LEGAL ISSUES
SURROUNDING
ELEANOR OF AQUITAINE's
ROLE CHANGE FROM
QUEEN CONSORT OF FRANCE's KING
LOUIS VII
TO WIFE OF THE MAN WAITING
TO BE ENGLAND's KING
Eleanor was a
15-year-old orphan when her
guardian arranged for her to
marry a 16-year-old. Her
guardian was France's King Louis
VI, and the 16-year-old he chose
as her husband was his own son,
his heir apparent. Eleanor was a
prize catch for his son because
Eleanor came with more land than
King Louis VI himself controlled.
Eleanor was 30 years old and the
mother of two daughters when she
left that marriage with the
Catholic Church saying that she
was free to walk away because
there never had been a valid
marriage. Eight weeks later, she
married the man destined to
become King of England.
This work will consider one
narrow aspect of Eleanor's life
-- the legal issues surrounding
Eleanor's change of roles after
15 years as the Queen Consort of
France:
I. FIRST, THE
STORY
A. Briefly
Born in 1122, Eleanor was the
daughter of William X, Duke of
Aquitaine, and Aenor, the
daughter of the Viscount of
Chatellerault. Eleanor's
mother died when Eleanor was
about nine years old. On
April 9, 1137, her father died,
and Eleanor became the 12th
century version of the 20th
century's Athina Roussel,
granddaughter of Aristotle
Onassis. Suddenly, Eleanor
was a very wealthy young
girl.
She was heiress to the county of
Poitou, the duchy of Gascony, and
the duchy of Aquitaine. The
Aquitaine itself included the
counties of Saintongne,
Angoulême, Périgord, the
Limousin, La Marche, and
Auvergne. The overlord to those
lands was the King of
France, who at the time was
Louis VI. Eleanor's land
mass was more than six times that
of the King of France.
Additionally, Eleanor was Roman
Catholic, never married, believed
(with good cause) to be a virgin,
beautiful, educated, literate,
physically healthy, and from
"good stock."
Eleanor shared two sets of
distant ancestors with the king:
- Through
France's King Robert the
Pious and Constance of
Arles, Eleanor and the
king's son were third
cousins, once
removed. For the
king's son, the distant
king and queen were
great-great grandparents
(two greats); for
Eleanor, they were her
great-great-great
grandparents (three
greats). By
canon law consanguinity
rules of the 12th
century, the king's son
was four degrees from
Robert and Constance, and
Eleanor was five degrees
from Robert and
Constance.
- Through
the Duke of Aquitaine
Guillaume III (d. 963)
and Gerloc-Adele of
Normandy (d. after 962),
Eleanor and the king's
son were fourth
cousins. For both
Eleanor and the king's
son, the couple were
great-great-great-great
grandparents; that's
"four
greats." Both
Eleanor and the king's
son were six generations
down from Guillaume III
and Gerloc-Adele, thus
fourth cousins through
those
ancestors.
"Adelaide, the
sister of Duke William IV
of Aquitaine, had married
Hugh Capet, from whom the
kings of France were
descended."
[Meade @ 109.] By
canon law consanguinity
rules of the 12th
century, both Eleanor and
her prospective groom
were six degrees from
Guillaume II and
Gerloc-Adele.
[CLICK
for ancestor charts.]
By the terms of Eleanor's
father's will, Eleanor's domains
were "not to be incorporated
into the royal demesne but should
remain independent and be
inherited by Eleanor's heirs
alone." [Orderici
Vitalis Angligenae Coenobi
Uticensis Monachi, Historia
Ecclesia: The Ecclesiastical
History of England and Normandy,
vol. 4, p. 175, edited by A. le
Prevost.] The vassals of
Poitou, Aquitaine, and Gascony
had sworn allegiance to Eleanor
on her 14th birthday. [Weir
@ 19.] Marriage alone would
not bring Eleanor's land into the
royal demesne, but the mixing of
blood lines would. If
Eleanor's heirs were also the
heirs of the king, it would mean
a greatly enlarged France.
The king surely saw an excellent
prospective mother for his future
grandchildren, and an excellent
prospective land grab for the
future of France.
On July 25, 1137, in Bordeaux,
Eleanor and the king's son made
their marriage vows before
Geoffrey de Loroux, Archbishop of
Bordeaux, at the Cathedral of
Saint-André.
On August 1, 1137, King Louis VI
died, and Eleanor's husband
became France's King Louis VII.
The couple made their primary
home in Paris. In about
1138, Eleanor was pregnant, but
she miscarried. She was
about 16 years old. [Weir @
31.] In 1145, Eleanor
delivered a daughter,
Marie. In 1150,
Eleanor delivered a second
daughter, Alix.
Among genealogists, 15 years of
marriage during a woman's prime
childbearing years and only three
pregnancies usually would
indicate a "less than
close" marriage.
According to Richard of Devizes,
a Benedictine monk who is
believed to have been a resident
at Winchester Castle during the
time when Eleanor was held
prisoner there and who is
believed to have known Eleanor
during the time of her
imprisonment (1173-1185),
"Louis did not visit his
wife's bed very often, and then
only in accordance with the
teachings of the Church, which
decreed that sex was to be
indulged in solely for the
purpose of procreation, and not
for pleasure, even within
marriage." [Weir @
31.]
