C.P. Addition: Marriage of Robert de Ufford, Earl of Suffolk

[Douglas Richardson]

Dear Newsgroup ~

The authoritative Complete Peerage, 12 Pt.1 (1953): 429-432 (sub
Suffolk) has a good account of the life of Robert de Ufford, K.G.
(died 1369), Earl of Suffolk. C.P. states that Earl Robert was
married on or before 21 October 1329 Margaret de Norwich, widow of
Thomas de Cailly, Lord Cailly, which Margaret died 2 April 1368. No
mention is made of any other marriage. Earl Robert de Ufford himself
died 4 November 1369. He has many modern descendants.

There is a detailed ancient chronicle of the Mortimer family now
available in print, which chronicle was "almost certainly written at
Wigmore" (seat of the Mortimer family) "during the 1360s and 1370s."
Under the year 1369, it gives the following information regarding
Robert de Ufford's hitherto unnoticed second marriage to Philippe de
Montagu, widow of Roger de Mortimer, K.G., Earl of March, which
marriage was evidently contracted in 1369, but not solemnized owing to
the unexpected death of Robert de Ufford:

[1369] "Eodem anno / obiit dominus Robertus de Ufforde, comes de
Southfoulke, qui eodem / anno sponsavit Philippam de Mountagu qui
prius erat domini Rogeri / de Mortymer, comes Marchie, sed antequam
inter eos matrimonium / in facie ecclesie solempniretur idem Robertus
obiit." END OF QUOTE. [Reference: John Taylor, English Historical
Literature in the Fourteenth Century (1987): 287, 295].

Philippe de Montagu, Countess of March, subsequently died testate 5
Jan. 1381/2, and was buried in the Austin Priory of Bisham,
Berkshire. She left a will dated 21 Dec. 1378, proved 9 Feb. 1381/2
(P.C.C. 189 Courtenay). Like Robert de Ufford, she has many modern
descendants.

Best always, Douglas Richardson, Salt Lake City, Utah

[Gjest]

On Feb 19, 10:24 am, Douglas Richardson <royalances...@msn.com> wrote:

(malicious cross-posting removed)

Dear Newsgroup ~

The authoritative Complete Peerage, 12 Pt.1 (1953): 429-432 (sub
Suffolk) has a good account of the life of Robert de Ufford, K.G.
(died 1369), Earl of Suffolk.  C.P. states that Earl Robert was
married on or before 21 October 1329 Margaret de Norwich, widow of
Thomas de Cailly, Lord Cailly, which Margaret died 2 April 1368.  No
mention is made of any other marriage.  Earl Robert de Ufford himself
died 4 November 1369.  He has many modern descendants.

There is a detailed ancient chronicle of the Mortimer family now
available in print, which chronicle was "almost certainly written at
Wigmore" (seat of the Mortimer family) "during the 1360s and 1370s."
Under the year 1369, it gives the following information regarding
Robert de Ufford's hitherto unnoticed second marriage to Philippe de
Montagu, widow of Roger de Mortimer, K.G., Earl of March, which
marriage was evidently contracted in 1369, but not solemnized owing to
the unexpected death of Robert de Ufford:

Thus we return to the question of a contract for marriage vs a
marriage.

Apologies if this has been 'done to death' here in the past, and I
slept through it, but isn't a contract for marriage a different thing
to a marriage, just as today getting to engaged to a woman doesn't
make her your wife?

Contracts for marriage, like anything else, were actionable if
breached, and because of the nature of the contract were often
considered to be so binding as to preclude or invalidate a subsequent
marriage to a different party - but does a contract for marriage that
was not solemnised make Philippa de Montagu the wife of Robert de
Ufford?

NB we are not talking about a child-marriage here, which could
notionally be repudiated upon a party reaching an age of discretion.

MA-R

[Douglas Richardson]

Contemporary medieval people considered a contracted wife as the wife
of the man. They could and did refer to her as such. I'm also told
that a contracted wife could claim legally dower from her husband's
estate, but I haven't seen an example of that in medieval records.

