Until recently, received wisdom has been that a watertight distinction existed between ecclesiastical and secular jurisdictions in Latin Christendom between the twelfth and sixteenth centuries. Recent studies have identified individual instances where this might not be the case, but the efficiency of such a separation of jurisdictions has not received full attention. In his impressive investigation, Wolfgang Müller argues that there are vast and previously untapped caches documenting alternative means of resolving marriage disputes across Europe. His work will doubtless inspire new approaches to archival research, which will yield a fuller understanding of the practice of marriage and the penetration of Christian ideas of marriage in medieval Latin Christian Europe.
Each of the book's six chapters examines surviving written evidence for marriage litigation, and, importantly, alternative forums for the settlement of marriage disputes in various geographical regions in Europe. Müller identifies clear differences in legal systems in Northern and Southern Europe and demonstrates that Northern European legal systems were more successful in imposing ecclesiastical models of marriage on the laity, while the laity in Southern Europe relied more on legal systems outside the church's control.
The book begins in the lower Rhine area with an examination of act books from Xanten and sentences and cause papers from Basel. The analysis shows that members of the laity brought their disputes to the courts in instance litigation and that judges actively engaged in early stages of preparation for trials. The next two chapters provide a sweeping overview of Northern France, Germany, and England. These indicate that Northern European sentencing practice was relatively uniform. Judges took a less active role in preparing and seeking out litigation than in the Rhine area. Instead, they relied on the laity to approach the court for adjudication. Since such disputes usually did not meet the criteria for a formal adjudication, lay couples were more likely to come into contact with more informal—that is, penitential—institutions and thus to leave less written documentation. In some courts in this area, challenges against marriage mounted on the occasion of the reading of church bans were likely to be ruled frivolous and a monetary fine imposed on the opponent—a significant source of income for these courts.
Turning to Southern Europe, Müller argues that Italian episcopal courts were even less occupied with marriage litigation than those in the North. In addition, they did not perform the close supervision of mores of the laity to compel compliance with marriage law. In the rare instances when church courts did examine marriage disputes, Italian cases were well prepared and admitted with strong evidence, making them likely to succeed. Ex officio cases, common in Northern Europe, were rare in Italian courts because of infrequent episcopal visitations. Müller argues that the lower volume of marriage cases was because the laity was reluctant to report cases based on neighborhood rumor, and because a lack of financial encouragement made the Italian courts less likely than their counterparts in the North to pursue such cases. Instead, he argues, notaries and notarial records served many of the functions of the ecclesiastical courts and made marriages less subject to church censure.
Müller examines the Iberian regions of Catalonia and Castille in the last two chapters of the book. In Catalonia, he finds that litigation is at the same low level as in Italy, but also a surprisingly active visitation practice. The abundance of visitation registers allows Müller to conclude that the Catalan church was not significantly concerned with occasional fornication. However, if a relationship became habitual (e.g., as concubinage or even cohabitation) the courts would impose penance on the transgressors. Penance was not commuted into a monetary fine except if parishioners were subject to the local bishop's secular jurisdiction. Thus, the financial benefits to the diocese were limited, and may help to explain the relative scarcity of marriage litigation in the area. Turning to notarial records, Müller argues that Castilian records are remarkably different when contrasted to their Italian and Catalonian counterparts. While they do not survive in significant numbers until the fifteenth century, records contain significantly less documentation of marriage disputes or enforcements of decisions from the papal courts. Surprisingly, this scarcity is also true of the registration of the secular consequences of marriage, a feature that may indicate that Castilian laity was more reluctant to rely on written evidence than Catalonian and Italian society.
Müller's book is based on an impressive amount of documentation and demonstrates knowledge of an equally impressive range of languages and thorough command of the academic literature. But the book is not always an easy read: it presupposes a good level of understanding of canon law and its administration. Undergraduate students may struggle to make sense of some complex sentences. However, Müller provides important new insights that will enhance our understanding of the interaction between the many legal systems that operated in parallel in the Middle Ages, and his book points out new directions and corpora of documentation that, without a doubt, will inspire new scholarship.
