The division between the two schools on marriage in the Middle Ages is well known: the so-called Bologna school taught that true and indissoluble marriage was brought about through consummation; the Paris school taught that the exchange of consent was the crucial element. The main distinction presented by the Bologna school was between matrimonium ratum and matrimonium consummatum; the distinction emphasised by the Paris school was between the exchange of consent per verba de praesenti and per verba de futuro. Alexander III ‘settled’ the division (insofar as this is possible) in a series of decretals, by stating that consent brings a valid marriage into existence, but consummation gives it particular firmness. Neither parental consent nor dowry nor any publicity was necessary for validity.
Most traditional accounts of marriage in the Middle Ages have highlighted the problem of ‘clandestine’ marriages – that is marriages in which two people could validly and indissolubly marry on the basis of a private exchange of consent, without the permission of their parents, without any public celebration and without any participation by the Church's ministers. This produced a ‘crisis’ in the eyes of many scholars, for both ecclesiastical and parental authority.
Sara McDougall, a specialist in late medieval French history at the John Jay College of Criminal Justice of the City University of New York, presents a different side of the story. With a focus on the area around Troyes, she argues that the problem was not starry-eyed young people running off on their own and establishing unverifiable unions, but rather significant numbers of people marrying, most in facie ecclesiae, in violation of the Church's ban on divorce. Husbands and wives married to absent or distant (or, in some cases, not-so-distant) partners found other spouses to wed. At least in northern France, many of these individuals were prosecuted and punished by the ecclesiastical courts.
Thus the ‘bigamy’ of the title refers not to what might be called in a more modern context polygamy or plural marriage, that is, cohabiting with more than one spouse simultaneously and treating them all as one's valid spouses. Rather, it refers to what might be called ‘serial polygamy’, or entering into a second union while still technically bound in a prior union to a spouse who was still alive. McDougall argues that this resulted not from a general disregard of the teaching of the Catholic Church regarding marriage, by people who did not think that the Church's teaching mattered, but rather from the actions of people to whom the Church's teaching on marriage mattered very much. These individuals appear, according to the documentation submitted in this study, to have been willing to risk violation of canon law, prosecution in an ecclesiastical court and possible harsh public punishment, in order to marry, publicly and in facie ecclesiae although illegally, so that they could present themselves as married and enjoy the benefits of Christian spouses in the blessings of Christian society.
The sources of McDougall's study are not only the documents of the ecclesiastical courts of Troyes and surrounding dioceses but also contemporary sermons and writings: these non-legal texts are useful in providing the context for marriage in the late Middle Ages in northern France. An appendix provides selected transcriptions of several cases (from 1423 to 1462) from the register of the Officiality of Troyes. In all, 20 cases are studied in some detail: 19 prosecutions of men and 1 against a bigamous woman.
The author draws two conclusions from the documentation in Troyes. First, the issue of gender was significant – female ‘bigamy’ (‘biandry’?) was almost never punished. Male bigamy, on the other hand, was a grave crime subject to harsh punishment. Here she notes that the Church was primarily concerned with imposing a high standard on men as the heads of Christian households, responsible not only for their own behaviour but also for that of their wives and children. This form of misbehaviour, involving not only the fraud of presenting oneself as free to marry but also the abandonment of another family for which this husband had responsibility, was thus particularly egregious. The homiletic literature of the period is particularly relevant in this respect, reinforcing the husband's role not only as the provider but also as the example of Christian fatherhood for his family. The case of women entering second unions while their husbands were still alive, while still clearly illegal, seemed to be of much less importance in the actual scheme of Christian society.
The second conclusion has to do with the reason for such a forceful and energetic programme of prosecution. In no other Christian country, apparently, was there a comparable series of charges and actions against bigamy. McDougall asks in one chapter ‘Why prosecute bigamy?’ and responds by noting both the theological and the social context of these trials. The dissemination of Christian ideals about marriage was entrusted not only to preachers and teachers but also to priests and judicial officials; the prosecution of bigamy thus becomes, in an odd way, preaching by other means. Unlike many scholarly treatises on marriage in this period, the author explicitly rejects the idea that this was a sign of the breakdown of the Church's teaching and authority, a sort of ‘failed Christianization’ (p 99). Rather, it is strong evidence that the people of the diocese of Troyes had internalised the Christian teaching on marriage and had chosen to live out those norms, although according to principles based on their own authority.
The phrase ‘on their own authority’ presents the social problem: men and women thought that many years of absence justified a presumption of death and the possibility of remarriage (even, in some cases, where they knew this presumption to be untrue). Such action was a direct challenge to the authority of canon law and of the ecclesiastical courts.
The Catholic Church gave a definitive response to the question of clandestine marriages in the decree Tamesti of the last and most protracted session of the Council of Trent (November 1563). Protestants and Catholics alike condemned the polygamist Anabaptists of Münster, and Martin Luther's permission to Philip of Hesse to marry bigamously provoked major condemnations. Rejection of Mormon polygamy in the United States has been widespread, and its proscription draconian. Yet remarriage after divorce in modern society has at least become tolerated, if not common.
Two areas of unease remain after reading this book. First, how widespread were the practices described in this book? While 20 cases, spread out over 40 years, are more than found in most other dioceses, are they evidence of a massive groundswell of illegal remarriage, a sort of do-it-yourself divorce, or are they simply isolated instances that only appear because Troyes decided to deal with them by canonical prosecution rather than, as in other places, turning a blind eye? The question is, ultimately, unanswerable on the basis of the documentation available, although McDougall attempts to put the situation in Troyes in a larger context, which is about the best that can be hoped for.
The other area has to do with why Troyes, of all places, was so different. McDougall points out the traditionalist and reform-minded churchmen in the area, which would certainly explain why the Church took this challenge so seriously and responded so clearly and unmistakeably. But there were certainly other churchmen of the same colour in other places, yet there were not similar prosecutions, or not to a similar extent. Again, why Troyes is so different is probably impossible to determine on the basis of the evidence available.
McDougall's research is thorough and scholarly, but because it deals with the lives of real men and women of the fifteenth century the stories leap off the page so that the characters present themselves almost as our contemporaries. The issue of balancing remarriage against a teaching of marital indissolubility is just as live an issue now as it was in fifteenth-century France, and this work helps us to see that the modern dilemma of divorce and remarriage is not so modern after all. While the response of canonical prosecution for bigamy is no longer, probably thankfully, an option, McDougall's study of the intersection of law, theology and everyday life is fascinating, and leaves to the reader the formulation of lessons for our own day.
