Present and Future Consent: proving marriage in fourteenth-century Yorkshire

If, like me, you’ve been enjoying BBC4’s Medieval Lives, you will have been fascinated by the recent episode on Marriage. The idea that a marriage in the Middle Ages could be contracted and considered valid on the strength of a few words of consent, often spoken in private and/or under pressure from one’s family or friends, is one that’s alien and disconcerting to modern western sensibilities. Much of the evidence for these practices comes, as Helen Castor showed, from the records of the church courts which, amongst many other things, dealt with proving and enforcing marriage contracts, annulling invalid marriages and punishing adultery. Here at the Borthwick we hold the papers relating to around 15,000 cases pleaded before the diocesan courts of York between 1300 and 1858, the largest such archive in the country. Just over 1500 of those are matrimonial and of those around 200 come from the period 1300-1500 – there are well over 600 medieval causes in total. All of these papers have recently been digitised and indexed in a project run by the Universities of York and Sheffield and funded by the Andrew W. Mellon Foundation.  Anyone can now search the database of about a million instances of personal names, over 5000 places mainly in Yorkshire but spread as far afield as Sweden, America and Russia, and an almost endless variety of subjects. Scans of the papers are also available on the University of York 'Discover' digital library.  The Church Courts from the Middle Ages to the nineteenth century had jurisdiction over a wide variety of business including matrimony, defamation, tithe, probate, breach of faith and church rights.

Rather than being a day-to-day record of court proceedings, the Cause Papers are full, formal documents submitted to or issued by the courts. They were used by litigants to introduce their arguments and by the court to transmit its findings. They are a wonderful source and capture rich detail about human existence and interactions. I came to the Borthwick to work as an archivist two years ago. Up till then I had specialised in the records of English medieval royal government. Since arriving I have taken a crash course in ecclesiastical records, and the Cause Papers have regularly grabbed my imagination. I was fortunate to help behind the scenes on filming and sit in on the discussion between Helen Castor and Dr Bronach Kane. Inspired by the show (and, I should add, by recent discussions with Sara Powell, a York MA student who has just completed a dissertation on matrimonial causes in medieval York), I’ve done a bit of digging. The case I’m going to focus on is not untypical of the kind of disputes the church courts tackled. Indeed, those which attempted to enforce contracts and make one partner to stick to their vows with the other, make up the greatest number of marriage dispute cases.

CP.E.181.1 & 181.2

In the late winter of 1389/90 Emmota, a servant of Henry Rayner of Beal in the West Riding brought a suit before the Curia Ebor', York's central church court. She complained that though she and Robert son of John Williamson of nearby Kellington had contracted to marry, he had not yet solemnized their vows and would not now marry her. What was worse, in a parallel suit brought by Emmota she complained that Thomas, Robert's brother, also of Kellington, had publicly defamed her good character by alleging he had slept with her (or, as the record more prosaically states, 'knew her carnally') in an attempt, she claimed, to prevent the marriage taking place.

Those are the bare bones of the story, which are laid out in a variety of documents now available to view for free through the York Digital Library Cause Papers portal, although, be warned, you will need to know some Latin to make sense of them. In essence, Emmota's case hinged on proving the words she claimed she and Robert had spoken openly before witnesses in the private house in which she worked at Christmas a year previously (which, by my calculaton, would be December 1388) had actually been spoken, and that she had not slept with Thomas. In the formal articles her attorney William de Killerwyk presented to the court, Emmota argued that Robert had publicy and willingly confessed that he and she had both lawfully contracted marriage

'p(er) v(er)ba mutuu(m) co(n)sensum exp(ri)me(n)cia de p(re)senti ac spo(n)salia p(er) v(er)ba de fut(ur)o carnali copula postmod(um) int(er) eosd(e)m subsecut(a) ... /

by expressing words of mutual consent in the present and their spousal by words of future [intent], carnal intercourse between them having followed afterwards...

In the formal articles her attorney William de Killerwyk presented to the court, Emmota argued that Robert had publicly and willingly confessed that he and she had both lawfully contracted marriage ‘p(er) v(er)ba mutuu(m) co(n)sensum exp(ri)me(n)cia de p(re)senti ac spo(n)salia p(er) v(er)ba de fut(ur)o carnali copula postmod(um) int(er) eosd(e)m subsecut(a) … / by expressing words of mutual consent in the present and their spousal by words of future [intent], carnal intercourse between them having followed afterwards …’ If she could prove this, she wanted the court to declare the marriage valid and to compel Robert to recognise her as his lawful wife and solemnize their marriage.