The first cleric to note the
shared ancestry of Eleanor and
Louis VII was the Bishop of Laon,
in 1143. Soon after, the
Cistercian abbot Bernard of
Clairvaux criticized Louis by
saying, "[E]veryone knows
that [the king] has married his
cousin in the fourth
degree." [Weir @ 42.]
B. How
Things Became Intolerable for
Eleanor
On Easter Sunday in 1146, Eleanor
and Louis each "took the
Cross" and vowed to lead
vassals to Outremer, an area made
up of the Kingdom of Jerusalem,
the County of Edessa, the
Principality of Antioch, and the
County of Tripoli. Eleanor
was recognized by Louis as being
"able to muster a vast
following of her vassals."
[Weir @ 48.] Louis recognized
that it was Eleanor's efforts
that resulted in the larger
portion of the army they would
march with being Eleanor's own
vassals. [Weir @ 51.]
On June 8, 1147, at the Abby of
Saint-Denis and in the presence
of Pope Eugenius III, Louis
turned over the care of the
kingdom of France to the Abbot
Suger. Suger was Louis'
chief minister of the royal
administration, a post Suger also
had held for Louis' father.
The Pope blessed Louis, and three
days later Louis and Eleanor left
for the Holy Land as part of the
Second Crusade. [Weir @
54.] "Eleanor and
Louis travelled with their
separate retinues." Louis
slept at night in a tent with his
two male bodyguards,
and Eleanor slept
elsewhere. [Weir @ 55,
citing Bibliothèque des
Croisades: History of the
Crusades, edited by Joseph
Michaud.]
The Crusade did not go
well. By late January 1148,
the Crusaders had reached
Attalia, a Mediterranean coastal
city in the southeast of what is
now Turkey. While in
Attalia, the Crusaders were
reduced to eating their own
horses. [Weir @ 62, citing
Odo de Deiul's De Ludovici
VII Francorum Regis, Profectione
in Orientem, as translated
by Virginia D. Berry in 1948, and
citing Guillaume de Nangis' Chronique,
as edited by F.P.G. Guizot.
Odo was Louis' advisor and
bodyguard on the Second Crusade;
Guillaume was a 13th century
French historian and monk at the
abbey of Saint-Denis.] The
plan was to get to Antioch by
ship. Antioch was at the far
eastern edge of the
Mediterranean, near what is now
the border between Turkey and
Syria. Louis did not have
enough money to pay the passage
for all of the Crusaders.
The decision was that those who
wished to go and who could pay
their own passage would go, and
the others would be left behind
"to starve or die of
plague." [Weir @
63.] More than three
thousand Crusaders converted to
the Moslem faith for nothing more
than the promise of food.
[Weir @ 63, citing
Odo.]
On March 19, 1148, Eleanor and
Louis arrived at the port city
closest to Antioch, then traveled
ten miles up river to
Antioch. [Weir @ 63.]
Antioch was ruled by Raymond of
Poitiers; he was the brother of
Eleanor's late father and
maintained a court much like the
court Eleanor had experienced in
her youth in Poitiers.
Raymond wanted the Crusaders to
attack Aleppo first, a city in
northern Syria, because Aleppo
was one of the weaker cities, yet
its capture would have given
easier access to the county of
Edessa. Louis, however,
wanted to go directly to
Jerusalem. Eleanor agreed
with Raymond's assessment, and
she did so openly. "To
Eleanor, [Raymond's] plan seemed
eminently reasonable.
Should the Turks succeed in
overrunning northern Syria and
capturing Antioch, the entire
Holy Land would be threatened,
and nothing would then prevent
them from sweeping down to
Jerusalem. ... [T]he security of
the Holy City [Jerusalem] would
best be established by driving
back the Turks in the
north." [Meade @
106.]
Raymond and Louis were two
military leaders in complete
disagreement. According to
John of Salisbury, Louis and
Raymond quarreled openly, and the
king's barons supported
him. [Weir @ 66.] While
Louis might not have wanted to
recognize it, Eleanor was also a
leader, and she knew that the
Aquitanians would follow her
lead.
There followed a marital spat
that escalated and had historical
consequences. The closest
and most reliable reporter on the
scene was John of
Salisbury. Within a few
months of the spat, Eleanor and
Louis were, in effect, in
emergency marriage counseling
with Pope Eugenius III.
Each told his/her story to the
pope. John was then
secretary to Eugenius, and John
wrote his account in about 1165
in his Historia Pontificalis,
which was edited and translated
in the 20th century by Marjorie
Chibnall. [Published 1956
in London as The Historia
Pontificalis.]
According to the report of John
of Salisbury, as cited by Weir,
Eleanor announced that, unless
Louis followed Raymond's lead,
she and her vassals would remain
in Antioch. [Weir @ 66.]
Louis threatened to take her from
Antioch by force. Eleanor
countered that their marriage was
illegal because they were too
closely related, that she wanted
an annulment, that she would
"relinquish her crown,
resume her title of Duchess of
Aquitaine, and remain for the
time being in Antioch, under
Raymond's protection."
[Weir @ 66.]
It was the royal version of,
"I'm moving back to my
parents' house!" As
the brother of Eleanor's late
father, Raymond's court was as
close as the orphaned Eleanor had
to her father's
house.
