Marriage on Trial: Late Medieval German Couples at the Papal Court by Ludwig Schmugge (review)

In this comprehensive study, Ludwig Schmugge investigates surviving marriage cases originating within the German Empire that were heard by the papal penitentiary from 1455 to 1502, encompassing the pontificates of Calixtus III, Pius II, Paul II, Sixtus IV, Innocent VIII, and Alexander VI. In all, he examines 6387 cases from most of continental Europe: from the Danish border in the north to Trent in the south and from the city of Liege in the west to Gneizno, Kraków, and Ljubljana in the east.

The study is divided into four parts of very unequal size. Chapter 1 deals mainly with numbers and procedures. In fifty-five pages the reader learns about the number of cases heard during the six pontificates, the original locations of the cases and their outcomes, and the way in which the decisions of the penitentiary were communicated to the litigants and their home dioceses, the consequences of receiving a decision from the penitentiary, and the cost of the litigation. Chapter 2 comprises forty-five pages and concentrates on the legal framework of the litigation. Schmugge quickly passes through the theological and legal discussions of marriage in the eleventh and twelfth centuries to arrive at the marriage law found in the post–Lateran IV legal collections—a decision that may be understandable given the time span covered by the litigation he has chosen to investigate. However, it may be argued that this decision prevents a deeper understanding of the principles upon which this law was based. Chapter 2 also provides a brief overview of the “normal” way in which marriage was contracted by litigants and the many impediments that prohibited parties from contracting a legally binding marriage.

The real contribution of this book, however, lies in the 236 pages of chapters 3 and 4 that deal with litigation in the papal penitentiary and in a selection of German dioceses. Chapter 3 deals with the kinds of cases—or “stories,” as Schmugge calls them—that were heard in the papal penitentiary. By using the designation stories, Schmugge implicitly acknowledges that the legal procedure of the papal courts and the demands of canon law influenced and shaped the narratives that were recorded in the registers. Thus it is implied that the cases may be no more than fictional narratives, albeit rooted to some degree in real events—“based on a true story,” so to speak—and be intended to procure a decision from the papal penitentiary pleasing to the litigants. Litigation at the Papal Curia was the outcome of a prolonged process of litigation in partibus, in the litigants’ home dioceses; litigants therefore would have been able to compose narratives that were designed to solicit a desired outcome. These narratives were informed by previous exposure to the advice of legally trained clerics who advised and guided the litigants long before they appeared before the Curia. It therefore makes sense that the eighty-six pages of chapter 4 analyze cases treated in partibus—that is in local diocesan jurisdictions—to see the level of effectiveness of these local courts in marital litigation and determine if their legal practices deviated from the practice of the Roman Curia. The book concludes with a sixteen-page conclusion that draws together many of the strands discussed by Schmugge in the previous chapters.

The book presents an ambitiously large collection of material, and both its strength and its weakness lie in the detailed narratives it presents. At times it may feel overly long and speculative, but most of the analyses of individual cases are informative and present an excellent level of detail and amply demonstrate the richness of these sources and their ability to illuminate married life (and married conflict) in the past. However, one could have wished for a stronger editorial hand in the...