Testaments. Weak-eyed Leah stood in for the blind Jews (who failed to recognize Christ’s divinity), while Jacob’s beloved Rachel was the spouse who signified the Church.41 These theological conclusions would also apply to the bigamous Christians of northern France who did not actually keep their multiple spouses with them but were married to more than one at a time.

In the Western Church, most clearly from the ninth century onward, an absolute ban on both bigamy and divorce with any right to remarry held firm throughout the Middle Ages.42 To give one example, in the thirteenth century Innocent III completely rejected the idea that the polygamy allowed to the patriarchs might also be permitted Christians:

We have read that the patriarchs and other just men before the law and after the law had many wives in common…. But this seems incompatible and contrary to Christian Faith, where from the beginning one rib was turned into one woman, and it was testified in divine Scripture that because of this a man shall leave his father and mother, and cleave to his wife, and they shall be two in one flesh. It did not say, “three or more” but “two” nor did it say “shall cleave to wives,” but “to wife.” … And so that truth may prevail over falsehood, without any hesitation we state: that it was never in any way lawful for anyone to have several wives at once, unless it was conceded by divine revelation….”43

In short, Christians who married were told to follow not the example of the patriarchs but the example of Adam and Eve.

In this context, what did canonists and theologians say about the real possibility that Christians might nevertheless, in defiance of the law, marry themselves to more than one living spouse? Here an important terminological question presents itself. To marry while already married to a living spouse was an offense that, in the Christian Middle Ages, had no name. In the modern world we describe such a marriage as “bigamous” and the twice-married person as a bigamist. However, in the Middle Ages, bigamy was a term used to describe any manner of remarriage, both those marriages made following the death of a spouse and also marriages contracted while a first spouse lived. The great thirteenth-century canonist Hostiensis made some effort at resolving this ambiguity by distinguishing between “true” bigamy (two at once) and “interpretive” bigamy (remarriage after death or annulment),44 but on the whole those called “bigamists” were spouses who had married more than once in succession, especially clergy.

Indeed, medieval canon law and theological texts emphasized most clearly the considerable importance of bigamy in determining clerical status.45 Under the rubric of “bigamy,” medieval canonists and theologians most often discussed the status of clerics who had either married more than one wife in succession or who had married a widow. In marrying in these ways, clerics transformed themselves into bigamists. This meant that they could never become priests and never rise in the ecclesiastical hierarchy above the rank of subdeacon. They also could not seek the milder justice of ecclesiastical courts if threatened by secular authorities.46

As this shows, to become a bigamist was to make an irrevocable change in one’s status. While even a priest guilty of fornication or some other crime might be allowed to continue as a priest after penance, a man married to more than one wife in succession could not ever become a priest. Drawing on Genesis and Ephesians and upon centuries of tradition, Innocent IV gave his reasons for this rule, reasons that we have seen before. Why did the priesthood exclude bigamists?47

I reply it is because the words: “os, caro, carne, uxori” “bone, flesh, from flesh, to wife” are in the singular. And also because of the final word of the phrase “they are two in one flesh” … marriage between two only is the sign of the one Church of which Christ is the one Husband.

But what about concurrent remarriages? As for those Christians already married to a living spouse who concurrently remarried, as another great thirteenth-century canonist, Raymond of Peñafort, insisted, it was improper to call those who had two wives at the same time “bigamists,” because it was not possible to be legitimately married to two women at once.48 If canonists debated over what to call the offender, the offense of marrying while already married at least had a name, if a rather imprecise one in that it could easily seem to describe successive remarriage as well as concurrent: “binae nuptiae” or “bina matrimonia.”49

The main topic of this book is not the bigamy that prevented clerics from advancing in holy orders but the crime of bigamy. Having just admitted that many weighty authorities said that one should not call a person who was married to more than one spouse at once a bigamist, such a statement may seem anachronistic or just wrong. In light of this traditional use of the term bigamy to describe clerical status rather than a criminal remarriage, the use of the word “bigamy” may seem inappropriate to describe a medieval act of concurrent remarriage. Indeed, David d’Avray included the text of Innocent IV quoted above in his discussion of bigamy in his book Medieval Marriage50 and drew from it and other passages the plausible conclusion that for the Church, concern over bigamy was concern over clerics who could not become priests, not Christians who married while already married to a living spouse. For d’Avray, the marriage symbolism found in this passage is related only to the prior marital status of a cleric who wished to become a priest or to the remarriage of a widow or widower following the death of a spouse.

D’Avray is clearly right insofar as prosecution records against men and women who married concurrently almost never use the word bigamy. Nevertheless, while there are risks any time a scholar chooses to use arguably anachronistic terminology, I think there are good reasons to use the term as I use it in this book. My reasons have to do precisely with d’Avray’s analysis of the importance of a monogamous bond as a symbol. In fact, unless we permit ourselves the modern use of the term “bigamy,” we will not grasp the full significance of the marriage symbolism that d’Avray has so powerfully described. The theological concern over bigamy so central to marriage symbolism extended well beyond the status of clergy; to concurrent marriages, to criminal bigamy.