According to John of Salisbury,
"On March 28 [1148], Louis
quietly began mobilizing his
forces for departure [from
Antioch]. Sometime after
midnight, ... the army began
moving out. ... [It was] an
evacuation carried out with ...
secrecy. ... At the last moment,
in a sort of commando operation,
the Queen was snatched from
Raymond's palace." [Meade @
111.]
Louis' military efforts continued
with nothing but failure.
Late in April of 1149, Eleanor
and Louis boarded separate ships
to return to France. [Meade
@ 120; Weir @ 70.] In
October 1149, after some time
lost at sea while on separate
ships, the couple arrived
together in Tusculum, Italy,
before Pope Eugenius III, the man
with the power to decide the
legality of their marriage.
[Meade @ 124, Weir @
71.]
Eleanor presented her case to the
Pope: she wanted an annulment
based on consanguinity.
Separately, Louis presented his
appeal: he did not want the
marriage ended. Like any
good Catholic pope, Pope Eugenius
III "was a staunch believer
in marriage." [Meade @
124.] After listening to
both husband and wife, the Pope
confirmed the marriage "both
orally and in writing," and
he did so without
hesitation. [Meade @ 125.]
According to John of Salisbury,
"[The pope] commanded under
pain of anathema that no word
should be spoken against [the
marriage] and that it would not
be dissolved under any pretext
whatever." [Meade @
125.] That evening, the
Pope prepared a bed for the
couple, and "The Pope made
them sleep in the same bed,"
according to John of
Salisbury. [Meade @
126.] "[T]his pope
chose to treat an obvious case of
incest with indulgence in order
to safeguard the indissolubility
of marriage." [Duby @
58.]
C. Freed
by the Birth of a Daughter
In the summer of 1150 (some
mistakenly say 1151), the
couple's second daughter was
born. France was a Salic
Law
country, and Salic Law demanded a
male heir. [Title 59, Clause 6,
deals with inheritance rules for
allodial lands (i.e., family
lands not held in benefice) and
specifies that in
"concerning salic lands
(terra Salica) no portion or
inheritance is for a woman but
all the land belongs to members
of the male sex who are
brothers."] Louis and
the people of France had hoped
for a male heir to assure smooth
transition of power and dynastic
continuity, from father to
son. "[E]very [French]
king since 987 had left a male
heir to succeed him."
[Meade @ 130.] Robert the
Pious -- Louis' great-great
grandfather and Eleanor's
three-greats grandfather -- had
repudiated two wives in his
effort to find a wife who
produced a son. Now, Salic Law
was forcing Louis to consider
what he had not wanted: allowing
his wife Eleanor to walk away
from the marriage as a woman free
to marry again.
The Salic
Law: Title 59.
Concerning Private
Property:
1)
If any man dies and leave
no sons, if the father
and mother survive, they
will inherit.
2) If
the father and mother do
not survive, and he
leaves brothers or
sisters, they will
inherit.
3) But
if there are none, the
sisters of the father
will inherit.
4) But
if there are no sisters
of the father, the
sisters of the mother
will claim that
inheritance.
5) If
there are none of these,
the nearest relatives on
the father's side will
succeed to that
inheritance.
6) Of
Salic land, no portion of
the inheritance will come
to a woman, but the whole
inheritance of the land
will come to the male
sex. |
Louis' advisor Abbot Suger argued
against ending the
marriage. Suger reasoned,
first, that Eleanor was young and
might yet bear a son. Suger
reasoned further that giving up
Eleanor would mean giving up the
Aquitaine; if Eleanor remarried,
the addition of her land to some
other lord would "[lift]
this unknown someone to a
position of greater power than
that of Louis." [Meade
@ 130.]
Suger died in January 1151.
With Suger gone, no one was left
to argue against ending the
marriage. According to
Georges Duby's analysis of
histories that were written at or
soon after Eleanor and Louis'
marriage was annulled, "the
matter of consanguinity counted
for very little. [Early
historians] considered it an
argument that was seized upon in
order to legitimize a necessary
repudiation." [Duby @
62.]
In late August 1151, Louis met in
Paris with Geoffrey
"Plantegenet," Count of
Anjou, and Geoffrey's 18-year-old
son Henry, Duke of
Normandy. The three met to
negotiate a way to avoid a
military battle. During
negotiations, Geoffrey
"stalked out from the hall
in a fit of black
bile." [Meade @
142.] However, their stay
at the Palace continued for a few
days, and they left in
peace. Most
historians are of the opinion
that any further negotiations
during the visit were between
Eleanor and Henry.
Geoffrey and son Henry left Paris
headed west for Angers, the
capital city of Anjou. En route,
Geoffrey fell ill. He died
September 7, 1151. After
Geoffrey's death, Henry asserted
his possession of Anjou and Maine
in addition to Normandy and
Touraine. [Weir @ 86.]
Through his mother, Henry was
also poised to take over England.
In late September 1151, Eleanor
and Louis began their final trip
together into the lands that
Eleanor had inherited from her
father -- Aquitaine, Poitou, and
Gascony. "There were
Frankish garrisons in the major
towns of Aquitaine, and ... they
[had to be] withdrawn in
peaceful, orderly fashion before
[the marriage could be
ended]. ... Then the queen
could return to her lands without
anxiety about possible conflict
between the king's men and her
own vassals." [Meade @
138, citing Alfred Richard's Histoire
des comtes de Poitou,
778-1204, Paris, 1903.]
