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