We must not allow fidelity to medieval terminology to prevent us from recognizing the medieval links between all sorts of remarriage and the real theological significance of concurrent remarriage. We must not exclude these ideas from our understanding of the criminal bigamy a layperson might commit. Even as they did not use the same words, medieval popes, canonists, and theologians clearly saw the two as connected. The quotation I reproduced earlier from Innocent III, as well as that of Innocent IV, makes this connection clear. In medieval canon law, the symbol or sacrament that barred a bigamist from becoming a priest similarly barred any person married to a still-living spouse from remarriage, and for the same reason: all Christian marriages—between two Christians and between a priest and his parish—had to be monogamous and indissoluble, like those of Adam and Eve and of Christ and the Church. Those who acted as if it were possible to lawfully marry while already married to another violated the same symbolic requirement as twice-married men who subsequently sought to become priests.

Accordingly, for two hopefully persuasive reasons, I will use the term bigamy. First, as I am writing for a modern audience and not for medieval canonists, I want to use the term because the behavior I wish to describe most closely resembles the crime of bigamy as we understand it today. Second, linking the legal and illegal forms of remarriage in using the term makes an important point: while these two methods of marrying were two very different things with two very different consequences, they were at the core inherently linked.

There is another reason why we should not limit ourselves to a narrow understanding of bigamy, for the hostility toward remarriage affected more Christians than those clergy who wished to advance in orders and those men and women who wished to remarry despite being already married to a living spouse. It also affected a third category of persons: Christian widows and widowers were also tainted by the brush of bigamy when they remarried, even though their remarriages did not violate canon law.

The attitudes of medieval people toward widows have received a good deal of attention from scholars whose findings reveal manifold pressures on widows not to remarry.51 Katherine Clark has argued that making marriage one of the sacraments of the Church and the concern over helping souls out of purgatory as formed in the High Middle Ages had real impact on widows in particular, and above all in the later Middle Ages. These theological ideas, she argues, provided an incentive to push women toward maintaining a chaste widowhood on the death of their husbands. If widows refrained from remarriage, they might instead focus their energies on a “spiritual housekeeping” that would propel their late husbands all the faster into heaven.52 Clark gives the example of a fourteenth-century poetic tale entitled “The Gast of Gy.” This story recounts the experiences of a widow haunted by the ghost of her husband, who was suffering in purgatory because of an undisclosed sexual sin they had committed together. Tormented, he begged her to intercede for him. The wife consulted a Dominican friar, who convinced the deceased husband to stop haunting his wife if she promised to remain unmarried and pay for three hundred masses to save his soul.53 Widows, Clark concludes, were encouraged to remain faithful to their deceased spouses. Doing so not only upheld the principles of indissoluble marriage but also might concentrate and improve on a widow’s efforts to hurry a deceased spouse out of purgatory.

Other scholars have concurred with Clark that hostile attitudes toward widows who sought to remarry had hardened by the High and especially late Middle Ages. In places such as Italy, England, and the Low Countries, social and economic disincentives for widows who remarried increased.54 Scholars point in particular to legislation on property rights and inheritance. They argue, for example, that marital property regimes in some places were specifically designed to discourage remarriage.55 Widows who remarried might lose guardianship of their children or some or all of their inheritance from their deceased husband.56

Moreover, widows who remarried might face social derision in addition to economic losses. Scorn for those who remarried was often expressed in a popular ritual such as charivari.57 In these carnivalesque events, the wedding night of a couple was disturbed by a procession of rowdy singers and hecklers.58 It is important to recognize how prominently scorn for remarriage by widows as well as widowers figured in the culture of charivari. Charivaris have generally been understood by modern scholars as popular expressions of unrest by young unmarried men who were reacting to the marriage of an older man to a young woman they themselves might have liked to marry.59 Natalie Davis has offered a refined version of this interpretation. As Davis argues, charivari took place because of a need to placate the dead spouse and as a sort of expression of consideration for the children from the first marriage. Most important for Davis, the rites took place as expression of communal resentment when an old widow or widower took a young, eligible spouse, thus depriving village youths of a spouse their own age and the village itself of the greatest possible number of offspring.60

These popular rites are also susceptible to a quite different interpretation.61 As Claude Gauvard observed, these rites did in fact typically involve the remarriage of a widow or widower. If viewed in the larger cultural context of medieval marriage symbolism, it seems probable that the charivari was enacted against second marriages because of a distaste for second marriages that developed more from theological quibbles than societal. Theologians and canonists had offered much by way of derision and exclusion for second marriages, depriving these unions of the nuptial blessing, a ritual reserved to first marriages only,62 and even debating if such marriages were sacramental, if ultimately deciding they were. Charivaris too robbed second marriages of their honor.