Louis was accompanied by many of
his advisors, bishops, abbots,
and barons. Eleanor was
accompanied by the archbishop who
had officiated at her marriage to
Louis, by bishops from her
territories, and by vassals from
her homeland. [Meade @ 147,
citing Richard.] The
journey continued through late
February 1152. Then, Eleanor went
to her childhood hometown of
Poitiers, and Louis returned to
Paris. [Meade @ 147.]
On March 21, 1152, the Friday
before Palm Sunday, Louis and
Eleanor met in Beaugency, a city
in the south of Louis'
territory. Louis was a
parishioner of the Archbishop of
Sens. The Archbishop
"convoke[d] a council at
Beaugency." [Duby @
55.] "Present at the
Council were the Archbishops of
Reims, Rouen, and Bordeaux as
well as some of their suffragans
[diocesan bishops subordinate to
a primate of an ecclesiastical
province] and a large number of
the barons of the realm; the
king's cousins swore to the
kinship." [Duby @ 128,
note 92.] The
Archbishop of Rheims "acted
as cautioner for the Queen, who
did not contest the action."
[Weir @ 87.] The two
children born to the marriage
were declared legitimate, and
custody was awarded to
Louis; Louis promised Eleanor
that her land would be restored
intact, and Eleanor was given the
right to remarry "so long as
she gave Louis the allegiance a
vassal owed her
overlord." [Meade @
148, citing Leopold Delisle's
editing of Academie des
Inscriptions et Belles-Lettres'
Recueil des historiens des Gaules
et de la France.] Then
the Archbishop of Sens
"formally declared the
incestuous union null and
void." [Duby @ 55.]
And Eleanor was free to go, once
again the unmarried heiress to
Aquitaine, at risk of being
"seized at any moment and
married at the point of the
sword. She was once more what she
had been when her father died --
the quarry of every fortune
hunter and robber
baron." [Seward @
69.] "With an escort
of her vassals," she left
for Poitiers. [Weir @
88.]
Eleanor evaded at least two
planned abductions. The day
after her divorce, she learned of
a plot to abduct her for the
purpose of a forced
marriage. The would-be
abductor was Theobald of Blois,
whose land she had to pass
through to reach her own
land. [Meade @ 149, citing
Andre Salmon's Recueil des
Chroniques de Touraine,
published 1854.] Eleanor
also evaded a planned abduction
by Geoffrey Plantagenet, younger
brother of the Duke of
Normandy. [Meade @ 149.]
On Easter Sunday, March 30, 1152,
nine days after leaving
Beaugency, Eleanor was in
Poitiers, in Maubergeonne Tower,
the palace that her paternal
grandfather had built to house
his longtime mistress --
Eleanor's maternal
grandmother.
"[I]mmediately she declared
null and void every act she had
made together with her
ex-husband, as well as those he
had made alone."
[Meade @ 149.]
Records exist showing what
Eleanor did administratively in
the next seven weeks, but no
records have been found showing
contact between Eleanor and the
Duke of Normandy during
this time. According
to Weir [@ 90], on April 6, 1152,
seven days after Eleanor was back
in Poitiers, and 16 days after
the Church had annulled her
marriage to Louis, the Duke of
Normandy met with his Norman
barons and "took counsel of
his vassals [about marrying
Eleanor], seeking their approval
of the match." His
vassals approved. Six weeks
later, on May 18, 1152, Eleanor
and the Duke of Normandy married
in the Cathedral of Saint-Pierre
at Poitiers. According to
Meade [@ 150], Eleanor and the
Duke of Normandy sought and
received a Church dispensation so
that this new marriage could not
be voided on the grounds of
consanguinity, because -- like
most of the royals of the 12th
century -- Eleanor and her new
husband also shared ancestors
within seven degrees.
Not wishing to have her borders
overrun by the king's army,
Eleanor had given no advance
notice to her overlord and former
husband, nor did she grant him
the expected courtesy of seeking
his permission to marry.
At the age of 30, middle age for
a woman in the 12th century,
Eleanor's life began again.
II.
JURISDICTION AND VENUE
A. What court had subject
matter jurisdiction?
The Church courts claimed subject
matter jurisdiction in cases
arising out of (1) administration
of the sacraments; (2) testaments
and wills; (3) benefices and
church property; (4) oaths and
pledges of faith; (5) sins
meriting ecclesiastical
censures. [Berman @
222.]
In the case of an annulment, the
Church could reach jurisdiction
in two ways: First, marriage was
one of the church sacraments; the
church had jurisdiction over the
sacrament of marriage; thus, the
church had jurisdiction over
cases flowing out of disputes
involving the marriage
sacrament. It was in the
two decades before 1100 when
"the church finally won the
exclusive jurisdiction over
all matters pertaining to
marriage that it had long claimed
as its right." [Duby @
20.] Second, marriage was
an oath, a contract, and the
Church had jurisdiction over
cases arising out of oaths.
