Conclusions

During the period between the Black Death and the beginning of the sixteenth century, royal and municipal law became more deeply involved in the legal con­trol of marriage and sexual behavior than they previously had been.

The new activism of civil governments in dealing with sexual problems was in part a response to the social and demographic dislocation that resulted from the epidemics of 1348 and after. Efforts to control sexual behavior were also symptomatic of the growing strength of political and constitutional institutions during the later Middle Ages and may, to some degree, also have reflected a growing disenchantment among Western Europeans, including rulers, with the capacity of ecclesiastical institutions to deal adequately and fairly with marital problems and sexual behavior.

The Church was not prepared, however, to step aside from its traditional role as the arbiter of Christian sexuality. Church courts continued, perhaps even expanded, their efforts to cope with the sex among the faithful. They remained the primary tribunals for dealing with marriage, divorce, and separation litiga­tion; in addition they continued to deal routinely with concubinage, violations of clerical celibacy, and a wide range of sex crimes and offenses, including adultery, fornication, rape, prostitution, and homosexual activities. But in all of these problem areas, Church courts during this period faced growing competi­tion from civil courts.

We are far better informed about the actual practices of European courts, both secular and ecclesiastical, during the years between 1348 and 1517 than for any earlier period of human history. Judicial records survive from this pe­riod in quantities unparalleled in earlier generations.

As a result of the relatively abundant survival of documents of practice from this period, we are for the first time in a position to reach informed judgments about the relationship between the teachings of the law faculties and the prac­tice of courts. Comparisons between what the law and its commentators said ought to be happening and what the courts were actually doing show that in large measure practice reflected academic doctrine. The gap between the views of academic jurists and the actions of the ecclesiastical judges was fairly narrow, at least in the law of sex crime and domestic relations.

During this period, too, we have evidence about population characteristics, family organization, and social structure (at least for a few places and for short spans of time) that does not exist for earlier periods. Studies of these demo­graphic and social records provide information about the social context in which the law of sexual behavior operated. This hard information about family struc­ture shows a fairly high degree of conformity between marriage practices and the norms that were taught in the faculties of theology and canon law.

But there were striking and important divergences, too. While the courts usually applied the norms of consensual marriage theory to the cases that came before them, the evidence of practice makes it plain that people by and large had not fully accepted the premise that consent alone made a marriage. The general public remained convinced that a marriage had to be consummated sexually before it was “real.” In addition, people often married in ways that emphasized traditio and the transfer of property between families, despite the insistence of lawmakers and jurists that the essence of marriage lay in free con­sent to wed a partner freely chosen.

There was relatively little that was new in the law of this period concerning adultery and fornication, the commonest sex offenses. Municipal legislation shows that civic lawmakers in this period perceived sodomy and homosexual behavior as ominous threats to society and attempted to penalize them with great severity.

Prostitution flourished on a large scale and the involvement of towns and cities in the operation of brothels was a striking novelty of the age. The flour­ishing of prostitution in the fourteenth and fifteenth centuries may have re­flected reactions to the demographic changes resulting from the Black Death, and other disasters, including the Hundred Years War and the other conflicts that fill the pages of chroniclers and political historians. Population decline as a result of pestilence, war, and famine may well have made it even more difficult for men to marry at an early age. Indeed the shortage of suitable partners may have made it impossible, or excessively expensive, for considerable numbers of them to marry at all. In addition, disproportionately large numbers of prosti­tutes may well have perished from the Black Death, and a shortage of them could help to explain the concern of town governments to foster the trade by providing civic patronage for its practice.^[2044] The comparative respectability im­plied by civic management of prostitution may also have helped to mitigate the discontent of those who wanted wives but could not afford them.

Underpinning much of the legislation, legal commentary, and practice of this age were a number of premises that were not often articulated expressly by writers or judges but that seem to have formed the basis for a good deal of what they wrote and did. Among these was a set of assumptions about female sexu­ality—the belief that women possessed unquenchable sexual appetites, that they were more likely than men to seek illicit sexual satisfaction, and that they were more often than not the root and source of marriage problems and sexual immorality.^[2045] “The laws presume that all women are usually bad, because they are so full of mischief and vices that are difficult to describe,” wrote Giovanni Nevizzani, and his statement summarized assumptions that many lawmakers and law writers shared.^[2046] For a few purposes the law assumed that women were equal to men, but those purposes were restricted to a handful of situations— sex rights in marriage and child custody, primarily. It is also true that in one or two situations the law treated women more leniently than men, but these were exceptional.^[2047] Women were generally handicapped by the law, not favored by it, and this was notably true in the law concerning sexual behavior. Even the way in which women dressed might be prescribed in minute detail by munici­pal law—sumptuary statutes to regulate male fashions are rare.^[2048]

Another assumption that runs through the legislation, legal commentaries, and judicial actions of this period is the moral and legal disavowal of pleasure, and sexual pleasure in particular, as a legitimate human goal. True, many of the canons and statutes that dealt with adultery, fornication, and homosexual ac­tivity were motivated in part by the conviction that these behaviors, if un­checked, would disrupt the social order and therefore that society’s interests required that they be restrained and regulated in minute detail.

Finally this age saw the beginning of a novel kind of sexual behavior that did not attract much attention from legal writers before 1500, although it was to become an important issue for later generations. I refer to pornography. The Middle Ages produced very little explicitly sex-oriented literature, and this may have been true because prior to the end of the thirteenth century reading almost always meant reading aloud. When silent reading began to become com­mon, as it gradually did in the fourteenth and fifteenth centuries, this tended to encourage, for the first time since late antiquity, the writing and copying of erotic tales and stories, sometimes accompanied by explicit illustrations.^[2049]

Sex law in Western Christendom on the eve of the Reformation was founded on assumptions and beliefs that had developed slowly over the previous millen­nium. The legal system that had evolved for dealing with sexual behavior and marital problems translated the ideals and finespun speculations of theologians and moralists into cruder forms needed for coping with the actual behavior of real people. The religious shocks that resulted from the Reformation produced major readjustments in this system. But, as we shall see, the Reformation also left much of the framework of medieval sex law intact, and sizable portions re­main in force in modern times.