Second marriages may well have provoked charivari simply as second marriages, different and less holy than first unions, and therefore to be treated differently both by the priest who refused to perform the nuptial blessing and by the rowdy enforcers of public morality. Certainly the Church legislation suggests as much. Church officials in northern France perceived these rituals as a response to second marriages. Synodal statutes from late medieval dioceses across France include prohibitions of charivari deriding second marriages in particular:63

As it is damnable to condemn or vituperate first or second marriages, as the sacred canons declare, and as is documented in the New and Old Testaments, therefore it is a shameful or noxious game, contrary to good mores, and especially going against the sayings of the Apostle, for any marriages especially the second to be in any small way disparaged. Marriage (which our Lord Jesus Christ honored and found honorable) is overthrown in derision by those games vulgarly called charivari, games effected through horrible and blasphemous shouting and obscene sayings, under the base transfiguration of insulting devils, with insult and clamor deriding second marriages. We reprove equally libelous or slanderous songs, and we prohibit them entirely in the city and diocese of Troyes, instructing all priests and rectors of parish churches that these things be published in their churches, so that none can pretend ignorance of this prohibition, and that such games are forbidden from the part of the Reverend Father on penalty of excommunication and ten livres, to be applied in pious uses, as against the actors in these games, and as against those who help, advise, and assist them.64

Seeking to put an end to these public disturbances, Church officials throughout France, in Troyes and in other dioceses, threatened offenders with excommunication and fines if they mounted charivaris against second marriages.65 Registers of the officiality of Troyes record fines levied, for example, against those who organized a charivari for the marriage of a widow.66 In all of these sources, the perception of the charivari is the same: it is a rite enacted in mockery of second marriages. What we have with charivari is thus a popular ritual enacted to shame those who married more than once.

There is a paradox in the efforts of the Church to prevent these disturbances. The Church sought to prevent charivari but was in some sense hampered by its own doctrinal practice, for it was confronting a form of social disorder that had emerged in response to its own teachings. To be sure, the Church had traditionally insisted that all marriages, even second marriages, be performed with solemnity.67 However, second marriages were hardly treated as equal to first marriages in theology and liturgy. The charivaris were thus related to the mixed message sent by the Church’s own doctrines, by which second marriages were declared to be at once licit and reprehensible.

Further, second marriages clearly stood out in that they were denied the nuptial blessing reserved for first marriages.68 Pope Alexander III and subsequent popes forbade priests officiating at second marriages to give the nuptial blessing. As Urban III wrote, “A man or a woman, going over into bigamy [in this case, entering into a successive marriage], should not be blessed by a priest, since, having been blessed on another [previous] occasion, their blessing ought not to be repeated.”69 Alexander III ordered that a chaplain who celebrated the nuptial blessing for a second marriage be suspended from his office and benefice until absolved by the apostolic see.70

What was this blessing? Gratian described the nuptial blessing as one that we have had cause to study before in this chapter: God’s blessing of Adam and Eve in Genesis 1:28, the injunction “be fruitful and multiply.”71 As Philip Reynolds has argued, use of this blessing by a priest evoked the doctrine that no man should separate what God had joined.72 This distinction, if employed by dutiful priests, offered the lay public a clear demarcation between the two kinds of marriage, as well as a sort of invitation to recognize this difference and to shame their neighbors when they married in less holy circumstances than provided by first marriages.

We also have further evidence that the presence—or absence—of the nuptial blessing mattered. As James Brundage explains, parishioners often asked priests to give them the nuptial blessing regardless of their status. Priests had to decide how 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 attesting to the marital status of anyone who had previously lived in a different parish or diocese from the one in which they wished to marry.88 The fourteenth-century statutes of the diocese of Troyes prohibited remarriage without first providing proof of death, which required a great deal more than a “reasonable presumption of death.89 In both places, men and women found to have violated these rules regularly faced fines.90

In the records from local courts in other parts of Europe, further evidence of such a firm line on remarriage does not emerge with any consistency. One fifteenth-century court exhibits if anything the reverse attitude to that found in Troyes. In southern Germany, in the diocese of Regensburg, not only did the officiality not subject bigamists to public punishment or imprisonment, but men and women who approached the court seeking permission to remarry—or even to stay married despite being already married to an absent spouse—received explicit permission from the official to do so.91 In England and Italy, while courts did not go so far as to grant permission to remarry without proof, the courts seemed on the whole to handle remarriage with a policy of “don’t ask don’t tell,” a policy that often continued well into the sixteenth century.92 Those married to an absent spouse simply—and not necessarily quietly—remarried, and the court asked no questions unless a suit was brought to challenge the legitimacy of the marriage because of a prior bond. Emlyn Eisenach has found remarkably overt abuse of the canon law governing remarriage in Verona, practices that ended in the 1520s, when regulation of remarriage and prosecution of bigamy began at the instigation of a reforming bishop.93 These differences in both practice and court proceedings concerning remarriage in the fifteenth century, with Regensburg and Troyes at opposite extremes in legal practice, offer some indication of the range of ways in which ecclesiastical courts in fifteenth-century Europe implemented marriage law. At the same time, the evidence of different social attitudes toward remarriage at some, usually lower, levels of society in Verona and Venice may well be indicative of much broader social practice in other parts of Europe.