Also, in the case of Eleanor's
annulment, the Church could reach
jurisdiction because of
jurisdiction over testaments and
wills: As noted above, Eleanor's
father's will had specified that
the land he devised to Eleanor
was "not to be incorporated
into the royal demesne but should
remain independent and be
inherited by Eleanor's heirs
alone." In ending the
marriage between Eleanor and
Louis, the rules Eleanor's father
set in his will had to be
considered.
B. What
court had jurisdiction over the
persons?
Church courts claimed personal
jurisdiction over (1) clergy and
their household members; (2)
students; (3) crusaders; (4) the
"wretched," meaning the
poor, widows, and orphans; (5)
Jews in cases against Christians;
(6) travelers, when necessary for
their peace and safety.
Additionally, "any person
could bring suit in an
ecclesiastical court ... on the
ground of 'default of secular
justice.'" And,
"parties to any civil
dispute could, by agreement,
submit the dispute to an
ecclesiastical court."
[Berman @ 223.]
Eleanor and Louis were heads of
state. In effect, they were
in the Church court because they
opted to submit to an
ecclesiastical court. For
them to have done otherwise would
have been politically
untenable.
Louis had been crowned King in a
ceremony performed by Pope
Innocent II in 1131. [Weir
@ 22.] In France,
from the late 11th century, the
papacy and the monarchy were
close. "There was a
close association between the
Capetian dynasty [Louis' family
line] and the royal abbey of St.
Denis. ... [A]bbot Suger of
St. Denis, in the reigns of
[Louis VII's father] and Louis
VII, continued to be the chief
minister of the royal
administration. Whereas the
ceremony of
anointment was becoming a
mere formality in Germany and
England, the religious and
emotional qualities of this
ceremony were still accentuated
in France. ... The association of
the church with the French
monarchy was particularly
emphasized during the ... reign
of Louis VII, [who] exhibited
great friendship for both the
pope and the higher clergy all
over France." [Cantor
@ 414.] So great was the
connection between the French
monarchy and the Church that,
writing in 1050, Cardinal Pietro
Damiani had counted the
ordination of kings among the
church sacraments. [Cantor
@ 418.]
Eleanor and Louis also were in
the Church court because they had
recognized the Church's
jurisdiction in matters of
marriage and annulment
previously:
(1st) Their marriage in
1137 had been conducted before a
priest, despite the fact that in
1137 less than half the
population sought church sanction
for marriage. "In the
year 1000 the majority of people
in Christian Europe were not
married in a church
ceremony. Marriage involved
Germanic-style cohabitation,
frequently signified by the
giving of a ring. By [as
late as] 1200 perhaps half the
people in Western Europe,
particularly among the wealthier
and more literate classes, were
married [in front of] a
priest." [Cantor @
419.]
(2nd) Eleanor and Louis
also had recognized the Church's
jurisdiction in matters of
marriage and annulment in 1141
when they argued that the Church
should annul the marriage between
Eleanor's sister's lover and the
lover's wife. [Meade @
56.] Pope Innocent II's
response was to reaffirm the
validity of the marriage between
Eleanor's sister's lover and his
wife, and to excommunicate
Eleanor's sister and her
lover. [Meade @ 57.]
C. Venue
The venue of Beaugency (just
southwest of Orleans) was
appropriate because Louis was a
parishioner of the Archbisop of
Sens and Beaugency was a city in
the Archdiocese of Sens. Also,
Beaugency was in a part of Louis'
territory that was geographically
closest to Eleanor's territory,
thus making as short as possible
the distance Eleanor would have
to travel to reach her own land.
III. WHAT
LAW WOULD APPLY?
Historians are in agreement that
by the 12th century, "Canon
law largely replaced the secular
codes that had governed questions
of marriage during the Middle
Ages. The Church's rules
... formed the legal
environment" for
marriage. [Herlihy @
80.] "By 1100, ...
Church courts and their canon law
had, through popular preference,
eclipsed secular jurisprudence on
all matters relating to
marriage." [Gies @
134.]
At times, ecclesiastical courts
applied civil law, but the Church
remained adamant that "she
alone could decide whether the
impediment of kinship should be
invoked, in other words, whether
by an act of grace, depending on
the 'quality of the persons' and
the circumstances of the time,
she [the Church] might grant an
exception, the
dispensation." [Duby @
22.] Eleanor and Louis'
case for annulment rested on the
claim of consanguinity -- being
too closely related by blood.
IV. LEGAL
ISSUES
Officially, the question
presented was fairly
straightforward: Did Eleanor and
Louis' marriage comport with the
Church's rules for a valid
marriage?
There were, however, other legal
issues involved in Eleanor's
transitioning from her role as
queen consort of France's King
Louis VII to wife of the man
waiting to be England's
king. One of those issues
was what became of the land her
father had given to
Eleanor. Another issue was
what kind of contract, if any,
had Eleanor and Henry negotiated?
A. The Church's rules on
marriage
Johannes Gratian had completed
his Concordia discordantium
canonum (better known as Decretum
Gratiani) in about
1140. Gratian, considered
the father of canon law, was an
Italian monk who taught at
Bologna. His subject --
canon law -- was new. Canon law
took shape in the late 11th
century and was based on
corporate law. [Berman @
202.] Gratian's Concordia
was a vast collection of church
tests and papal
pronouncements. [Gies @
137.] His was a "hot
off the presses" work that
included decrees as recent as
those from the Second Lateran
Council, held in 1139. Part
of Gratian's Concordia
was a consideration of marriage.
i. Requirements
for forming a valid marriage
Gratian argued strongly for
active, true consent as the basis
of a valid marriage, writing that
even "a father's oath cannot
compel a girl to marry one to
whom she had never
consented." [Gies @
138.] Consent was the
"sole essential that could
not be omitted." [Gies
@ 138.]
