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Book Review
| Charles Donahue, Jr., Law, Marriage, and Society in the Later Middle Ages: Arguments about Marriage in Five Courts, Cambridge: Cambridge University Press, 2007. Pp. xix + 672. $140.00 (ISBN 978-0-521-87728-2).
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| Charles Donahue Jr.'s Law, Marriage, and Society in the Later Middle Ages is the fruit of long, patient, and meticulous historical research on an institution that is fundamental to our society, as to so many others—namely, marriage. The book is exemplary from every point of view. Moving beyond a purely theoretical knowledge of the canonical rules that governed the formation and dissolution of the matrimonial bond in the Middle Ages, the author focuses on the law in action. He examines, in particular, the differences in attitude revealed by the legal practices he uncovers. In this respect, the book is a product of Donahue's longstanding interest in the differences in practice revealed by various studies of officialités, or Church courts, in both England and France during the fourteenth and fifteenth centuries. Why were there so many lawsuits seeking to enforce engagements to marry (verba de futuro) in Paris and none in Ely and so few in York? Why was there such variation in the number of decrees of separation issued in different church courts? Why were cases in which the court proceeded ex officio so frequent in Cambrai and so rare in York? |
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Intimately familiar with the very old archival holdings of the Canterbury court, a broad collection of which he, along with Norma Adams, published in 1981 (Selden Society, v. XCV), Donahue wanted to try to explain these differences in order to deepen our historical knowledge of such courts. To this end, he conducts an exhaustive study of the files of five officialités, located in a sufficiently large geographical area, while at the same time providing a clearly circumscribed and available body of records. These officialités include, in England, the courts of York (1301–1499) and Ely (1374–1381), and in the "pays coutumiers" or customary-law regions of northern France and present-day Belgium (which he terms the franco-belgian region), the courts of Cambrai (1438–1453), Brussels (1448–1459), and Paris (1384–1387). Of these court records, unfortunately only some registers survive, but these are sufficient to enable him to construct a comparative table that is extremely instructive for those who, like the author, know how to extract from a register all—truly all—that it can reveal. The study of the register of Ely, the focus of Chapter 6, is a perfect example of his approach, which merits study by anyone seeking to engage in such archival research. |
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It is not possible to summarize in a few lines the richness of this book, whose every chapter includes a highly detailed analysis followed by a substantive conclusion. Let me give simply an outline. After briefly recalling in the first chapter ("The Background Rules and Institutions") the principal canon-law rules governing marriage and describing some elements of court procedure, the author turns to the heart of his task—the law as experienced by contemporaries, and as revealed by the records of the officialités. For each of the five courts, the author establishes on the basis of the surviving registers statistical tables concerning all the cases that came within the ecclesiastical jurisdiction, as well as those concerning marriage in particular. As concerns the latter, he achieves remarkable statistical refinement, as demonstrated by the comparative tables at pages 400–2, which distinguish between spousals (with copula/no copula), divorce from the bond, separation (both types), actions brought by men and those brought by women, and also actions implicating only two parties or instead three. What a remarkable amount of work! Such detailed statistics are extremely precious, even if they are necessarily limited by the randomness of which files happen to survive in the archival record. They are essential for enabling a thorough analysis of the differences between the courts to which the author then devotes his energies. |
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To make it possible for the reader to apprehend these differences, especially with regard to the formation of the matrimonial bond, Donahue examines in detail some exemplary cases from each court, starting with England (chapters 2, 4, 5, and 6). His discussion of these cases enables us to grasp the worldviews or mentalités of the men and the women who brought proceedings before the officialités. These proceedings were usually filed with an eye towards forming a marriage bond or gaining recognition of its existence, rather than dissolving or relaxing it. Indeed, this is one of the features common across the courts (notably, there are such)—and one not easily conceivable today, but extremely interesting. Likewise, it is extremely interesting to note that the means used to achieve this common goal are different in England and in the franco-belgian region (as well as within the latter). The differences between the courts inhere less in the application of the canon law by the judges than in the use of this law, more or less consciously, by the litigants themselves. Do these differences reflect broader differences in attitude towards marriage itself? Even if the author thinks, with much prudence, that "going from the evidence of the patterns of the cases to conclusions about marriages that were not disputed is, of course, highly risky" (216), it seems to me that such actions could not have been brought if they had been truly foreign to the broader social environment. Differences in attitude, moreover, provide one of the keys to understanding differences in court practices, as emphasized by the author himself in his explanatory, concluding chapter, entitled "Broader Comparisons." |
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The author's first explanation for the differences he detects is the differing patrimonial consequences that follow from marriage in the various regions under study (603–9). For example, the system of community property for movables and acquests at force in Paris, but not in England, explains the much higher number of separations granted in the former. In the author's view, however, the principal explanation for differences in court practice is differences in the way people "understood themselves" (609–13). This argument is entirely persuasive, and herein lie the great interest and charm of this splendid work—a work that ends with an appeal to future researchers: "Where do we go from here?" |
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I have only one regret. In an earlier version of the book, the author included extensive annotations. But for understandable reasons, the press determined that these would have made the work too voluminous and thus demanded that many be removed prior to publication. Fortunately, these annotations are available for free in the electronic version of the book, which can be found at http://www.cambridge.org/catalogue/catalogue.asp?isbn=9780521877282&ss=res77282, under the heading "Texts and Commentary" (673–869). The electronic version also contains a Table of Cases (870–913), a Table of Authorities (914–16), and an Index of Persons and Places (917–76), which do not appear in the hard-copy version. It is essential to access this additional material, because Law, Marriage, and Society is a work that will henceforth be indispensable for all historians, of the law and otherwise. |
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| Anne Lefebvre-Teillard
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| University of Paris II |
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