Even within northern France and Burgundian lands, courts did not see fit always and everywhere to require proof of death before allowing a remarriage. Emmanuël Falzone found one case from Cambrai in which a married woman approached the court seeking permission to remarry.94 On 22 September 1452 Renaude Coppine, the wife of Pierre, had not seen Pierre in two years and wished to remarry. Pierre had left on pilgrimage to Rome but had not returned. In order to prove that Renaude could claim the status of a widow, the official ordered the announcement of banns, designed to seek out any evidence that Pierre lived. If no objections were made, Renaude could be permitted to remarry.

We find a similar practice in one case from Rouen, examined in Carole Avignon’s dissertation. In 1520, two wives who claimed their husbands had abandoned them wished to remarry and approached the official. The official ordered that the parish priests of each man should issue summons during mass for three successive Sundays, calling for the missing husbands to present themselves. If the men themselves or some news of their status did not emerge, the two women could remarry.95

Such a handling of remarriage may have had deep roots in France. A comparable practice is found in Gautier d’Arras’s twelfth-century story “Ille et Galeron,”96 a tale dedicated to a second wife, Beatrix, the wife of Frederick Barbarossa. In that tale the pope wishes the valiant Ille to marry the emperor’s daughter in Rome, but Ille demurs on the grounds that he is already married to the absent (but really not at all far off) Galeron. The pope then orders that a summons seeking Galeron be issued in Galeron’s home diocese. No trace of Galeron is found, Ille agrees to remarry, and the marriage is only prevented (temporarily) by the arrival of Galeron at the door of St. Peter’s on the wedding day.

If Gautier d’Arras, and much more to the point, Hostiensis—along with most canon law commentators—and the officials of Cambrai and Rouen all found such a procedure satisfactory, however, the official in Troyes did not, and this “new” attitude found in Troyes would slowly come to prevail in the Catholic countries of the sixteenth century. A similar attitude can be found in the records of the Paris officiality, in at least one case. In 1500, one Marguerite came before the court seeking permission to remarry. She claimed to be the wife of a long-absent husband who had left her, gone to London, married another woman and had children with her, and died. In this case, Marguerite produced two witnesses to her husband’s death in hopes that she could receive permission to remarry.97 The scholarship of Charles Donahue, Ruth Karras, and Léon Pommeray on Paris reveals similar cases, as well as the prosecution of those who failed to find proof before remarriage.98

This strict regulation of remarriage also extended to include harsh punishment, or at least the threat of it. The real seriousness with which some courts, at least, viewed bigamy is demonstrated by the prescribed treatment of those found to have seriously violated the law. In some statute collections we find specified punishments for those who willfully married despite being already married. Deemed “infamous” in Roman legal tradition,99 their infamy, their status as infamous, was to be displayed to the public by exposing them upon the ladder of the scaffold. A crime committed against the public, as the underlying logic explained, required public punishment, public acknowledgment, and expiation of the wrongdoing.

To offer two examples, the thirteenth-century synodal statutes of the diocese of Tours and the statutes of the neighboring northwestern diocese, Château-Gontier, threatened those guilty of double marriages or engagements with public punishment, enacted on the “scala.”100 As explained in Ducange’s glossary of medieval Latin101 and as illustrated in images such as those identified by Barbara Morel,102 this tool of punishment was the ladder leading up to the scaffold. Such public display on the ladder was used to punish those found guilty of bigamy, of false testimony, of blasphemy, or public scandal of some kind.

So at least the statutes declared. We can and should distinguish between laws that mention this type of punishment and actual evidence of its use. In fact, we know of no bigamists actually placed on the ladder of the scaffold in Tours or Château-Gontier. Indeed, we know of no case in which such punishments were carried out for such an offense in any part of Europe before the fifteenth century. The court records of the fifteenth century are often the earliest surviving sources. As a result, when exactly enforcement of these rules began remains a question we cannot satisfactorily answer.

Nonetheless, we do find scattered evidence of use beginning in the fourteenth century. Bigamists were punished on the ladder in fifteenth- and sixteenth-century Troyes and, if evidently less often, in Paris, Senlis, Rouen, Malines, Pamiers,103 and in the fourteenth century in Marseilles.104 In the south, this punishment came at the hands of secular rather than ecclesiastical officials. Returning north, we can also point to similar proceedings against bigamists that resulted in different punishments, such as penitential processions, pilgrimage, or imprisonment, from Châlons, Cambrai, Bourges, Paris, and Brussels.105 Secular court records from Dijon include fines levied against bigamists in the fourteenth century, possibly if not necessarily part of a process that also included ecclesiastical prosecution and punishment,106 and in 1520 the prévôt of Sens, a secular official, sentenced a bigamist to be whipped before sending him on to the official of Sens, presumably for annulment of the second marriage and for some form of ecclesiastical punishment.107 The surviving synodal statutes from Paris, Rouen, and Troyes, unlike Tours and Château-Gontier, do not specify the use of the punishment of the ladder for bigamy, or indeed any other punishment. Nevertheless, these courts certainly made use of both the ladder of the scaffold and the bishop’s prison as instruments of punishment for bigamy throughout the fifteenth century. As we will see in the final chapter, the officiality in Troyes used these punishments for a variety of offenses in Troyes, and bigamy ranked among them. In fact, the laity of the diocese met punishment on the ladder for no other crime so often as bigamy.