By modern parlance, it is best to say the couple were "betrothed," or
"contracted to marry," which is certainly correct. But our modern
understanding of such terms doesn't quite capture the essence of a
medieval betrothal. The medieval man thought of a betrothal as akin
to marriage itself. This is why Hugh de Lusignan was so indignant
when King John "married" his "betrothed" spouse, Isabel of Angouleme.
The cost to England over this one marriage was enormous indeed.

Best always, Douglas Richardson, Salt Lake City, Utah

[Gjest]

On Feb 19, 11:44 am, Douglas Richardson <royalances...@msn.com> wrote:

(malicious cross-postings removed)

Contemporary medieval people considered a contracted wife as the wife
of the man.  They could and did refer to her as such.  

What a modern lawyer might think of as an 'equitable marriage', I
suppose.

We see this thinking lingered at least into Jacobean times - cf the
references to Mary in St Matthew's Gospel (the Authorised Version of
1611):

"Mary was espoused to Joseph...; "then Joseph her *husband*... was
minded to put her away privily".

I'm also told
that a contracted wife could claim legally dower from her husband's
estate, but I haven't seen an example of that in medieval records.

Nor have I. Can anyone provide an example to indicate this was the
case?

By modern parlance, it is best to say the couple were "betrothed," or
"contracted to marry," which is certainly correct.  

I agree. And for that reason, I would not agree that this represents
a new wife for the Earl of Suffolk (and a CP addition as such -
although it is worth a mention as a footnote).

Such a contract may well have been considered absolutely binding on
the parties, but it was vitiated by the death of one of them.

But our modern
understanding of such terms doesn't quite capture the essence of a
medieval betrothal.  The medieval man thought of a betrothal as akin
to marriage itself.  This is why Hugh de Lusignan was so indignant
when King John "married" his "betrothed" spouse, Isabel of Angouleme.
The cost to England over this one marriage was enormous indeed.

I would have thought being jilted would be sufficient explanation for
his wroth!

Mediaeval genealogy represents enough challenges just in trying to
ascertain which individuals were married to which - let alone the
permutations of which 'marriages' were actually marriages...

MA-R

[Renia]

Douglas Richardson wrote:

Contemporary medieval people considered a contracted wife as the wife
of the man. They could and did refer to her as such. I'm also told

by whom?

that a contracted wife could claim legally dower from her husband's
estate, but I haven't seen an example of that in medieval records.

By modern parlance, it is best to say the couple were "betrothed," or
"contracted to marry," which is certainly correct. But our modern
understanding of such terms doesn't quite capture the essence of a
medieval betrothal. The medieval man thought of a betrothal as akin
to marriage itself.

Not quite akin to marriage but an expectation that a marriage would
certainly take place, because of the contract. It was a legal term, not
a spiritual one.

This is why Hugh de Lusignan was so indignant
when King John "married" his "betrothed" spouse, Isabel of Angouleme.
The cost to England over this one marriage was enormous indeed.

Best always, Douglas Richardson, Salt Lake City, Utah

[Inger E J]

"Renia" <renia@DELETEotenet.gr> skrev i meddelandet
news:fpdmqc$6j0$1@mouse.otenet.gr...

Douglas Richardson wrote:
Contemporary medieval people considered a contracted wife as the wife
of the man. They could and did refer to her as such. I'm also told


by whom?


that a contracted wife could claim legally dower from her husband's
estate, but I haven't seen an example of that in medieval records.

By modern parlance, it is best to say the couple were "betrothed," or
"contracted to marry," which is certainly correct. But our modern
understanding of such terms doesn't quite capture the essence of a
medieval betrothal. The medieval man thought of a betrothal as akin
to marriage itself.

Not quite akin to marriage but an expectation that a marriage would
certainly take place, because of the contract. It was a legal term, not a
spiritual one.

Renia, would you please explain the different steps of a contract in
England/Scotland in those days.

Inger E

[Renia]

Inger E J wrote:

"Renia" <renia@DELETEotenet.gr> skrev i meddelandet
news:fpdmqc$6j0$1@mouse.otenet.gr...
Douglas Richardson wrote:
Contemporary medieval people considered a contracted wife as the wife
of the man. They could and did refer to her as such. I'm also told

by whom?


that a contracted wife could claim legally dower from her husband's
estate, but I haven't seen an example of that in medieval records.

