Legal Scholarship in the Late Twelfth and Early Thirteenth Centuries

This burgeoning new body of decretal law took shape during the generations when academic institutions in the West were just beginning to emerge as uni­versities—the earliest universities, in a strict sense of the term, anywhere.^[1356] While Bologna’s law students created a corporate structure for themselves shortly after the middle of the twelfth century, Parisian law teachers apparently did not organize formally until late in the century.^[1357] Canon law was certainly being taught at Oxford at about the same time, although precisely when a for­mal law faculty emerged there is difficult to say.^[1358] Shortly after the beginning of the thirteenth century a university appeared at Cambridge, and by the late 1220s or the early 1230s a canon law faculty was functioning.^[1359] Other university centers began to appear at about the same time on the Continent: in Palencia between 1208 and 1214, in Salamanca about 1218/19, iⁿ Padua in 1222, and in Orleans and Angers during the 1230s."⁵ Elsewhere, outside of the new univer­sities, law books circulated briskly and were consulted avidly, even by those who lacked formal instruction in the law.^{[1360] [1361]}

In the new universities, teachers of law lectured both on Gratian and on the decretal collections that supplemented the older body of law.

In these decades, university law teachers transformed canon law from an in­choate jumble of regulations that lacked comprehensible form into something that can fairly be called legal science. Canon law by the beginning of the thir­teenth century had become a transnational discipline, closely linked to Roman law and sharing with it a common terminology and method. Legal scholars in the universities cultivated canon law as an independent discipline, one that borrowed from, but was also distinct from, civil law, rhetoric, and theology. They sought to formulate a body of principles upon which the new science of canon law rested and approached their subject as a systematic intellectual disci­pline, rather than merely as a trade or craft, although it was that, too. The canon law faculties were producing both a new branch of knowledge and a new type of professional lawyer that Europeans had not seen before.^[1362]

These decades, then, were a period of rapid multiplication of legal commen­taries but also a period of consolidation; academic lawyers were trying to facili­tate analysis of the canons, while at the same time they sought to make it easier for their students to assimilate the growing mass of legal literature.

While law teachers were commenting on the new law as it appeared, they also needed to impose system and coherence on the thousands of glosses and explications of the Decretum Gratiani already in circulation. Johannes Teu­tonicus was a critically important figure in both processes. Johannes came to Bologna from Germany to study canon law. When he had completed his course of study, he stayed on to teach. After a successful career as a law professor, Johannes returned to Germany to become an ecclesiastical dignitary and ad­ministrator. During his years as a teacher Johannes assembled a massive collec­tion of comments on the Decretum by all of the major and many of the minor decretists. Johannes ultimately published his anthology, and it became a huge success.

Sex and Marbiage in the New Legal Scholarship

One of the urgent tasks of the new legal scholarship at the end of the twelfth century was to assimilate the massive changes in marriage and sex law that be­gan with the pontificate of Alexander III. The canonists of this period, like their predecessors, did not agree on the question of whether sexual relations should be considered part of the natural law or not. Johannes Teutonicus held in the Glossa ordinaria that sexual intercourse was a product of humankind s sensual nature and hence that it was a result of the operation of natural law.^{[1363] [1364] Other authors were more cautious. The Apparatus Ecce υicit leo, for example, con­ceded that mankind shared with brute beasts a natural instinct for copulation, but shrank from identifying this with natural law, reasoning that sexual inter­course often amounted to fornication, which was a sin, and hence should not be considered part of natural law.[1365] Similar arguments appeared in the Apparatus of Alanus Anglicus, the Summa Duacensis, and Accursiuss Ordinary Gloss to the Digest.[1366] Elsewhere, however, the Ordinary Gloss on the Decretum identi­fied the source of sexual desire not as “nature” but as diabolical suggestions, originating in the testicles.[1367] This inconsistency may be accounted for by the belief that the pleasurable sensations associated with sex had a different origin than sexual activity itself.}

Because sexual sensations were so attractive and the pleasure they afforded so intense, sex amounted to a kind of insanity, according to Thomas of Chobham (ca. 1158 ~ 1168-after 1233), who completed his Summa confessorum about the same time that Johannes Teutonicus finished the Ordinary Gloss. The in­sanity of love and sexual attraction, Thomas argued, required vigorous treat­ment in order to cure those stricken with it. To illustrate this he described the case of a woman who was cured of her morbid love for a priest by a clever bishop. The bishop tricked the priest into appearing publicly with another woman; his female admirer, after seeing them, “began to hate the priest so much that she desired never to see him again,” and thus was cured of her afflic­tion. Another wily prelate, an archbishop this time, achieved the same goal by confining a priest and his lady friend together in a small chamber, never allow­ing them to leave one another, day or night. After a few days of this, the priest was cured of his romantic passion and begged to be separated from his former mistress.^[1369]

Canonistic writers of this period shared the gloomy forebodings of their predecessors about the awful results of sexual desire. Lust, like the sirens of ancient fable, lures the souls of men to death and destruction, warned an Anglo-Norman glossator.^[1370] Other writers alluded to the old notion that sex was a source of ritual pollution, an intimate enemy of man’s higher nature.^[1371] The sex urge was fed and nurtured by immodesty and the cultivation of other sensual pleasures, particularly indulgence in food and drink.^[1372] Talking with women, es­pecially discussing and joking about sexual subjects, poisoned the soul and might lead to spiritual death.^[1373] Young men were so susceptible to sexual allures that some authorities declared that youths were by nature incapable of sexual purity.^[1374] Even when students go to church, the Ordinary Gloss remarked, they often do so not to worship but to ogle women.^[1375] Allowances had to be made for the circumstances of individual offenders: it was a lesser offense, according to Alain de Lille (1117-1203), for a man to have illicit sex with a beautiful woman than with an ugly one—the greater the temptation, the less the offense.^[1376]

As for women, it was commonly agreed that continence was more difficult for virgins than for sexually experienced women—the less they knew about sex, the more attractive they thought it was.^[1377] Other stereotypes of female sexuality abound in the canonical literature as well as the poetic literature of the pe­riod—the myth that women are naturally frail and prone to sin, stories of women’s insatiable sexual appetite, together with the idealization of female chastity as something more than merely human.^[1378] Yet at the same time can-

onists maintained that a higher standard of sexual purity was demanded from women than from men, a view that Tancred and others explained in terms of the spiritual symbolism of the union of Christ and the Church.^{[1379] [1380]}

Diversity of opinion on sexual issues was as marked among unorthodox thinkers as it was among those who subscribed to conventional doctrine.

