The medieval church and rents from marriage market regulations

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Journal of Economic Behavior & Organization Voi. 32 (1997) 215-245

The medieval church and rents from marriage market regulations Audrey B. Davidson”, Robert B. Ekelund Jr.b aDepalrment

of Economics,

h Department Received

University of Louisvifle, L..ouisville, KY 40292, WA Auburn University Auburn, AL 36849, USA

of Economics,

1 May 1995; received in revised form 23 October

1995

Abstract

This paper addresses the medieval Roman Catholic Church’s attempts to monopolize the marriage market and to wrest control over the institution from secular authority. In particular, the paper highlights specific doctrinal innovations and evolving rules and regulations. Rules surrounding endogamy, the definition of a valid marriages, and the escape clauses established by the Church are the principal features of the argument as is the place of these manipulations in the overall monopoly of the Church. JEL classijication:

043; 0433

Keywonls: Economic institutions; Medieval monopoly market

Medieval church; Medieval economic

history; Marriage market regulations;

1. Introduction Medieval society and its institutions could hardly be understood apart from the everpresent Roman Catholic Church. Social institutions underwent a sea change as the Church became a stronger and central feature of daily life. Traditional historical and religious accounts present one picture of the doctrinal developments and regulations of the medieval Church. This interpretation may be called a “public interest” interpretation wherein the Church devised policies and regulations for the common good and sold services at marginal cost. An alternative and, to some degree, compatible economic perspective depicts the medieval Church as a loosely integrated monopoly producer of a principal product called assurances of eternal salvation and other temporal products (social services, health services) at upstream and downstream levels. Demand 0167-2681/97/$17.00 0 PUSO167-2681(96)00903-l

1997 Elsevier Science B.V. All rights reserved

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maintenance for Church output required, among other factors, the establishment of monopoly control over the interpretation of sacred texts, the establishment of rules and regulations that the interpretations required, and entry control through the suppression of heresy. Previous studies have analyzed particular doctrines and policies in this light. Regulations on usury (Ekelund et al., 1989), the invention of Purgatory (Ekelund et al., 1992), monastic development (Davidson, 1995) and Crusading policies (Anderson et al., 1992) have all been analyzed as devices to enhance the power and the ability of the medieval Church to develop and produce profit or rent streams through doctrinal and policy manipulations. This paper extends these studies and focuses on the continuous attempt by the medieval Church to capture and monopolize the social institution of marriage in the early and late periods. Our study concentrates on the Church’s upstream and downstream attempts to capture profits through specific doctrinal innovations and specific evolving rules and regulations.’ As such, we focus on “supply side” manipulations and assume that the demand for salvation is given.’ In particular we highlight the manipulation of rules surrounding endogamy (marriage within a group), the definition of a “valid” marriage, and the “escape clauses” devised by the Church. The establishment and manipulation of these institutional features surrounding marriage does not prove welfare diminution from Church regulation and we do not deny that our evidence is consistent (at least in part) with competing theories. Rather, we use a comparative static approach to Church behavior at particular points in time and in particular places to interpret Church policies as “economic.” We believe that our evidence does suggest that institutions were, in part at least, molded and shaped by economic factors controlled by the medieval Church for its own benefit.3 The Church’s attempts to monopolize the marriage market were a blend of public and private interests. While the Church aimed to sanctify marriages in accord with the pubiic interest, evidence suggests that the marriage monopoly also generated profit for the Church. Hence, we maintain that the Church pursued a mixed strategy of serving the public interest as well as its own private interest of profit maximization.4

‘There are numerous and important economic aspects surrounding the medieval institution of marriage that cannot be dealt with here or cannot be treated in detail such as family size and economic development. Davidson (1993) treats a number of these issues. *In reality, of course, the “demand for salvation” and for other religious services depends on a number of complex factors, including belief systems, general societal development, tnbal or governmental forms, and so on. Most clearly, the demand for salvation and the fundamental spiritual nature of human beings is as old as the human race itself and the enigma of existence. That demand, from the beginnings of recorded history, has been met with both “simple” and “elaborate” systems and products. The medieval Church helped created a demand for Christian salvation and then set about satisfying it in the manner of a monopolist. It is primarily this latter phenomenon that we study here, although a separate study of demand formation and changing demands over the period is most certainly warranled. 3This study is linked to broader modem studies associating particular institutional changes to economizing activities of individuals and organizations (Williamson, 1979, North, 1990). 4We do not suggest a causal relationship between the Church’s monopoly over the marriage market and its desire to maximize profit. Rather, we maintain that the mixture of public and private interests generated both phenomena for the Church. In practice, both public and private interests were often inextricably mixed so that one analyst may tind, for example, a public interest rationale in the Church’s detailed capture of the secular marriage market (with scriptural justifications) while an economist may view market monopoly at work. We do not here try to untangle the ralionales but only argue that a monopoly interpretation may be observationally equivalent to publicly interested behavior,

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2. Church monopoly and the marriage market We characterize the Church as a loosely integrated monopoly composed of upstream and downstream elements with clear market power over the sale of assurances of eternal salvation. Market power here includes the power to price discriminate in the selling of its services. The product was (and is) intellectual or philosophical in nature - a pure credence good. Credence goods or services are those for which consumers face high costs in deciding the right amount to buy and/or determining the quality of what has been purchased (Darby and Kami, 1973). To make the good temporal in nature, characteristics and conditions for purchase downstream (sold locally by parish priests, bishops and church Orders) had to be defined by the Papacy (the upstream or input part of the monopoly).5 Ultimate consumers of salvation had to buy a package. These conditions and characteristics purchased by consumers ultimately included an incredible array of constraints and regulations on commerce, society, personal behavior and belief.6 Armed with a monopoly right to interpret the Ten Commandments and Holy Scripture and writings, the papacy maintained strict control over conditions and regulations that an individual had to fulfill in order to obtain the final product, salvation. The particular behavior we focus on is marriage and the rules and regulations the Church attached to the institution over the medieval period and we recognize that “the Church” as an “economic actor” is an abstraction7 However, we emphasize that the adoption of marriage rules and related behavior was only one of many directives that individuals had to follow in order to achieve the final product that the Church was selling. First, however, consider the nature of the Church’s monopoly in the context of the medieval period. The Church was a loosely and vertically integrated monopoly with the papacy and papal apparatus (the Curia and posted operatives around the world) at Rome at the apex and a decentralized assortment of sellers (bishops, priests, and abbots) downstream from Roman domination. We characterize the Church as a profit-maximizing entity with the full knowledge that spiritual hypotheses compete with our economic interpretation.’ The economic equivalent of a spiritual view would be the public interest theory of good ‘We note, in the spirit of Coase, that each form of vertical organization contains coordination problems. The medieval Church was no exception. While we characterize the Church as a vertical monopoly, loosely merged (as in Ekelund et al., 1989). the monopoly used a number of devices to repatriate revenues from downstream. These included royalty payments (a per-unit tax), lump sum payments from clerical organizations downstream, and tying contracts requiring the purchase of complementary inputs. 6For example, any benefice or appointment from the Pope, all litigants and recipients of dispensations, privileges, and exemptions paid a fee - to the extent that every piece of parchment issued in papal courts exacted a fee (Lynch, 1992, pp.l8&181). 7Specific actors and their motivations are often difftcult to identify in our study. Synods and Councils of the Church, composed of bishops, cardinals and other offtcials, created and altered doctrine in many cases. The papacy and the Curia - with emissaries of the Pope worldwide - initiated a number of rule changes in papal decrees (or decretals). We identify, where possible, the source of decretals and rule changes respecting marriage. The motivations of specificactors are nevertheless difficult to identify and motivations are, at least in part, imputed through the consequences of policies in our study. Alternative arguments for policies are of course possible and we discuss some of these, for example, with respect to Church regulation of endogamy. However, our argument is only that an economic interpretation is consistent with the results of Church policy regarding marriage. We do not deny that particular policies may have carried other and, indeed, multiple motivations. sThe application of an economic hypothesis is not new. Almost half a century ago, Nelson (1947) adopted the same perspective in dealing with the question of restitution from transgressions established by Church doctrine.

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government whereby the Church would act for the common good by internalizing externalities, defining and selling products at marginal cost, providing information, and enforcing property rights for the common benefit of members. The actual record of the Church is somewhat distant from this conception. Basic definitions of the conditions for salvation vis-a-vis individual behavior changed constantly throughout the medieval period. Vast fortunes accumulated in the hands of bishops and the Roman Church apparatus. Wealth, particularly in the form of land holdings, agglomerated in the hands of the Church and downstream monasteries (Davidson, 1993, pp. 64-68) due, in great measure, to policies established by the Church as conditions for salvation.’ Outright venality existed in the establishment of religious and even secular offices. While not conclusive, these facts seem at variance with a purely public interest or competitive model of Church behavior. Thus, we do not argue that profit-maximization was the only goal of the Church or that it undertook such a policy with perfect efficiency and no untapped opportunities for profit. lo Spiritual and other hypotheses may also fit its behavior. We do maintain that a profit-maximizing economic framework is one and a relatively new and fruitful means of analyzing the relation between Church behavior and institutional change. 2.1. Vertical coordination

problems

As a loosely integrated monopolist, the Church faced familiar problems of vertical coordination. The papal monopoly had a problem with rent collection as a result of typically high information and other transaction costs between the upstream monopoly and downstream ultimate suppliers in the medieval environment. The papacy used a number of devices to counter these problems. First and foremost, the papacy attempted to standardize its product at any particular time with clear definitions of the rules and regulations on behavior necessary for the attainment of the final product. These rules and regulations were enforced with penalties. Some infractions could be addressed through restitution (indulgences and other forgiveness for a price). Other serious infractions required the ultimate penalty excommunication and permanent withdrawal of the final product from the Church.”