Indeed, between 1426 and 1468 we have remarkably consistent evidence of use, in Troyes, of the ladder and the prison to punish bigamy. The combination of exposure on the ladder and imprisonment was used against those seen to have most grossly violated the norms of the community: bigamists and clerics who became brigands, clerics who not only bore arms but fought battles and attacked noncombatants, stole, pillaged, killed, and raped. Also of great importance is the contemporary context of these prosecutions. In the fifteenth 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 some strong hints of a much more punitive side 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 statements that punishment was absent, in scholarship on bigamy in medieval England. Even scholars who worked expressly on bigamy in England do not offer us a great deal of guidance in this matter. Philippa Maddern, writing on bigamous marriages, analyzed records from London, York, Canterbury, Norwich, Rochester, and Wisbech, ranging from 1350 to 1500. She found 75 cases in which litigants sued for divorce on the grounds of an existing prior marriage, 53 additional cases involving bigamy or adultery brought to court, and 91 ex-officio accusations of bigamy. At least sixteen confessed. Some people, seeking to avoid detection, traveled considerable distances from the place they were known to be married, even to the Continent.143 However, one matter that Maddern does not address is how, if at all, the courts punished those bigamists found to be guilty.144

Sara Butler, writing on husband desertion, found that in her 121 selected cases a number of wives remarried. For example, five out of seventeen wives brought before the court of Canterbury were accused of bigamous remarriage. We do not know if or how the court punished them. Butler does explain that deserting wives faced the threat of excommunication and imprisonment and also risked exposing anyone who aided them to accusations of ravishment or abduction. Wives who agreed to return home often did so on penalty of a fine and beatings around the marketplace.145 Butler describes these judgments as “typical.” All this leaves us, then, with the idea that bigamy took place rather often in England. Courts may well have regularly punished bigamous offenders, even those detected in the course of civil marriage litigation, but we simply do not know at present. We can assert that some punishment for some bigamous marriages is at least a real possibility, at the very least as a kind of adultery and possibly as a more serious violation of the sacrament of marriage. We do not know, however, if or how the courts punished bigamists, but I would argue that we have some reason to suspect that they, like the officiality in Rochester, well might have done so. Nevertheless, scholarship on English officialities taken as a whole does not encourage the view that bigamy mattered a great deal to church court officials in late medieval England. Courts seem to have been much more intent on punishing sexual offenses, and the few bigamists we see punished appear to have been punished more for their adultery than for their multiple marriages.

At present, therefore, we can assert that bigamy seemed to matter in Troyes as it mattered nowhere else in the fifteenth century. We must, however, remember that the sources from Spain, Italy, and perhaps also Germany and England may yet have a good deal more to say on the matter; they await future scholarship. Nevertheless, at least for the present, scholarship on other local courts does not tell anything like the tale about bigamy found in Troyes. In other parts of late medieval Europe bigamy does seem, to return to Charageat’s useful distinction, more a matter of contract violation than a crime against the sacrament of marriage.

That does not mean that bigamy did not matter at all in these other parts of Western Christendom. Punishment is not the only issue. Prevention offers further evidence of concern over bigamy, and evidence for prevention is far more widespread. In northern France and arguably in other parts of Europe, we find assiduous efforts to prevent bigamous marriage. Indeed, the prevention of bigamy was one of the main reasons church officials acted to punish—if not invalidate—clandestine marriage. Certainly it was one of the reasons the northern French dioceses studied by Carole Avignon made such assiduous efforts to require letters proving freedom to marry from all strangers to the diocese or parish. An outsider to a community was far more likely to be a potential bigamist than a distant relative of a prospective spouse.

Having attempted to assess the evident lack of bigamy prosecutions elsewhere, we must also return to Troyes itself and seek out the limits of what the surviving sources permit us to know about the prosecution of bigamy there. To continue, then, on to another issue that lies at the margins of what we can learn about bigamy prosecutions, we have the thorny question of when the prosecution of bigamy actually began in Troyes. Chronology is a major concern in attempting to describe how bigamy came to be perceived as a crime that called for prosecution and punishment in an ecclesiastical court in northern France. Evidence for the subjection of bigamists to public punishment of some kind emerges only in the fifteenth century with any consistency. In particular, records detailing an ecclesiastical court’s use of the ladder of the scaffold and of prison to punish bigamists appear only beginning in the fifteenth century. That evidence of this handling of bigamy emerges only from fifteenth-century records, however, does not mean that bigamy was not already so prosecuted in earlier centuries. As explained above, the punishment of exposure on the ladder of the scaffold for bigamy dates to the thirteenth century in some northern French synodal statutes. Even as the description of a punishment must always be kept apart from any assumption that it may have been applied, the possibility of application nevertheless exists from the thirteenth century. We also have no clear date to mark as the beginnings of the officiality of Troyes’s proactive regulation of the sex, marriage, and violence of their laity and clergy. Court records on this subject, evidence of court action, again date to the fifteenth century. In the fourteenth century, however, we already have some suggestions of a court that at least competing jurisdictions and some unhappy members of the laity considered to be overactive and overly punitive in its handling of the laity.

