Consent, clandestinity, and conflict. Old stories, new understandings – matrimonial litigation in the early sixteenth-century diocese of Lincoln

Unlike our own, late fifteenth- and early sixteenth-century society was steeped in the rich and complex religious system by which its people structured their world.1 The church’s stance on marriage, the ways in which church and society interacted together whenever the topic arose, and the extensive jurisdiction the church courts enjoyed over it are parts of that unfamiliar complexity. The historiography is vast, too.2 Marriage, when it had been effected, was both monogamic and indissoluble. Though simple to create - no priest was necessary and the mere exchange of appropriate words by two who validly consented was enough - it could be very hard to break. No divorce in the modern sense of the word could be granted; in the event of marital breakdown, often a decree of separation was the best that could be hoped for? Matrimonial lawsuits in this period were, by and large, not about ending a marriage but about whether it was or was not valid. Most often brought by private individuals seeking to enforce a marriage contract, known in those circumstances as “instance” cases, or occasionally pursued by the court itself when it felt compelled to undo an invalid marriage, the “promoted office” cases, the records reveal not only a great deal about the conflicts between people involved and about the communities in which they lived but also about the reality of church efforts to enforce canon law and impose a moral code.4

This chapter is about just such marriage litigation, and especially about marriage disputes and litigation within the late pre-Reformation diocese of Lincoln. It is devoted to the topics of “free consent” (by which is meant the medieval church’s requirement that consent be freely given by both parties to any marriage without either impediment or regard for any conflict with society’s other expectations such requirement may have caused) and “clandes-tinity” (which is not always to say secrecy but, rather, to say marriages which occurred “in a bewildering variety of settings” other than within a church or church precinct).5

Surviving sources from the diocese of Lincoln are far less extensive numerically, chronologically, and in their variety than those from, say, York or Canterbury. A truly large-scale quantitative survey, such as that undertaken by Charles Donahue or Jeremy Goldberg, is most likely impossible.1' This is not a resource to rival the York Cause Papers.' But until now, the records which remain have never properly been exposed even to careful, qualitative, forensically detailed examination.8 Those I discuss (and there are a few other sources too)9 can be found within a notebook, 67 folios in length, that survives from the bishop of Lincoln’s Court of Audience (one of two senior spiritual courts within the diocese, the other being the Consistory Court of which, sadly, no late fifteenth-or early sixteenth-century records remain) and contemporaneously documents cases mostly heard either before the bishop’s chancellor and vicar-general (John Rayne).10 Archived at the Lincolnshire Archives under reference LAO/Cj.4, the book contains 16 readily identifiable matrimonial lawsuits. Several concern multiple disputed contracts, but of the 16, only four record the involvement of lawyers. The first matrimonial entry is dated 8 May 1528 and the last on 14 February 1530 (a period of 648 days).11 The whole notebook from first entry to last covers a period of just 733 days. The court was in session on 104 days of those 733, the entries are largely chronological, and on 25 of those days it was dealing with matrimonial litigation of some kind. Of the 16 cases, 12 involved a marriage or marriages that were or may have been considered clandestine. From statistics compiled by Brian Woodcock from records in Canterbury and later by Ralph Houlbrooke from records in Winchester and Norwich, it is apparent these sorts of figures are not unusual.12 As elsewhere, we are sometimes left only with an incomplete record. But, in the detail, things become much more interesting.

In the medieval period, until Lord Hardwicke’s Marriage Act of 1753, a valid and enforceable contract of marriage sufficient to last a lifetime was simply made by the existence of verba de present! (words of present consent freely exchanged between a man and a woman capable of marriage) - unless, prior to consummation, one party chose to enter the religious life - or verba de future (words of future consent also freely exchanged). Consent and the making of the bargain (vinculum), not coitus, made a marriage created by exchange of verba de present! valid. But in the case of future consent (verba de future), an indissoluble union was created only when followed by sexual relations.13 There were other matters which complicated things further, but essentially, an exchange of words indicating consent was the key.14

Marriage bargains seem to have been invariably made orally: no written marriage contract survives anywhere amongst the records of the English ecclesiastical courts.1’ But two witnesses were always required to make a valid, binding union. Where verba de present! had unquestionably been used any record of a case would most likely be for the purpose of imposing discipline.16 But if someone

(whether one of the couple themselves or anyone else) challenged the legitimacy of any claimed marital relationship by means of instance litigation or perhaps through the hybrid promoted office procedure, any doubt - about the nature and effect of the words themselves, or as to any condition that may or may not have been put upon the contract, or indeed whether another such contract had preempted the one claimed - necessitated the court, as one would expect, almost always making as its first port of call the parties themselves.17 This was merely the beginning of the search for proof; thereafter, witnesses were, most often, named and produced by the parties themselves.18 With no official system for enrolment of marriages within a parish register (until 1538), both society and church alike needed to seek proof of the exchange of vows, and such witnesses were the first vital step towards legality and social acceptance.19

Within the last few folios of LAO/Cj.4 a partial record survives of a case involving at least six parties.20 Such complexities make the case a little tough to follow, but those aside, the validity of the marriage at issue between Thomas Stevinson and Isabell Richardes seems to have caused the court little difficulty because they had taken care with their witnesses. One Paul Spencer of Brampton Dyngley certainly appreciated the need for the consensual bargain to be witnessed, both in the strict legal sense and to ensure wider community acceptance, as the scribe notes that

the Sondaye after Michael | masse daye last past he was/at haloughton and ther was Tho[ma]s Stevinson and | Isabell Richardes in her fadre in law his howse ubi et quando audiuit | ut sequitur [where and when he heard as follows] the said Isabell said that she and Thomas had upon mary magda | lene last past made a contracte of matrimony bytween them and this | deponent askyd what record was by and they both said they had no | record by then this deponent said it well not stand if eny swaruing | be butt ye have record Then thei both desirid this deponent to | here and bare record what they wold say and this deponent was contentyd21