By modern parlance, it is best to say the couple were "betrothed," or
"contracted to marry," which is certainly correct. But our modern
understanding of such terms doesn't quite capture the essence of a
medieval betrothal. The medieval man thought of a betrothal as akin
to marriage itself.
Not quite akin to marriage but an expectation that a marriage would
certainly take place, because of the contract. It was a legal term, not a
spiritual one.

Renia, would you please explain the different steps of a contract in
England/Scotland in those days.

Think of a marriage contract as a business arrangement, a merger of two
landholding companies. Some "mergers" were discussed before the
prospective bride and groom were even born, some shortly after they were
born.

The respective landholdings would be discussed and itemised, including
details of who held what and where, in what circumstances, whether for
life or under any other conditions and whether any other heirs or
prospective heirs were involved.

If the prospective "business partners" or bride and groom lived far
apart, say, in different countries, then proxies might stand for them,
including at the marriage ceremony itself. Often, the young bride-to-be
would be sent to live in her contracted husband's household to learn the
ways of that household, much as a young apprentice would be sent off to
another household to learn his trade. The young bride was not expected
to consummate the marriage until she was at least 12 years old, or
capable of bearing children.

Like any other legal contract, a marriage contract would be difficult to
break but not impossible.

[Peter Stewart]

"Douglas Richardson" <royalancestry@msn.com> wrote in message
news:0760fa2b-ddd3-42a2-9e9c-32ab8a30d66a@i12g2000prf.googlegroups.com...

Contemporary medieval people considered a contracted wife as the wife
of the man. They could and did refer to her as such. I'm also told
that a contracted wife could claim legally dower from her husband's
estate, but I haven't seen an example of that in medieval records.

By modern parlance, it is best to say the couple were "betrothed," or
"contracted to marry," which is certainly correct. But our modern
understanding of such terms doesn't quite capture the essence of a
medieval betrothal. The medieval man thought of a betrothal as akin
to marriage itself. This is why Hugh de Lusignan was so indignant
when King John "married" his "betrothed" spouse, Isabel of Angouleme.
The cost to England over this one marriage was enormous indeed.

This is astonishingly ignorant coming from someone who has been informed
about these matters publicly and thoroughly in the past by several people,
most notably (and patiently) by Paul Reed.

I assume that Richardson has read the article 'Chasing Amie: The Search for
the Parents of Amie de Gaveston' by Brad Verity with Paul Reed in _The
Plantagenet Connection_ 10 (2002), that was occasioned partly by his own
shennanigans in this newsgroup; but if so he has evidently fogotten what he
should have learned from it on the present subject.

A contract and a betrothal were not the same as each other, and a contract
was not considered equivalent to a canonical marriage, as misrepresented
above, Betrothal was a step - the more open the better from the Chuirch's
point of view - in making a canonical union, not somehow "akin" to one.
Collateral kinship is a misleading metaphor: relatives are not steps towards
the realisation or consummation of each other.

To quote from the cited article, reinforcing the summary that Renia has
helpfully provided:

"A _marriage contract_ was not an exchange of vows or specific intent
between children or intended bride and groom. It was not an ecclesiastical
venture. It was a civil contract dealing with lands, inheritance, terms of
dower, etc., between two parties...It could be drawn up at any time,
_regardless_ of ages of bride or groom, and not infrequently stipulated that
if the heir should die, the next survivor should stand in their stead. Even
unborn children could be included in a marriage contract."

"Though an exchange of vows between individuals may be interpreted as a type
of contract, which in certain ways was binding in an ecclesiastical sense,
that spiritual contract should not be confused with the civil contract
between two parties intended to marry. A marriage contract was civil, and
had nothing necessarily to do with the various steps in the sacrament of
marriage, other than that the completion of the act would fulfill the terms
of the civil contracts. [para] _Betrothal_, or _espousal_ (Latin:
_desponsatio_), was the first step in the process of marriage governed by
Church law. It was the exchange of words between a man and woman of intent
to marry at some time in the future (_sponsalia per verba de futuro_). This
is not entirely unlike our present practice of becoming engaged for a period
before the marriage ceremony."

Note, as Richardson can't or won't, that "Though an exchange of vows between
individuals may be interpreted as a type of contract, , which in certain
ways was binding in an ecclesiastical sense" does NOT mean the reverse, that
a contract may be interpreted as a type of exchange of vows between
individuals. It was a legal agreement between the parties to it, not a
sacrament binding the prospective couple.