Sources that date to the five years in which Jean Braque served as bishop of Troyes (1370–75) offer both evidence that suggests an active—and perhaps even reforming—bishop and also evidence of an active officiality. During those five years, Braque issued synodal statutes and either went on parish visits in the diocese or required others to do so, two possible signs of a resident and active bishop, one interested in reforming morals in his diocese.146 Secular jurisdiction in Troyes at that time included at the highest level the Grands Jours de Troyes, a deputation of the Paris Parlement. In 1371 this body reproached Jean Braque for “l’immixion de son official dans les affaires purement temporelles et seculieres,” an accusation that has a good deal of resemblance to the conflict between officials of the king and those of the bishop between 1458 and 1462.147

That Braque was reprimanded by the Grands Jours de Troyes certainly suggests that the Troyes officiality may at least have had moments of regulation of lay morals prior to the fifteenth century. Théophile Boutiot, a nineteenth-century archivist and historian of Champagne and its institutions, goes so far as to describe Braque as continuing the traditions of his predecessors in pushing his jurisdiction into matters that secular officials claimed as fully secular. This description, however, Boutiot does not support with any examples.

To be sure, the activity of Jean Braque and his official may have had more in common with the court activity of fifteenth-century Rouen or Paris concerning marriage and morals, which is to say, they might have been more inclined to collect fines than to subject an offender to public punishment or imprisonment. Nonetheless, we have another example that suggests that the officiality of Troyes made use of its prison to punish laity, if for reasons unknown to us, prior to the fifteenth century. In 1391 the Grands Jours considered a defamation suit brought by Pierre d’Arcis, then bishop of Troyes, and his official. The bishop accused the bailiff of Rameru and two women, the widow and the mother of a man who had died in the official’s prison, of calumny against the bishop and his official. They had allegedly said that the bishop and his official had left the man, one Jean Hubert, to die in their prison.148 The bishop and the official won their case, but for our purposes, we know at least that the bishop made use of his prison and that the prisoners included at least one member of the laity. All this, of course, is only suggestive, but it is at the very least just that, and so prior prosecution of bigamy in Troyes should certainly remain in the realm of the possible, if not quite the probable.

If we can suspend any remaining disbelief until further research addresses these questions, if we focus instead on working with the scholarship and sources as they stand, certainly northern France remains unique in its efforts to regulate marriage in the fifteenth century. These efforts focused particularly on the prevention and prosecution of bigamous marriage. Among the ecclesiastical courts of Western Christendom, Troyes stands apart above all in the repeated subjection of male bigamists to public punishment and imprisonment, a special combination of ecclesiastical punishments usually reserved for male clergy who had most seriously violated their religious obligations, notably the ban on shedding blood.

With this background in law, theology, and custom in hand, having stretched also to the limits that the surviving sources and current scholarship allow, we can now turn, for the remainder of this chapter and the chapters that follow, to a detailed study of the crisis of marriage in late medieval Troyes. As we have seen, men and women who sought confirmation of their remarriages at the papal penitentiary were not permitted to remain married to a second spouse; those who asked permission from the pope were refused. However, sometimes spouses in southern Germany found more sympathetic officials, and even in northern France and Cambrai exceptions were made for women married to long-absent spouses. Most often, people probably remarried much more quietly, without asking a judicial officer to interfere. A crisis emerged only when officials not only refused to tolerate more quiet acts of bigamy but also dissolved or suspended any suspect marriages and made spectacular examples of some of the male offenders found to be bigamous. Crises only emerged when and where the laws were upheld in their strictest sense. Such a crisis is found in fifteenth-century Troyes.

The sources that lie at the heart of this inquiry belong to the Archives Départmentales de l’Aube, in the city of Troyes, ancient capital of the Champagne region. These fifteenth-century registers are among the earliest surviving records of the bishop of Troyes’ judicial court, known as an officiality in honor of its judge, the official, who held the delegated judicial powers of the bishop. In northern France, ecclesiastical court procedure made use of a figure much less present elsewhere, the promotor, a sort of public prosecutor acting on behalf of the court.149 A promotor could bring cases before the court at the court’s own initiative, ex officio, without any outside accusation. The active use of these promotors to bring “office” cases against alleged offenders gave northern French and Burgundian officialities a distinctly different character than the relatively more litigant friendly courts of fourteenth- and fifteenth-century England or Italy, and probably Spanish and German courts as well.150

The surviving records of the medieval officiality of Troyes can be divided into four main categories. First we have registers involving testaments, goods, and legal separations. Only one such register survives, covering the period of the last decade of the fourteenth century. For the fifteenth century we have two registers of sentences, warnings, and agreements called assecurationes (asseurements in French). We also have fifteen registers covering the daily business of the court, called “cause registers.” These cause registers begin in 1455 and continue with few interruptions into the sixteenth century, for which many more registers survive. We also have several registers describing fines collected by the officiality, from the early decades of the fifteenth century and again from midcentury. Most of these entries offer only the name of an individual and the sum paid, but some of the earliest registers also describe the offense individuals were accused of having committed. This book is based largely upon extensive analysis of four of the earliest surviving registers: the two registers of sentences and other matters, G4171 (1423–76) and G4172 (1426–47), and the two earliest cause registers, G4173 (1455) and G4174 (1456). I also draw upon the registers of fines, a number of additional cause registers, and various other records kept by the officiality and by the bishop of Troyes.

