- Marriage on Trial by Ludwig Schmugge
“Thousands of highly interesting documents are kept in thick, red volumes of registers in a separate division of the Vatican Secret Archives in Rome” (4). This tantalizing opening to the first chapter is sure to whet the appetite of any historian. In a highly accessible style, Ludwig Schmugge renders [End Page 332] comprehensible the canon law on marriage and its related legal procedures. His study analyzes the “piteous, exciting, sometimes almost unbelievable, and occasionally scandalous stories” (55) of petitioners to the papal penitentiary. The documents of the penitentiary contain over 42,000 cases concerning matrimony, and were opened to the scholarly community in 1983. This volume investigates the 6,387 supplications from German-speaking dioceses that obtained rulings in Rome between 1455 and 1492. It also draws upon local diocesan registers in Constance, Chur, Basel and Freising, noting that 80 percent of the supplications came from the west and south of the included region. The sources are combined with a statistical analysis of the documents and an understanding of the social and legal background from which these cases arose.
From the mid-twelfth century, marriage was considered a sacrament in the Roman Church. Canonical marriage law was based largely on decrees of the Fourth Lateran Council of 1215. Those decrees were gathered in the Liber Extra, a collection promulgated by Pope Gregory IX in 1234. The prohibition of marriage between relatives (including spiritual kinship) was narrowed from seven degrees of consanguity to four; however, the canon law still stipulated twenty-one impediments to marriage. It also prescribed the public proclamation of the intention to marry (banns). Couples who had violated canon law by their marriage sought dispensation to remain married despite the legal impediment. The pope had the authority to approve exceptions (dispensations), to grant leniency for transgressions (absolutions) or to grant other concessions (indults and licenses) (55).
Several dozen requests for a papal letter of pardon arrived daily and were delegated to the office of the penitentiary, which was charged with matters of penance, confession, and pardon. Those cases for which the penitentiary was not qualified to grant absolution were referred to the pope. These supplications were entered in the “red volumes” that form the basis for this study. Although requests could also be brought to the camera and the chancery, the preferred office was the penitentiary. Pardons could also be handled by councils, papal legates and collects, and bishops. For those of limited means, these were less expensive options, but all petitioners had the right to appeal to the pope.
The first chapter examines the form of the documents, the organization of the penitentiary, the process of application for the petitioner, the various forms of approval and their means of transmission, and fees. The desired outcome for supplicants was a letter of dispensation; some also requested declaratory letters, which certified the innocence of the petitioner in regards to a particular sin. In addition, due to a decree by Pope Clement VI, declaratory letters were required in cases of consanguity. Supplicants hired a proctor to put their request in the proper legal form, and the penitentiary processed the claims on the basis of what was included in these declarations, assessing fines (compositio) for violations of the law. It might also assign penance: in the case of deliberate disregard of consanguity, this could be a prohibition on intercourse for several months. Since the penitentiary was unable to verify the facts of the declaration, it followed the principle of veritas precum. That is, a pardon would automatically be rendered invalid if it were found the petitioner had made incorrect statements. Therefore, every pardon was referred back to the home [End Page 333] diocese for execution, usually by the local bishop who could ascertain the validity of the petitioner’s statements.
The second chapter discusses the impediments to marriage and the prerequisites for dispensation and...