The Formation of Marriage

Canonists in the late twelfth and early thirteenth centuries speculated, as had their teachers, about the place of marriage in Christian life. The Summa Prima primi argued that matrimony enjoyed a special dignity in the sacramental sys­tem, since it was the only sacrament coeval with the human race.¹³⁷ Others, however, stressed the inferiority of marriage to continence, and Ecce υicit Ieo characterized marriage as the least worthy among the sacraments.¹³⁸ The value of marriage, according to the Ordinary Gloss, sprang not from the marital rela­tionship, but from the fact that marriage provided a cure for fornication and a means of producing children. In itself marriage was not something to be desired.¹³⁹

Several writers challenged this view. In addition to the contractual obliga­tion that it created, they asserted, matrimony also involved a social bonding of the couple through their mutual love and fidelity, symbolized by the wedding ring.¹⁴⁰ Interpretations such as this consorted well with the emphasis on con­sent that appeared in the later marriage decretals of Alexander III. Consent was the efficient cause of marriage, declared Prima primi, and Tancred, among others, emphasized that as soon as marital consent was expressed, in words, by signs, or even by silence, marriage was complete and binding.¹⁴¹ Several writers

¹³⁷Prima primi to C. 27 q. 1 in B.L. Royal 11.D.II, fol. 331ra: “Hoc sacramentum preeminit ceteris temporis, locis, rei signate, dignitate; cum enim cetera sacramenta habuerunt originem uel a uetri testamento, ut in unctio regum et episcoporum, ut ii di.

¹³⁸Gloss to C. 27 q. 1 c. 41 v. celte, Caius 283/676, fol. 180va: “Q.d. non dapnatur is qui uouit quia suscipitur autem matrimonium, quia est bonus inferius Continencie bono, sed quia cadit a bono superiore, scilicet continencic.” Cf. the marginal gloss to 1 Cor. 7:35 v. non ut laqueum uobis inuitam, in Trinity B. 1.6, fol. 40v: “Sed ad id tendens. Dico quod honestum est ut homo sit castus corpore et animo, non quod turpe sit con- iugio, sed hoc honestius est et quod facilitatem habeat.” Ecce υicit leo to C. 27 pr., in Salamanca, Biblioteca de la Universidad Civil, MS 2491, fol. 129ra: “Prior tamen agit de sacramento matrimonii, quominus indignius sit quam alia sacramenta.”

¹³⁰Glos. ord. to C. 31 q. 1 c. 10 v. per se: “Matrimonium enim propter se non ap­petitur, quia non ducit ad vitam; sed tamen est appetendum causa vitande fornicationis et propter prolem, infra prox, causa c. 2 § his ita [C. 32 q. 2 d.p.c. 2].”

^lioEcce vicit leo to C. 27 ρr., Salamanca 2491, fol. 129ra: “Si queritur quid sit matri­monium in sui natura, dicunt quidam quod sit relatio, siue qualitas que est in duobus, sicut biuari, qui sic est in duobus quod in neutro dictis Iapidis, scilicet uirgo et uxore duplex est non unde matrimonio, sed duo, ita quod in neutro. Alii dicunt quod est quedam uinculum quod ligat duos ad inuicem, ar. infra xxxii. q. vii. tantum [c. 27].” Gloss to C. 28 q. 2, Caius 283/676, fol. 185ra: “Sed secundum hoc oportet dicere quod tria sunt matrimonia in quolibet matrimonio: unum in uiro per se, altera in muliere, tercium quod durante matrimonio dicitur uinculum sociale; sed quoniam hoc dicere est absurdum, dicemus quod matrimonium semper est uinculum sociale, nec unquam stabit matrimonium ex altera parte tantum.” Glossa Palatina to C. 30 q. 5 c. 3 v. anulo, Trinity 0.10.2, fol. 53v: “Anulo qui significat mutuum amorem et fidem coniugalem esse seruandum ut infra eodem femine [c. 7].”

¹⁴¹Tancred, Summa de matrimonio, tit. 8, ed. Wunderlich, p. 12, which is identical with Raymond of Penafort, Swmma de matrimonio 2.2, ed. Ochoa-Diez, col. 912. Also Tancred to 3 Comp. 4.1.3 v. Inatrimonialiter, in Caius 28/17, p. 285a, and Vat. lat. 1377, noted pointedly that marriage was both a formless contract and a formless sac­rament.¹⁴² Neither consummation nor traditio was necessary to make marriage binding for life,¹⁴³ although there were serious differences of opinion on this point, especially among the Anglo-Normans.¹⁴⁴ Both actual cases and academic