Spencer went on to tell the court that Richardes and Stevinson repeated the contract before him. Two more witnesses, William Squyrry and Alice Richards, confirmed his version of events. The definitive sentence is plain: Stevinson and Richardes are man and wife.22

The church had long pushed an agenda that suggested an “approved” method of marriage was preferable. The calling of banns as a procedural requirement started in England and first became established throughout Western Christendom in Canon 51 of the Fourth Lateran Council (1215). Clandestine marriages had been “absolutely forbidden” by Canon 51.23 But by the fifteenth century the term “clandestine marriage” had virtually disappeared from ecclesiastical registers.24 When it was adopted, it was not as a criticism of marriage contracted outside a church: the clandestinity inhered in the secretive and underhanded way in which an improper marriage had been fraudulently solemnised.25

Of course, many were happy to follow church insistence on freely exchanged consent, procedural compliance (the calling of banns), and detailed rules regarding consanguinity and/or affinity, and its idea of attaching sacramentality to the ecclesiastical context. Others, no doubt, felt differently. But sometimes church law and procedure clashed with notions of the patriarchal family, the hierarchical nature of medieval civil society and what Swanson described as “the more fluid vulgar approach to marriage.”26 Couples did not come together within a social vacuum. Often they were assisted, sometimes prodded and mediated, by those of significance to them.27 Obtaining the consent of fathers, brothers, uncles, even of mothers, could well be an important consideration and “socially, the right and wise thing to do.”28 The church recognised that conditional contracts were acceptable under canon law so long as the condition could be classed as “to come, expressed, possible, honest, and not against the substance of marriage.”29 Adding a condition, such as a requirement to obtain parental consent so long as its insertion was at the time of the contract,30 suspended that contract until the condition was fulfilled.31 The case of Johannes Floyd c. Alicia Skeuington not only aids our understanding of the practical difficulties of applying the law but much else besides.32

At the first hearing, on 23 January 1529, John Floyd alleged he was married to Alice Skeuington. In turn, her case was, firstly, that she had only agreed to marry him if her father consented and, secondly, that she had actually subsequently contracted marriage to one John Spence of Braybrook without any such condition precedent.33 Without knowing Alice’s age, or more about her circumstances, it is very difficult to decide to what extent she may have had much matrimonial freedom of choice, but it is clear matters became very much more complicated, both for her and for Spence, when her father told the court, at the second hearing, that he had originally refused his consent as claimed but three weeks previously had changed his mind and agreed.34

At the first hearing one Richard Lee gave evidence. He was Floyd’s witness and is described as a farmer aged 60 (“colonus etatis LX annoris”) who had known John well from birth because he was his nephew (“dicit quod Johannem ffloyd a natiuitate ipsius Johannis bene cognouit Dicit quia est filius sororum”) and Alice for eight years (“per octo annos ultimos elapsis bene nouit”). Having first related to the court how his son Andrew retold to him a story about being asked to be a go-between taking a ring to Alice, he went on to describe being asked to witness and confirm their exchange of vows:

And after that upon shrofe Sunday was | twelmonthe the said John ffloyd and Alice Skeuington mett and | draynk to gedder in the hows off this deponent at braybrok and | when they had drunken to gedder they bothe went to gedder into | thys deponent his barn and talked to gedder a while and then | the sayd John ffloyd called this deponent to come theyr | to them and so this deponent dyd and asked them iff they | were agreed And John ffloyd sayd yea and sayd I have | sedd thies wordes to hyr Alica

Skeuington ye wyll take me as your | husbond in the way of matrimony and he sayd that she sayd ye | And then that he sayd I John ffloyd take you in the way of matrimony | to my wiff and then the said John ffloyd sayd | Alice wyll ye tak me to your husbond and she said yea And then | he sayd to hyr Alice I take the to my wiff and plyght the my troth yn the | way off matrimony And I will have my ffather glide wyll orels | I will byd this vij yere.

The court needed to be certain about this alleged condition: what did it mean, had it been incorporated into the bargain? Lee explained no one but the three of them had been there at the time (“Interogatus de presentibus Dicit quod nullus fiiit ibidem presens nisi iste deponens cum dictis Johanne et Alicia”), stated once again that Floyd and Skeuington “went into the bern to gedder as he beleveth to make a contract,” but this time explained “that he harde hyr say I will have you to my husbond thoghe my father say nay to yt but I wyll bydd this vij yere except I may have my ffather glide will.”36 This was different. In his first statement he had claimed Floyd had said he would obtain his father’s consent or wait seven years, this time that Alice had indicated her father’s consent was needed or she would wait.