Reading the register of sentences, one is overwhelmed first by the scrawled handwriting, seemingly indecipherable—and perhaps intentionally so—and then by the sheer number of cases instigated by this court. Hundreds of men and women suspected of illegal relationships are ordered to quit each other’s company, to avoid causing further scandal. In some cases, they are fined for illegal cohabitation, for fornication, for adultery, or for concubinage. In the course of the century couples faced warnings, orders, fines, detention in prison, and even excommunication and terms of imprisonment if they did not separate. The officiality made a considerable effort, it seems, to summon and fine anyone in the diocese suspected of partaking in a nonmarital male-female relationship that caused scandal.

In some cases, those accused of adulterous relationships faced additional orders to return to their spouses and resume married life, on penalty of excommunication, imprisonment, and heavy fines. These orders, however, were issued rarely, in perhaps only a dozen cases over the course of the century. The implications of the difference in numbers between the few thousands of men, women, and couples ordered to abandon an illicit relationship and the very few ordered to resume married life merit further study. It seems at least possible that informal separation was tolerated in Troyes, as it seems to have been in so many other places in Christian Europe, as long as neither husband nor wife went on to engage in an extramarital relationship, which did, by contrast, seem to draw the attention and energy of the court.

In addition to policing sex and marriage, the court often served as a venue for redress of violence or for dispute resolution. We find case after case of alleged violent attack, men fighting men and women, women fighting women and men, laymen and women fighting with clergy, and clergy fighting with all manner of persons. Additionally, hundreds of men and some women came before the court to swear oaths to not harm others. All this suggests an environment of feud, an impression that builds as we find additionally several investigations of defamation or insults that often led to violence, violence that often involved members of the clergy and sometimes took place on sacred ground, in the church or at the cemetery.

We find as well a hundred or so cases that stand out. They draw our attention first of all because they are written relatively carefully and well, even attractively. This extra effort on the part of these notaries suggests that these cases were important, that the notaries thought they might be read in the future. Second, these cases stand out because of their relative length. The typical entry found in these registers is a few lines or so, but these hundred-odd cases take up one or even several sides of the folios, if unfortunately—for our purposes—never more than that. Third, and most important, these entries document the spectacular punishments of the crimes considered most serious by the court: heresy, brigandage, perjury, false testimony, clerical brigandage, sacrilege, … and bigamy.

The prominence of bigamy in these records is noted first of all in the extensive and even sensationalist inventories prepared by the historian, philologist, and archivist Marie Henri d’Arbois de Jubainville.151 Beatrice Gottlieb also noticed the importance of these cases.152 Gottlieb went to the archives in Champagne intending to determine whether Luther’s complaints about clandestine marriage and ecclesiastical courts had any resemblance to what the surviving court records describe. Instead, she found little evidence that bore out the main complaints voiced in the sixteenth century. Gottlieb argued, and probably quite rightly, that many of these sixteenth-century objections had more to do with political concerns than with widespread social practice.153 While she observed that bigamy met with harsh punishment, she did not understand the full significance of that punishment, nor did she notice that the court made a practice of dissolving any bigamous engagements or marriages that it found. Well over a hundred investigations of bigamy emerge from analysis of the few registers described above. Most cases were resolved with the annulment or suspension of any suspicious engagement or marriage, an order to separate on penalty of excommunication, and the payment of a fine. Twenty cases we know to have resulted in harsh punishment. The chapters that follow in this book present the practice and prosecution of bigamy in Troyes in detail. Here, to begin, is an example:

In 1423, in the diocese of Troyes, in northeastern France, a man called Étienne “Languedoc” was condemned to public exposure on the ladder of the scaffold in front of the cathedral, where he would be attached to the rungs of the ladder by his wrists, standing there for one Sunday or feast day, a day when the largest number of people might come to hear mass and to see who had been set out to be punished on the scaffold. After his ordeal, Étienne was to spend six months in the bishop’s prison, on bread and water and in chains.154

As explained in the sentence passed against him, Étienne was not native to Troyes. Despite his nickname of “Languedoc” he came from the neighboring diocese of Langres, in Burgundy, where some fourteen years before he had married a woman named Isabelle. They had married with the blessing of the parish priest at the doors of the parish church in a village of that diocese. About nine years later, Étienne sought to marry again, this time in the diocese of Troyes. As a stranger to the diocese, Étienne was asked about his marital status before he was allowed to contract a marriage. The synodal statutes of Troyes required as much, and Étienne’s new parish priest seems to have fulfilled this duty. Étienne duly went to the bishop’s court and claimed that his wife, Isabelle, had died. Accepted as a widower, Étienne was given permission to marry in the diocese and married one Marguerite, herself a widow. However, it seems that Étienne’s first wife was still alive, still living back in the diocese of Langres where Étienne had abandoned her. Moreover, Étienne had known that she was probably alive at the time he married, or in any event had made no effort to find out for certain. He had nonetheless sworn that he was a widower and free to marry Marguerite. All this was revealed in the course of Étienne’s prosecution at the hands of the bishop’s delegated judicial official, three years after his marriage to Marguerite. In consequence of his acts he met one of the harsher punishments handed down by this court.

