Law and Sexual Behavior in the Germanic Kingdoms
Our knowledge of archaic German law dealing with sexual behavior comes mainly from a late first-century account by Tacitus, who gleaned his information secondhand from the tales of soldiers and travellers, supplemented perhaps by additional information gained from contacts with Germans who had settled within the Empire.[523] [524] [525] According to Tacitus, the Germans strongly disapproved of extramarital sexual adventures by their womenfolk. Women who transgressed the rules had their heads shaved, were driven from their homes, and received a public beating. There is no indication in Tacitus’s account, however, that sexual adventures by men were similarly discouraged. Tacitus professed great admiraÂtion for the purity of sexual mores among Germanic women. His account imÂplicitly contrasted their behavior with that of upper-class Roman matrons of his own time. Germans, according to him, did not allow their wives to gad about unescorted or to participate in late-night parties and drunken revels, nor did they consider adultery smart and up-to-date.[526] Tacitus portrayed the sexual habÂits of the Germans as upright and austere and marriage as a solemn undertaking in which monogamy was implicit, at least for women.[527] Tacitus wrote nearly three centuries before the beginning of large-scale GerÂmanic migrations into the West, and his account was colored by his tendency to idealize the rude and simple morality of the Germans. When our knowledge of Germanic law becomes fuller and more reliable, which is to say after the first phase of migration had ended, there had evidently been significant changes since Tacitus s time. The Germanic law codes treat marriage as a union created by cohabitation, rather than by formal act. Marriage was a social fact, not a legal status, in fifth- and sixth-century German society.[528] Polygyny was also a common feature of GerÂmanic domestic life, although most men probably contented themselves with a single wife because they could not afford to do otherwise. Early Germanic law recognized three legitimate methods of contracting marriage: by capture (Raubehe), by purchase (Kaufehe), and by mutual consent (Friedelehe). Bride purchase involved an agreement between two families. An exchange of property was an essential part of Kaufehe and the Germanic law codes encouraged this type of marriage. Most of the codes envisioned a three- stage process of contracting Kaufehe. It began with an agreement (Muntvertrag) between the suitor or his father and the father or guardian of the prospective bride, concerning the compensation to be paid to the womans family by the groom’s family. This stage of the process corresponded more or less to desponÂsatio in Roman law. Muntvertrag was followed by a public transfer (Anver- trauung) of the bride to the head of the groom’s family. This was followed by a wedding ritual (Trauung), during which the members of the bride’s clan stood in a circle around her to witness the transfer and to signify their consent to the transaction. The process involved conveyance not only of the person of the bride to the family of the groom, but also of legal power (Munt, mundium) over her to the husband and his family group.[530] The bride’s ties with her family of origin were, in effect, severed, and she was integrated into her husband’s famÂily. This type of union, involving active participation and control by the families of the parties, was the preferred type of marriage. Marriage by capture or abduction (Rauhehe) was accomplished by forcible abduction and ravishment without the consent of the woman or her family; it is therefore sometimes referred to as marriage by rape.[531] The law codes discourÂaged such marriages, and some of them imposed heavy fines on men who forciÂbly married free women.[532] A man who did not wish to risk the legal and physical hazards of marriage by abduction and who was either too poor, too powerless, or too mean to purchase a bride had the alternative of marrying by consent. The distinction between marriage and concubinage in early Germanic society was unclear, both in practice and in law, a situation that has led some writers to claim that concubinage was unknown among the Germanic invaders. That claim, however, can only be sustained by artful definitions that distinguish marÂriage between free persons with full legal consequences from quasi-marriage between free and unfree persons without full legal consequences. The latter was for both practical and legal purposes equivalent to concubinage, and that is the term we shall use to describe it.[534] Concubinage, in the sense of a long-term and more or less permanent relaÂtionship between a man and woman of unequal social status, was common in early Germanic societies. These unions were not necessarily sexually exclusive; married men commonly maintained one or more concubines in addition to their wives. The concubines were usually servant or slave girls, and the chilÂdren of these unions could claim no share in their fathers estate.[535] Concubinage, like marriage, required no formal agreement or ceremony for its initiation, nor did Germanic law follow Roman law in resting the legal status of the relationship on the intentions of the parties. The notion of marital affection was unknown to Germanic law and played no role in defining marÂriage. What was essential to both marriage and concubinage in Germanic law was consummation, an element that Romans had largely ignored as irrelevant to the legality of a marital union. Germanic marriage operated with relatively few rules and restrictions. The most common prohibitions concerned marriages with close relatives by blood or marriage. Couples who married within the forbidden degrees of kinship were liable to have their marriages dissolved and their children declared illegitÂimate; in addition they might be fined heavily.