Peter Stewart

[Peter Stewart]

"Peter Stewart" <p_m_stewart@msn.com> wrote in message
news:MLyuj.16896$421.13873@news-server.bigpond.net.au...

<snip>

I assume that Richardson has read the article 'Chasing Amie: The Search
for the Parents of Amie de Gaveston' by Brad Verity with Paul Reed in _The
Plantagenet Connection_ 10 (2002), that was occasioned partly by his own
shennanigans in this newsgroup; but if so he has evidently fogotten what
he should have learned from it on the present subject.

So as not to have time wasted by the typo brigade, "fogotten" for forgotten
was a mistake and not a deliberate neologism on my part - but it is a rather
apt term for the clouded mental processes of Richardson.

Peter Stewart

[Douglas Richardson]

On Feb 19, 4:14 am, "Peter Stewart" <p_m_stew...@msn.com> wrote:

"Peter Stewart" <p_m_stew...@msn.com> wrote in message

So as not to have time wasted by the typo brigade, "fogotten" for

forgotten

was a mistake and not a deliberate neologism on my part - but it is a rather
apt term for the clouded mental processes of Richardson.

Peter Stewart

This thread is entitled "CP. Addition: The marriage of Robert de
Ufford and Philippe de Montagu," not "Why I can't spell by Peter
Stewart."

DR

[gryphon801@aol.com]

I think Paul's account on marriage includes some valuable sources for
English ecclesiastical law concerning marriage, so it's worth posting
the full quote of the section.

"Chasing Amie: The Search for the Parents of Amie de Gaveston," The
Plantagenet Connection, volume 10: Summer and Winter 2002.

MEDIEVAL MARRIAGE CONCEPTS



A marriage contract was not an exchange or vows or specific intent
between children or intended bride and groom. It was not an
ecclesiastical venture.[1] It was a civil contract dealing with
lands, inheritance, terms of dower, etc., between two parties, such as
the Montagues and the Capulets.[2] It could be drawn up at any time,
regardless of ages of bride or groom, and not infrequently stipulated
that if the heir should die, the next survivor should stand in their
stead. Even unborn children could be included in a marriage
contract. The full text of the contract between Joan de Gaveston and
Thomas de Multon, presented below, serves as an example. The two
parties in that contract were Edward II and Thomas, Lord Multon of
Egremont, who exchanged and committed lands and monies on behalf of
their wards, with the intent that their wards should at some point
marry.



Though an exchange of vows between individuals may be interpreted as a
type of contract,[3] which in certain ways was binding in an
ecclesiastical sense, that spiritual contract should not be confused
with the civil contract between two parties intended to marry. A
marriage contract was civil, and had nothing necessarily to do with
the various steps in the sacrament of marriage, other than that the
completion of the act would fulfill the terms of the civil
contracts.



Betrothal, or espousal (Latin: desponsatio), was the first step in the
process of marriage governed by Church law. It was the exchange of
words between a man and woman of intent to marry at some time in the
future (sponsalia per verba de futuro).[4] This is not entirely
unlike our present practice of becoming engaged for a period before
the marriage ceremony.



The minimal age at which valid consent could be made was age seven for
both male and female. This was when that one was considered to attain
the age of discretion (this should not be confused with the Canonical
age of consent to physical relations, discussed below). Should a boy
and girl become betrothed at the urging of parents or guardians, and
one party was below age seven, the party above age seven was bound,
but the boy or girl under age seven could refuse the commitment upon
attaining the proper age.[5] Though betrothals were considered
binding, they could be broken by perfecting a marriage with a third
party.[6]



When couples exchanged these vows in private, but relationships later
soured, it left much open to dispute and false testimony. In England,
Church leaders had been making a concerted effort to prevent
clandestine marriage by making each step of marriage as public as
possible--in part to avoid subsequent dispute and marriage litigation.
Banns became a medial step in the process of marriage, though was not
technically required for the completion of legitimate marriage.
Public banns were evidence of prior espousal. This helped ensure
public knowledge of an intended marriage, and gave anyone
knowledgeable of preexisting impediments (such as a prior promise to
marry another, or knowledge that the parties were related within
prohibited degrees of consanguinity or affinity) the chance to come
forward and prevent an invalid union.