fol. 252v: “Sed hec erat dubitatio huius capituli, quia cum alexander expresserit certam formam uerborum per quam contrahitur matrimonium, supra de spons, du., licet, lib. i [1 Comp. 4.4.3 = X 4.4.3], et dicitur infra e.c. ult. [3 Comp. 4.1.5 = X 4.1.25] quod necessaria sunt uerba quantum ad ecclesiam, quia si detrahitur, id est Subicietur uer- bum, non sit sacramentum, ut i. q. i detrahere [C. 1 q. 1 c. 54]. Uidebatur quod mutus contrahere non possit, sed non est ita, quia matrimonium solo consensu contrahitur le­gitimo, ut xxvii. q. ii. sufficiat [c. 2]; unde qui potest consentire, potest matrimonium contrahere, sed non omnis qui potest loqui, ut xxx. q. ii. ubi non est [c. 1] et supra de frigi., quod sedem lib. i. [1 Comp. 4.16.3 = X 4.15.2]. t(ancredus).” Ibid., to 3 Comp. 5.2.5 v. nonprebere, Caius 28/17, P∙ 3θιb, and Vat. lat. 1377, fol. 263v: “Quia sepe qui tacet consentire uidetur, ut liiii. di. si seruus sciente [c. 20]; C. de nupt., sicut proponis [Cod. 5.4.5]. Sicut e conuerso, de con. di. iiii. cum paruulis [c. 77]; ff. de seruit, urb. ru. (pre.) [MS: Vat. male], inuitum. [Dig. 8.2.5(4)]; supra de baptismo et eius effectu, c. i. l.e. [3 Comp. 3.34.1 = X 3.42.3]. t(ancredus).”

^u2Prima primi to D. 27 pr., B.L. Royal 11.D.II, fol. 331ra: “Causa efficiens matri­monii est consensus matrimonialis, ut infra eodem q. i. sufficit [C. 27 q. 2 c.2?].” Argu­mentum quod religiosi to C. 32 q. 2, in MS 101 of Pembroke College, Cambridge, fol. 6ova: “Nota nullam Sollempnitatem uebformam necessariam ad matrimonii suberam, ut c. solet [c. 6] et di. xxiiii. c.ii. et iii. et B. Ixiiii. de fra.[?].” See also the questio disputata of the French school, ca. 1181, in Fransen, “Manage simule,” p. 537.

¹⁴³Tancred to 1 Comp. 4.1.10 v. consenserit, in Caius 28/17, P- 88a, and Admont 22, fol. 55r: “Uidetur tamen quod secundum leges tradicio faciat de sponsa uxorem, ut C. de donat, ante nup., cum in te [Cod. 5.3.6]; ff. de ritu nup., denique [Dig. 23.2.6]. Sed secundum canones dico solum consensum facere uxorem, ut xxvii. q. ii. coniuges [c. 6], R(ichardus?). Sed et dici potest secundum canones per traductionem matrimonium con­trahi, ar. infra de sponsa duorum, c. ult [1 Comp. 4.4.7 = X 4.4.4]; ar. infra de coniugi. leprosorum, litteras [1 Comp. 4.8.3 = X 4.8.3]. Erat ergo dubitatio istius decretalis quia secundum leges non uidebatur ista uxor, quia traducta non fuerat, ff. de ritu nup., mulierem [Dig. 23.2.5]; xxxiiii. di. uidua, sed secus est secundum canones, ut hic. Iau- (rentius).” Ecce vicit leo to C. 27 q. 2 c. 42 v. Iege coniugii, in Trinity O.5.17, fol. 119vb: “Id est nondum carnalitcr cognita.” See also Raymond of Penafort, Summa de mat. 2.2, ed. Ochoa and Diez, coi. 912.

¹⁴⁴GIoss to C. 33 q. 1 d.p.c. 3 in Caius 283/676, fol. 196rb: “Quidam fornicarius labo­rans in extremis nolens decedere (ut) fornicator ducit concubinam suam. Cum tamen sciat se nunquam posse eam cognoscere de cetero, num est matrimonium? Jo(annes de) Cornub(io) dicit quod matrimonium est; consensus enim presens trahitur ad cohitum preteritum, non quod habuit [?] illum, quia hoc esset impius, sed quia eo suffragante per hunc consensum fit matrimonium, sicut alias consensus de futuro Iegitimat cohitus sub- scqucnte, et facit matrimonium; ar. ad hoc sunt ff. his ubi dicitur, quod numquam [?] et 5 q. 6 qui nunc Consenciant in matrimonium [?]. Si ante hoc tempus numquam fuerunt una caro, ualet matrimonium? Jo(annes). de ti(nemuth) dicit non ualere. Sed num filii prius suscepti habebuntur pro legitimis? Hoc uidetur quantum enim in contrahentibus fuit, matrimonium fuit.”

speculation suggest, however, that whatever the law might say about the valid­ity of marriage without witnesses or ceremony, their absence caused serious difficulties.¹⁴⁵

“Consent means a joining of souls,” said Tancred, and internal consent was essential to marriage.¹⁴⁶ But a determined seducer could easily simulate con­sent, while an exterior show of consent might be forced or maneuvered from an unwilling bride or groom.¹⁴⁷ Consent to marriage need not be explicit: it might be presumed from consent to intercourse following an agreement about future marriage—this doctrine, which originated with academic commentators, was soon adopted by the pope.¹⁴⁸

All of this clouded the role, if any, of intercourse in the formation of mar­riage. Intercourse was usually said to consummate marriage, although the mar­riage of the Blessed Virgin and St. Joseph was held to have been consummated by means other than carnal union.¹⁴⁹ Writers of this period seem to have been

^li5Select Cases, ed. Adams and Donahue, A.7, pp. 25-28.

¹⁴⁶Tancred to 3 Comp. 1.14.2 v. consensus, in Caius 28/17, P∙ ¹73b: “Scilicet con- iunctio animarum. t/ancredusj.”

