Marriage on Trial

4. Marriage Processes in German Courts

4 Marriage Processes in German Courts In the satirical poem playing in the Alemannian region around 1400, “The Ring,” by the advocate Heinrich Wittenwiler of Constance , the poet has his protagonists, the young peasants Bertschi Triefnas and a certain Mätzli, get married in the company of friends and relatives, but an (= ohne) schuolern und an phaffen, which means, without the involvement of the church. When the two later asked their priest for the ecclesiastical ceremonial celebration (sollemnisatio) of their marriage, he let a forcefully severe sermon loose on the congregation from the pulpit: Listen up, you ladies and lads! Know this: it is the canon law that, if someone can take another, he should do so publicly (and he thus does well), but not secretly without a priest! To this end we have managed to convince our parishioners of this, from morning to night in the churches, from the bridegroom to the bride and, above all, the common folk, that someone would be and is guilty if he contradicts this teaching.1 250 1. Heinrich Wittenwiler, Der Ring, ed. Horst Brunner (Stuttgart, 1999), ll.5405–5416: “Hört, ier frauwen und ier knecht! / Wisst, es ist der kirchen recht, Marriage Processes in German Courts 251 The congregation was given a lecture, for Bertschi and Mätzli had behaved exactly like thousands of other couples in the fifteenth century . They knew the ecclesiastical norms for marrying, but they did not heed them. In the following chapter, the viewpoint in our investigation switches from the Roman sources, the supplications of the penitentiary , back to those in partibus. It must first be asked what results from regional studies of marriage processes in the German realm? The source material from Rome should be set side by side with the findings in partibus based on the examples of several German imperial dioceses. We will investigate here how many (or rather how few) of the marriage processes carried out before the officialate courts ended in a supplication to Rome and what information can be obtained from the sources of the officialate courts in the German empire, which have been transmitted only in fragments. The selection of the bishoprics put forward here is the result of the respective holdings of the local sources as well as the quality of the existing literature . But can the procedural happenings at the officialate courts in the empire be compared at all? Did not great regional differences exist? Not at all, for marriage processes were not subject to the whims and mood of the local official. Instead, everywhere in Christian Europe they were carried out on a solid legal basis, the romano-canonical ordo iudiciarius, and decided according to the prescriptions of the church’s marriage law. What we have concluded from the Roman supplications about the course of a process is also confirmed in partibus . The procedure began either with the summoning of a wayward couple by the official or with a charge brought before him and the litis contestatio, the counter-claim of the accused. Plaintiffs and defendants could advance formal objections (exceptiones), as was known from Roman law and came into use again in canon law beginning in the twelfth century, and name witnesses. According to the pre- / Daz einr ein chan im nemen schol / offenleich (so tut er wol), / Nicht so haimleich , ane pfaffen! / Dar zuo ist mit uns geschaffen, / Daz wir chündin überlaut / Von dem preutgom und der praut / Und vor allem volk dar zuo / In der kirchen spat und fruo, / ob iemant wär und wesen scholt, / Der da wider sprechen wolt.” 252 Marriage Processes in German Courts scription of the Fourth Lateran Council, claims before the court, especially by witnesses, had to be recorded.2 The procedure could be interrupted by intermediate or interlocutory sentences (sententie interlocutorie ), and it ended with a sentence by the marriage judge, the sententia definitiva. This was to be composed in written form by a notary and registered. In many courts, as in Chur, Freising, and Regensburg , the written sentence of the court began with an invocation of the Lord from the opening words of one of the best-known texts of romano-canonical procedure, namely, the treatise Invocato Christi nomine of Tancred of Bologna (1185–1236), in order to testify in the presence of God that everything had proceeded rightfully and lawfully. At every stage of the procedure, both parties had the right to...