‘The medieval period is replete with examples of property disputes between Church and secular authority. It is perhaps not too much to argue that secular governments’ loss of tax base was one reason for the success of the Protestant Reformation. InWe fully recognize that complete dissipation of rents did not necessarily occur owing in part to the existence of interests competing with the Church and within the Church such as inefftciencies in the nature and collection of rents. In fact, the menu of user charges created by the Church might have created inefficiencies in and of itself. The evidence suggests, however, that even if inefficiencies did exist (which is likely), the avenues taken by the Church enhanced rent collection relative to previous attempts to tax followers. It is also probable that the Church was imperfect in identifying completely the array of activities which could be subjected to user fees, thereby not fully collecting potential rents from Church followers. “Another part of the standardization was the use of Latin - most communications (up until the modem period) used the Latin language in diplomatic and other Church communiques. This was important in an era of illiteracy and in one where the upper classes used a variety of languages. Critics of the Church prior to the Council of Trent noted that the clerical education standards were low and that educated laity were typically more knowledgeable than the clergy. It was not uncommon, for example, for a priest to recite the Latin Mass ignorant of its meaning (McKay et al., 1991, pp.42C421).

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The papacy set up systems in an attempt to repatriate some of the profits collected downstream. Some returns, however, were shared by the upstream and downstream parts of the Church. Some formal sharing rules were developed, but other rules and regulations imposed on downstream suppliers were an attempt to thwart opportunistic behavior. The frequent changes in regulations and inventions of new rules and other-worldly realms (Purgatory for example) may, in part, be explained by an attempt to prevent opportunistic behavior and to change distribution of the rent taken (more to papacy, less downstream). Examples of these attempts at repatriation from downstream to upstream suppliers are plentiful. Lunt (1934, I, p.114) reports that the share of the indulgence revenue going to the papacy at Rome was commonly a third or one half of the revenues taken in by the local levels. He also reported that the rake increased significantly during the fourteenth and fifteenth centuries -the heyday of Church power. The establishment and definition of “plenary indulgences” (complete remission of sins) - given only to pilgrims who traveled to Rome - constitutes another example (Lea, 1894, III, p.205). Monasterial appointments and charges in lieu of “visitations” by Church authorities to monasteries are another set of examples (Lunt, 1934, pp.218,254; Snape, 1968, pp.l03-104; Ekelund et al., 1989, pp.315316). The invention and definition of salvation characteristics was accompanied by the repatriation of downstream revenues (from marriage market regulations as we shall argue). 2.2. The nature and collection

of rents

Rather than create and enforce a huge number of characteristics as sub-parts of the price of assurances of eternal salvation a rent-seeking Church with full information and zero transaction costs might have wanted to institute a head tax or an income tax from its members. The Church did in fact attempt such a tax through the loose “requirement” of tithing for individuals and, the imposition of Peter’s Pence in England, Poland and the Scandinavian countries - an annual requirement of a given percentage payment from local parish churches and other final sellers, theoretically amounting to a penny per household (Lynch, 1992, p.179). Still, given distances, resources, and extant technology for repatriation, rent flows were not collected entirely by the loosely integrated Church in a straightforward manner (income or head tax). Instead, the Church used a menu of user charges connected with specific Church-related activities such as defining, sanctioning, and dissolving marriages, granting exceptions to endogamy rules, levying fines, imposing penance, and so on. The demand for these Church-related activities derives from the demand for the assurance of salvation. As the relative prices of these various derived demands changed, the demand elasticity for one “characteristic” versus another might have changed. However, the inelastic demand for the assurance of salvation remained inelastic, regardless of changes in the various derived demands.”

12By asserting inelasticity we do not imply that the demand for salvation was fixed since, in all likelihood, it varied over time and space. In fact, it is expected that the demand for the assurance of salvation would vary regionally (or by country) in addition to rising in times of extreme hardship and lessening in times of relative prosperity. Further, the demand for the assurance of salvation from the Church would vary as plausible substitutes emerged. For most Christians this did not occur until the Protestant Reformation since Judaism and Islam were the primary competition in earlier times (along with all forms of “heresy”).

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Thus, our hypothesis is that the Church used a variety of user charges or taxes - made possible by rules, regulations and definitions designed by the upstream Church - to move rents from local (diocesan and parish) levels to the central papacy at Rome. One mechanism, not unlike Colbert’s entendunts or justices of the peace under Elizabeth I, was the use of an apostolic Camera (chamber) which acted with both financial and judicial powers over the downstream Church. With jurisdiction in both civil and criminal matters, the Camera functions as the fiscal agent for the papacy with power to recover debts and excommunicate for non-performance. The head of the papal treasury used regional and local fiscal agents (religious personnel) to collect rents and to return taxes and tithes to the papacy in Rome.13 Monopoly profits could not be leveraged more than once, at least under ordinary circumstances.14 But the inability to levy some optimal head tax plus the ability to engage in some price discrimination between individuals and locales led to systems of differential charges.15 Rents or monopoly profits were obtained because the price of the product was above marginal cost for some but not all buyers of the services offered by the Church. These charges, in the crude nature of second-degree block rate pricing, were imposed when individuals self-selected out of a wide assortment of salvation-related activities. Paupers and those of modest incomes were not excluded, although the emergence of certain Orders of the Church - e.g. the Franciscans - did signal the fact that the poor and indigent were not being ministered to in optimal amounts. But the poor typically consumed a far smaller bundle of services than did the rich.16 The Church maximized profits by controlling its hold of a broad range of services - wresting power from secular authorities in many cases - and by charging a profit-maximizing set of user fees based on demand elasticities - in marriage market regulations in the present case.17

‘%ee Lunt (1934) : I, pp.17-22, 179-180, or Ekelund et al., 1989 pp. 317-320) for further details concerning the Camera. 14Modem economic theory suggests that, under ordinary circumstances, monopoly profits could only be collected once and that it would be futile (and counterproductive) to attempt to levy monopoly charges on a whole range of services (Bork, 1978). But the power to discriminate between buyers of the services in a local, dispersed market environment together with the inability to exactfuli monopoly charges with a head or income tax, meant that it was perfectly rational policy for the upstream monopolist to continue to devise new characteristics, rules and regulations for attainment of the final product (salvation). IsFurther, there are cases where monopoly power might be leveraged into other markets. Such would be the case, for example, if a monopolist produces complementary or vertically-related products (see Ordover et al., 1985, and Kaserman and Mayo, 1993, pp.17-21 for details of these cases). It would be possible, if salvation and marriage are regarded as complementary goods, to leverage monopoly from one market to the other in order to maximize profits. A combined monopoly over both services yields greater profits than the sum of single monopolies over each due to the optimal pricing of the two related goods. However, the vertical coordination and profit-sharing problems that existed within Church monopoly and the power to (second-degree) discriminate leads us to the simpler characterization. 16For example, the poor, typically lacking property and thereby diminishing concerns about their heirs, were significantly less likely to marry in a “proper” Church - approved ceremony than were the wealthy (Lynch, 1992, p.292). 17We do not, of course, imply that the Church charged higher than combined monopoly revenues - like any monopolist the Church lost profits if it tried to charge prices off its demand curve.

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2.3. Medieval marriage and the church The medieval Church introduced new institutional constraints on the marriage contract - beyond those we might regard as naturally evolved secular or traditional constraints by including adherence to marriage rules as a component in the attainment of eternal salvation.” The Church’s definition was significantly different from the secular concept in a number of ways, chief of which was that the Church always regarded marriage as formally indissoluble although, as we shall see, exemptions were available for a fee. Why did the Church choose to pursue detailed regulations (such as enshrined in the Tametsi decree drafted at the Council of Trent in the sixteenth century) rather than alternative strategies such as perfect price discrimination or simply eliminating restrictions in conjunction with a set price at the profit maximizing level for an approved marriage? While both strategies might have been attractive from the perspective of private interests, formal pursuit of them would have been too costly for the Church. Reviewing marriage petitions on a case-by-case basis and hoping to exact a price equivalent with a couple’s (or family’s) maximum willingness to pay for Church approval would have been costly in terms of time and imperfect due to severe demand revelation problems. Moreover, the vertical coordination problems heretofore described exacerbate the problem of increased costs that this approach would likely generate. Still another strategy alternative to detailed rules and regulations would have been to simply price approved marriage at the profit-maximizing level, eliminate all restrictions, and grant as many marriages as demanded. While such a strategy is seemingly more plausible than perfect price discrimination and would clearly generate enormous profit, the approach would have conflicted with the Church’s overall strategy of maintaining a relatively inelastic demand for the Church’s central product (salvation). A simple profitmaximizing strategy would have eliminated the creation of artificial scarcity of an approved marriage as a major contributing factor for obtaining the assurance of salvation. Further, since the Church was pursing a mixed strategy of public and private interests, this approach would lessen if not eliminate the moral aspect of the marriage contract that the Church had created in accord with the public interest in attempts to decrease the 181tis, of course, difftcult to define a naturally evolved or tradirionai marriage. Becker (1981) p. 27) defines marriage as the “term for a written, oral, or customary long-term contract between a man and a woman to produce children, food, and other commodities in a common household.” It is a market wherein mutually beneficial exchange takes place and it occurs when the individual’s share of the marital joint product exceeds that of remaining single. The level of welfare of individuals and households is related to the kind and number of constraints placed on the contracting parties. Becker suggests that customs and traditions surrounding the marriage market evolve through time as a function of economizing activity by parties to the contract. For example, where divorce or recontracting is prohibited, fewer marriages are expected, individuals are willing to undergo higher search costs for a mate and an increase in prostitution and concubinage may be predicted as alternatives to some of the functions attached to traditional marriage. Becker goes on to sketch out some of the features of the anthropological traditionalfamily and its evolution (1981, pp.237-243), but it was not his purpose to analyze the impact of Church-mandated rules and regulations on market functioning. Clearly, as Becker would presumably argue, behavior regarding courtship and marriage, as well as the utility produced within (and without) the institutions, are also related to the rules, regulations, and institutions of any given time. (See Brinig and Crafton (1994) for their interpretation of marriage as a contractual arrangement and for the comparison of the “old marriage” -akin to a Church - approved marriage-and “new marriage” as divorce law changed in the 1960s. To complicate matters further for analyzing a medieval marriage, recent scholarship has uncovered that same-sex unions have been sanctioned and idealized as “marriages” in Western societies for over two thousand years (Boswell (1994)).