^l47Gloss to C. 31 q. 2 pr. v. cogenda, in Caius 283/676, fol. 189rb: “Et hoc uerum adeo quod si per coactionem fiat matrimonium non ualet, quia supra prox. q. 5 c. 1 [C. 30 q. 5 c. 1?] et hoc speciale in matrimonio, secus enim in aliis contractibus metu factis, quia ualent.” Raymond of Pcnafort, Summa de mat. 11.2, ed. Ochoa and Diez, coi. 956.

¹⁴⁸Closs to C. 27 q. 2 pr. in Caius 283/676, fol. 181 ra: “Sponsalia fit mentio futurarum nuptiarum seu repromissio, D. de sponsalibus 1. i. [Dig. 23.1.1], qui si contrahuntur inter alios ut solet fieri per ucrba de futuro. Sponsus et sponsa modo dicuntur sed inter hos non est matrimonium nec uelimus diccrc spe futurorum nec re presentum. Si autem sequitur copula carnalis necdum est matrimonium ibi, sed tamen ecclesia presumit esse. In Extra de sponsalia in futuro cognita, ueniens qui s. [1 Comp. 4.1.5?], que secundum jo(annem de} ti(nemuth) fornicata est ex illa uel enim pro socio uel marito et admittatur probatio in contrarium; potest autem probari copulam carnalis non Interuenisse officium maritalis, sed (modo) [MS: motu] fornicatiuo.” Tancred to 1 Comp. 4.4.1 v. si per­miserit, in Caius 28/17, p. 93b, and Admont 22, fol. 58v: “Hec condicio turpis est si de fornicario coitu intelligatur, et ideo ea abiecta tenent simpliciter sponsalia, ut infra de condi, apo. c. i. lib.eodem [1 Comp. 4.5.1]. Unde si postea rem secum habuerit confir­matur matrimonium, ar. supra de spon. de illis [1 Comp. 4.1.4]. Si de coitu legitimo intellecta fuit multo forcius per sequentem coitum matrimonium confirmatur; potius enim est hortatio quam condicio, ut sit simile, ff. de tutel., muto [Dig. 26.1.6]. ala (nus). Ego credo quod istud si non continetur Conditionaliter sed Causatiue notat enim causam quia in omni matrimonio hec causa, scilicet carnalis copula, debet interuenire, saltem quo ad propositum, ut xxvii. q. ii. § cum ergo, uer. �?beata maria’ [C. 27 q.2 c. 3], et expone si id est quia permiserit etc.; simile si habetur, supra de elec., significasti [1 Comp. 1.4.21(18) = X 1.6.4], ff- quando dies legat, cedat, quando ticio § quedarn [Dig. 36.2.22. ι]. t(aneredus).” This doctrine was adopted by Gregory IX in X 4.1.30.

¹⁴⁹Gloss to C. 27 q. 2 c. 5, in Caius 283/676, fol. 181ra: “Queritur de beata uirgine et Joseph. Respondeo dici potest quod matrimonium inter eos fuit consummatum non per carnis copulam, sed propter rem signi, quia in aula beate uirginis facta est unio deitatis ad carnem; non ergo signum facit matrimonium consumari multo fortius ipsa res signi, uncertain as to whether consummation was ever required for valid marriage. They agreed that, once sexual consummation had taken place, the duty to pay the conjugal debt was thenceforth in force and that reluctant spouses could be compelled to have sexual relations with their mates.^{[1382] [1383]}

Canonists assumed that marriage was a lifelong union, but the Glossa Pal­atina noted that marriage also resembled limited-term agreements, such as partnerships (societates), since, like a partnership, marriage could be con­tracted by proxy.^[1384] Tancred observed that the law in his day sought to hold couples to betrothal agreements more firmly than it had in the past, although the Church did not require specific performance when one party refused to honor a promise of future marriage.^[1385]

Consanguinity and Affinity

Consanguinity and affinity underwent radical and much-needed change during this period. For centuries the canons had defined marriages within seven de­grees of relationship as incestuous. Consequently, persons who knowingly mar­ried within the seven-degree limit must either secure a dispensation or accept the risk that their marriage might be annulled. Since seven degrees of relation­ship computed according to canonical rules could encompass thousands of per­sons, the incest rules created potentially serious problems for individual couples and for society as a whole.¹⁵³ In 1215, the Fourth Lateran Council reduced the forbidden degrees of kinship from seven to four, declaring that “the urgent ne­cessity or evident utility” of the Church required alteration of the former law.¹³⁴ The new law Sizeably increased the number of potential partners that any given individual could marry and decreased the need for dispensations in order to legitimize marriages between cousins.

Pope Celestine III held that sexual relations between two persons created a legal affinity that barred subsequent marriage between either party and any close relative of the other—the affinity was similar to that created by acting as godparent to a child.¹⁵⁵ Commentators generally interpreted this decretal re­strictively, so as to limit affinity contracted by coitus to the smallest number of cases. Thus they held, for example, that coitus interruptus did not create affinity, nor did “unnatural” intercourse, so long as there was no ejaculation of semen within the vulva.^15β A number of writers also discussed related problems, such as the implications of marriage within the forbidden degrees for the mari­tal debt,¹⁵⁷ and the advisability of construing the law more leniently for young couples than for old folk, in order to accommodate the fiery sex drive of youth.¹⁵⁸

¹⁵³Bemard of Pavia, Summa 4.14.7, ed. Laspcyres₁ pp. 166-67; Champeaux, “Jus sanguinis,” pp. 241-90; Flandrin₁ Amours paysannes, pp. 33-34. The way in which the consanguinity rules might affect political events is well illustrated by the case of King Amaury of Jerusalem, whose succession to the throne was compromised by his marriage to his cousin-german, Agnes. The couple divorced and both remarried before the prob­lem was resolved; Continuation de Guillaume de Tyr 3, cd. Morgan, pp. 19-20.