Étienne’s case was one of many. From 1423 to 1468 the bishop’s court in Troyes so prosecuted nineteen men and one woman for knowingly contracting two concurrent marriages. These men and one woman came from various dioceses across northern France. They had, on the whole, left a spouse behind in another diocese and come to Troyes, where they married again. Others were native to Troyes and had left wives behind there before moving on to remarry. Still others married twice without leaving Troyes at all. Some men had been abandoned first by their wives, rather than the other way around. Regardless, all were punished for bigamy.

The activities of this court in so prosecuting bigamous offenders are incomprehensible without knowledge of the theological and legal traditions of bigamy found in Christian marriage law and traced in this chapter. The language of the judgments found in these records makes this clear. The ecclesiastical judges in Troyes perceived in the crime of bigamy not only perjury, deception, and fraud but also an attack on the very nature of sacramental marriage. For example, here are the terms in which Étienne was condemned. The court accused Étienne of having “vilified the state of marriage,” a thing created, as the court reminded Étienne, “in the terrestrial paradise, instituted by Jesus Christ.”155 Étienne’s fraudulent marriage defied the model marriages of Adam and Eve and Christ and the Church. Further, “he had shown contempt for the people of the holy church militant, above all his deceived second wife.” That is to say, Étienne’s act was not a private violation but a public action, an attack on the Christian community. These crimes had been committed publicly and against the body public and thus, implicitly, deserved public punishment. And so, Étienne was sentenced to exposure on the ladder and after that to prison. As with Étienne, so with the other convicted bigamists. Such was the punishment for these violations of the obligations of what the court records refer to as the “order of matrimony.”

To conclude, the insistence upon marriage as monogamous had ancient roots in Christianity. Looking to the eleventh century, it is not going too far to link Christian insistence on indissoluble monogamy to the requirement for priestly celibacy.156 Married to the Church, fully ordained clergy could have no other spouse. As for the laity, they married each other, but this bond too had to mirror the bond of Adam and Eve or Christ and Church. These ideas had important consequences for how all Christians were meant to conduct their lives at the end of the Middle Ages, and we see the earliest signs of this in fifteenth-century northern France and Burgundian lands.

All of this was not just theological theorizing; in Troyes it became part of an active judicial court practice. By investigating bigamy as prosecuted in the diocese of Troyes we learn about the role of theology and law in prosecution, about the priorities and attitudes of ecclesiastical judges in late medieval northeastern France. Moreover, in studying the prosecution of bigamy, we learn not only about the role of law and theology in court practice but also about the behavior of ordinary Christians. We learn that we are in a world that attributed great importance to getting married. The people prosecuted in Troyes knew they ran tremendous risks in committing bigamy, in this sort of imposture, which was a threat to salvation and to the legitimacy of their marriages, a threat to family property and inheritance, to social status, to honor in their communities. Nevertheless, they remarried.

We can only understand their motives if we understand the broader religious and cultural world in which they lived. Marriage removed much of the sin from a sexual relationship; it accorded legitimacy to any children. Marriage provided legal protections and benefits. It provided social standing and participation in a holy sacrament. Only married women were allowed to partake in certain blessings such as reentry into a church after the birth of a child. Only married women could have children without fear of prosecution for adultery. Only married men could be sure that their children would have the full benefits of whatever inheritance or position in the world their fathers might confer.

To be sure, those who remarried bigamously only seemingly gained these advantages: their marriages had no real legitimacy and their sexual relationship was a sin for whichever spouse knew the marriage was bigamous. Nevertheless, even bigamous marriages had advantages. The children of bigamous marriages were recognized as legitimate as a rule, on the presumption that at least one spouse believed the marriage legitimate. Also, even a bigamous marriage offered at the very least the semblance of a legitimate, sacramental marriage, especially if celebrated with a priest’s blessing.157

All of this incited ordinary people to commit what I call “bigamy.” In the Middle Ages, there were many kinds of bigamy. “True bigamy,” “bina matrimonia” when willfully contracted, stood apart as a crime, and a crime that was understood as an attack on the fundamental nature of the sacrament of marriage. Christian marriage required strict adherence to the model marriages of Adam and Eve and Christ and the Church. By the later Middle Ages, in northern France, those who married despite being already married to a living spouse thus faced prosecution and punishment for an unchristian act, an act that violated Christian identity: the crime of bigamy.

Bigamy and Christian Identity in Late Medieval Champagne

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