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incidence of clandestine marriages. Instead, this would turn the sanctity of a Churchapproved marriage into a rubber stamp approval for the appropriate fee, thereby severely diminishing the Church’s mission to serve the public interest and ultimately reducing the value of its credence good. Rules and regulations evolved at a steady rate throughout the early and medieval Christian period, but with a quickening after the eleventh century. The important point for our purposes is that varying interpretations throughout the Middle Ages of “eligibility” and definitions of Church-approved marriages served to increase the relative price of marriage over that charged in the secular institution. We argue that these changes were, at least in part, an attempt to contribute to the Church’s monopoly over its highly inelastically demanded final product. When viewed in conjunction with other aspects of the Church monopoly, marriage regulations were only one passage, although a significant passage, in the symphony of interrelated rules and regulations devised by the Church for the attainment of salvation. It is important to understand, in our context, the nature of Church marriage regulations and the particular ways in which they changed. In order to maintain that the establishment and manipulation of Church marriage regulations was inspired by profit maximization, however, we must also investigate how, where, and why constraints were imposed on Christian marriage. Were these constraints simply utility-maximizing responses to demands of Christian adherents to the Roman Catholic faith - public interest responses to the need for guidelines in times of poverty and distress? Or is monopoly profit maximization cum price discrimination under competitive constraints a viable, if complementary, hypothesis? Were the actions of the Church calculated to increase profits in the face of growth in secular society and in the presence of competing religions? Our research attempts to shed light on some of these activities with the warning that final answers to these questions are probably not attainable. In particular, we focus on endogamy regulations respecting marriage eligibility, doctrinal innovations respecting marriage, and on the range of fees in the nature of user fees charged for Church-granted exemptions to the rules the Church itself created. Several caveats are in order. Our tests of the viability of the profit-maximizing hypothesis rests in part upon conditions in specific markets at specific times. Enormous intertemporal variability existed in particular practices in particular places. Such practices even differed markedly between and within the nations touched by Roman Christianity. We maintain simply that, using comparative static tests of the Church’s response to particular institutions and competitive conditions, the Church used the institution of marriage to extend its monopoly throughout the range of its influence in the world. Costs were imposed on society in the form of wasted resources and prices higher than marginal cost for marriage services. These regulations regarding marriage served as dogmatic barriers to entry for other prospective religious organizations and as competition for secular institutions. By more clearly defining its products through diverse regulations, the upstream Church made upstream collection of profits more feasible. In addition, the Church’s primary good, eternal salvation, became elusive for members of society who did not adhere to the evolving requirements. As a result, the Church was able to maintain demand for its services and to generate quasi-monopoly profits through its own innovations and by enhancing its market position. While profit maximization under

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competitive constraint in an environment of loose vertical organization and opportunistic downstream behavior is only one hypothesis that tits Church behavior, it permits insights into aspects of the evolving institution of Roman Catholicism that are otherwise difficult to explain. 2.4. Secular, clandestine,

and church-approved

marriage

There were three distinct classifications of marriage in the Middle Ages with which the Church was concerned. Secular marriages were marriages between individuals in society who were not followers of the Church, such as Jews, Muslims, or pagans. These marriages were usually arranged by the family but could be contracted by mutual consent of the partners. Further, cohabitation among people of equivalent class status was presumed to be a marriage under the secular law (Brundage, 1987, p.436). Secular marriages were not recorded and no ceremony was required, particularly since the law regarded marriage as an inherently private matter (Helmholz, 1974, p.4). The primary distinction between a secular marriage and any type of marriage between followers of the Church was that the former was dissoluble without any court ruling - the couple could terminate a marriage at will (Helmholz, 1974, p.4; Brundage, 1987, p.94). Adherents to the secular law were apparently not demanders of the Church - defined ultimate good the assurance of salvation. Clandestine marriages are defined as marriages between followers of the Church which are based on mutual consent by the parties to the marriage alone, as defined by Peter Lombard in the twelfth century (Sheehan (1978a, 1978b), pp.l3-14). These marriages were contracted privately but were considered indissoluble in the eyes of the Church. Any marriage was considered binding by the Church as long as it was contracted de presenti - by mutual consent in the present tense. The Church first began objecting to divorce in the fourth century when St. Augustine and St. Jerome argued that marriage was indissoluble according to the New Testament (Brundage, 1987, p.95). This view was maintained by the Church throughout the Middle Ages (and remains today). It seems that some couples who married clandestinely intended to publicly solemnize their marriage within a few years while others displayed no such intentions, according to Helmholz (1974, p.30). The Church upheld these marriages as valid since they were based on mutual consent but began promoting the public announcement of plans to marry (wedding banns) and instituted this regulation at the Fourth Lateran Council in 1215. When banns became required, clandestine marriage became illegal but not invalid and was therefore upheld by the Church. Partners to such a marriage faced fines and/or other forms of penance but were still able to secure the assurance of salvation from the Church for several centuries under a clandestine marriage. Clandestine marriages were reregulated at the Council of Trent in 1563 and were classified as invalid throughout most of Europe (Ingram, 1987, p.132). The Tametsi decree, drafted at the Council of Trent, added the necessity of a blessing by a priest for a valid, Church-approved marriage. Moreover, priests began to be required to record marriages in their parish to provide proof of a marriage as well as to prevent clandestine marriages between people who were not members of the parish (Brundage, 1987, p.564). The Church raised the relative price of marriage for prospective partners with this new

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regulation by increasing transactions costs as well as wedding fees. Moreover, the family was once again afforded a role in the marriage process since mutual consent was no longer sufficient to solemnize a marriage. Parental, community, and Church consent represented by the priest’s blessing were required as well, making it more difficult to hide a consanguineous marriage or the existence of a pre-existing clandestine marriage.” 2.5. Utility to individuals Changes in the salvation-directed definition of a Church-approved marriage had obvious effects on the marriage market. For individuals with a low discount rate, the higher cost of a public, Church-approved marriage had some benefits - it eliminated uncertainty about the validity of the marriage, secured property rights, and aligned the couple with the Church, increasing their probability of attaining the assurance of salvation. From this perspective, Church-approved marriages might have been utility maximizing for individuals who sought the assurance of salvation as well as certainty of the marriage contract. Individuals who had a high discount rate, however, faced increased costs due to the new regulations which invalidated clandestine marriages. The regulations served to increase the cost of marriage and decrease an individual’s utility since mutual consent alone was no longer sufficient to validate a marriage in accord with Church teachings. As a consequence, with the Council of Trent and the Tametsi decree, any individual who planned to marry and remain in the Church was subjected to public scrutiny, parental influence, and Church ceremonies. For all individuals, the Church’s prohibition of divorce raised the cost of marriage. Recontracting - divorce - was possible under secular law, but not under Church regulations. Search costs for a mate rose and, in the event of an unhappy marriage, divorce was impossible or obtainable only at high costs. Church members could avoid these costs only at the risk of losing the Church’s chief product the assurance of eternal salvation. Depending on the manner in which costs are calculated, marriages (either secular or clandestine) could have been produced more inexpensively for many participants than under the final Church-approved definition, a definition that remains essentially intact today. Regardless of the utility or disutility produced for individuals in the marriage market, the alterations in regulations created rent-seeking opportunities for the Church.

3. Endogamy and the eligibility to marry Incest was defined and redefined by the Church throughout practice was the “public interest” pretext for entry into the regulations over endogamy varied widely over the early regulations against marriage among kin in the second degree first cousins. Over time, these regulations were extended to the

the Middle Ages and its marriage market. Church medieval period. Initial prevented the marriage of third and eventually to the

‘9Jurisdiction over marriage in England was not taken from the Church until 1857 (Hehnholz. 1974, p.3). Church authority over marriage and divorce also persisted in Italy, where divorce was not permitted in Rome until the 1980s.