According to canon law as
presented by Gratian, the
sacrament of marriage required no
formality; rather, the man and
woman were themselves
"ministers of the
sacrament." [Presence
of a priest was not required
until the 16th Century.] A
marriage was formed when (1)
there was an exchange of promises
to be married in the future
(called "contract of
betrothal"); and (2) an
exchange of promises to be
married in the present (called
the actual "marriage
contract"); and (3) consent
to sexual intercourse after the
formation of the marriage
contract. [Berman @
227.] According to Gratian,
"[T]he contract was deemed
concluded with the 'words in the
present,'" but was
"vulnerable to dissolution
until it had been
consummated." [Berman
@ 227.]
Marriage was a contract, and by
canon law "[m]istake
concerning the identity of the
other party, or a mistake
concerning some essential and
distinctive quality of the other
party, prevented the consent and
hence nullified the
marriage." [Berman @
227.] Additionally,
although not related to the
marriage of Eleanor and Louis,
duress nullified a marriage
because duress was an
interference with free
choice. Canon law looked at
marriage as a contract, and
helped to develop the concepts of
modern contract law:
free will, mistake, duress, and
fraud.
As Berman explains [@ 228],
"[C]anonists were able to
find a solution to the problem of
mistake, which had greatly vexed
the Roman jurists quoted in the
Digest, by focusing on the
question whether the mistaken
party would have entered into the
marriage if he or she had known
the truth."
Soon after Gratian's work, in
about 1152, the year of Eleanor
and Louis' annulment, Peter
Lombard produced a work with
ideas somewhat different from
Gratian's. Lombard was a
Bishop, a graduate of the
University of Bologna with a
doctorate of theology. He
was familiar with Gratian's
work. Lombard argued that
"physical consummation could
not be important to validity
because to make it so would cast
a shadow on the marriage of
Joseph and Mary. ... For a real
marriage, legally uncontestable,
the couple must pronounce 'words
of the present,' words that
stated explicitly that they took
each other, starting at that
moment, as husband and
wife." [Gies @
139.] According to Lombard,
that alone created a valid
marriage. Regarding sexual
intercourse as a requirement for
a valid marriage, "Christian
writers ... were loath to affirm
that the marriage of Jesus'
parents, Joseph and Mary, which
was never sexually consummated
[according to Catholic dogma],
was in any respect
imperfect." [Herlihy @
80.]
The minimum age for contracting a
marriage is unknown; however,
likely the minimum age was close
to what Pope Alexander III (pope
from 1159 to 1181) gave as the
minimum ages during his
papacy: 14 years old for
the groom, and 12 years old for
the bride. [Gies @
139.] Louis and Eleanor
were 16 and 15 when they married.
(It should be noted that some
historians suggest that Eleanor
may have been born not in 1122,
but in 1124. That would mean she
was 13 when she married, still
old enough by Pope Alexander
III's rules.)
Thus, if in an act of
free-consent a male and a female
of marriageable age exchanged
marriage promises using
"words in the present,"
the Church said there was a valid
marriage.
ii. Annulment
However, while the Church
proclaimed the indissoluble
nature of marriage, there were
"loop holes":
- Impotence
at the time of marriage
made the marriage a
nullity. [Berman @
228.]
- "Marriage
between a Catholic and a
[non-Christian] was void,
since baptism was a
necessary condition for
participation in any
sacrament."
[Berman @ 228.]
- "[A]ny
marriage in which the
conjugal union was
'sullied' by ...
incest" was
void. [Duby @
21.] By Church
definition since the 9th
century,
"incest" was
sexual contact or
marriage between a man
and woman who were
related "to the
seventh degree of
consanguinity, as well as
to relationships by
affinity and spiritual
kinship."
[Gies @ 137; Duby @ 17.]
"Consanguinity"
meant shared-by-blood
ancestors.
"Affinity"
meant
relationship-by-marriage
or "in-laws";
since husband and wife
were seen as having
become "one
flesh," all
relatives on both sides
also became related to
each other. [History of
Marriage in Western
Civilization].
"Spiritual"
meant a relationship
through godparents.
By canon law's figuring
of consanguinity,
"seventh
degree" was a count
of degrees of
relationship. Persons
were remote from one
another by as many
degrees as they were
remote from the common
stock, omitting the
common stock. Degrees of
relationship were
determined by the number
of generations on one
side only.
There was no statute of
limitations governing an action
for the annulment of a marriage,
and no marriage could be annulled
without a legal action.