Alice was next. She gave sworn evidence stating, “that she made | no promise but under a condicion that he [meaning Floyd] cowd gett my ffaythers glide wyll | and that was ij yeres a goo and sithens she made hym no promysse.”37 She also explained that “hyr uncle | did aske her fathers good will and her father would not consent to hit but hett her.” Such violence is not unknown.38

On Monday, 28 January 1529, Andrew Lee confirmed his father’s story.39 But the court also heard from William Skeuington, Alice’s father. Asked if he had required the ability to consent or not to the marriage, he confirmed he had said that in the past, but (the scribe notes) now

he saith that abowt iij wekes last past | that the foresaid Androo did aske hym his goodwill and for John Floyd | and then he consentyd to hit in discheriging hys conciens because he had lett it | before and so he is con-tentyd still in discharching his consciens.40

Essentially that meant he had consented to the marriage a couple of weeks before the case first appeared in the record, thus, potentially at least, validating the marriage between Floyd and Skeuington. It is not clear what persuaded Alice’s father to change his mind and indicate his consent to her marriage to Floyd when he had previously refused it. He might simply have reconsidered Floyd’s suitability and the other suitor’s (Spence’s) unsuitability, but perhaps the tenor of Richard Lee’s evidence and his reliability also had some bearing.

At this point Floyd appointed a proctor (lawyer), Thomas Bothe, and - because Floyd was unable to gain access to Alice - Bothe petitioned for her to be sequestered “to an honest place.”41 It is probably safe to assume this was an attempt to gain advantage. By gaining access to Alice, Floyd could have exercised his authority over her as husband. From his point of view and that of his lawyer, the petition was justified either because there had been no condition precedent (which was his original case) or on the basis it had now been fulfilled (following William Skeuington’s evidence). However, instead of simply acceding to Bothe’s application, the judge - no doubt suspicious of Floyd’s intentions - specifically sought and obtained consent both from Spence (who was not then a party) and Floyd before ordering her sequestration in the house of Robert and Johanna Crofte of Stoke Dawbney.42 Although Alice was also ordered not to leave on pain of excommunication, he may have felt her to be vulnerable (perhaps after hearing the description of her father’s violence, because he harboured his own doubts over Floyd’s veracity, or even perhaps because of her age). Both Floyd and Spence would have been playing with fire if they approached her before definitive sentence (presumably neither of them would want to see her excommunicated or to be accused of exercising duress), yet Spence, who could well have guessed Floyd’s real intent, seems to have been sufficiently assured of Alice’s safety once the identity of those with whom she was to stay had been made clear. She would be out of the immediate reach of her father, too.

Although the record indicates there were no prior documents lodged at court, the judge had almost certainly also been aware, when ordering that sequestration, that Spence was likely to intervene (why seek his consent otherwise?), and, sure enough, two days later, on 30 January 1529, Spence appeared in court alleging marriage to Alice.43 His evidence was that

he saith he did aske her if she myght fynde | in her hart to love hym aboue all other men and to be his wiff and she saith | she sayde ye by her faith and then he saith he had her save after hym I | Alice do take you John to have and to holde for better for worse for richer | for powrer all others to forsake and oonely you to take to my weddyd husbond and | therto I plytte you my trothe and he saithe she said thes words after hym And he saide I John take you | Alice to have and to holde for better for worse all others to forsake and you for to | take to my weddyd wife and therto I plytt you my trothe.44

When asked “when?” Spence said it was on the previous Easter Sunday at his house but that no one else was present.45 He can only have meant the Easter Sunday in 1528. However, this was either the truth or a poorly thought-through tactic seeking to ensure the court believed that his marriage to Alice had preceded William Skeuington’s change of mind. Either way it was likely to be doomed to failure because there were, seemingly, no other witnesses.

The judge was obviously keen to get to the bottom of the case, because Alice was asked to give evidence again. She confirmed the words spoken but also indicated no one had witnessed their exchange and the scribe notes her as saying that the said John | Spence said to her Alice mayste thow fynde in thi hart all others to forsake | and me for to take and she sayd yea and he said saye after me and toke her | by the hand I Alice take you John to my weddid husbond and to have and to | holde for better for worse to deth us departe and she saith she said these wordes | after hym and drewe handes and he said I John take the Alice to my | weddid wyffe and thereto I plytte the my trothe Interrogatus de tempore [asked when]| she saith that it was the Son-daye next after Hau[er]borow ffeest daye last | past in A howse wher he dyd dwell in then [space] Nullo tu[n]c p[rese]nte [no one else was present] | but they have been askyd oones in the church46

The lack of any witnesses to the Spence/Skeuington contract represented a huge problem for them both. So too did the fact of her father’s change of mind. But Alice’s story may also have had further problems. She had insisted Floyd needed to ask William Skeuington for consent, yet later reported that the violent attack upon her occurred after her uncle had spoken to him to request it: if she had expected the request to be made by Floyd, it is odd that she asked her uncle to do the talking. It is important to note that, although in some cases it was a definite necessity, some women were known to place the onus of seeking consent upon the man making the offer of marriage to seek proof of commitment or perhaps as a courtship strategy to illustrate coy reluctance.47 But the uncle’s conversation can also be explained if there had been no such condition within the contract. After all, Richard Lee made no mention of it. Alice may have asked her uncle to intervene and obtain her father’s permission to marry Floyd, not because of any strict contractual requirement but rather because of a strong social obligation she felt and/or guilt that she had not included such a condition within the original contractual bargain. She might even have asked her uncle to speak anticipating a refusal, in order to be free of obligation to Floyd and available to marry Spence, or have tried to push her father too soon into agreement but later changed her own mind, preferring Spence instead.