¹⁵⁴ 4 Lateran Council (1215) c. 50₁ ed. Garcia y Garcia₁ pp. 90-91.

¹⁵⁵2 Comp. 4.7.4 = X 4∙ 13 5; JL 16₁643. Alexander III had also held, but more tenta­tively, that illicit coitus with a close relative might create a supervening affinity; see above, p. 334.

¹⁵⁶Bemard of Pavia, Summa 4.14.17, ed. Laspeyres₁ p. 173; Glossa Palatina to C. 35 q, 2 & 3 c. 11 v. impedire, Trinity O.1o.2₁ fol. 81vb: “Talis enim pollutio que fit extra uuluam non facit sanguinis commixtionem nec carnis unitatem; sed quid si quis frangit claustrum pudoris, sed non Spermatizat ibi uel si Spermatizat₁ non cum ipsa? Dico cum h. per talem coitum unitatem carnis non fieri nec sanguinis commixtionem, nec impediri ob hoc consanguineorum ab eius copula si constare possit. Jo. et R. legant hanc causam sub alio sensu, quia talis pollutio non impedit nisi sit in tanta uel nisi fiat maritalis affectio, sed hoc superfluit una negatio.”

¹⁵⁷Gerard Fransen₁ “Les �?Questiones’ des canonistes: essai de depouillement et de classement (IV),” no. Bb.80, Traditio 20 (1964) 500. See also Glos. ord. to C. 32 q. 7 c. 21 v. neutram.

¹⁵⁸Gloss to C. 31 q. 1 pr., in Caius 283/676, fol. 188vb: “Quid autem si mechus et mecha iuuenes sint? Num si inuicem contraxerint, matrimonium est? Ar. 33 q. 2 inter­fectores [c. 5]. Sed certe iuuenilis etas non eadem ius prodest ut sit inter eos matri-

Canonists in this period also insisted that marriages contracted before the parties reached the age of puberty were not binding unless the individuals were capable both of assenting to marital obligations and of fulfilling them.^[1386] Alanus favored adopting a further distinction based on Roman law that would have made the validity of marriage depend upon the parties having reached “full puberty,” which civil law set at age seventeen, rather than “incomplete puberty,” which girls were presumed to reach at twelve and boys at fourteen.^[1387] Alanus s proposal found little support, and most commentators continued to as­sert that twelve and fourteen were the canonical minimum ages.^[1388] Some writ­ers even advocated Huguccio s argument in favor of recognizing the betrothal of children who had not yet reached the minimum age, on the grounds that in­tent, not chronological age, was what counted.^[1389]

Contraception

Writers in this period paid far more attention than had those of the previous generation to problems raised by marital contraception. An intention to avoid having children might even invalidate a marriage, according to the Ordinary Gloss, and a conditional marriage entered into with express contraceptive in­tent ought to be held null, in the same way that any other contract would be vitiated by an illegal condition. Other writers, however, held that although such a marriage would be illegal, it was nonetheless binding and that couples could not separate on the grounds that they had married with contraceptive intentions.¹⁶³ In addition, contraceptive intercourse constituted a species of rit­ual pollution, according to both the Glossa Palatina and Johannes Teutonicus.¹⁶⁴ Contraceptive intercourse was sometimes compared to adultery, as well, even if the couple were legitimately married.¹⁶⁵ Neither canonists nor moral writers detailed the contraceptive methods they had in mind, although coitus interrup­tus was presumably the most effective technique available in this period.

Conjugal Debt

Like their predecessors, canonists of the late twelfth and early thirteenth cen­turies maintained that husbands and wives had equal rights to marital sex. They acknowledged, however, that women were less likely to insist on their sexual

Comp. 4.2.3], sic et in spirituali contractum tamen consueuit dici ab aliis ut notaui xx. q. i. in summa [GZos. ord. to C. 20 q. 1 pr. v. infra annos]. Jo(hannes}."

^le3Glos. ord. to C. 32 q. 2C. 6 v. noluit and to C. 32 q. 2 c. 7 v. et si ab initio and coniuges non sunt. See also X 4.5.7 and Raymond of Penafort₁ Summa de mat. 4.3, ed. Ochoa and Diez₁ col. 929. Likewise, Argumentum quod religiosi to C. 32 q. 2₁ Pembroke mi, fol. 6ova: “Nota quod non sunt coniuges qui eo animo iuncti sunt ut prolis generatio impediretur et quod in eodem Coniugali opere unus peccat, alter non, et quod matri­monium aliquando ex una tantum parte tenet, ut c. aliquando [c. 7]₁ ut infra q. v propo­sito [c. 5].” Similarly, gloss to C. 32 q. 2 c. 6, in Pembroke 162₁ fol. 266r: “Habes ergo hic quod uitatio prolis ucl propositum uitandi filios impedit matrimonium, et e. proximo.” ^le3Gl0s. ord. to C. 32 q. 4 c. 12 v. immunditia; Glossa Palatina to C. 32 q. 4₁ in Trin­ity 0.10.2, fol. 57va, and Salzburg, Stiftsbibliothek St. Peter, MS a.XII.9, fol. 201v [I am grateful to Professor Kenneth Pennington for this and other readings from the Palatina Salzburgensis]: “Ar. opera nuptiarum que non sunt causa liberorum mortalia esse, quia luxuria et immunditia nominantur, ut infra c. Iiberorum [c. 14]; sed hoc dicitur non quo ad reatum mortalis uicii, sed quo ad speciem facti; speciem enim et similitudine luxurie et immundicie pretendunt [T corr. ex predetendant].” Likewise Argumentum quod re­ligiosi to C. 32 q. 4, in Pembroke 101₁ fol. 6ovb: “Ar. quod opera nuptiarum que non fiunt causa liberorum mortalia esse, quia luxuria et immundicia nominantur, ut c. In eo, in finem [C. 32 q. 4 e. 12] et c. liberorum [C. 32 q. 4 c. 14].” A contemporary scriptural gloss to 1 Cor. 7:4V. uir sui corporis potestatem non habet, in Trinity B. ι.6, fol. 38v, however, held contraceptive intercourse only Venially sinful: “Quod preter intentionem generationis non est nuptiarum malum, scd ueniale propter nuptiarum bonum.” ¹⁶⁵Benencasa₁ Casus to C. 32 q. 2 c. 7.