Marriage, as we think of it now, was the exchange of vows in the
present tense (sponsalia per verba de praesenti), i.e., "I take thee,
from this moment forward, to be my lawfully wedded spouse."[7] There
was no specific formula for wording, but the tense of the promise was
all important. "What created the indissoluble bond was the exchange
of words in present consent." Prior to the marriage reforms that came
about during the Pontificates of Alexander III (1159-81) and Innocent
III (1198-1216),[8] it had been held that only physical union
(intercourse) perfected marriage:[9]



According to the doctrine that prevailed for a while, there was no
marriage until man and woman had become one flesh. In strictness of
law all that was essential was this physical union accompanied by the
intent to be thenceforth husband and wife. All that preceded this
could be no more than an espousal (desponsatio) and the relationship
was dissoluble; in particular it was dissolved if either of them
contracted a perfected marriage with a third person.[10]



Important changes in the interpretation of marriage occurred during
the Pontificate of Alexander III, however. Scholars (such as Peter
Lombard and the Masters of Paris) put forward that Mary and Joseph
were fully and legally married prior to the birth of Jesus Christ,
even though they did not have physical relations prior to the birth.
This argument was unassailable, and led to the doctrine that an
exchange of vows in the present tense was full and binding marriage.
As Maitland stated, "it is not dissolved though one of the spouses
goes through the ceremony of marriage and is physically united with
another person."[11]



It was in Veniens ad nos, addressed to Bishop John of Norwich, that
ruled, "a valid marriage might be contracted [by] ... either present
consent between parties of legal age who were free to marry each
other, or by free exchange of future consent if that consent was
ratified by subsequent sexual intercourse.... Thus Alexander III
formally adopted the Parisian distinction between present and future
consent as a central element of papal marriage law."[12]



A simple exchange of vows in the present tense came to be all that was
necessary to constitute a valid marriage.[13] Only preexisting
impediments could break a union--for it would be judged never to have
been a union in the first place (if impediments existed which
prevented it).[14] Much marriage litigation often hinged on the tense
and wording of what was said. Some men and women caught up in the
heat of the moment, meaning only to express the joy coursing through
their veins, found themselves to be held to much more than they might
have intended.[15]



Sexual intercourse, by itself, did not constitute marriage--it was
fornication. However, if the couple had previously exchanged vows
with the intent to marry in the future (betrothal), the physical act
was taken as a sign of present acceptance. Even though words were not
exchanged in the present tense, the act itself was manifestation of
that, and the marriage perfected, in the eyes of the Church.[16]



It is worthwhile to briefly discuss how children from a union that
might be questioned were viewed in the eyes of the church, and how
this differed from how they were treated by law. Maitland summed up
the view rather succinctly:



'If a woman in good faith marries a man who is already married,
believing him to be unmarried, and has children by him, such children
will be adjudged legitimate and capable of inheriting.' ... If a woman
is divorced for kinship, or fornication, or blasphemy ... she can not
claim dower, but her children can inherit both from their father and
from their mother according to the law of the realm. But if the wife
is separated from her husband on the ground that he previously
contracted marriage with some other woman by words of present time,
then her children can not be legitimate, nor can they succeed to their
father, nor to their mother.[17]



[O]ur temporal courts would not allow to marriage any retroactive
power; the bastard remained incapable of inheriting land even though
his parents had become husband and wife....[18]



By the late 13th century in England, children might be legitimized or
bastardized after the fact by a ruling on their parents' marriage in
ecclesiastical courts. But the king's courts and civil law made every
effort to keep their original status unchanged, as it pertained to
their legal status and inheritance.



The Canonical age of consent (to physical union) was, at a minimum,
age 12 for girls and 14 for boys.[19] It was considered to be the
general age at which the onset of puberty occurred. Menses was the
key factor in women, but in litigation, inquiries specifically made by
Popes into the facts of disputes brought before them usually only
asked if the girl had attained age twelve or not, if the age was
known.