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seventh degree (sixth cousins), making marriages between second and then distant cousins sinful (incestuous) in the eyes of the Church. By altering and enhancing marital regulations, the Church increased its ability to attach the assurance of salvation to the marriage contract. This served not only to increase Church control over the matrimonial process, but it also provided ample opportunity for rent extraction through dispensations and exemptions. Monopoly benefits accrued to the Church in a two-pronged fashion. Direct benefits flowed to the Church in the form of the fees exacted for exemptions. The primary indirect benefit that developed as a result of Church regulation was the suppression of dynastic development which lessened external threats to the power and authority of the Church. The recurring controversy which centered around incestuous marriages began as early as the fourth century. The first prohibition against marriage to cousins came under Emperor Theodosius I in 384 or 385 although dispensations were sometimes awarded to allow such marriages (Goody, 1983, p.55)” Roman law, however, maintained the prohibition with an exception for marriage among cousins if a dispensation was secured from the Church. Loopholes such as this provided early opportunities for rent-seeking in the granting of dispensations. As the Church was a loosely integrated monopolist, it faced problems with rent collection and malfeasance by downstream distributors of the Church’s product - the assurance of salvation. Downstream suppliers included local parish priests, bishops, monasteries, and other agents of the Church, and although Church collections such as “Peter’s Pence” were collected in each parish with the proceeds to be forwarded to the Vatican, local Church agents often forwarded only a portion of what had been collected (Lunt, 1934, pp.65 et passim). Had optimal conditions existed, it is expected that the Church would have imposed a head tax equivalent to the monopoly rate. However, given the problems that existed with rent collection, (high information and transaction costs and for other reasons discussed above) the Church attempted to collect rents by differentiating its products and offering “sets” of services to demanders of the assurance of salvation. By approaching rent collection in this manner, the Church was able to provide services to both the wealthy and the poor and impose differential or discriminatory pricing. Further, the Church enabled demanders, the wealthy in particular, to pick and choose among the products and services offered by the Church, all for a fee, to satisfy their demand for salvation. Our argument is that Court fees, fines, and the ability of the Church to charge different prices for the same product suggests that price was indeed above marginal cost for marriage contracts although data limitations preclude information regarding the exact markup. For example, internal subsidization of Church services clearly occurred when different rates were charged for the aristocracy and the poor. Such price discrimination could exist only under conditions of monopoly power. While we do not know the actual level of profits due to the lack of relevant data, evidence indicates that the Church at least aimed at profit maximization. Some evidence considered here suggests

“It is not known if the prohibition was directed at fust, second, or distant cousins. However, it seems likely from the chronology of regulation against consanguineous marriage that the prohibition was not yet directed toward a distant kinship tie.

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that the Church’s policies were at least observationally equivalent to a profit-maximizing strategy. The marriage market provided fertile ground for the Church to develop regulations and services in this manner. Endogamy within certain degrees of kin became forbidden but exemptions were available for a fee. Further, the issue of mutual consent to a marriage became a testing ground for the validity of a marriage. Cases were brought before the Church courts in an effort to uphold or dissolve marriages, with fines and exemptions levied as the court deemed appropriate but not always at the same rate to demanders of salvation. For example, the wealthy were far more likely to pay fees above marginal cost for an exemption for an endogamous marriage or paid enormous fines when appearing before the Church court on charges of consanguinity or an invalid marriage while the poor were sometimes offered the same “services” and were able to plead in forma pauperurn and pay nothing for their case (Helmholz, 1974, p.161). By regulating and reregulating the conditions for a valid marriage throughout the medieval period and by offering services in the form of exemptions and dispensations, the Church was able to secure a strong social presence while maintaining the inelastic demand for its ultimate product and enhancing rent collection.

3.1. Church synods and endogamy

regulation

Secular law maintained no prohibitions against the marriage of first cousins in the sixth century, as documented in Justinian’s Institutes where it is stated that the children of brothers and/or sisters can marry (Goody, 1983, p.56). The Church, however, pushed the issue of endogamy to the forefront and extended the regulations against first cousins marrying to the third degree which prevented the marriage of second cousins individuals with the same great-grandparent. Such marriages were illegal in the eyes of the Church, but there were economic benefits that frequently accompanied incestuous marriages such as the ownership of land for the families that arranged these marriages, which in turn strengthened their economic and social position. Although such marriages could confer benefits, they could also create intense rivalry in the marriage market, the actual goal being ownership of the land involved in the marriage contract. As a result, families sometimes used the Church’s prohibition of incestuous marriages to accuse competitors of illegitimate intentions (Gies and Gies, 1987, p.52) to secure land through marriage contracts. Families that called on the Church’s regulations hoped to maintain or secure land for their own families. Over time, the ban of incestuous marriages became a societal norm, thereby fostering practices of concubinage and polygamy from the sixth to the eighth centuries. This predictably led to problems with divorce, with one of the central allowable causes being an absence of mutual consent to the marriage. Since marriages were frequently arranged by parents, potential spouses were not always consenting to marriage. Like incestuous marriage, divorce was prohibited by the Church. As a result, for a marriage to be dissolved the question of consent became a focal point which provided an avenue for rent-seeking by the Church. Arranged marriages were consistent with the practice of consanguineous marriage. The ability to arrange one’s own marriage, however, was a clear step away from the control of

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the family and kin group and a move toward maximizing one’s own utility through a desired, rather than forced, marriage. This narrower focus created a diminished emphasis on kinship groups.21 Church councils and synods regularly addressed the issue of so-called “incestuous marriage,” sometimes forbidding the practice in general while at other times, delineating violations to a specific degree of kin and the accompanying punishment.22 The Eastern Church joined ranks with the Roman Church in 1166 when it prohibited consanguineous marriages to the seventh degree of kinship at the Synod of Constantinople (Smith, 1972, p.17). Consanguineous marriages within forbidden degrees were allowed to stand a century earlier (if such a marriage had already been contracted) but the new regulation in 1166 eliminated this loophole, and declared that any such marriage would be dissolved. The position of the clergy was further reinforced when the emperor, Manuel, established the same regulation in an imperial edict (Smith, 1972, p.17). 3.2. Illegitimate

heirs: Church control of inheritance

Economic posturing in the form of land acquisition and building up estates through consanguineous marriages became increasingly common in the medieval period. The Church and the State joined forces and enhanced marital regulations by increasing the degree of kinship that defined incestuous marriage in the eighth century (Gies and Gies, 1987, pp.83-84). The Church couched its regulations as being in support of the interests of the marriage partners. Since marriage was perceived as a sacred bond by the Church, its validity should rest on mutual consent and not the economic interests of families. The private interest of the Church reveals, however, that the regulations tempered the economic strengths of families and availed more control as well as estates to the Church. Clearly the prohibition of divorce would have reduced transactions costs by stabilizing property rights and hence it might have led to increased long-term investments in some instances, particularly for the aristocracy. It was perhaps the case that some aristocrats would have had a demand for marital indissolubility. However, the Church’s endogamy regulations conflicted with and mitigated the potential gain to individuals from marital indissolubility. One example of the rent-seeking activity of the Church becomes clear - it hoped that by further restricting marital options, the incidence of heirs would decrease, thereby “While the emphasis on mutual consent as opposed to arranged marriages promoted the interests of the individual marriage partners, some families continued to align their economic interests through arranged marriages. Arranged marriages were permissible if an exemption was obtained from the Church for a fee. For example, an exemption which allowed nobles to marry in the second degree (first cousins) has been estimated to cost 100 grossi (Lunt, 1934, p.129, n.549). Grossi were roughly equivalent to twelve English pennies (pence) and were over ninety percent silver in content (Lane and Mueller, 1985, pp.lO-11). *%‘he Synod of Agde in 506, for example, forbade incestuous marriage in general, while the Synod of Epaon in 517 prohibited marriage among first cousins (Smith, 1972, pp.9-10). As early as 531 at the Second Synod of Toledo, excommunication was the prescribed punishment for individuals marrying blood relatives - the penalty to be suffered for the number of years one was “polluted by the stain of the blood of his kin,” (Smith, 1972, p.10). Other synods which prescribed excommunication as a punishment for endogamy include the Synod of Clermont in 535, the Trullan Synod of 692, the Roman Synods of 743 and 826, the Synod of Garonne during Gregory VII’s pontificate (1073-1086), the Council of Nimes during Urban II’s pontificate (1087-1099). and the Synod of Dioclea in 1199 (Smith, 1972, pp. 10-I 8)

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increasing the likelihood of inheritance for itself.23 In other words, the Church’s regulation of endogamy led to a diminution in the number of heirs, legitimate and illegitimate, thereby enhancing the Church’s ability to acquire estates and preventing dynastic growth. In the essentially feudal, decentralized and localized environment of the early Middle Ages it is likely that economic growth occurred principally within families, i.e. within kinship units, Non-partible inheritance laws helped keep wealth “in the family” and in-family marriage mergers were but another device ensuring economic development within the family. Restrictions on endogamy, therefore, would tend to decrease the number of heirs. Dynastic development depended to a greater degree on external alliances in both earlier and later periods, but especially in the latter. As communications and transportation improvements reduced transaction costs of nonrelated family mergers, endogamy regulations most likely furthered economic growth and development. While secular law did not prohibit endogamy, it did regulate the ability of children from such marriages to inherit an estate. From the moral standpoint of the Church, however, if heirs begotten from such unions were illegitimate, it follows that the Church would deem such marriages as illegitimate or invalid. Even though the Church couched its regulation in terms of the public interest (e.g. health concerns and broadened community ties), the evidence points to the private interests of the Church as a motivating factor of its regulations, at least in part. If individuals continued to engage in endogamous marriages, the Church stood to gain through inheritances since the existence of legitimate heirs would be lacking. By promoting exogamy, moreover, the Church’s position of authority, and hence its income stream from the faithful, were secure. In promoting its regulations then, the Church was employing a “win-win” strategy from which it could secure revenue while maintaining its societal influence. We do not mean to imply, however, that a dearth of legitimate heirs was the actual goal or intent of the endogamy regulation of the Church. Rather it was an outcome. The goal of the Church in promoting these regulations was to diminish dynastic power. The secondary consequence of the diminution of legitimate heirs positioned the Church to augment its income. On more than one occasion Church synods regulated the ability of offspring from consanguineous marriages to inherit an estate. While illegitimate children in most societies could secure an inheritance through a will, the Church was able to prevent this through its power to confiscate estates according to its regulations. Justinian proclaimed that succession for children of incestuous marriages was prohibited while the Synod of Douci in 874 instructed restraint from marriage to the seventh degree of kin. To bolster its ruling, the synod noted that children of such marriages were prevented from succession to an estate according to Roman law. Further, the Synod of Trosle in 909 stated again that no legitimate heirs could be born of consanguineous marriage (Smith, 1972, p.14). The Lateran Council of 1123 echoed the sentiment when it declared that anyone who

%ee, also, Brundage (1987) p.193, Herlihy (1985) p.12, and Goody (1983) p.215 for more details on bequests to the Church in this manner. Such opportunistic behavior dovetails with policy manipulations regarding the usury doctrine in later centuries. De Roover (1948, p.157n) reports cases of after-death Church claims on restitutions for usury in the late fourteenth century. These incerra claims (with unknown victims) were expropriated by ecclesiastical authorities.

