Posted by 14 September, 2015

Popular ideas of medieval marriage often assume that women and girls were married off by their families with little or no say in the matter. There is a good deal of truth in this, and families used marriages to cement alliances, acquire lands and pursue other strategic aims, often with little or no input from the women being married. However, women did have an ally to help defend them against marriages that they were dead-set against: the church, and specifically, ecclesiastical courts. Canon law understandings of marriage in the later middle ages were based on the idea of consent. Thus if one party could prove that they had been forced into a marriage by outside parties, either through believable threats or violence or both, they could obtain an annulment. This justification of non-consent for divorce a vinculo (that is, a full divorce where either party may remarry) was thus based on 'fear and force'.

Add MS 24678, f. 22r .K90054-29British Library, Add MS 24678, f. 22r British Library Board

Women suing for such divorces in the archbishop of Armagh's court in the fifteenth century were well-aware of what they had to prove in order to be successful. They (and their legal counsel) knew that they had to emphasise their fear, the threats made against them, and the coercive and violent actions of those pushing for the marriage. Men could, of course, also sue in these cases, but we have no examples of this occurring in the archbishops of Armagh's courts.

Accordingly, witnesses (which were only called for the plaintiff) were briefed to tell their stories in a certain way. Witnesses were deposed privately and did not hear the testimony of their fellow witnesses, so they would have had to agree on the facts of the case and how to present them before they arrived in court, most likely prepped by the plaintiff's counsel. The records of the witness depositions for the case instigated by Isabelle Heyron c.1449 against William Drake for divorce show this preparation.

Tomb-slab of a couple from Kells, Co. Meath, some 10km from Staholmog ('St. Columb's Churchyard, Kells, County Meath - Double Tomb-Slab with Crucifixion' Edwin Rae Collection, copyright TRIARC

The first witness, John Collynge, stated that 'he knew of the marriage between Isabelle and William and said that it was against her will, and that her father beat her and indeed dragged her and made her come to the church. He was asked if he was at the church door, and he said not, that he was preparing food, but he well what her [Isabelle's] wish was, and that she wept all day and felt great sorrow'. He added that he did not know if William knew her carnally. This was an important question, since subsequent consent to sex or cohabitation after a marriage, even one that was initially forced, overturned the defence of non-consent. The next witness Connacius McBrady (Conchobair Mac Bradaigh) said that 'he was at the church door but he couldn't hear if Isabella consented because of the noisy crowd at the door, but he knows well that her father beat her and drag her and compelled her and that she wept and felt great sorrow'.

These witnesses used the same trio of words to describe Isabelle's treatment at her father's hands: that he beat, dragged, and compelled her to come to the church. These words are well-chosen to highlight Isabella's resistance and the physical pain she endured because of this resistance. An appeal from county Louth, that of Catherine McKesky in 1436, also emphasised force, in that all six witnesses agreed that her parents beat her. Four just said that her parents were responsible for the beating, while one added that he saw Catherine's father beat her to force her to become affianced to John and another specified that her mother beat her grievously with 'a bedoke', so hard that it broke.

File:Termonfekin Castle.jpg

Termonfeckin castle, a late medieval tower house (dating from the same period as Isabelle's court case): Photo by code poet, CC-BY-SA licence

A bedoke may, according to the editor of the archbishop's register, mean 'bed-oak', as in part of a bed made from a piece of oak (like a slat). It is an unusual word, and this definition is only a guess, but this seems like the kind of item that might have been on hand in a domestic setting if Catherines mother just picked up something lying nearby. This witness, Patrick McGyll, stated that he knew about the particularly vicious beating with the bedoke because he witnessed it. Witnesses generally held that they had seen events first hand, and this seems to have been an important aspect of their testimony. Modern notions of evidential procedure and validity relating to hearsay weren't fully evolved in a common law context, and neither were they in canon law, where general knowledge and rumour were often invoked by witnesses, but this attention to seeing things in person shows that perhaps first hand evidence was considered particularly convincing. If these witnesses were telling the truth, it is clear that violent acts against one's own family were committed very publicly (in front of 6 witnesses, in this case, some of whom seem to have witnessed different episodes of violence).

There is one factor that these cases share that does not related to the elements of fear and force that justified a divorce for non-consent. Both women were described as weeping and/or lamenting. Two witnesses in Isabelle's case agreed that she felt great sorrow at being made to marry, and that she demonstrated this visually by weeping openly during the ceremony and, according to one witness, for the entire day. Catherine was also described as lamenting. These descriptions of weeping and sorrow are not strictly necessary, since they do not support the two main planks of pleas of coercion (fear/threats and force/violence). They do, however, add to the picture of open resistance and displays of unwillingness to the marriage. These displays almost certainly took place in cases of coercion, both through the genuine emotional distress of women in these difficult situations, and perhaps from their understanding that the community must be in no doubt of their feelings on the marriage, since they were future witnesses. They could use their tears to show resistance to the match without having to resist physically, and witnesses clearly saw these tears as important proof of their feelings and lack of consent.

In this way, visible displays of sorrow were a way for women who were unable to stop an unwanted marriage from going forward to maintain some agency and bolster their chances of being able to secure a divorce at a later stage. Their tears, though they should not have been particularly significant evidentially, seem to have been perceived as an important support for the plaintiff's case. Perhaps this was simply because they were evidence of the woman's unwillingness to marry and the depth of feeling she had against her marriage. For these women, tears showing their quiet resistance allowed them to retain some control over their fate.


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