It is true that unscrupulous parents might join children together,[20]
but knowledgeable barons who had the interest in their heirs and lands
would not jeopardize marriage negotiations and contracts by creating a
situation clearly in violation of ecclesiastical law. It was also
important to make the various steps of marriage as public as possible,
[21] as the possibility would thereafter remain that later challenges
could be brought forward and undo carefully arranged plans and forfeit
large sums of advanced money or lands. Scott Waugh specifically
addressed this where he discussed William Marshal's plans in arranging
marriages for each of his children.



As these last examples illustrate, partners were often quite young at
the time of their betrothal. Marshal's eldest son was probably about
twelve years old [b. ca. 1190] when the match with the heiress of
Aumale was arranged, and she was only about six or seven. The
marriage itself was not celebrated until 1214, nearly eleven years
after the contract was drawn up.



Yet marriage contracts often involved children or young adults,
because the heads of most families, like William Marshal, wanted to
ensure before they died that their sons and daughters were well
matched and that the descent of their patrimonies was, to some extent,
ensured. The marriage could be arranged, lands exchanged, and the
partners safely taken care of until they reached the age of canonical
consent, twelve for girls, fourteen for boys.[22]



In summary, marriage contracts could be drawn up by the guardians at
any point, regardless of the age of a child (even unborn heirs might
be included). That was a civil contract, having nothing to do with
church courts or ecclesiastical law. Betrothal was the first step of
marriage, and was not legally valid until age seven. Betrothal was an
exchange of intent to marry in the future. Marriage itself was an
exchange of vows in the present tense. It was not binding on a party
unless they had reached the Canonical age of consent to physical
relations, age fourteen for boys or twelve for girls. Even so, if one
of the parties was underage when marriage was attempted, they could
refuse upon attaining proper age and could not be forced to marry. No
step was binding on a party who had been coerced.[23]





[1] Eric Josef Carlson, Marriage and the English Reformation
(Blackwell: Oxford, UK and Cambridge, USA, 1994), 29-30: "Inheritance
was a matter for secular courts. Pope Alexander had conceded that
without hesitation, and in any event, it was the common law courts
that had the procedure to settle such cases effectively. ... Alexander
III merely conceded secular courts jurisdiction over seisin; nothing
they did could make a child who was legitimate in God's eyes
illegitimate, but the common law could refuse to permit seisin by
right of inheritance" (hereafter cited as Carlson, Marriage and the
English Reformation).



[2] Carlson, Marriage and the English Reformation, p. 31: "If the
maritagium was delivered and the marriage did not take place, a
related suit for recovery of goods arose. If the failure was due to
ecclesiastical court action, such as blocking an incestuous union,
that same court might order return of goods. If the maritagium was
land, recovery was effected in the royal courts through a writ of
novel disseisin."



[3] The ecclesiastical contract directly affected the legal status of
parties in civil law, but also included requirements for which a
spouse could sue in ecclesiastical court, such as restoration of
conjugal rights.



[4] Michael M. Sheehan, "Marriage Theory and Practice in the Conciliar
Legislation and Diocesan Statutes of Medieval England," Mediaeval
Studies, 40 (1978), and reprinted in Marriage, Family, and Law in
Medieval Europe: Collected Studies (University of Toronto Press:
Toronto and Buffalo, 1996), presents an extremely detailed analysis of
how marriage was affected by English Councils and Synods. Betrothal
is discussed at pp. 137-44 [1 Canterbury 55, legislated that betrothal/
engagement was to be entered into in public before witnesses]. Banns
are discussed at pp. 145-54 [the Council of Westminster (1200) imposed
banns in the Province of Canterbury]. Exchange of consent de presenti
is discussed at pp. 154-66. Still, marriages lacking public espousals
and banns were valid. The church was simply doing its best to get a
hand on things. As Helmholz puts it, "It is particularly notable that
no public ceremony was required to make a marriage valid and
indissoluble. Such a ceremony, preceded by publication of banns, was
necessary to render a marriage fully licit" (Helmholz, Marriage
Litigation in Medieval England, 27).