[Berman @ 228.] Thus,
unless a couple related within
the seventh degree did something
to draw a distant kinship to the
attention of a local cleric, the
possibility of annulment was
little more than a "get out
of jail free" pass that each
spouse could hold in
reserve. Children born to a
marriage that was later annulled
were not at risk of being
"bastardized," because
"[w]here parties married in
good faith, without knowledge of
an impediment, ... children of
the marriage were
legitimate." [Berman @
228.]
iii. Judicial
separation
In addition to annulment based on
lack of consent or based on an
impediment, "the Church
permitted judicial separation on
the ground of fornication,
apostasy [renunciation of
religious faith], or grave
cruelty." [Berman @
229.] However, the Church
did not permit what we would
today in Virginia call divorce a
vinculo matrimonii (divorce
from "the chains of
marriage"). The
judicial separation permitted by
the Church was what today in
Virginia we call divorce a
mensa et thoro ("from
bed and board," limited
divorce). Judicial separation did
not allow for any re-marriage.
B.
Property concerns
As much as Louis might have
wanted to keep the Aquitaine, the
law was not on his side.
"Eleanor's dower lands [the
land she inherited from her
father and brought into her
marriage to Louis] could only be
officially incorporated into the
Frankish kingdom when she had
born a son, and moreover, when
the son succeeded Louis on the
throne." [Meade @
129.] Until then, if
Eleanor died, her land would be
inherited by her daughters, but
the land would not become French
territory. Recall from
above that by the terms of
Eleanor's father's will,
Eleanor's domains were "not
to be incorporated into the royal
demesne but should remain
independent and be inherited by
Eleanor's heirs alone." The
words of her father's will
granted Eleanor considerable
power.
That Eleanor would leave the
marriage with her property left
her with some chits to play as
she would have had to negotiate
the next phase of her life.
C.
Possible contract negotiations
between Eleanor and the Duke of
Normandy
Did Eleanor communicate with her
next-in-line husband, the Duke of
Normandy, while still married to
Louis? Historians have
found no records of
communication, but logic says
that there must have been
communication between Eleanor and
the Duke of Normandy,
Henry. As noted above, 16
days after the annulment of
Eleanor and Louis' marriage, only
seven days after Eleanor was back
in Poitiers, Henry was meeting
with his barons seeking their
approval to marry Eleanor.
He would have sought their
approval because he knew their
military strength might be
required to protect the merger of
the Duchess of Aquitaine and the
Duke of Normandy.
Whatever communication there
might have been would, by
necessity, have been
clandestine. Such
communications while Eleanor
remained the wife of King Louis
would have been treason, and
punishable by her death.
A man who identifies himself only
as Ian Isan of North Sydney,
Australia, believes he may have
decoded what remains of
"secret messages"
exchanged between Eleanor and
Henry. [His theories were
at his personal web site through
2007; by 2008, the site was
down.]
He puts forth the theory that
Eleanor and Henry made future
plans and negotiated the terms of
their future marriage while
Eleanor remained married to
Louis, after Eleanor and Henry
met in late August 1151.
His theory is that their messages
were exchanged in drawings that
were prepared to look like plans
for tapestries, and that sometime
within the next three hundred
years or so, the drawings were
turned into actual tapestries and
are now known as "The Lady
of the Unicorn Tapestries,"
or "La Dame à la
Licorne Tapisseries."
The set of six tapestries is at
the Musée de Cluny in
Paris. Art historians have
said that the tapestries
represent the six senses:
hearing, sight, touch, smell,
taste, and love. I shall
leave it for greater minds than
mine to wonder whether Mr. Isan's
theory has validity.
VI.
ANALYSIS OF APPLICATION OF THE
LAW
The Church applied their rules
correctly and with ease at the
annulment proceedings in
Beaugency. Eleanor and
Louis' marriage met all of the
rules for a valid marriage with
the exception of their being too
closely related. The two
were related within the
disallowed level of consanguinity
through two sets of ancestors:
(1st) France's King Robert the
Pious & Constance of Arles,
and (2nd) the Duke of Aquitaine
Guillaume III & Gerloc-Adele
of Normandy. [CLICK
here for
ahnentafel charts, showing the
ancestors of Eleanor and of
Louis, and of Henry, with whom
Eleanor also shared
ancestors.]
VII.
CONCLUSION
Europe would have had a different
history -- and many years of wars
might have been avoided -- if the
French Archbishops had followed
the lead of Pope Eugenius III and
denied the annulment and instead
ordered Louis to keep
"bedding" Eleanor until
there was a son. For, as
Suger saw, the birth of a son was
still possible for Eleanor.
In her new marriage, Eleanor gave
birth to five sons, and three
daughters. Before Louis
finally had a son in August 1165,
Eleanor had birthed four sons for
Henry. One of those sons became
England's King Richard I.
BIBLIOGRAPHY
BOOKS:
BERMAN, Harold J.: Law
and Revolution: The Formation of
the Western Legal Tradition.
Cambridge: Harvard University
Press, 1983.
CANTOR, Norman F.: The
Civilization of the Middle
Ages. New York: Harper
Collins, 1993.
DUBY, Georges: Medieval
Marriage: Two Models from
Twelfth-Century France.
Baltimore: Johns Hopkins
University Press, 1978.
GIES, Frances and
Joseph: Marriage and the
Family in the Middle Ages. New
York: Harper & Row, 1987.
HERLIHY, David: Medieval
Households. Cambridge:
Harvard University Press, 1985.
MEADE, Marion: Eleanor
of Aquitaine: A Biography.
New York: Hawthorn Books, 1977.
SEWARD, Desmond: Eleanor
of Aquitaine. The Mother Queen. New
York: Dorset Press, 1978.