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contracted an incestuous marriage was considered “incapable of succeeding to an inheritance,” (Smith, 1972, p.17). Papal decrees were also issued to address endogamy and the issue of inheritance. Pope Gregory I was the first to address the issue when he extended the regulation to the seventh degree, basing his judgment on the secular law which forbade succession to relatives in the seventh degree. According to Smith (1972, p.28), the Church “erroneously combined the Roman law of intestate succession with the provisions in respect to incest and fallaciously asserted that the Romans had barred marriages up to the seventh degree of blood relationship.” Secular rent-seeking existed along with the rent-seeking behavior exhibited by the Church, as indicated by King Pepin (751-768) who perceived the increasing economic strength of families as a threat to his authority. Following the Synod of Comiegne in 756 (or 758) which ruled that marriage in the third degree of kin should be nullified, King Pepin threatened secular punishments against individuals who scorned the acts of the synod (Smith, 1972, p.12). Pepin joined with the Church in extending marital regulations to prohibit marriages among descendants of a grandfather five times removed when previous regulations only prohibited marrying a first cousin (marriage in the second degree of kin, Gies and Gies, 1987, pp.84-86). First employed in the ninth century, the self-interest of both the Church and the throne led them to actively institute new legislation, hoping to safeguard and maximize their own opportunities for economic benefits. Smith (1972, p.8) notes that according to the Church, the primary reason for preventing marriage among blood relatives was that “the bonds of charity were multiplied and more widely disseminated by marriage of non-relatives.” However, the Church’s promotion of exogamy is perceived as clearly posing less of a threat to the papacy than marriages within the family. By encouraging mergers among families, any single family would have more extensive kinship ties but the family itself would possess less dynastic power than if marriage had occurred within the family. The endogamy regulations imposed by the Church were contrary to custom, as explained by Lynch (1992, p.290). He notes that some societies promoted endogamy, particularly among first cousins, because it secured property within the family. While exogamy might seem to pose more of a threat to the Church, the centralization of wealth within the family through endogamy facilitated the development of dynasties, or potentially, quasi-monarchies both of which could pose a serious threat to the authority of the Church. Consequently, exogamy was encouraged because it clearly posed a lesser threat to the Church. Church regulations on marriage by degree of kinship to the fourth degree prevented marriage among third cousins, or common descendants of a great-great-grandfather (Hanawalt, 1986, p.80; Goody, 1983, ~56). Clearly, extending the regulation to the seventh degree made legal endogamy nearly impossible and provided ample opportunities for rentseeking with respect to marriage dissolution as well as through Church exemptions of consanguineous marriage in exchange for a fee. Table 1 provides a glimpse at some of the fees set up by the Church to grant exemptions for a marriage within forbidden degrees. The exemptions granted are constructed from late fifteenth century documents (Lunt, II, pp.524-526) when marriages were forbidden up to the fourth degree of kinship. Fees addressed different degrees of consanguineous marriage, whether the marriage was

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Table 1 Fees for church exemptiom

of consanguineous

marriage

Degrees of consanguinity/affinity

Fee (in gmssi)

3rd and 4th degree exemption Declaratory letter

27.5 7.0

Dispensatory letter 7.0 Seal of dispensation For the box

5.5 1.0

lngorantly contracted in illegal degree Payment to the writer

18.0 9.5

Knowlingly contracting To the writer To the sealer To the procotr

20.5 10.5 7.5 ?

in illegal degree

Declaratory

letter allowing

Clandestine

contract ignorantly

Contract To the To the To the

3rd and 4th degree contracted

in the 4th degree - nor consummated write sealer nroctor

7.5 18.5 20.5 9.5 7.5 ?

Source: Lunt (1934). Vol. II, pp. 524-526.

contracted knowingly in the said degree, contracts which were not consummated, and dispensatory letters. The fee schedules established by the Church did not constitute user fees in the traditional sense; rather, they were fees charged for services at prices above marginal cost. While it is clear that Church-provided services had positive costs associated with their provision, the monopolistic price structure imposed by the Church is inferred by observing its consumers. The majority of the consumers of Church exemptions were the wealthy, not the poor. The Church permitted the poor to plead in forma pauperurn and pay nothing for their case but since excommunication was a potential penalty for delinquency of payment, most consumers who could afford exemptions paid the court fees (Helmholz, 1974, p.161; Ingram, 1987, p.57). A menu of user fees connected value received to particular services as individuals self-selected products on the basis of demand elasticity. Evidence that nobility were afforded dispensations for sizable sums is plentiful. For example, Vatican archives reveal that in March 1480, Maximillian, Duke of Austria and Burgundy, paid 2,250 ducats for a matrimonial dispensation - a not-inconsiderable sum at the time (Lunt, 1934, p.525). Inflation in late sixteenth century England, moreover, motivated the Church courts to begin fixing prices for exemptions in the early seventeenth century (Ingram, 1987, pp.58, 72). By setting fees at levels comparable to fees in the previous century, the Church not only maintained the demand for its court services, but stood to actually increase the demand for its services since its fees were relatively lower

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than other courts as a result of its price fixing. While the Church might have maintained that its price fixing was done to maintain affordability of its services, economic theory suggests that the presence of competition in the sale of tbe assurance of salvation following the onset of Protestantism was the underlying cause of maintaining prices at sixteenth century levels. It became relatively easy to find or manufacture a kin tie in the seventh degree or less with extensive prohibitions on consanguineous marriage. Those seeking a divorce could hire lawyers and copyists to trace their genealogy, looking for a kinship tie (Gies and Gies, 1987, p.140). The Church was also rent-seeking by extending its regulation since this prevented families through extensive interrelations from obtaining Church property which could have arisen through bequests (Brundage, 1987, p.140). By heightening regulations against consanguineous marriages, potential claims to land from relatives would have decreased, increasing the likelihood that the Church could retain property rights to such land. There is, moreover, clear evidence that exemptions were made in return for fees and that high fees were paid by nobles.24 Pressing the prohibition against incest to the seventh degree of kinship could not have made much sense from the practical perspective of accumulated wisdom. The probability of genetic problems fell in geometric proportion to the level of blood relationship. Thousands of years of experience must have produced common and evolved knowledge that marriage between third or fourth cousins, not to mention sixth cousins, would cause no health problems. Further, in a period of mass illiteracy and little or no record keeping, it might be virtually impossible to know if kinship ties within a marriage existed. An economic hypothesis indicates that the Church’s endogamy regulations typified its rent-seeking behavior. The Church was indirectly promoting economic development in the short run through endogamy regulation since both the Church and secular society would benefit as growth occurred. Endogamy regulations were possibly promoted through individual pressures placed on the Church because endogamy could have lessened economic growth by constraining resources in accord with inheritance lineages. But this factor is overshadowed by the strategic alliances between and within families that took place throughout the medieval period. It is not that talented sons-in-law, for example, were overlooked. The point is that families would look for a talented son-in-law within the extended family alliance to perpetuate the family dynasty and prevent fragmentation of a family estate. Strategic alliances within families via mergers were a means of overcoming a problem with the inheritance lineage. Evidence suggests that most families progressed in the fashion of “properly” marrying off their children. Promotion of economic development through exogamy would have increased both secular and Church revenues in the long run, but development would have also encouraged alternatives to Church dogma to slowly appear. A totally self-interested **here is strong evidence that aristocratic endogamy continued with exemptions granted when the interests of the Church were at stake (Duby, 1978, pp.3&57). Since parish registers were not maintained, it is difficult to examine the incidence of marriage among km. However, the ecclesiastical books reveal that approximately fifty% of the spouses were from the same parish and thus possibly related (Hanawalt, 1986, p.81). High transaction costs involved in finding a mate in largely rural parish environments promoted marriage within the parish and increased the probability of a distant relation between spouses. Lynch (1992, p.290) notes that it was likely that in rural areas, many marriages probably could not have withstood close checking with regard to the regulations concerning kinship ties.