rights.^[1390] The parity of sexual rights in marriage was the foundation for discus­sions of conjugal debt that pushed the right to claim the debt to extremes un­dreamed of by earlier generations of canonists. The right of a married person to have intercourse on demand took precedence over most other duties. Accord­ing to Alanus, whose treatment of the topic relied upon Huguccio, a married, serf whose wife demanded that he make love to her at the same time that his manorial lord required his services in the field ought to obey his lord, unless there was imminent danger that his wife might commit fornication. If the wife insisted, however, he was obliged to comply with her demand—the wife’s rights took precedence over the lord’s.^[1391] The right to the conjugal debt was so basic that even an excommunicate, who otherwise was ineligible to prosecute actions in court, might be allowed to sue for the restitution of marital rights if his wife refused to have intercourse with him.^[1392] The obligation of the marital debt was so serious that in the view of one Anglo-Norman glossator it constituted a tell­ing argument against polygyny, for, he declared, no man could hope to satisfy more than one woman.^[1393]

A radical legislative innovation concerning the marital debt during this pe­riod occurred in a decretal of Innocent III. Prior to Innocent’s time, a man who wished to go on Crusade must secure his wife’s permission, since during his absence she would be deprived of his sexual services and might be led to com­mit adultery. Although Innocent III decided to allow married men to make Crusade vows without the consent of their wives, academic canonists found this ruling so anomalous that they generally passed over it in silence when they lectured.^[1394]

Only two circumstances excused a failure to pay the marital debt. If the spouse who made the demand had been guilty of adultery, the innocent partner had the right to refuse payment until the guilty party had done penance.^[1395] The other situation in which a married person might be justified in refusing a re­quest for sexual relations arose if s/he were conscious of some legal affinity that was unknown to the party who made the demand.^[1396] This might happen if the husband, for example, secretly had sex with his wife’s sister or mother and thus contracted an occult supervening affinity. In this situation he was required to refuse to have intercourse with his wife until he had received absolution and done penance for his misdeed.

Marriages of Serfs

Writers of the generation between Bernard of Pavia and the Liber Extra were more interested than their predecessors had been in the marital rights of un­free persons. In addition to discussing the serf’s right to claim the conjugal debt, they considered the conflicts of interest that might arise when a servile marriage deprived a lord of property rights. In general the canonists main­tained that servile marriage was as valid and as binding as the marriage of free persons. Problems arose, however, when one partner was free and the other a serf. Under most circumstances the canonists resolved these questions in favor of the freedom to marry, but they qualified this stance in two important re­spects. Where such a marriage would deprive the owner of property, they maintained that the marriage was valid but that the free party incurred a lia­bility for the damages that resulted from the loss of labor. When marriages crossed class boundaries the canonists also allowed owners to separate the couple if there had been deceit or concealment of the servile party’s true status prior to or at the time of the exchange of consent.

Secular law writers were less tolerant than the canonists of marriages be­tween free and unfree persons. Carlo de Tocco, who wrote a gloss apparatus to the Lombard laws early in the thirteenth century, took a particularly dim view of marriage between a free woman and a serf. A woman committed a more se­rious offense by contracting such a marriage, he declared, than she would have done by fornicating with a free man. Her father, he added, had just cause for disinheriting her and would also be within his rights if he had her bound and beaten—though not to death.^[1397]

Religiously Mixed Marriages

Discussions of the law concerning religiously mixed marriages during this pe­riod contained few novelties. Prima primi asserted that non-Christian marriages were generally valid, but admitted a few exceptions to the rule.^[1398] Tancred ar­gued that one exception involved marriage among Jews, for since Jewish law allowed marriages to be dissolved by a bill of repudiation, it followed that Jew­ish marriages were in some sense incomplete because they were not indissolu­ble, as Christian marriages were.^[1399] Benencasa also asserted that Christians should not marry non-Christians, even if the marriage was premised on the condition that the non-Christian convert to Christianity.^[1400]

Clandestine Marriage

Perhaps the most thorny issue in discussions of marriage formation during this period continued to be clandestine marriage, since the law itself contained in­ternal contradictions that could not readily be resolved. As we have seen, canon law by the 1190s required only the consent of the parties to create a mar­riage and neither ceremonies, witnesses, dowry, publicity, nor family consent were necessary for validity. But at the same time the popes also insisted that marriages should be public and made secret marriages illegal.¹⁷⁷

The Fourth Lateran Council required couples to announce their intention to marry prior to the wedding, so that their neighbors might know about their plans and raise timely objections if need be. The Council insisted, moreover, that the wedding itself must take place publicly. Those who failed to conform to these rules were subject to ecclesiastical penalties, and their children might be declared illegitimate.¹⁷⁸ But the Council stopped short of making the validity of marriages depend upon the fulfillment of these requirements. The result was confusion in both policy and practice. “Secret waters are sweeter,” said Bernard of Pavia, and people perversely continued to contract secret marriages, despite reiterated prohibitions.¹⁷⁹ The law seems to have assumed an unstated premise that it was important to define as many relationships as possible as marriages. Unions that failed to meet the minimum requirements for publicity were none­theless treated as marriages, despite the fact that they violated the law. Hon­estas, Johannes Teutonicus observed, took priority over Iiceitas in marriage law.¹⁸⁰