WEIR, Alison: Eleanor
of Aquitaine. New York:
Ballantine Books, 1999.
INTERNET
WEBSITES:
www2.hu-berlin.de/sexology/ATLAS_EN/html/history_of_marriage_in_western.html: "History of
Marriage in Western Civilization,
Magnus Hirshfeld Archive for
Sexology"; accessed Nov. 1,
2004.
www.heraldica.org/topics/france/salic.htm: "The Salic
Law," at web site of
François R. Velde, former
Assistant Professor, Johns
Hopkins University, Department of
Economics; accessed Nov. 1, 2004.
ELEANOR's FAMILY
GROUP RECORDS
Eleanor had two
husbands. She birthed 10 children
and miscarried one.
==================================
Eleanor, Duchess of
Aquitaine, Countess of Poitou
BORN: 1122, Chateau de Belin,
Bordeaux, France
DIED: 31 Mar 1204, Mirabell
Castle, Fontevraud, France
BUR.: Fontevraud Abbey
FATHER: William X, Duke of
Aquitaine
MOTHER: Aenor
===================================
HUSBAND #1:
Louis VII, King of France
BORN: 1119/1120,
Reims,Marne,France
DIED: 18 Sep 1180, Paris, France
MARR: 25 Jul 1137, Bordeaux
ANNULLED: 21 Mar 1152, Beaugency,
France
FATHER: Louis VI, King of France
MOTHER: Alix/Adelaide of
Maurienne, Countess of Savoy
===================================
TWO CHILDREN FROM 1st
MARRIAGE:
===================================
A-1.) Marie
BORN: 1145, Paris
DIED: 1198
SPOUSE: Henry I, Count of
Champagne (full brother of
Theobald I, Count of Blois)
-----------------------------------
A-2.) Alix
BORN: 1150, Paris (some
mistakenly say 1151)
DIED: Abt 1197
SPOUSE: Theobald V, Count of
Blois (full brother of Henry I,
Count of Champagne)
===================================
HUSBAND #2:
Henry II, King of England
BORN: 25 Mar 1133, Le Mans,
Sartha, France
DIED: 6 Jul 1189, Chinon
BUR.: Fontevraud Abbey
MARR: 18 May 1152, Bordeaux,
France
FATHER: Geoffrey, Count of Anjou
MOTHER: Matilda (Maud), Princess
of England
==================================
EIGHT CHILDREN FROM 2nd
MARRIAGE:
===================================
B-1.) William
BORN: 17 Aug 1153, Normandy
DIED: Abt Apr 1156, Wallingford
Castle, Berkshire
-----------------------------------
B-2.) Henry
BORN: 28 Feb 1155, Bermondsey
DIED: 11 Jun 1183, Martel
WIFE: Margaret, Princess of
France (by Louis VII's 2nd wife)
MARR: 2 Nov 1160, Neubourg
-----------------------------------
B-3.) Matilda
(mother of Otto IV, Roman
Emperor, b. 1182, d. 1218)
BORN: 1156, London
DIED: 28 Jun 1189, Brunswick
HUSBAND: Henry V, Duke of Saxony
and Bavaria
MARR: 1 Feb 1168, Minden
-----------------------------------
B-4.) Richard
(King of England)
BORN: 8 Sep 1157, Beaumont
Palace, Oxford
DIED: 6 Apr 1199, Chalus,
Limousin
BUR.: Fontrevaud Abbey
1st BETROTHED: Alys, Princess of
France (by Louis VII's 2nd wife)
(Marriage to Alys did not happen;
instead, Alys had affair with her
betrothed's father.)
WIFE: Berengaria, Princess of
Navarre
MARR: 12 May 1191, Limasol,
Cyprus
-----------------------------------
B-5.) Geoffrey
(father of Arthur of Brittany, b.
1187, d. 1204)
BORN: 23 Sep 1158
DIED: 19 Aug 1186, Paris
WIFE: Constance, Duchess of
Brittany
MARR: Jul 1181
-----------------------------------
B-6.) Eleanor
(mother of Blanche of Castile who
m. Louis VIII, King of France
1223-1226; grandmother of Louis
IX, King of France 1226-1270)
BORN: 13 Oct 1162, Domfront,
Normandy
DIED: 31 Oct 1214, Burgos, Spain
HUSBAND: Alfonso VIII, King of
Castile
MARR: 22 Sep 1177, Burgos, Spain
-----------------------------------
B-7.) Joan
BORN: Oct 1165, Angers
DIED: 2 Sep 1199
HUSBAND #1: William II, King of
Sicily
MARR: 13 Feb 1177, Palermo
HUSBAND #2: Raymond VI, Count of
Toulouse
MARR: Oct 1196
-----------------------------------
B-8.) John (King
of England)
(father of Henry III, King of
England 1216-1272)
(father of Joan who m. Alexander
II, King of Scotland 1214-1249)
BORN: 24 Dec 1167, Beaumont
Palace, Oxford, England
DIED: 18 Oct 1216, Newark Castle
BUR.: Worcester Cathedral
WIFE #1: Hawisa/Isabella,
Countess of Gloucester
MARR: 29 Aug 1189, Marlebridge
WIFE #2: Isabella of Angouleme
MARR: 26 Aug 1200, Bordeaux
===================================
Alice's
Interesting Dead Folks
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