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policy of promoting economic growth through exogamy would have been (ultimately) self defeating for the Church due to market entry. While the short-run phenomenon of endogamy regulation promoted economic growth for some - primarily the aristocrats who could finance broader alliances - the long run impact was a limitation of dynastic development which could have rivaled the power of the Church.25 As a result of its regulations, secular development was suppressed which sustained demand for the Church’s primary good - the assurance of salvation. 3.3. Papal enforcement:

The case of the nobility

Kings were particularly persistent in their pursuit of wealth through marriage, regardless of the regulations the Church had instituted by the twelfth century (Gies and Gies, 1987, pp.l33-135). Evidence of papal enforcement of marriage regulations regarding kinship ties appears throughout the Middle Ages, including Popes Nicholas I, Innocent III, Gregory VII and Boniface VIII, spanning from the ninth to the early fourteenth century.26 For example, Popes Nicholas and Hadreain enforced regulations against wrongful termination of marriage by Lothair II, King of Lotharingia and his first wife, Teutberga, so that he could take a second wife, Waldrada (Smith, 1972, pp.74-76). Another example of papal enforcement involves the case of King Robert the Pious of France (996-1031) who married Rozala, a claimant to the throne of Italy. Robert dismissed her, saying she was too old but actually he had only married her for political gain. His next wife, Bertha, was the daughter of the King of Burgundy. The marriage did bestow some political gain but they were related within the third degree of kinship (Smith, 1972, pp.77-78). Gerbert, the Archbishop of Rheims (who later became Pope Sylvester II, 999-1003) refused to permit the marriage but the ceremony was performed anyway. Smith notes (1972, p.80) that the Synod of Pavia in 997 decreed that “King Robert, who took to wife his relative, against apostolic prohibition, be called to satisfaction, together with the bishops consenting to this marriage. If they refuse, they are to be deprived of communion.” After a visit from Abbo, the abbot of Cluny (a Cistercian monastery) failed to persuade Robert to obey the pope, a council was called to Rome in 998 which pronounced a sentence of anathema (a formal excommunication) upon Robert if he did not separate from Bertha and do seven years of penance for his sins (Smith, 1972, p.81). After failing to obey for some period of time, the pope and his cousin, Emperor Otto, blackmailed Robert to relieve the pope and his monks at Cluny and Fleury from secular supervision (Duby, 1978, pp.4648). Robert finally conceded because it facilitated a legal divorce which enabled him to marry a third time. His third marriage was successful in producing two male heirs.

*‘As the Church gained in power relative to secular authorities, other tensions emerged. The issue of papal investiture, whereby appointments to offices were issued by the Church was a continuing point of conflict between the Church and monarchs. For example, in 1335, Pope Benedict XII declared that appointments could be made by the Church to fill offices such as the head of a church, monastery, priory, and other offices, some of which were secular (Lunt, 1934, p. 228). The papacy also sold offices for sizable sums (see Ekelund et al., 1989, p.314). Secular authorities, in contrast, often claimed the legitimacy of appointing abbots to head monasteries located in their jurisdictions. 26While some specific examples of papal enforcement are detailed below, see Smith (1972, pp.54-155) for a more complete account of enforcement by the popes over this time period.

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Pope Gregory VII (1073-1086) prevented marriages among nobles as well, including the Countess Matilda of Tuscany, Count Centullus of Beam, and King Alfonso VI of Castile and Leon (Brundage, 1987, p.192). A final example of Pope Gregory’s enforcement involves the case of a woman in Florence who had married within the regulated degree of kin. Her husband had died and she stood to gain financially through retrieval of her dowry and the marriage gifts (Smith, 1972, p.83). The Bishop of Florence was ordered by the pope to determine the degree of kinship and if it existed, to “quash all legal instruments relating to the dower and gifts so that the errant woman might not derive material profit from her sin” (Smith, 1972, p.83). The varying degrees of sanctioned endogamy over the early medieval period altered the relative price of marriage to market participants from a microanalytic perspective. Search costs for Church members seeking a mate rose precipitously - especially in the agrarian environment - as the prohibition reached the seventh degree of kinship. Such prohibitions (coupled with divorce prohibition and other constraints) reduced the marriage rate by increasing the relative utility of remaining single. There is also evidence of increased concubinage and prostitution in the ninth century at the height of the endogamy prohibition.27 Prior to Church regulations, the concubine was considered a part of the household and the children legitimate. However, concubines also became a specific target of Church regulations, wherein the Church began to classify the offspring of a concubine as illegitimate and as a result, the children lost their claims to any inheritance (Goody, 1983, p.76). Had the Church permitted the children of concubines to be classified as legitimate, it would have decreased the Church’s rent-seeking prospects by decreasing the incidence of exemptions that the Church could have granted for a fee. Further, by defining these children as illegitimate, any estate bequeathed to such an heir was subject to confiscation by the Church (Goody, 1983, p.77). Concubinage was officially prohibited by the Fifth Lateran Council in 15 14 and those found in violation were often fined (Brundage, 1987, pp.514-515). By the year 1100 the Church had managed to emerge as the leading interpreter of endogamy regulations using ancient secular prohibitions against incest as its entre into the marriage market. The stage was set for Church dominance over marriage as a social institution in the later medieval period.

4. Courts, synods, and edicts: Doctrinal

innovations

regarding

marriage

Church theologians and canonists were in pursuit of a definition of Church-sanctioned marriage as early as the eleventh century, although the Penitentials or penance manuals of the early Church were suggestive of later Church efforts (McNeil1 and Gamer, 1990, pp.78,96). While Church control over endogamy was in place much earlier, controversies *‘For example, a synod at Avignon prohibited clerics and married men from frequenting brothels while a synod at Bourges in 1031 issued the regulation which allowed remarriage after a separation due to adultery (Brundage, 1987, pp.201, 525). Several synods prohibited clerics from marrying or having concubines, including the Synod of Pavia (1022), the Synod of Bourges (1031), the Synod of Rome (1059) by Pope Nicholas II, the Synod of Gerona (1068) by Pope Alexander II, and the Synod of Rome (1074) by Pope Gregory VII (Brundage, 1987, pp.218-219).

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over definitions arose among Church offtcials because of differing interpretations and degrees of emphasis placed on mutual consent as well as whether sex was necessary to render a marriage contract valid. Additionally, the nature of the consent was important in the eyes of the Church. A contract to marry was typically upheld by the Church if the consent was a present rather than a future promise to marry (de presenti as opposed to de future). Further, the Church had long maintained that sex for pleasure was a sin and that even within marriage (from at least 525), self-control and discipline regarding the purpose and frequency of sex was appropriate. Further, a liturgical cycle mandated abstinence throughout the year as well as during penance, with fines ranging as high as 40d. (Lunt, 1934, p.601). This interpretation diverged from the secular view which did not perceive sex itself as sinful. As a result, the emphasis on the sinful nature of sex by the Church contributed to its emphasis on mutual consent rather than arranged marriages. This distinction became the point of departure from secular law and diminished the power of parents in arranging marriages to solidify family lines and protect family wealth (Duby, 1978, pp.7-8; Donahue, 1983, p.144; Houlbrooke, 1985, p.340; Gies and Gies, 1987, pp.137-140). Church-sanctioned marriages, apart from the issue of kinship, were redefined throughout the Middle Ages to require increasing levels of involvement in the marriage process by Church offtcials. Not only did such involvement make the Church a central figure in the marriage market by creating new behavioral constraints on the attainment of salvation, it also enhanced its authority in hearing marriage cases. The Consistory courts were the courts of the Church which heard marriage cases. As Church regulations surrounding the marriage contract changed, the incidence of court cases brought before the Consistory courts increased which allowed the Church to capture more rents in the form of legal fees and fines. The Fourth Lateran Council (1215) ordered that synods, a meeting of a diocese’s clergy, be held annually. These synods were typically the birth place of the regulations and doctrinal innovations created by the Church to enhance its control during the Middle Ages. Some of the legislation was instituted on the local level by bishops while others were papal decrees.** Documentation of Church regulations and the enforcement of Canon law in the Middle Ages are most readily available from England. The regulation that mutual consent constituted a marriage was explicitly stated in the mid 1200s to prevent the nonconsensual arrangement of marriages involving minors to “promote the common good” of the families (Sheehan, 1978b, p. 17). It seems, however, that the Church increasingly stressed the need to perform the marriage ceremony publicly and officially within the Church. The Synod of Nantes (1386), for example, addressed the high incidence of clandestine marriages (Brundage, 1987, p.501). The Church found it difficult to prove that consent existed in such cases since there were often no witnesses to the marriage. Clearly, the influence of outsiders on a marriage was primarily relegated to notification of a kin tie or some other reason why the marriage should not be permitted. This too was a process supervised by the Church through its local agent, the parish priest. At this time a *sThese regulations were selectively enforced, taking hold much later in England (1753) than in France and on the Continent. This kind of price discrimination is discussed later in this section of this paper.

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marriage which was not publicly announced or blessed by a priest was considered sinful but was nonetheless binding. With this interpretation, marriage became attached to the primary and most important good of the Church - the assurance of eternal salvation. 4.1. Church court proceedings:

Incidence and expense

Efforts to decrease the role of parents in arranging marriages as a means of economic and social climbing in the twelfth century were part of the public interest argument that the Church developed in emphasizing a shift to the Canon law of marriage (Donahue, 1983, pp.145-146). Additional motivations in accord with apparent concerns for the laity included the notion that people could not regulate marriages themselves, that marriage was indissoluble, and that marriage between kin was incestuous. The Church courts became recognized as the forum for marriage cases, having maintained that such cases were beyond the realm of secular courts (Brundage, 1987, p.223; Gottlieb, 1980, pp.49-50).*9 In medieval England, a Consistory court was the bishop’s court of Canon law. Consistory courts existed in each diocese and were presided over by an official, who represented the bishop, and a judge. A court of audience of the bishop had jurisdiction as well (Hehnholz, 1974, p. 1; Morris, 1963, p. 152). These courts were largely concerned with marital problems among the laity, typically including the enforcement of marriage contracts, annulments, and judgments for adultery. The officials of the Consistory courts were lawyers and were often in the service of many bishops which made it necessary to appoint a deputy to oversee the court (Morris, 1963, pp.153-154). By 1350, a permanent commission was established to oversee the Consistory court. Typically, the court met for two-day sessions each month. An examination of court procedure by Helmholz (1974, p.114) reveals that proceedings were typically short for marriage cases, often requiring only one hearing. Expediting the process was in the interest of the Church since once the fees were exacted on the parties to the suit, the Church could capture more rents from hearing more as opposed to fewer cases. By tying up the court for one session per case, on average, the Church could accomplish the goal of hearing more cases while at the same time increasing society’s dependence on Church courts. The average time involved in settling cases which involved more than one hearing was still reasonably quick and ranged from approximately four to seven months, depending on the difficulty of the case. Cases among the wealthy provided a rent-seeking opportunity for the local bishop since he often heard and ruled on cases involving the upper class himself. For example, one case involved Margery Paston who had married her father’s bailiff and sought to dissolve the marriage. The bishop handled the case personally and the case was never brought before the Norwich Consistory court (Helmholz, 1974, p.161). In addition, Smith (1972, pp.1415) explains that in a synod held under the direction of Henry II of Germany in 1002: 29Data are from the bishop’s court of Salisbury (excluding Berkshire) and the archdeacon’s and North Wiltshire from 1615 to 1629.