Ultimately, Alice’s only hope (and Spence’s) may have been the last few words of Richard Lee’s evidence (“And I will have my ffather gude wyll orels | I will byd this vij yere”). Lee had suggested the possibility Floyd had put forward a condition precedent - the requirement of his own father’s consent. If Floyd’s father confirmed his permission had been required, that he had failed to give it and still failed to give it, Alice might be “off the hook,” but it would be a long shot!

At that point the case was adjourned for Floyd to answer certain articles; we do not know but might guess the content. Alice appointed three proctors, too. Perhaps they might have spotted the possibility arising from Floyd’s own evidence. But sadly, we hear no more. Unless Spence could prove there had been witnesses after all (witnesses who claimed they had seen something through a hole in a wall, or through a window, are far from infrequent in medieval marriage cases),48 or Floyd’s father refuse his consent, his suit would seem unlikely to succeed. Amicable settlement of the case was possible, but neither Spence nor

Skeuington would seem to have been in a terribly strong position. Defeat for her was unlikely to be pleasant. Ultimately the court, if it had any sympathy with Alice, would probably have to try to find a solution that best fit the circumstances, but I suspect she would be very likely to lose.

Whatever the true nature of those contractual bargains between John Floyd and Alice Skeuington, between Alice and John Spence, between Thomas Stevinson and Isabell Richardes, or between many of the couples in the other matrimonial cases within LAO/Cj.4. the records describe something at first essentially private, perhaps even made without immediate thought of resorting to a priest. However, in the final case discussed in this chapter, an apparently hasty, clandestine, and potentially invalid marriage certainly stirred the Court of Audience into action even though a priest, or at least a friar, had been involved. Christina Sulby and John Kellett married even though a lawsuit was already underway before the Commissary in Northampton.40 Like any other in such circumstances, the case before the Court of Audience was by ex officio inquisition.50 Ultimately, the hands of the judge may have been tied. Nevertheless, it is worth our attention.

Christina Sulby seems to have been the subject of intense competition between Kellett and another man, Thomas Clarke. Clarke may even have been the instigator of proceedings in the Court of Audience. Perhaps she was quite a catch: when challenged, Kellett sought to rely upon a papal dispensation. Such things were not easy to come by, often requiring substantial outlay.51 Most, once obtained, would have been uncontentious and simply recorded in a bishop’s register.52 Although many marriages may have been barred by the impediments of affinity and consanguinity, there are only a few recorded where the parties seek to end one on those grounds.53 But in this case, even more rarely, it appears Kellett sought to rely upon a dispensation hoping perhaps not just to invalidate or prevent any marriage between Sulby and Clarke but also to support and justify his own actions in marrying her.

On 9 February 1529, Kellett, Sulby, and one Stephen Estwyck appeared in court. Asked whether he had heard it said Sulby and Clarke had contracted marriage on 2 December 1528, Estwyck denied any knowledge?4 He was also asked to describe what he knew about the alleged marriage of Sulby to John Kellett. The scribe writes

dicit (he says) that on our lady daye at nyght bitwen | vij and viij kellett/ was at Estwykes howse and at Kellot his desier this respondent did | send for Christiana Silby and when she cam theder kellott and Christiana had conu-ercation | and said thei had made a contracte on a Thu|r]sdaye in lenton last past and disiryd | this respondent Simon Rawlyn and Richard Jamys to bere wittenes of the conuercation | thei had in Lenton for the Thurs-daye following she said she must have made | promisse to Thomas Clarke if Kellot had not com/ then this respondent said we | here no wordes of matrimony as yet to bere record of and she said I pray you help | us to make contráete and bear record of it a fore Thursdaye cam and then thei | made a contráete and thes men before namyd did bear wittenes thereof.55

Estwyck also told the court that he

hard them saye that she and dark had made a contráete The Sondaye befor | our lady daye and he herd when the Judge did command them to be with | hym the fridaye after at court at Northhampton/a nd after that William Kellott and this respondent/did sett a citation of magister | Booth to acyte the woman to Stamford courte but he saith it was not his | councell but he thinketh it was doon by the councell of a somner of | Wellingborow and then this respondent cam to Stamford with Christian to the court | And he said he rood fro Stamford to London at the desier of John Kellott and | William Kellott to obteyn a dispensación for manage of them and went to | Peter Mates sentante to the Legate Laurentius and obteyned the dispensación | and then this respondent and/thei rood to Cambridge to geder and gatt a ffreer and | weer weddid at Clopham but they were neuer askyd in the church at Bosyatt | but he denyith that it was not of his counsell.56

At that the case is adjourned to the following Monday in the church of St Michael the Greater, Stamford?7 With a hint in the record that the Northampton case had been adjourned for sentence, it seems quite likely that Kellett, and Sulby, too, wanted to be married before the case went against them. McCarthy, in his Marriage in Medieval England, has suggested some people contracted and then arrived at the church courts with their marriage a fait accompli.58 We are certainly able to prove Legate Laurentius was in London at the time claimed.59 But sadly, until eventual publication, the latest available calendar that would provide further information about any particular papal dispensation stops at 1521?°

Estwyck had been careful to describe a private contract between Kellett and Sulby and to try to assert that it came before the contract Clarke alleged. There was a problem because Kellett and Sulby’s contract had, even according to Estwyck’s own testimony, only been confirmed before witnesses during the evening of Lady Day, yet Clarke suggested his with her had been made the Sunday before. Of course, we do not know if Clarke could rely on his own witnesses and, according to Estwyck, Sulby had suggested she ought to marry Kellett quickly because otherwise she was promised to Clarke. However, we do know that according to Estwyck’s testimony no banns had been called in Bozeat. Whether prior private marriage between Kellett and Sulby had been invented or not, is unclear; it may have been. But a dispensation to avoid the necessity of calling banns could be obtained where a de facto, albeit irregular, marriage already existed.61

