Jurisdiction, Procedures, and Evidence

Writers on secular law during this period by and large accepted canonistic claims to exclusive jurisdiction over marriage, with the significant exception of claims involving inheritance and property, as noted above.

Canonical tribunals became more professional and their proceedings more systematic throughout this period. Jurisdiction over minor sex offenses re­mained for the most part in the hands of rural deans. Litigation concerning di­vorce and separation, however, was beginning to be reserved to higher levels of the Church’s judicial system. In England the commissary courts of bishops and the Courts of Audience claimed cognizance of divorce or separation cases after about 1225, and the lower courts were forbidden to handle these matters.^[1582] Marriage and separation actions were normally initiated by a complaint from one of the parties (instance cases), but from the early thirteenth century on­ward, increasing use was made of ex officio prosecutions to bring morals of­fenses and even some marriage cases before the judges.^[1583] Parties in both types of cases during the course of the century increasingly employed professional canonists to represent and advise them in the course of litigation.^{[1584] [1585]}

The increase in the use of professional counsel resulted in part from the greater complexity of canonical procedures during this period.

Increased procedural complexity expanded the opportunities for canon law­yers to use procedural devices in order to manipulate proceedings. The wife whose husband sought to dismiss her on grounds of infidelity, for example, could delay matters by interposing an exception to the charge—she could, per­haps, allege that her husband was also guilty of adultery—and determination of the separation issue must then await the judge’s ruling on the exception. If he found her exception proved, the separation action was dismissed; if the evi­dence failed to support her exception, the court then tried the main issue, namely the adultery charge against her.^[1587] The tactical use of exceptions and other procedural devices made it more expensive, more time-consuming, and more hazardous for husbands to rid themselves of disagreeable wives and probably gave married women a greater measure of protection than the looser procedures of earlier times had done. The Council of Oxford in 1222 found it

Jurisdiction, Procedures, Evidence necessary to warn advocates against abuses and sharp practice in handling mar­riage matters.^[1588]

Canonists repeatedly insisted that married women could initiate separation and divorce actions against their husbands, even though civil law denied them this right.

While civil law required that actions for separation or divorce based on grounds of adultery must be filed within five years of the alleged offense, the canonists rejected this constraint.^[1593] They did recognize other limitations on the right to initiate these actions, however: if the spouse had done penance for his or her adultery, for example, no separation action could later be based on the past offense. The law forbade ex-spouses to rake up old adultery charges once the court had authorized separation.^[1594]

Although canonists of this period believed that judges should rely primarily on the evidence of witnesses, they were prepared to accept public fame or noto­riety as a type of proof. Notoriety was particularly significant in adultery, cleri­cal concubinage, and fornication cases. A decretal of Innocent III held that nei-

ther accusers nor witnesses were required in order to take action against clerics who were generally known to be living in concubinage.

Common fame, while not adequate proof of wrongdoing by itself, could cer­tainly establish presumptions of fact, as Laurentius Hispanus noted, and might corroborate circumstantial evidence to prove the existence of a marriage when credible direct evidence was not available.⁴⁶² Cohabitation did not create a pre­sumption' of marriage in canon law, as we have seen. Canonists, unlike civil­ians, normally presumed that cohabiting couples were not married unless they could produce some evidence, such as a wedding ring, to substantiate their married status.⁴⁶³ Tancred reminded his readers that statements made by par-

⁴⁵⁹ 3 Comp. 3.2.1 = X 3.2.8; Bernard of Pavia, Summa decretalium 2.17.4, ed. Laspeyres, p. 52; Johannes Teutonicus, Glos. ord. to C. 32 q. 1 c. 4 v. si quis; Militant siquidem patroni to 1 Comp. 3.2.3 v. sacerdotis, in Liotta, Continenza, p. 277. Cf. 1 Comp. 2.20.20 = X 2.28.15 ^on notoriety in adultery cases.

⁴⁶⁰4 Lateran Council (1215) c. 52, ed. Garcia y Garcia, pp. 93-94; Johannes Teu­tonicus, Glos. ord. to C. 32 q. 7 c. 19 v. illi vero.

^mMilitant siquidem patroni to 1 Comp. 3.2.1 v. inhibendum est, as well as the Casus Scribit dominus papa to 3 Comp. 3.2.1 v. tua, in Liotta, Continenza, pp. 276, 359; Tan­cred to 1 Comp. 4.1.14 v. sifama, Caius 28/17, P∙ 89a: “Ar. quod sufficit fama ad proba­tionem, quod Azo dicit; quid tamen si dubitetur famam fuisse qualiter probatur? Re­spondeo per duos testes, infra, qui matrimonium accusare possunt, Peruenire [ 1 Comp. 4.19.3], supra de presumptionibus, Quia in similitudinem [fortasse 1 Comp. 2.16.11]. Vinfcentius)." Tancred to 3 Comp. 5.1.3 v. fama, Caius 28/17, P- ²9?b: “Ar. fama nichil per se probare, supra xxxv. q. vi. si duo [c. 4], supra de eo qui cog. consan. uxo. sue, super eo, 1. ii. [2 Comp. 4.7.1]; licet Jofhannesj dixerit contra, supra iiii. q. iii. § item in criminale, uer. sepe [Gios. ord. to C. 4 q. 2 & 3 c. 3 v. sepe]. Iafurentius)." See also Carlo di Tocco, gloss to Leg. Lomb. 1.32.2 v. purificare, fol. 84va-85ra.