courts of Salisbuty

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the assembled prelates were chided for their apathy in enforcing the law of the Church. The king was reported to have declared that “among many things which are to be corrected in our kingdom and in your parishes is that relatives, very close to each other, are joined in marriage; so that, not fearing God and not revering men, they do not shrink from associating in marriage with a relative even of the third degree which is horrible to say; and they do not fear to violate the line to the seventh degree which the sacred canons order to be observed.” The bishops were much embarrassed by the charge. Many of them knew that they had consciously relaxed the laws in the interest of their friends. A ripe environment for malfeasance discriminate in this manner.

was provided

the bishops

who could

price

4.1.1. Enforcement of the marriage contract Enforcement of regulations concerning legal marriages varied within the Church through differing regional alliances with medieval families and the threat of the loss of eternal salvation. Canon law was formally presented as a ruling legislation over marriage by Pope Alexander III in the late twelfth century and was the prevailing law in most countries in Western Europe until the Council of Trent in 1563, when a priest’s blessing became required to classify a marriage as valid (Donahue, 1983, p.l44-145). Diminution of the occurrence of clandestine marriages was the “public interest” purpose of the regulation, but the new rule clearly provided rent-seeking opportunities. Once again the Church had re-defined a valid marriage and increased the requirements which were attached to the ultimate product of eternal salvation. Evidence is indicated by the court cases concerning clandestine marriage reported from two English parishes in Table 2.30 The number of cases between 1615 and 1624 ranged from two to twenty-two and the sentences ranged from dismissal to excommunication. The couple was not the only recipient of a sentence - ministers and witnesses were also subject to a sentence of penance or excommunication. The small number of cases heard on an annual basis with the penalty of excommunication being the most common served to decrease the incidence of clandestine marriages in England. Other things being equal, higher penalties served as a deterrent to clandestine marriage, particularly due to the inelastic demand for the assurance of salvation.31 The mere threat of excommunication was the ultimate weapon of the Church in medieval society since threats and sentences effectively ostracized an individual from his or her community. Logan (1968, p.68) reports about 17 thousand excommunications in England between 1250 and 1534 from existing files. Many more probably occurred, most often for cases concerning marriage contracts. The fact that excommunication was a commonly levied penalty might appear to align the Church with exclusively public interests, but the Church stood to gain financially ‘“It appears that marriage cases most often resulted in excommunication for failure to heed the orders of the judge. For example, one case in 1418 resulted in excommunication when Margery Langford who was married to Richard Clyderowe failed to follow the instructions of the court (Logan, 1968, p.51, n.42). 3’The population in England in 1430 was estimated at 2.75 million people (Wrigley and Schofield, 1981, p.564). This adds some perspective to the significance of the total number of excommunications between 1250 and 1534. The deterrent effect of the high penalty was probably not insignificant.

A.B. Davidson, R.B. Ekelund Jr/J. Table 2 Clandestine Incidence

marriage

cases in Salisbury

231

and North Wiltshire

of cases

1615 1616 1617 1618 1619 1620 1621 1622 1623 1624 1625 1626 1627 1628 1629 Treatment offenders

of Economic Behavior & Org. 32 (1997) 215-245

8 4 3 2 4 2 15 12 22 21 13 13 8 8 13 of

Dismissed To prove regular marriage Exocummincated/absolved Exocommunicated Penance No record sentence Total

Couples

Officiating ministers

22 11

5

32 58 6 19 148

4 3

Others present 4 -

I 19

29 10 2 IO 53

Source: Ingram (1987), p.216

from the practice as well. In terms of its clergy, excommunication offenses amounted to a three-year suspension. Additionally, the threat of excommunication as a penalty for delinquent payment of court fines served to increase Church profit (Ingram, 1987, pp.57, 215). Most people paid their fines and exemption fees (Helmholz, 1974, p.161), but the threat of excommunication for delinquency helped ensure that a high percentage of payments. were made. For couples, however, it seems a paradox that regulation of the marriage market would lead to excommunication. However, the Church was not using excommunication as a profit-maximizing mechanism per se but rather as a short-run control mechanism which led to Church profits in the long run. While the penalty of excommunication could decrease revenue for the Church in the short run, it served to define the Church’s dogma and maintain credence in the Church’s final product, the assurance of salvation. In the long run excommunication was a profitmaximizing strategy since it clearly helped define the conditions for obtaining salvation and made the demand for a Church-approved marriage (and salvation) more inelastic. It created an environment within which the Church could engage in rent seeking behavior.

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4.1.2. Parishes and church rents Court fees and enforcement policies are consistent with Church rent-seeking activity in counties and parishes throughout England and France. Some indication of the magnitude of Church rents in the medieval period can be found in the county and parish data of medieval England.32 The total population for England’s thirty-nine counties in 1086 was 1,099,766 and had doubled to 2,073,279 by 1377 (Russell, 1948, p.247). By 1801, the total population for these plus two additional counties had risen to 9,476,700. Population growth in England between the fourteenth and sixteenth centuries was meager, with only 2.5 million people in England by 1500 (Ingram, 1987, p.72), but it increased rapidly to nearly ten million by the onset of the nineteenth century. Recalling the taxation schedules, court cases, and schedule of legal fees presented above, with the total number of parishes in 1801 reaching 10,141 (Wrigley and Schofield, 1981, p.620), it is clear that the probable magnitude of potential and actual rents captured by the Church through ecclesiastical courts over the medieval period was enormous. Considering that in England there were 39 counties in 1086 and 10,141 parishes by 1801, an average estimate of the revenue accumulated by the Church in England alone amounts to a range between roughly z&27,888 and &31,184 per year.33 Based on these estimates, the total revenue collected from Church courts throughout England and Europe in the Middle Ages would have been quite large. Records of marriage litigation suggest that the Church was relatively successful in its bid to overcome secular law and to enhance its own control and influence in society. Had the Church not been able to command such an influence, the number of cases brought before Church courts would have been significantly fewer, particularly since the issue of indissolubility would not have become the cultural norm. The high number of cases brought to prove that a marriage indeed existed would not have been necessary. This would have been so since clandestine marriages - resting on mutual consent to avoid arranged marriages in the face of indissolubility - would have been fewer. A dissoluble marriage would have had a relatively low opportunity cost for the partners to the marriage since an escape mechanism would have been in place. Concubinage and prostitution would not have been important medieval institutions if a low-cost escape was possible (Otis, 1985). With dissoluble marriage the need to prove contracts and consent would not have been so great and the Church would not have had such extensive access to the marriage market to secure rents. New constraints undoubtedly affected individual utility for parties to marriage. Assurance of the contract would have yielded positive utility for women, but such

3ZDue to data limitations but in an effort to accurately reflect the number of parishes and growth over the medieval period, the counties included are those which were in existence in both 1086 and 1801 while the number of parishes in each county are those which were in existence in 1801 (Wrigley and Schofield, 1981, p.621; Russell, 1948, pp.247-248). The number of parishes in Yorkshire is the sum of the parishes in East, West, and North Riding in 1801. The names of some of the parishes were abbreviated between 1086 and 1801 by dropping “shire.” 33These figures were arrived at using the conversion fl=2Os=24Od (Stein, 1967, p.1126). The lower estimate of f27.888 used a case brought to the archbishop’s court in York in 1367 which cost 55s. as an average fee (Helmholz, 1974, p.161). The higher estimate of f31,184 was calculated using the sum of fees paid in the Church court at Salisbury (61.5s.). Each figure was then multiplied by the 10,141 parishes in England to arrive at the estimated range per year.