The most difficult practical problem that clandestine marriage posed arose from the lack of proof that the parties had ever exchanged consent. When se­cret marriages were contested, as they often were, the evidence of the parties often conflicted on this point.¹⁸¹ Sometimes, no doubt, this arose from genuine

^mPrima primi to C. 30 q. 5 c. 6, in B.L. Royal 11.D.II, fol. 331rb: “Hic autem pro constanti sumpto docet quod matrimonia non sunt clam contrahenda. Queritur quamuis fuit uera, ecclesia de eis postea dubitante, eis manifeste preiudicant, ut i.e. his (ita) [MS itaque] respondetur [C. 30 q. 5 d.p.c. 9] et c. sequentibus. Clandestina ergo coniugia non sunt contrahenda, sed contracta non dissoluuntur.” Likewise the Distinctiones Can- tabrigienses, in U.L.C., MS Add. 3321(1), fol. 38r: “Huic multa obuiant, cum multa sint que non debent fieri, que tamen ex post facto Conualescunt, ut est illud clandestinorum coniugium, que fieri non debent, que tamen si fiant rata habentur.”

™4 Lateran Council (1215) c. 51, ed. Garcia y Garcia, pp. 91-92. The Apparatus of Johannes Teutonicus on this canon, v. penitus inhibimus, nonetheless made a point of insisting on the validity ofclandestine marriages; Constitutiones, ed. Garcia y Garcia, p. 258. See also Sheehan, “Marriage Theory and Practice,” pp. 432-33, 438, 440. Etienne Diebold, “L’application en France du canon 51 du IVe concile de Latran d’apres les an- ciens statuts synodaux,” Lannee canonique 2 (1953) 187-95.

¹⁷⁹BemardofPavia, Summadecretalium 4.3 pr., ed. Laspeyres, p. 141; the allusion is to Prov. 9:17.

¹⁸⁰Johannes Teutonicus, Apparatus to 4 Lateran c. 50 v. de sobole suscepta, ed. Garcia y Garcia, p. 257.

¹⁸¹ Raymond de Penafort, Summa de mat. 2.14, ed. Ochoa and Diez, col. 921-22; Ecce vicit Ieo to C. 30 q. 5 pr., Salamanca 2491, fol. 139ra: “Et quamuis tali matrimonium probari non possit, nichilominus ibi uerum est matrimonium nec deficit in ius sed iuris probatio; et adulter est qui clam contraxit et aliam ea uiuente cum qua contraxit ducit. Non autem debent fieri clandestina matrimonia, ne sub hoc pretextu fornicatio uel adul- diflerences in intent, sometimes from discrepancies of perception, sometimes from difficulty in recalling long-past events; more than occasionally, however, conflicts of testimony resulted from fraud and deception. Ecclesiastical judges, who were not gifted with second sight, found it difficult, often impossible, to be certain that litigants were dealing honestly with the court.

Academic commentators noted that there was no presumption in favor of clandestine marriages and that relationships in which matrimonial consent could not be proved should be presumed to be adultery, not marriage.^{[1401] [1402] Only if witnesses or other evidence could be produced were the courts supposed to give legal recognition to secret marriages. If evidence was forthcoming, how­ever, a prior secret marriage would invalidate any subsequent union, no matter how solemn and well-attested it might have been.[1403] In the nature of things, clandestine marriages were no doubt more common among the lower orders of society where large property interests were not at issue, than they were among the wealthy. The upper classes sought to make their marriages as public and as splendid as possible, not only as a matter of honor and social obligation, but also to assure that property transactions connected with the marriage would be honored.[1404]}

The concern that impelled both lawmakers and law writers to uphold the validity of clandestine marriages arose from their commitment to freedom of contract and their wish to enable persons to marry despite opposition from their families. This was the mainspring that powered their stiff opposition to making the validity of marriage depend upon publicity.^ιss While Roman law permitted parents to dictate the marriage choices of their children, especially their daughters, canon law refused to concede that power to them.^{[1405] [1406] Cases from this period record several successful efforts by thirteenth-century women to assert their canonical right to refuse husbands chosen for them by their families.[1407]}

Sexual Behavior in Marriage

Although some canonists and theologians continued to repeat the views of Huguccio and others who maintained that marital sex always involved some sin, common opinion during this period shifted away from the rigorism of earlier generations.^[1408] Johannes Teutonicus formulated the mainstream view that dominated canonistic discussions of marital sex. Although Johannes reported the rigorist view in the Glossa ordinaria, he relegated it to incidental notes and plainly did not share it.^{[1409] [1410] As Johannes explained matters, marital sex with re­productive intention was never sinful, nor was marital coitus sinful for the party paying the conjugal debt.1*' His view was shared by other canonists, both among the Bolognese masters and the Anglo-Norman glossators.[1411] Alanus even saw positive virtues in marital sex, which he described as a necessary element of marriage.[1412] Tancred likewise maintained that marital consent was most con­vincingly expressed through sexual relations; the couple’s physical union ratified and confirmed their verbal agreement to marry.[1413] John of Tynemouth was even more positive in his assessment of the role of sex in marriage. He affirmed that marital sex was not merely allowed, but was morally good, even if the goal of a couples lovemaking was to avoid extramarital temptations, rather than procreation.[1414]}