[5] For instance, William Fitz Godric had been betrothed to the
daughter of Aubrey de Lisours, but some years later married the
mother, rather than the daughter. He claimed the girl was under age
seven when the betrothal was made, and was thus invalid. The Pope
sent back letters of inquiry, stating that if the girl had been under
age, William Fitz Godric's marriage to the mother could stand, but if
the girl had been age seven at time of betrothal, the marriage was
shameful. See Stanley Chodorow and Charles Duggan, eds., Decretales
ineditae saeculi XII: From the papers of the late Walther Holtzmann
(Biblioteca Apostolica Vaticana: Vatican City, 1982), Monumenta Iuris
Canonici, Series B: Corpus Collectionum, v. 4, pp. 123-5 (no. 71), and
related discussion, which goes into much more depth that space allows
here.



[6] Helmholz, Marriage Litigation in Medieval England, 35: "Such a
contract by verba de futuro was dissoluble by an extensive number of
circumstances, such as mutual desire of the parties, subsequent
serious infirmity by one party, or long lapse of time. But where the
contract was clearly by words of future consent, where no such
supervening circumstances existed, and where it had not been followed
by a contract with another by words of present consent, the Church
courts would order the defaulting party to fulfill his contract."



[7] Sheehan, "Marriage Theory and Practice," pp. 427-8, "Thus, in
England, in the reference to the banns in the Council of Westminster
(1200) ... where no distinction of the stages of the marriage was made,
the term matrimonium may well have been intended to apply to the whole
process that brought about the union of the couple."



[8] Brundage, Law, Sex and Christian Society, p. 338: "The new pope
[Innocent III] insisted more fiercely than Alexander had on the
principle that Catholic marriage law must be uniform and that local
variations on fundamental issues must be discouraged. Innocent firmly
maintained the consensual doctrine as Alexander had framed it and was
adamant in defending it against other models of Christian marriage.
Innocent did nevertheless modify some features of the Alexandrine
marriage law. He rejected the doctrine that a present consent
marriage might be dissolved on the grounds of supervening affinity."



[9] "Marriage is begun by the desponsatio; it is perfected by the
commixito sexuum." ('seciendum est quod conjugium desponsatione
initiatur, commixtione perficitur.') Helmholz, Marriage Litigation in
Medieval England, p. 26 and note 6.



[10] Maitland, History of English Law, 2:368.



[11] Maitland, History of English Law, 2:368. Maitland continued,
"The espousal 'by words of the present tense' constitutes a marriage
(matrimonium), at all events an initiate marriage; the spouses are
coniuges; the relationship between them is almost as indisseverable as
if it had already become a consummate marriage." A spouse could free
themselves from an unconsummated marriage by entering religion (which
meant no future marriage to anyone but Christ), or by getting papal
dispensation. But note that there is still a difference made between
an initiate marriage and a marriage perfected by consummation.



[12] Brundage, Law, Sex and Christian Society, p. 334. The evolution
of marriage during the Pontificate of Alexander III is discussed in
detail by Charles Donahue, "The Policy of Alexander the Third's
Consent Theory of Marriage," Proceedings of the Fourth International
Congress of Medieval Canon Law... (Biblioteca Apostolica Vaticana;
Vatican City, 1976), Monumenta Iuris Canonici, Series C: Subsidia, v.
5, pp. 251-81, p. 272: "Alexander also clarifies the previous law
covering the sponsalia of children: promises made by children under
the age of consent are void; those made by children between the age of
consent and puberty may be repudiated at puberty."



[13] Vows could also be conditional, and were only valid at such time
the conditions were fulfilled, such as, "I will marry you if my father
consents." But is the condition was impossible it was ignored in
marriage litigation. See Bartholomew Thomas Timlin, Conditional
Matrimonial Consent: An Historical Synopsis and Commentary (Catholic
University of America: Washington, D.C., 1934).



[14] The six most common impediments to marriage are discussed in R.
H. Helmholz, Marriage Litigation in Medieval England (Cambridge
University Press: London and New York, 1974) (hereafter cited as
Helmholz, Marriage Litigation in Medieval England): pre-contract (pp.
76-7), consanguinity (pp. 77-87), impotence (pp. 87-90), force and
fear (pp. 90-4), crime (pp. 94-8), and infra annos nubiles [under-age]
(pp. 98-9). Other impediments existed as well, such as solemn
religious vows, but were not as commonly seen. See also, Francis X.
Wahl, The Matrimonial Impediments of Consanguinity and Affinity: An
Historical Synopsis and Commentary, Catholic University of American
Canon Law Studies, v. 90 (Catholic University of America: Washington,
D.C., 1934). James A. Brundage, "Impotence, Frigidity and Marital
Nullity in Decretals and the Early Decretalists," Proceedings of the
Seventh International Congress of Medieval Canon Law, Monumenta Iuris
Canonici, Subsidia, v. 8 (Biblioteca Apostolica Vaticana; Vatican
City, 1988), presents a thorough and interesting discussion of this
impediment.