We have no record of Christina Sulby’s evidence, nor do we have anything from either Clarke or Kellott. But given the apparent marriage in Clapham after the obtaining of a dispensation, it may be that Clarke could only seek to persuade the court there had either been something invalid about its contents or that the procedure it permitted had not been followed. The courts were forensic in such circumstances, and dispensations were to be strictly construed because what they were permitting was contrary to the ordinary rules of law.62 Sometimes dispensations were alleged to exist, but when the participants were pressed for proof, none was forthcoming.6’ No further record of the case exists. It could be that Clarke abandoned the pursuit.

I have not sought in this chapter to describe cases that wholly undermine our previous understanding of canon law. Lincoln, like anywhere in the medieval world, broadly applied the same law and adopted the same procedures, though with a few local differences. We know that marriage was not always immediately solemnised before church and congregation and that, on the whole, both church and populace may have been relatively content, at least until someone objected. But this notebook reveals the law in action when things have gone amiss. It brings to life all the practical difficulties of applying long-held canonical principles of free consent in the face, sometimes, not only of over-bearing, violent, and contrary parents but also of young people like Alice Skeuington and John Spence who, absent legal advice, may simply have made their already-complicated love lives more difficult, not through being fickle but through ill-thought-through evidential inconsistencies and ignorance of the law, even if they did not initially set out to deceive. It is a story ofjudges struggling to do justice in an environment where women like Christina Sulby were fought over, if not violently, then at least in the courtroom, and where many men like Stephen Estwyck and John Kellett (and perhaps the summoner to whom they spoke) seem to have known how to play a system open to abuse. Of course, even in that case we know nothing about the behaviour of the parties before the litigation. It may have been perfectly reasonable for Christina Sulby to wish to escape from Thomas Clarke - and to have someone able to manipulate the system to achieve a desired, even justifiable, objective is nothing new. We see lawyers being left to pick up the pieces when litigation has gone awry, though, at least on this occasion, we can only speculate how they might have fared. We can see people who well knew what the church and its laws expected, just as we can see those who behaved as expected (either because they wished to tell the truth or because they felt it was what the court wished to hear). Nevertheless, both Alice Skeuington and, though we hear her voice only indirectly, Christina Sulby seem, like the men around them, intent on making their own choices. Even if, ultimately, they were not successful, it is clear the courts were not averse to giving them at least some, albeit imperfect, protection.

Notes

* Unpublished primary sources referred to may be found at Lincolnshire Archives Office

[“LAO”] unless otherwise stated.

