Evidence, Procedure, and Jurisdiction in Sex and Marriage Cases

Court records show that jurisdiction over sexual behavior and marriage ac­counted for most of the case load of local ecclesiastical tribunals during this pe­riod, at least in England.

sed multum est in conuerso, xv. q. ult. cum multe [C. 15 q. 8 c. 3] et in aut. qui. mo. na. ef. legi. § ult. [Auth 6.1; Nov. 74.6. ep.].” See also Bartolus, Comm, to Cod. 5.5.6 [Nov. 89.15]; Odofredus, Lectura to Dig. 39.5.31; Assises des bourgeois 178, in RHC, Lois 2:119-20; Pierre de La Palude, Lucubrationum 42.3.2, pp. 436-47; Helmholz, “Sup­port Orders,” p. 437. Customary law on the Continent, however, usually denied that the fathers of natural children had any enforceable obligation to furnish child support; Siete partidas 4.19.5, ed. Vargas y Ponce 3:169; Chevailler, “Observations,” p. 385. An anonymous fourteenth-century gloss to D. 26 c. 3 in L.C., Law MS G.7, fol. 20v, how­ever, reverted to an ancient Roman rule, for the writer declared that if a man named any or all of his concubine’s children as his heirs in his will, he thereby legitimized them all (the reference is to Cod.

³¹⁷Antonia Grandsden, “Some Late Thirteenth-Century Records of an Ecclesiastical Court in the Archdeaconry of Sudbury, ” Bulletin of the Institute of Historical Research 32 (1959) 62-69; Frank S. Pearson, “Records of a Ruridecanal Court of 1300,” in Collec­tanea, ed. Sidney G. Hamilton, Worcester Historical Society Publications 31 (1912) 69-80; Henry Ansgar Kelly, “Clandestine Marriage and Chaucer’s �?Troilus’,” Viator 4 (1973) 439-40. The Cerisy register for the decade 1314-23, for example, shows 170 cases involving sexual offenses (excluding marital nullity and separation cases), dis­tributed as follows:

That sex cases accounted for the greater part of the business of the ecclesiastical best documented in English records, but fragmentary evidence from the Conti­nent, such as the Cerisy registers, shows roughly similar patterns there as well.

It is likely, moreover, that court records under-represent the frequency of sex offenses, perhaps by a considerable margin. Some incidents were almost certainly dealt with informally, when detected at all, and there are complaints from contemporaneous preachers—how well founded it is impossible to tell— that adulterers and fornicators often escaped prosecution and punishment by bribing summoners and other officials, Includingjudges.^{* [1822] Bcaumanoir, an ex­perienced and sensible lawyer not given to hyperbole, remarked casually that marriage cases were contrived with many frauds, while two thirteenth-century English synods criticized sharp practices among advocates and proctors in di­vorce and separation proceedings.[1823]}

There was little disagreement during this period over the competence of Church courts and judges to deal with litigation concerning separation, di­vorce, and the validity of marriage. The Church’s jurisdiction over adultery and fornication remained important, although municipalities were beginning to as­sert their own rights to deal with these matters.^[1824] The sex crime over which jurisdictional claims were most often disputed was rape. Secular courts could and often did deal with rape charges, while the canonists showed a certain diffi­dence about asserting their claims to deal with this matter. Bernard of Parma took the position that there was mixed civil and ecclesiastical jurisdiction over rape. IIe was prepared to concede that when Church courts handled such cases they did so as delegates of the civil authorities, subject to the restriction that if the case involved issues in which a sentence of death or mutilation might be prescribed, clerics should not presume to deal with it.^[1825] Hostiensis was more assertive in defending canonical jurisdiction. While he agreed that clerics should not impose sentences that involved bloodshed, IIostiensis observed that they could convert sanguinary penalties into fines or order whippings that stopped short of drawing blood.

There were only modest refinements during this period in legal doctrine concerning evidence. Compurgation continued to be used frequently as a de­fense to adultery charges, both in marriage litigation and in criminal proceed­ings.^[1827] Canonists rightly tended to be skeptical about the evidential value of self-serving declarations by the parties to divorce and separation. They were similarly skeptical concerning the testimony of a man that the girl he had se­duced was no virgin.^{[1828] [1829] Although academic writers continued to insist that women should either not testify at all or that at best their evidence should be treated with great skepticism, the courts in practice ignored this teaching. The court in Attebury c. LaLeye was even willing to accept the testimony of a pros­titute who alleged that a man had married her, despite his denial.323}

Canonists and others sought to articulate more precisely their doctrine con­cerning the timeliness of actions for redress of wrongs, in order to limit the pe­riod that elapsed between an alleged event and the time when the matter was brought to court. Bernard of Parma, for example, noted that a husband must bring an adultery action against his wife within sixty days; if he delayed longer, and was unsuccessful in proving his charge, he might be liable to the penalties for calumny.^[1830] A charge of stuprum, according to Hostiensis, had a far longer lifetime: it could be brought as late as five years after the event, unless force was involved, in which case there was no limit on the life of the action.^[1831] Local statutes of limitation sometimes differed strikingly from these standards. At Fer­rara, for example, the 1287 statutes provided that a rape charge must be brought within fifteen days of the event; otherwise the municipal courts would not hear it.^[1832] A doctrine of limitations likewise applied to divorce actions brought on the grounds that force and fear had been used to coerce consent to marriage.

Much of what the canonists of this period had to say about the law of evi­dence, like many of their observations about marriage, concubinage, prostitu­tion, and sex offenses, was patently biased in favor of men. Canonists in this period appear to have been more conscious of this than their predecessors were: at least they discussed the matter freely and occasionally in terms that seem to indicate that they found this situation puzzling, even embarrassing. Hostiensis in particular examined the subject in some detail. “The condition of women,” he declared, “is worse than that of men in many particulars. ” He then specified some female disabilities: women cannot be judges or arbitrators; Iike- wise they cannot teach, preach, hear confessions, or exercise other types of spiritual power, nor may they receive holy orders, plead in court, or act as nota­ries or guardians (save for their own children). In addition they cannot bring criminal accusations, adopt children, hold public office, act as agents, be wit­nesses to wills, or work as silversmiths. They are, in short, subject to men, as signified by St. Pauls dictum that they should be veiled in the churches, for they were not formed in Gods image, as men were. Hostiensis added, however, that in a few situations the juridical position of women was superior to that of men—but he seemed able to think of only three examples: women were advan­taged, he believed, in acting as sureties for debts (although he admitted that there, too, others considered their situation worse than a mans), in the fact that they were sometimes presumed not to know the law, and in securing the dis­charge of unqualified guardians for their minor sons. “There are many other examples,” he added lamely, “but these will suffice in order to keep the discus­sion brief.”^[1834]