[15] For this reason the English church legislated to help prevent
accidental marriages: "The Second Council of Westminster demanded that
couples forego the practice of holding their ceremonies in taverns.
Other English synods condemned the practice of staging mock weddings
in drinking establishments, and warned that this custom sometimes
resulted in people being bound by matrimonial ties that they had never
seriously considered or desired. James A. Brundage, Law, Sex and
Christian Society in Medieval Europe (University of Chicago Press:
Chicago and London, 1987), 440 (hereafter cited as Brundage, Law, Sex
and Christian Society). Brundage is the most thorough discussion of
sex and marriage law in medieval Europe, thoroughly referenced.
Sheehan, "Marriage theory and Practice," p. 416, "It excluded not only
offensive behaviour and unsuitable location of marriage but also
forbade mock weddings, often a prelude to seduction, lest the mockers
find themselves bound by the obligations of the married state."



[16] Maitland, History of English Law, 2:368: "As to sponsalia per
verba de futuro, the doctrine of the canonists was that sexual
intercourse if preceded by such espousals was a marriage; a
presumption of law explained the carnalis copula by the foregoing
promise to marry."



[17] Maitland, History of English Law , 2:376-7.



[18] Maitland, History of English Law, 2:377.



[19] For instance, Maitland, History of English Law, 2:390: "At the
age of seven years a child was capable of consent, but the marriage
remained voidable so long as either of the parties to it was below the
age at which it could be consummated. A presumption fixed this age at
fourteen for the boys and twelve for girls. In case only one of the
parties was below that age, the marriage could be avoided by that
party but was binding on the other." Robert Todd seems to have
confused the age of majority (a civil consideration concerning lands)
with the Canonical age of consent when he stated, "...to be within age
was under age 14 for males and 12-14 for females. Todd, "Joan
Gaveston," p. 229.



[20] Examples are presented by F. J. Furnivall, Child-Marriages,
Divorces, and Ratifications ... in the Diocese of Chester, A.D. 1561-6,
Early English Text Society, original series, v. 108 (1897); and J.
Raine, Depositions and Other Ecclesiastical Proceedings from the
Courts of Durham from 1311 to the Reign of Elizabeth, Publications of
the Surtees Society, v. 21 (1845).



[21] Brundage, Law, Sex and Christian Society, p. 439: "The interests
of families and feudal lords in regulating the marriages of those
under their control required that couples marry publicly, so that
their marital status would not be in doubt." Even this, however,
might not guarantee security. Brundage, Law, Sex and Christian
Society, p. 336, for instance, states, 'Accordingly no husband or
wife, even in a publicly solemnized union, could ever be sure that an
earlier mate from a clandestine marriage might not someday appear on
the scene to claim his or her spouse."



[22] Scott Waugh, The Lordship of England: Royal Wardships and
Marriages in English Society and Politics, 1217-1327 (Princeton
University Press: Princeton, N.J., 1988), p. 56, emphasis added
(hereafter cited as Waugh, The Lordship of England).



[23] An interesting example of this is related in the mandate from the
Pope, in 1345, concerning Richard, Earl of Arundel, and Isabel le
Despenser, "who, at the respective ages of seven and eight, not by
mutual consent, but by fear of their relatives, contracted espousals,
and on coming to years of puberty expressly renounced them, but were
forced by blows to cohabit, so that a son was born--[mandate to the
Archbishop of Canterbury and Bishop of Winchester] to summon the said
parties, and by canonical procedure annul the marriage, they having
constantly lived apart, and providing for their son, so that they may
be free to intermarry with others." Calendar of ... Papal Registers...
(London, 1897), 3;164. See also, Sue Sheridan Walker, Free consent
and marriage of feudal wards in England," Journal of Medieval History,
v. 8, no. 2 (June 1982), pp. 123-34.