Marriage on Trial

3. Stories from the Roman Supplications

3 Stories from the Roman Supplications In a famous decretal with the incipit Per venerabilem (X 4.17.13), Pope Innocent III (1198–1216) had determined that the successor of Peter was empowered, even obligated, to interfere everywhere in a regulatory and penal way where there was sinful conduct (ratione peccati ), even when the sinners were emperors and kings. one should not be surprised, then, that the bishops, the successors of the other apostles called to support the pope (in partem sollicitudinis), and the spiritual courts assigned to them stigmatized, charged, and endeavored to do away with all bad behavior in the field of marriage and family. To this end, since the late thirteenth century, there existed in every diocese of the empire at the episcopal courts, called the officialate courts because the presiding judge was the officialis, specific divisions for marriage processes. In fact, the episcopal courts in the late Middle Ages were chiefly occupied with conducting processes in marital matters. With the canons of the Fourth Lateran Council, the papal decretals contained in the fourth book of the Liber Extra promulgated in 1234, and the instruments of the romano-canonical process, the church possessed fixed guidelines as to what the procedures in such marriage processes were to be. Moreover, judges (“officials”) schooled in canon law officiated at the episcopal officialate courts, supported by a host of notaries and commissioners or commissary 99 100 Stories from the Roman Supplications judges, who were responsible for important tasks in the course of a process. They questioned the summoned witnesses, occasionally numerous, drew up the record of those examinations, composed interim reports, and also wrote up the final judgment for the official . Thus, in most German episcopal sees in the fifteenth century, an agency at the officialate court employing many people (“officiality”) had come into being. Approximately thirty individuals worked at the officialate court in Basel, at least fifteen in Chur, at least twenty-one in Constance.1 Unfortunately the archival transmission of the officialate jurisdiction, which in several dioceses, for instance in Chur, Eichstätt, and Freising,2 was subject to the vicar general and in others , as in Regensburg, to the cathedral chapter, is only preserved in pieces in the German empire.3 For that reason, this chapter will investigate what information about the diocesan marriage processes can be gained from the supplications of the penitentiary. How a Canonical Marriage Process Could Begin How did a legal process in marital matters get launched in partibus ? In general one must state that everywhere the instigation corresponded to the guidelines of canonical procedural law, regardless of whether a process was pursued through a litigation contest or only a shortened, summary procedure and thus a faster and cheaper one for the parties. The sources from the penitentiary possess, therefore, not a small value for legal and social history because only a few records of processes exist in German archives. Since a marriage process 1. These numbers come from Albert, Der gemeine Mann, 68–74. Translator’s Note: on the officialate courts, the role of the official, and the various legal professions, from notaries to proctors, cf. in English James A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago/ London: University of Chicago Press, 2008). See especially pp. 137–51 for a helpful introduction to officials (or officials-principal) and officialate courts (or consistory courts). The work of proctors is discussed in detail in chapter 8. 2. on this point see Ingeborg Bucholz-Johanek, Geistliche Richter und geistliches Gericht im spätmittelalterlichen Bistum Eichstätt (Eichstätter Studien 23; Regensburg, 1988). 3. on the jurisdiction of the officialate court in Basel, Chur, and Constance, cf. Albert, Der gemeine Mann, 65–100. on Regensburg, cf. Deutsch, Ehegerichtsbarkeit , 61–142. Stories from the Roman Supplications 101 pursued in partibus preceded the supplication registered in Rome, the supplications contain valuable details about its content and course. In accord with the general claim made by the church to be entitled to correct morals (correctio morum), the episcopal courts became active either upon a charge or by their own initiative. If an official found out that a couple was not living together “in a legitimate marriage,” he summoned the man and woman to court. There the accused were questioned and their statements checked through witnesses from their families or parish, and all statements were recorded.4 At the end of the process...