Section of CP.E.181.1 p.7

The court documents, written in heavily abbreviated, legalistic Latin, unfortunately give us no idea of what words they actually said to each other. I think we can imagine them taking each other’s hand and Robert saying something like ‘Emmota, here I take you as my wife, for better or worse, to have and to hold until the end of my life; and of this I give you my faith’.[1] Legally though, it is the emphasis on ‘present’ and ‘future’ consent that mattered. By claiming both, Emmota hoped to prove her marriage was doubly valid and indissoluble. The theory that words of present consent created a perfect, complete marriage and a permanent bond had held sway in Canon Law since the mid-twelfth century.[2] But it often cut little ice with ordinary people! Many tended to see these words as merely making a contract not the marriage. The theory meant that Emmota and Robert were married; the only things remaining for them to do at that point were to solemnize their union in church and to consummate it afterwards. It is clear that Robert wanted, initially, to have no more to do with the marriage, and he challenged the truth of Emmota’s case in court. But, as will become apparent, he had indulged in sexual intercourse with her at some point after saying these words, which, by his words of future consent, theoretically made the marriage valid, complete and unbreakable.

That is unless Emmota could not disprove the allegations that had apparently been made around this time by Thomas son of John Williamson, brother of her supposed husband. In her articles submitted in this second case Emmota claimed she was a woman of ‘good fame and honest conversation’ who had never previously been accused of adultery or incest. Thomas, she said, had declaimed before a multitude of local people that he knew her carnally in order to impede the marriage contracted with his brother. For this, she wished Thomas to be excommunicated. We can suspect, I think, since there is no real hint in the records of a fraternal row over Emmota, that the brothers colluded in concocting the story of Thomas’s fornication with her. Local men John May, John Warde and Alan son of Robert appeared before the court to testify for Thomas, and they appear to suggest that Emmota had refused to say to which of the two brothers she had promised herself for fear of them. Their evidence, presented in March 1390, of a sexual relationship with Thomas, though, appears to have been trumped after much toing and froing by a surprise confession from Robert.

On the back of the document bearing their witness statements is a memorandum that on 3 November 1390 Robert and Emmota came before the court. Having sworn on the Gospels, Robert admitted he had made the contract of marriage a week before Christmas last one year hence. He had then first slept with Emmota (‘p(ri)mo carnalit(er) cognovit’) on the feast of St Stephen (26 December) following. Both parties confessed to the truth and the judge moved to deliver his verdict, that,

‘Because we have heard both by the confession of the said parties made in the judgement before us and by other sufficient and lawful evidences in this business, the abovesaid Emmota, plaintiff, has sufficiently proved her action brought before us in this case, therefore in this writing we have adjudged as our sentence and definitively the same Robert, defendant, to be the lawful husband of the same Emmota and the same Emmota to be the lawful wife of the same Robert.’

In short, Emmota had won. Robert had confessed and the truth of her side of the story had been lawfully upheld. Sadly, the sentence handed out by the court does not survive. Robert may well have joined his wife in solemnizing their marriage and may have had to do penance. I’ll leave you to speculate.

Emmota was a woman of humble origins who fought tooth and claw against men of, perhaps, greater means to persuade a church court to recognise her version of events. It appears from the Poll Tax records of 1379 that she worked for a tailor. She herself is not listed as a taxpayer (although there are a couple of Emmas in the Beal list which might be her), while her ‘husband’ Robert may be the same man as the ‘Robert Williamson’ noted as being taxed at fourpence, the lowest rate, in Kellington.[3] We are dealing here then not with the wealthy in society or with the urban or rural gentry but with ordinary people. We have a brief window into their everyday concerns and lives. Emmota and Robert had promised themselves to each other away from many prying eyes. For over a year she had been forced to wait. She must have been getting worried about not being able to publish banns of marriage and to have her union blessed by a priest, both of which were considered sins. Ultimately, she took her man to court and won the day. Their case is one among many at the Borthwick which give us intimate detail about the lives of our ancestors from all ranks of society. I hope this will have persuaded you that the Cause Papers have a great deal of interest. Do please take a look on the database and see what you can find.

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This post was written by Dr Paul Dryburgh, one of our archivists who specialises in our medieval records.

[1] Emmota probably returned the words. These were the words a witness reported that John Beck, a saddler, and Margery daughter of Simon Taylor had exchanged, in a cause paper from 1372: C.P. E.121: http://www.hrionline.ac.uk/causepapers/causepaper.jsp?id=91754.

[2] For what follows and for an excellent overview of the Cause Paper evidence in English matrimonial cases, see R.H. Helmholz, Marriage Litigation in Medieval England (Cambridge, 1974), pp. 26-36.

[3] Henry Rayner of Beal and his wife, Agnes, were taxed at sixpence in 1379: Carolyn C. Fenwick, The Poll Taxes of 1377, 1379 and 1381: Part 3, Wiltshire-Yorkshire (Records of Social and Economic History, New Series 37, 2005), pp. 361-2. For leading me to these references, and for help in nailing down the place names in this cause, I am very grateful to Dr Jonathan Mackman.