  • 1 Eamon Duffy, The Stripping of the Altars: Traditional Religion in England, 1400-1580, 2nd ed. (New Haven and London: Yale University Press, 2005), 1.
  • 2 Current knowledge and understanding of medieval marriage has built upon foundations laid by Christopher N.L. Brookes The Medieval Idea of Marriage (Oxford: Clarendon Press, 1994) and Georges Dubys The Knight, the Lady and the Priest: The Making of Marriage in Medieval France, trans. Barbara Bray (London: Allen Lane, 1984). Since their publication scholarly literature on the topic has continued to develop and proliferate, but a few examples will have to suffice. PJ.P. Goldberg, in Women, Work and Life Cycle in a Medieval Economy: Women in York and Yorkshire c. 1300-1520 (Oxford: Clarendon Press, 1991), concluded that medieval women often had the ability to make an individual choice in choosing their livelihood and, in consequence, for or against marriage. David D’Avray, in Medieval Marriage, Symbolism and Society (Oxford: Oxford University Press, 2005), sought to explain what medieval people thought of marriage as an institution, arguing that the religious symbolism of marriage, largely communicated to the wide and readily available audience for sermons, had a tremendous effect on both society and legal practice. Conor McCarthy considered the literary and legal aspects in Marriage in Medieval England: Law, Literature and Practice (Woodbridge: Boydell Press, 2004). Eric Josef Carlson, in Marriage and the English Reformation (Oxford: Blackwell, 1994), whilst particularly examining the post-Reformation early modern period, argued that by the time of the Reformation there was little appetite in England for reform either of matrimonial law or of the ecclesiastical courts, such as happened in Europe - the ecclesiastical marriage law being so embedded in English communities (see, for example, 146).
  • 3 Ralph Houlbrooke, Church Courts and the People during the English Reformation, 1520-1570 (Oxford: Oxford University Press, 1979), 56.
  • 4 R.H. Helmholz, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s, The Oxford History of the Laws of England, vol. 1 (Oxford: Oxford University Press, 2004), is an authoritative account of the scope of medieval canon law administered by the church courts. For further detail on marriage and divorce, see 521-564. See also R.H. Helmholz, Marriage Litigation in Medieval England (London and New York: Cambridge University Press, 1974) and, in this instance, especially 25.
  • 5 R.B. Outhwaite, Clandestine Marriage in England, 1500-1850 (London and Rio Grande: Hambledon Press, 1995), xiv.
  • 6 Charles Donahue, Jr., Law, Marriage, and Society in the Later Middle Ages: Arguments about Marriage in Five Courts (New York: Cambridge University Press, 2007). The courts concerned were York, Ely, Paris, Brussels, and Cambrai. Along with the book Donahue has produced a pdf supplement entitled “Texts and Commentary,” www.cambridge.org/gb/ academic/subjects/history/european-history-1000-1450/law-marriage-and-society-later-middle-ages-arguments-about-marriage-five-courts?format=HB&isbn=9780521 877282#contentsTabAnchor#CbZDwFRjyBqo3df6.97, accessed 02/19/2018. Goldberg’s work includes Women, W>rk and Life Cycle in a Medieval Economy, “Gender and Matrimonial Litigation in the Church Courts in the Later Middle Ages: The Evidence of the Court of York,” Gender & History, 19, no. 1 (April 2007): 43-59, and much more.
  • 7 For details of the York Cause Papers, online resources available about them, and a general historiography of ecclesiastical court research, see PJ.P. Goldberg, “Fiction in the Archives: The York Cause Papers as a Source for Later Medieval Social History,” Continuity and Change, 12, no. 3 (1997): 425-445, and Simon J. Harris, “The York Cause Papers 1300—1858: A New Online Resource for the Church Court Records of the Diocese of York,” in Clergy, Church and Society in England and Wiles c. 1200-1800, eds. Rosemary C.E. Hayes and William J. Sheils, Borthwick Texts and Studies 41 (York: Borthwick Publications, 2013), 23-44.
  • 8 Helmholz’s Marriage Litigation largely concentrated upon records from York and Canterbury. In his Roman Canon Law in Reformation England (Cambridge, New York, and Melbourne: Cambridge University Press, 1990), references to Lincoln do occur, though rarely. Houlbrooke’s Church Courts and the People has one chapter on marriage litigation but concentrates on Norwich and Winchester. Richard Wunderli’s London Church Courts and Society on the Eve of the Reformation (Cambridge, MA: Medieval Academy of America, 1981) devotes a mere five pages to marriage litigation, and that to London alone (118-122). London was again the centre of attention in Shannon McSheffrey’s Marriage, Sex, and Civic Culture in Late Medieval London (Philadelphia: University of Pennsylvania Press, 2006). Martin Ingram examined marriage litigation between the fourteenth and seventeenth centuries at some length but bypassed Lincoln in his essay “Spousals Litigation in the English Ecclesiastical Courts, C.1350-C.1640,” in Marriage and Society: Studies in the Social History of Marriage, ed. R.B. Outhwaite, Europa Social History of Human Experience, 2 (London: Europa, 1981), 35-57. Ingram touched upon marriage litigation again in Carnal Knowledge: Regulating Sex in England, 1470-1600 (Cambridge: Cambridge University Press, 2017), especially 57-65. Some records from the archdeaconry of Leicester were examined but few others from within the diocese. Almost all other works either largely or completely overlook matrimonial litigation records from Lincoln (but see note 9 of this chapter).
  • 9 Margaret Bowker, ed. and Lincoln Record Society, An Episcopal Court Book for the Diocese of Lincoln 1514—1520, vol. 61 (Lincoln: Lincoln Record Society, 1967), which is an edition of the surviving notebook of Bishop Atwater’s Court of Audience [LAO/ Cj.2], contains 17 marriage cases. Entries are generally short, though there are occasional depositions, yet provide valuable and illuminating insight into that court’s work in cases of this kind during the sixteenth century’s first two decades. E.M. Elvey, ed. and Buckinghamshire Record Society, The Courts of the Archdeaconry of Buckingham, 1483—1523, vol. 19 (Welwyn Garden City: Buckinghamshire Record Society, 1975) is an edition of late fifteenth- and early sixteenth-century records contains 11, all briefly recorded save for one with more detail, including actions for bigamy and divorce a mensa et thoro (“from bed and board” - judicially approved separation). A. Hamilton Thompson, ed. and Lincoln Record Society, Visitations in the Diocese of Lincoln, 1517-1531, vols. 33, 35 and 37 (Lincoln: Lincoln Record Society, 1940, 1944 and 1947) contains some other matrimonial cases. Several more appear within A. Percival Moore, “Proceedings of the Ecclesiastical Courts in the Archdeaconry of Leicester,” in Reports and Papers of the Architectural and Archaeological Societies of the Counties of Lincoln and Northampton, vol. 28 (Lincoln: Reports and Papers of the Architectural and Archaeological Societies of the Counties of Lincoln and Northampton, 1905-1906), 117ff. Lawrence R. Poos, ed. and British Academy, Lower Ecclesiastical Jurisdiction in Late-Medieval England: The Courts of the Dean and Chapter of Lincoln, 1336-1349, and the Deanery of Wisbech, 1458-1484 (Oxford: Oxford University Press, 2001) includes several fourteenth-century cases. Bishop Alnwick’s surviving court book, so far only transcribed and published in part, also contains some matrimonial cases: A. Hamilton Thompson, The English Clergy and Their Organisation in the Later Middle Ages (Oxford: Clarendon Press, 1947), 206-246. Unpublished manuscript sources include: LAO/ Cj.O - The original court book from 1446-49 from which Hamilton Thompson produced his extracts; LAO/Cj.3 - Another Court of Audience book which is much damaged but contains the one surviving case over which Bishop Longland personally presided (See Margaret Bowker, The Henrician Reformation: The Diocese of Lincoln under John Longland 1521—1547 (Cambridge: Cambridge University Press, 1981), 51); LAO/Cij.l - Courts held by the official and commissary of the Archdeaconry of Lincoln; LAO/Vij.l - Visitations by the official of the Archdeaconry of Lincoln. Court books from 1533-1550 survive from Northampton archdeaconry, too, and can be found in Northampton Archives Office: Arch 1/2/3.
  • 10 As to Rayne see Bowker, Henrician Reformation, 118, 88, 148 and 150, and BRUO 1501-40, 476-477. There are several reasons to think it contemporaneous. Most entries are chronological. Many have interlineations and deletions. The words “uiua uoce allegat” often appear, indicating no prior document had been supplied in court. Depositions are recorded in the vernacular and, though words like “ut dicit” appear and some language is in phraseology suggestive of legal discourse, they can be found amongst and between records of procedural steps being taken, indicating a process akin to “live recording.” When responses to articles are recorded, they, too, occur amongst and between the record of procedural interplay. I intend to discuss this further in a later essay.

