Jurisdiction, Procedures, and Evidence in Sex Cases

“Carnal crime is as frequent as it is damnable,” declared Paulus Grillandus, and certainly the courts, like the rest of late medieval society, seem to have been preoccupied with the norms of sexual behavior.^[2036] While the proportion of mat-

Jurisdiction, Procedures, Evidence

rimonial litigation and sex offense cases varied considerably from one region to another during the later Middle Ages, in most jurisdictions whose records have been studied, marriage and sex issues accounted for a majority, often a large majority, of the total business of the Church’s lower-level courts.

It is obviously difficult to generalize from these data, since the practice of courts varied widely, the survival of records is at best haphazard, and there was considerable fluctuation in the types of business that courts took cognizance of. There were regional differences, too, in the ways that ecclesiastical courts ap­proached problems. As a general rule, French ecclesiastical courts dealt with most types of marriage problems as criminal matters, whereas English Courts Christian treated them as civil causes.^[2038] There was a notable decline in the vol­ume of marriage cases brought before the Courts Christian in England during the fifteenth century, but French practice showed no such decline during the same period.^[2039]

It does appear to be true, at least on the limited evidence available, that canonical courts both in England and on the Continent followed the theories of academic canonists fairly closely, even though custom dictated deviations from strict canonical theory on some scores. In practice, canonical courts often treated sexual intercourse as an essential defining element in marriage, although the Church had been committed to the consensual definition of marriage since the time of Alexander III.

were handled. There seems to have been remarkably little judicial freewheel­ing and a great deal more respectful attention to legal doctrine than one might have expected in a system that lacked provisions for systematic review of the actions of lower courts by appellate tribunals.^[2040]

Secular courts were experimenting during this period with their procedures in sex offenses and matrimonial matters. At Cremona, motivated perhaps by the large volume of business, the city fathers decreed that prosecutions of sex cases, particularly those involving pimps and prostitutes, should follow a sum­mary procedure, stripped of the customary forms and solemnities.^[2041] A number of Italian towns limited to certain family members the right to prefer sex com­plaints, particularly in cases of adultery, fornication, or incest. A Faenza statute alleged that this had to be done in order to prevent a flood of false accusations, and an Ancona statute also complained that unfounded denunciations of alleged sexual offenders presented problems both for judicial administration and for civic tranquillity.^[2042]

Although canonical courts had well-established rules of evidence—not al­ways followed in practice, however—for dealing with the proof of marriage by the testimony of witnesses, municipal lawmakers were not eager to imitate can- onistic models. At Lucca, the city statutes required that marriage be proved in the old-fashioned way, that is by documentary evidence concerning dowry and other property transactions related to the alleged marriage. Even in the Church’s own courts the defense of choice in response to charges of adultery, fornication, and infanticide, even as late as the fifteenth century, was com­purgation, rather than the alternatives stipulated in the decretals.^[2043]