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assurances (regarding property and obligations in the event of dissolution) could have been provided by civil authority. Disutility from higher search costs for a partner plus the highest possible costs to non-Church sanctioned dissolutions or the recourse to prostitution or concubinage (loss of eternal salvation) were most certainly non-trivial accompaniments to the Church’s takeover of the marriage contract. It seems plausible to argue, therefore, that the Church was in fact selling marriage contracts at rates above marginal cost. Monopoly was a factor in the sale of marriage services by the Church as it was in other aspects of medieval social interactions. 4.2. Price discrimination in the sale of marriage services Evidence consistent with monopoly and rent-seeking activities of the Church in the marriage market is strengthened by policies which constitute price discrimination. Wealthy Church members, as we have already noted, always had access to special dispensations and treatment from high clerics for a fee. Individuals with differing elasticities of demand for Church-related marriage services simply self-selected purchases among the particular service qualities offered. But regulations and enforcement mechanisms were applied unevenly between countries as well. Specifically, new regulations developed by the Church threatened the loss of eternal salvation (excommunication) for clandestine marriages in France much earlier than in England. The takeover of the marriage market, in other words, was less complete in England than in France. Cases involving marriage were treated differently in England and France. England treated de presenti clandestine marriages, a contract with present mutual consent, as civil cases while in France de &two clandestine marriages, a promise to marry in the future, were regarded as criminal cases. Such country-wide differences in the impact of Church regulation are not surprising. The Church was merely responding to constraints and changes in constraints. When considering Church enforcement in England and France, England had a more entrenched secular tradition than did France, making enforcement against malfeasers much lighter than in France. This strong secular tradition and the growing regulatory power of the Church were probably not inconsequential when considering the success of the Reformation in England. Records indicate a higher incidence of criminal cases in France which were brought by the bishops’ courts and a higher number of civil cases in England. Differences between the marriage cases brought before the French and English courts is gleaned from an Ely Act book which documented Church court cases between 1374 and 1382 and from a court register of the bishop of Paris between 1384 and 1387 (Donahue, 1983, pp.149-150). More than 50% of the 89 marriage cases heard in Ely were clandestine de presenti marriages while there were sixty cases brought in Paris to dissolve de&two marriages. The Ely book revealed no cases involving de future marriage or separation cases (there were 120 separation cases in Paris), while the Paris register showed no cases involving annulments (there were 12 in Ely) and only three cases involving de presenti marriages (Donahue, 1983, p. 150). These differences are significant. The largest number of cases in both England and France involved enforcement of a marriage contract. But the primary difference was that

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in Ely, cases were concerned with whether an actual marriage existed (de presenti) while in Paris the issue was enforcing contracts to marry (defuturo). In Ely the cases involved the thrust of Pope Alexander’s regulations - which considered clandestine marriages valid. In Paris, Alexander’s regulations were not brought to bear since the issue was a promise to marry without sexual relations. Other records from the English courts in York and Canterbury as well as from the court at Chartres in France support these differences in legislative patterns (Donahue, 1983, p.151; Helmholz, 1974, p.28, n.14). The occurrence of cases seeking to uphold de presenti marriages did not decrease until the Council of Trent in the sixteenth century. Economic theory suggests that more than the prevention of clandestine marriage was at stake in the new regulations established by the Church at the Council of Trent. The new regulations created a barrier to entry in the marriage market, particularly in France, where the regulations served to alter the price of marriage. Use of excommunication and the criminal classification of clandestine marriage in France prevented other forms and definitions of marriage from occurring. In addition, the expenditures incurred by the Church to develop and implement the new aspects of Canon law in an effort to increase the rent stream from the laity constituted a higher cost for society.34 The strict interpretation of Canon law in France was a control mechanism jointly enforced by parents and the Church. England lagged behind France in decreasing the incidence of clandestine marriage because automatic excommunication was not used as an enforcement mechanism for some time, thereby leaving the price of clandestine marriage lower than a Church-approved marriage. Thus, the full price of clandestine marriage (relative to a Church-approved marriage) was relatively higher in France than it was in England for some time. Since parental consent and marriages consistent with Church regulations represented a lower cost alternative to clandestine marriage, there was a lower incidence of clandestine marriages in France and consequently an increase in the number of cases involving defituro marriages.35 Recall that the price to enter into a clandestine marriage rose because of the threat of losing the assurance of eternal salvation. Since England was not as persistent as France in conveying the loss of salvation when clandestine marriages occurred, more clandestine marriages occurred in England. A stronger secular tradition with a greater emphasis on individual rights and values would contribute to an explanation for the laxity in interpreting the Canon law respecting marriage. While cases involving de presenti marriage in England were generally not considered criminal and typically did not require a payment to lift excommunication, the Church was able to use the courts as an avenue to extract rents but more in the context of dispute 34Cases brought before the court alleging de presenri marriage after the regulations took hold subjected the plaintiff to automatic excommunication for the purpose of hearing the case (Donahue, 1983, p.153). This provided a method of generating rent for the Church since a tine was paid in addition to the court costs to bring a suit against an alleged spouse. In France, moreover, it was a criminal act to ignore a contract to marry and such contracts were generally upheld by the court. Thus the incidence of clandestine marriages in France was effectively diminished by the Church regulations and enforcement at the local level. 35We are not suggesting that the threat of excommunication is an explicit price but that, implicitly, the full price of a marriage outside the Church is relatively higher since the parties to the marriage are at risk of losing the assurance of salvation if caught in such a union. Hence, the full price paid is not equivalent to the fee paid for reinstatement to the Church if one is excommunicated.

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resolution as to the existence of a marriage. Clearly, there was a sufficient number of such cases to keep the courts busy, with litigants paying court costs to the Church. Stronger influence of family authority in France existed early in the Middle Ages and explains, at least in part, the efforts by the family to align with the Church to promote regulations. The regulations increased the economic benefits to the family through contract mergers in the form of marriage and to the Church through fines, court costs, and the costs associated with a Church-sanctioned marriage. Ultimately the continued presence and enforcement of Canon law in England led to the same results as in France a decrease in the number of clandestine marriages. Perhaps French aristocrats discovered earlier than those in England that allegiance with the Church in the case of marriage was mutually beneficial. But the evidence seems clear that a form of price discrimination for marriage services existed between France and England for a significant part of the medieval period.

5. Conclusions: Medieval marriage, rent-seeking, and welfare The commencement and manipulation of marriage market regulations in the Middle Ages by the Church, extensive tax schedules, records of court fees and fines, and price discrimination in the application of constraints are all consistent with rent-seeking by the medieval Church. The regulation and partial deregulation of endogamy and the persistent changes in the definition of a Church-approved marriage provided avenues for the Church to seek rents in the provision of dispensations and exemptions. Welfare effects of Church policies altering the definition of marriage may be summarized in a simple model. (Our model is of course only a static means of organizing thoughts about complex and dynamic changes - including demand changes - in the medieval marriage market). In Fig. 1, the three classifications of medieval marriage, secular, clandestine, and Church-approved, are represented by the demand for marriage, and clandestine marriages were grounded in mutual consent, DM. 36 While both secular the significant distinction between the two was that secular marriages were dissoluble while clandestine marriages were (initially) Church - approved and indissoluble in the eyes of the Church. The secular law of marriage was initially the most common type and had the lowest relative price of the three types of marriage. The incidence of secular marriage is represented by the price-quantity combination Ps-Qs, where OQs is the total quantity of marriages. The Church’s emphasis on mutual consent and the indissolubility of marriage served to increase the relative price of marriage, particularly as the Church’s view took hold in society. As a result of the doctrine of indissolubility, clandestine marriages which were upheld by the Church became relatively more costly than secular marriages for participants, who now faced a higher price of P c, and consumed a lower quantity of marriages, Qc. The Church was able to capture rents by enforcing its regulations on the indissolubility of marriage through an increase in litigation by those who sought a Church 36For simplicity, a single demand curve is used to illustrate the three classifications imply, however, that the different types of marriage are perfect substitutes.

of marriage.

This does not

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Price,

p’c

PC

PS

0

Q’c

ae

as

Fig. 1. The relative price of marriage

Number of Marriages and church rents.

ruling on the status of their marriage. The proportion of clandestine marriages to the total number of marriages in society was initially quite high, as shown by the evidence of Church inquiries into clandestine arrangements. However, as the Church redefined its interpretation of a valid Church-approved marriage and used the threat of excommunication as an enforcement mechanism, clandestine marriages decreased in society. AS a result, the Church was able to increase the price of an approved marriage, moving it closer to a monopoly price. The initial deadweight loss to society as a result of the indissolubility doctrine which accompanied clandestine marriage is represented by the area of triangle BCD in Fig. 1 and the rent captured by the Church is equal to the area PcBDPs. The deadweight loss, however, does not necessarily diminish Church membership since clandestine marriages were considered valid by the Church until the Council of Trent. The additional regulations developed by the Church which rendered clandestine marriages invalid and required a public wedding blessed by a priest served to increase the deadweight loss to area ACE and to increase the rents to the Church to area P&AEPs. The full price associated with public, blessed Church - sanctioned marriages was the highest of the three since it required the consent of the family, the community, and the Church. Thus, the partners lost control of their decision to marry, thereby decreasing their utility and decreasing the quantity demanded of the high-priced Church wedding to QL at the price P;7. Medieval Church marriage regulations must of course be placed within the broader context of the dynamic monopoly over the sale of assurances of eternal salvation. Intertemporally the Church had to maintain demand by suppressing heresy (restricting entry), expanding markets, and convincing society to change its cultural (and economic) norms. The creation of Canon law and the Consistory courts provided a fruitful avenue for extracting rents from the laity while maintaining an

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appearance of providing a public service - upholding marriages or granting annulments on a case-by-case basis.37 A number of microeconomic effects undoubtedly accompanied Church involvement in the marriage market. As women became increasingly reliant on the Church to enforce their marriages, their allegiance to the Church increased. The allegiance of men, however, might have decreased. The full costs of marriage and the opportunity cost of marriage outside the Church both rose. The ultimate good sold by the Church - the assurance of salvation - was successfully attached to the marriage contract. Those who sought to marry outside the Church were excommunicated, fined, and sometimes left with sizable legal fees, payable to the agents of the Church’s Consistory courts. Even in the high-time of Church monopoly, religious regulations and constraints were only partially effective in achieving spiritual or moral goals. Prostitution and concubinage in France and elsewhere reveals that, even within the context of Church-defined marriage that included indissolubility, other institutions emerged to provide a “safety valve.” Church monopoly could only partially overshadow social practice even in the Middle Ages. Actual and economizing practices in courtship and marriage, aided by advancing technology and civil law, ultimately made particular Church constraints less and less effective if not moot in many modem societies.

Acknowledgements We are grateful to Professors Richard Ault, Bob Hebert, Dave Kaserman, Dave Laband, John Sophecleus and Mark Thornton for comments on earlier drafts of this paper. Two referees also made extremely valuable suggestions. We are, of course, fully responsible for all arguments herein.

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