The 67 folios are divided into two quires [“QI” and “Q2”[. Matrimonial cases appear first at LAO/Cj.4/Ql.fol9v and last at LAO/Cj.4/Q2.fol.67r.

Brian Woodcock, Medieval Ecclesiastical Courts in the Diocese of Canterbury (Oxford: Oxford University Press, 1952), 84—85; Houlbrooke, Church Courts and the People, 273-274.

Helmholz, The Canon Law, 94—95. These deceptively simple concepts can first be seen in decretals rendered by Pope Alexander III (c. 1105-1181). They were incorporated in 1234 into the Decretals of Gregory IX or Liber Extra (the second part of the Corpus luris Canonici - the first being Gratians Decretum).

Helmholz, Marriage Litigation, 26-27; Donahue, Law, Marriage and Society, 1 and 18-31. Christians could only marry Christians; both parties had to have reached puberty and be capable of intercourse; neither could be married to someone else still alive nor have taken a vow of chastity; the man could not be in higher clerical orders; and the parties could not be too closely related.

Frederik Pedersen, “Marriage Contracts and the Church Courts of Fourteenth-Century England,” in To Have and To Hold: Marrying Documentation in Western Christendom 400-1600, eds. Philip L. Reynolds and John Witte (Cambridge: Cambridge University Press, 2007), 287-331 at 289.

Helmholz, Marriage Litigation, 33.

I say “almost always” because there are exceptions - see Office c. Johannes Kellett, Christiana Su/by and Stephanas Estwyck (LAO/Cj.4/Ql.fols32v and 34r), discussed later. Helmholz, Marriage Litigation, 127.

Wunderli, London Church Courts, 118; McSheffrey, Marriage, Sex, and Civic Culture, 27. LAO/Cj.4/Q2.fols63v, 64r, 64v, and 65r. The definitive sentence, at fol65r, names Thomas Stevynson from Cliff Regis as one plaintiff, Isabell Richardes from Welham as one defendant, William Dawkyn(s) from Eston another plaintiff, Agnes Burton another defendant, and two competitors, Simon Dykman and John Barker. Although he is not mentioned as a party within the sentence, the first part of the record shows that one John Kirkby from Stoke Dry (1 mile from the court venue of Lyddington, Rutland) and Dawkyn each alleged marriage to Agnes Burton.

LAO/Cj.4/Q2.fol.64v.

“decreuimus et declaramus prefatam que Isabellam in uxorem legitimam prefati Thome Stevinson ac ipsum Thomam | Stevinson prefate Isabelle in uirum et maritum legiti-mum”: LAO/Cj.4/Q2.fol65r.

A full translated text of all the canons (including number 51) is http://sourcebooks. fordham.edu/halsall/basis/lateran4.asp, accessed 01/18/2018.

McSheffrev, Marriage, Sex and Civic Culture, 31.

Ibid., 32.

R.N. Swanson, Church and Society in Late Medieval England (Oxford: Basil Blackwell, 1989), 168.

Shannon McShefFrey, ‘“I will never have none ayenst my faders will’: Consent and the Making of Marriage in the Late Medieval Diocese of London,” in Women, Marriage, and Family in Medieval Christendom: Essays in Memory of Michael M. Sheehan, C.S.B, eds. Constance M. Rousseau and |oel T. Rosenthal, Studies in Medieval Culture XXXVII (Kalamazoo: Medieval Institute Publications, 1998), 153-174 at 157-158.

McSheffrey, Marriage, Sex, and Civic Culture, 87.

Helmholz. The Canon Law, 533.

Helmholz, Marriage Litigation, 204.

Helmholz. The Canon Law, 534.

The whole surviving record can be seen at LAO/Cj.4/Ql.fols29v, 30r, 32r, 41v. LAO/Cj.4/Ql.fol29v.

William Skeffmgton was knighted by Henry VII, Sheriff ofWarwickshire and Leicestershire, in 1515 and 1521, and King’s Commissioner to Ireland in 1529: S.H. Skillington and G.F. Farnham, "The SkefFingtons of Skeftmgton,” TLA I IS, 16 (1929-31): 73-128. The authors omit mention of Alice as Williams daughter.

LAO/Cj.4/Ql.fol.29v.

LAO/Cj.4/Ql.fol29v, 30r.

LAO/Cj.4/Ql.fol.30r.