[537] Although as late as the early sixth century some Germanic kings managed to transgress the incest rules with impunity, by the end of that century even royalty could no longer do so. PoÂlygyny likewise became subject to legal restrictions in the aftermath of mass conversions to Christianity among the Germans and by the late sixth century was becoming uncommon.[538] Germanic law often regarded the first year of marriage as a trial period, at the end of which the union might be terminated unless a child was conceived during that time. If the bride became pregnant, the marriage was deemed perÂmanent, and divorce became slightly more difficult.[539] In general, divorce was fairly easy for a man and quite difficult for a woman to initiate. The Burgundian woman who attempted to divorce her husband was to be smothered in mire, but the Burgundian man who wished to divorce his wife could do so on any of three grounds: adultery, sorcery, or tomb-violation. Ifhe chose, however, he could also divorce his wife without citing reasons, but in this case he was reÂquired to pay her a sum equal to her marriage price and was also subject to a fine.[540] Visigothic women, by contrast, could repudiate their husbands for sodÂomy or for having forced the wife to have sexual relations with another man.[541] The provisions of the other codes varied, but all of them gave considerable latiÂtude to the man seeking divorce, while severely limiting the right of women to initiate these actions.[542] Early Germanic law treated bastard children by and large not much differÂently from legitimate offspring. Fornication between unmarried persons was recognized as an offense in sevÂeral Germanic codes and was normally punished by fines, sometimes fairly heavy ones.[544] The Lombard laws even penalized sexual relations between a free man and a female slave, although the penalty was diminished if the slave was of Roman stock.[545] Male slaves who had sexual relations with free women, conÂversely, were severely punished. The Bavarian laws prescribed death for this offense.[546] Adultery in early Germanic society was an exclusively female crime, alÂthough a few codes also penalized men for adultery under some circumstances.[547] Adultery was far more serious than fornication, since the adulteress cast doubt upon the legitimacy of her husband’s descendants as well as offending his honor and pride. The husband who discovered his wife in the act of committing adulÂtery had the right to kill both parties without legal penalty. The Visigoths, whose law on sexual matters generally echoed the Lex Julia de adulteriis, in this case went well beyond their Roman model and accorded the ius mariti to the womans father and brothers as well.[548] Sexual relations with a betrothed woman might also be treated as adultery; in Lombard law this was true even if the espoused woman was a slave or bondswoman.[549] Sexual relations with a nun constituted adultery, presumably on the theory that a consecrated virgin was the bride of Christ; the brunt of punishment for this kind of adultery fell upon the man.[550] Visigothic law provided that slaves who could furnish evidence about an adulterous liaison should be tortured in order to extract the information from them. Rape, as distinguished from elopement (Raubehe), carried a variety of penalÂties, commonly a sizeable fine and sometimes whipping or other physical punÂishment in addition.[555] Rape of a free woman by an unfree man merited the death penalty under Salic law, which added, however, that if the woman went with her abductor voluntarily she lost her own freedom.[556] Visigothic law preÂscribed the death penalty for rape, but also provided that if the victim subseÂquently sought her ravisher s hand in marriage, and if her parents consented, he might escape alive.[557] Germanic law codes had little to say about prostitution, except for the VisÂigothic code, which treated it in detail. The Visigoths prescribed that a free woman convicted of harlotry was to receive three hundred lashes; she could then be released, on condition that she never return to prostitution. If caught a second time, she received a further three hundred lashes and was to be given to some poor man, on condition that he never permit her to walk the streets again. Parents who prostituted a child received one hundred lashes. The master of a servant girl who failed to supervise her behavior and thus allowed her to beÂcome a prostitute might get fifty lashes; if he knowingly prostituted her and took any part of her earnings, however, he was subject to three hundred strokes. Prostitution seems to have flourished among the Germanic settlers in the West, although most of the available harlots were probably foreign girls taken as booty in military expeditions—many of them Slavs or Finns.[558] Since prostitutes were women whose origins and way of life cast them outside of the social networks of German society, it was considered a grievous injury to accuse a freeborn GerÂman woman of whoredom, and such an accusation was punishable by a large fine.[559]