⁴⁶²Tancred to 1 Comp. 4.1.14, Caius 28/17, P- 89a: “Id est si nichil obiciatur contra instrumentum et probetur quod iam obiciebatur uel pre. i. maxime [?]. Nam sola fama bene probat matrimonium, nam uiolenta est eius presumptio, ar. supra de testibus c. ii [1 Comp. 2.13.2?]. Iaufrentius).”

⁴⁶³Tancred to 1 Comp. 4.1.14 v. uxorem, Caius 28/17, p. 89a, Admont 22, fol. 55w. “Quare alia exigitur probatio, cum cohabitabo [A: habitatio] sufficiat ad presumptionem [A: probationem] matrimonii, quousque probetur contrarium, ut ff. de ritu nup., in lib­ere [Dig. 23.2.24]. Respondeo illa presumptio est legis; canon uero contra presumit, ties to divorce or separation actions carried little weight and that corroborative evidence is always required.⁴⁶⁴

Surviving documents from actual marriage cases of the early thirteenth cen­tury by and large bear out the statements of the academic jurists. In Iacopina c. Bonfiliolum Lanaiolum, a case from Pisa in 1230, for example, the complainant wife sought to show that Buonfiglio (Bonfiliolus) had married her.

Petitions for dissolution of a marriage on grounds of impotence presented formidable problems of evidence, particularly if the defendant denied the alle­gation.⁴⁶⁷ The testimony of witnesses might be produced to show that the couple had lived together and hearsay accounts of their unsuccessful attempts to consummate their marriage might also be admitted. In addition, as we have seen, the courts might order physical examination of one or both parties in order to determine whether they were physically capable of intercourse.⁴⁶⁸

scilicet non esse matrimonium etiam inter cohabitantes nisi probetur esse contrarium, et hoc propter anime periculum, ut xxx. q. v. c. i. ala(nus).” Same passage, v. anulos: “Nota quod si anulus datur mulieri in ecclesia uel in domo sponsi presumitur matri­monium, xxx. q. v. femine [c. 7]; si coram parentibus suis presumitur sponsalia, xxx. q. v. utantcs [fortasse C. 30 q. 5 c. 3].... vin(centius).”

⁴⁰⁴Tancred to 1 Comp. 5.13.6 v. confessio, Caius 28/17, P∙ 119b: “Item nota quod quamcumque confitentur coniuges ad dissolutionem matrimonii tunc non creditur illis, xxxv. q. vi. si duo [c. 4], xxxiii. q. i. requisisti [c. 2], infra de eo qui cogno. consangui. uxoris, super co, I. iii [recte 2 Comp. 4.7.1].”

⁴⁰⁵Dolczalek, Imbreviaturbuch no. 44, pp. 129-32.

⁴⁰⁰Adams and Donahue, Select Cases A.7, pp. 25-28.

^m Argumentum quod religiosi to C. 27 q. 2, Pembroke 101, fol. 6ora: “Ar. quod ubi discordia est de coniugali coitu, probatio defertur mulieri si per uerum iudicium pro­bare ualet, ut c. Quod autem [c. 29] et supra q. i. nec aliqua [C. 27 q. 1 c. 4]. Nam in Uerisimilc defertur probatio uiri, ut infra C. 33 q. i. Si quis accepit [c. 3].” Tancred to 1 Comp. 4.16.2 v. consuetudo, Caius 28/17, P- 101b: “Ubi dubium est ut eam esse frig­idam consueuit hoc facere romana ecclesia [scii.: ut ipsam habeat sicut sororem]. Si enim constat nec conseutudo nec constitutio posset facere quod ibi esset matrimonium, adeo est naturale impedimentum frigiditatis quoniam talis non potest ostendere quod sit uir, in aut. de nupt. § per occasionem [Auth. 4.1.6 = Nov. 22.6]. t(ancredus).”

⁴⁶⁸Johannes Teutonicus, Glos. ord. to C. 27 q. 1 c. 4 v. obstetricum∙, Tancred to 3

Other intricate problems in separation or divorce cases arose from allega­tions of force and fear. Canonists of this period approached these problems cau­tiously and rarely went much beyond hesitant attempts to define the degree of apprehension required to invalidate matrimonial consent.^{[1595] [1596] Fuller develop­ment of the jurisprudence on this issue had to await the work of later genera­tions of writers.}