LAO/Cj.4/Ql.fol.30r. Diana O’Hara reports, in “Ruled by My Friends: Aspects of Marriage in the Diocese of Canterbury, c. 1540-1570,” Continuity and Change, 6, no. 1 (1991): 9—41 at 15, the evidence of one Alice Jenkyne who, in a case entitled Rolfe versus Jenkyne ((1545-1548), Canterbury Cathedral Archives and Library, MS X/10/3/folslr-Iv), “told those present in John Caseways house in Folkestone, that she was beaten and driven out of her house for having bestowed herself on John Rolfe.”

There are other examples, too. Few come close to that reported in Willelmus Stevyns c. Johanna Stevyns: The Courts of the Archdeaconry of Buckingham, xx and items 383-384 and 386-388. As Elvey reports, the defendant was allegedly terrified of her father. Removed from home for a time on the judges order, she was sent to live with a cousin. Her response to one article from the plaintiff is telling:

Quoad sextum articulum fatetur quod flexis genibus dixit patri suo quod si potest obtinere voluntatem benedicendi patris sui, vellet tunc habere ipsum Willelmum in maritum suum. Et pater dixit incontinenter eidem mulieri in anglicis: “Vbyde harlot owte of my sight.”

In answer to the sixth article she admits that on bended knee she said to her father that if she could obtain the consent of her blessed father she should want then to have the said William as her husband. And her father spoke incontinently to the same woman in English: “Vbyde harlot owte of my sight” [Translation mine].

There is a further example within the Paston Letters, this time showing the extent to which some might proceed regardless of the risks. Margery Paston is particularly insistent upon her marriage to Richard Calle despite the wishes of her family and strong advice from the bishop of Norwich. See Jacqueline Murray, “Individualism and Consensual Marriage: Some Evidence from Medieval England,” in Women, Marriage, and Family in Medieval Christendom: Essays in Memory of Michael M. Sheehan, C.S.B, eds. Constance M. Rousseau and Joel T. Rosenthal (Kalamazoo: Medieval Institute Publications, 1998), 121-151 at 121-122.

LAO/Cj.4/Ql.fol.30r.

Ibid.

Deinde Johannes ftloyde comparuit et constituit magistrum Thomam Bothe procura-torem suum ad agendam | etc cum clausam substituendam presentibus tunc ibidem magistro Thoma Webster Ricardo Rayne litterato et alij Deinde magister Bothe pecijt eandem Aliciam sequestrari et in loco honesto quia dictus frloyd | non potest [’habere] tutum accessum ad eandem.: LAO/Cj.4/Ql.foL30r.

Deinde dominus de consensu mulieris et virorum | predictorum videlicet Johannis Spence et Johannis frloyd sequestrauit eandem in domo | Roberti et Johannis Crofte de Stoke Dawbeney et iniunxit dicte Alicie ne recederet a dicta | domo priusquam habuit legitimam sub pena excommunicationis.: LAO/Cj.4/Ql.fol.30r.

The record says Spence made his allegation “uiua uoce,” that is, orally. Had papers been previously lodged those words would not have appeared. See LAO/Cj.4/Ql.fol.32r.

Also at LAO/Cj.4/Ql.fol.32r.

Interrogatus de tempore dicit quod in dominico reliquiarum ultimo elapso in domo habitacionis | eiusdem lohannus Spence nullis tunc presentibus: Again at LAO/Cj.4/ Ql.fol32r.

Also at LAO/Cj.4/Ql.fol.32r.

McSheffrey, “I will never have none ayenst my faders will,” 166.

Donahue, Law, Marriage, and Society, 92 & “Texts and Commentary,” note 156.

Office c. Johannes Kellett, Christina Sulby et Stephanas Estivyck. The entire record of the case can be seen at LAO/Cj.4/Ql.fols32v and 34r.

If such circumstances seemed to arise, the court would have always been keen to undo invalid marriages.: Helmholz, The Canon Law, 539. For further examples, see Helmholz, Marriage Litigation, 214—219.

Helmholz writes, “[pjrobably, as historians have often said, dispensations were simply not available to ordinary people: and goes on to report a York case (C.P.E. 109 (1370)) where a chaplain, giving evidence about a dispensation, said to the court that “even a hundred pounds would not have secured it”: Marriage Litigation, 86.

Helmholz. The Canon Law, 543.

Helmholz, Marriage Litigation, 79.

The relevant extract, at LAO/Cj.4/Ql.fol.32v, states “comparuit personaliter Stephanus Estwike de Bosiatt . . . interogatus an audiuit dici quod Thomas Clarcke et Christina Sulby contraxerunt matrimonium | die dominico ante festum concepcionis beate marie Virginis ultimo negat.” LAO/Cj.4/Ql.fol.32v.

LAO/Cj.4/Ql.fol.34r.

Also at LAO/Cj.4/Ql.fol.34r.

McCarthy, Marriage in Medieval England, 37.

Edward V. Cardinal, Cardinal Lorenzo Campeggio: Legate to the Courts of Henry VIII and Charles V (Boston: Chapman & Grimes, 1935), 116—123: Legate Laurentius (Cardinal Campeggio) was present in England between 29 September 1528 and mid-1529.

Anne P. Fuller, ed., Calendar of Entries in the Papal Registers Relating to Great Britain and Ireland: Papal Letters, vol. 20, 1513-1521, Leo X, Lateran Registers, Part 1 (Dublin: Irish Manuscripts Commission, 2005).

Outhwaite, Clandestine Marriage, 6.

Helmholz. The Canon Law, 543.

Helmholz. Marriage Litigation, 85-86.

 
Source
< Prev   CONTENTS   Source   Next >