But even canonists who saw moral value in marital sex, however, were not prepared to see coitus as a source of grace. An Anglo-Norman glossator noted that the Holy Spirit disappeared while married couples made love, but added that this was because of the sensual itch that accompanied coitus, not because of the act of love.^[1415] The Glossa Palatina stated that disciplined and saintly couples could be said to practice marital chastity, even when they made love.^[1416] This did not mean that they should not enjoy sex or that married couples were bound to observe a rigid and unbending decorum in each others presence.'^[1417] Instead they ought to aim at a balanced regimen in their sex life, as in their other habits. In the same vein, authors cautioned married Christians to be care­ful of their diet, lest excessive food and drink lure them into sexual indulgence.^[1418]

Writers continued to warn against immoderate marital lovemaking,^[1419] but there was a shift in the treatment of this admonition toward the end of the twelfth century. In addition to seeing Jerome’s admonitions against excessive or too ardent love as a caution against too frequent intercourse, writers at the end of the century also interpreted his words as a prohibition of “unnatural” marital intercourse, by which they meant among other things the use of unusual coital positions. They assumed that the proper posture for marital sex ought to be the one in which the man lay atop his wife. Deviations from this posture were per­versions, motivated by a quest for unusual pleasures (extraordinaria volup­tas).²™ Sexual experimentation was thus equated with attempts to surpass the order that nature had dictated for marital relations.^{[1420] [1421] [1422]}

Unconventional sexual techniques were thought to imitate in marriage the unsavory practices of harlots and adulterers.^[1423] The gravest disapproval was re­served for coitus from the rear,^[1424] apparently on the grounds that this position was common in animal copulation and that it was inappropriate for humans to imitate the beasts of the field. Even if variations from the conventional coital position were customary or common, Johannes Teutonicus declared that this would not excuse their use or make them acceptable.^[1425] The canonists and theo­logians of this period made no references to oral sex, but a number of them spoke gingerly about anal intercourse, of which they disapproved most strongly indeed—so much so that the Glossa Palatina would allow a wife to divorce her husband if he demanded anal sex from her.^[1426]

Few canonists active in this period had much to say about the traditional proscriptions of marital intercourse during forbidden periods of the liturgical year or the wife’s physiological cycle. Johannes Teutonicus, for example, re­ferred to these prohibitions in the Glossa ordinaria, but advised that they were counsels of perfection, not legal requirements. In discussing periodic sexual ab­stinence, he also distinguished between coitus for procreation and coitus to avert adultery.²⁰⁶

Moralists and penitential writers were more inclined than canonists to insist that couples must observe the earlier discipline.²⁰⁷ The discrepancy between canonist and moralist teaching suggests that the old discipline was not widely observed by the early thirteenth century. Some took the view that if one spouse demanded the marital debt during a proscribed period, the other party was bound to comply and did not sin by so doing.²⁰⁸

It would seem that the same logic should apply if an excommunicated hus­band demanded the debt from his wife, and this was the solution preferred by Gandulph and John of Tynemouth.²⁰⁰ The rigoristic author of Ecce υicit Ieo, on the other hand, held that the innocent party was bound to pay the debt, even though doing so was sinful.²¹⁰ Thomas of Chobham advised married women to use sexual attraction to reform their errant husbands:

²⁰⁰Glos. ord. to D. 5 c. 4 v. ablactetur and to C. 33 q. 4 pr. v. quod autem∙, Raymond of Penafort, Summa de mat. 2.10, ed. Ochoa and Diez, col. 917-18. The author of the marginal gloss to Lev. 20:18 v. Qui coierit, Trinity B.1.31, fol. 115v, concluded that the purpose of the marital abstinence prescriptions was to lead couples to abandon marital sex altogether: “Intendit legislator Continenciam suadere, ne more pccorum continue mulieribus misceantur, sed uel coacti (uel) ad usum continendi paulatim ueniamus.”

²⁰⁷Alain de Lille, Poenitentiale 1.4, ed. Longere 2:27; Thomas of Chobham, Summa 7.2.2.2-3 and 7.2.10, ed. Broomfield, pp. 334-39, 364-66; Robert of Flamborough, Poenitentiale 5.285, ed. Firth, p. 237. Cf. the discussion of these topics by Maimonides, Code 5.1.4.1-22 and 5.1.21.11, trans. Rabinowitz and Grossman, pp. 25-31, 135. Thomas of Chobharn, Summa 7.2.2.3, ed. Broomfield, pp. 338-39, admonished con­fessors to inquire closely into the details of married penitents’ sexual habits in order to frighten them out of doing such things.

^2mDistinctiones Cantahrigienses, U.L.C. Add. 3321(1), fol. 39v: “Sed dicimus quod lex canonum nemini prestat auctoritatem peccandi.... Sicuti et lex canonum dicit pos­centi debitum carnale soluendum, si tamen quis preter spem prolis uxori debitum red­dat, non hoc facit legis auctoritate, sed uoluntate proprie temeritatis, ut cum indiscrete quis preceps fertur ad coitum uel que precipitanter affectat coitum, uel ex Utriusque infirmitate uel alterius corruptela.

²⁰⁹Gloss to C. 11 q. 3 c. 103 v. quoniam, Caius 283/676, fol. 116ra: “Sed d. G(an- dulphus) and JoIannes de) Ti(nemuth) dicunt in debita reddendo tantum ad paria iudicari, ita quod sicut uxor reddens debitum uiro petenti excommunicato excusatur, ita uir uxori excommunicate; in aliis uero secus.”

^aoEcce vicit leo to C. 28 q. 1, Salamanea 2491, fol. 136rb-va: “Sed queritur an liceat contrahere cum excommunicata, (dices) [MS dicens] quod non, quia non est ei commu­nicandus nisi in illo que pertinet ad correctionem uel in casu necessitatis, ut vi. q. iii. quando [fortasse C. 11 q. 3 c. 23]; tamen si contraxit Iicct peccaret contrahendo sed post teneretur debitum reddere, tamen peccaret debitum reddendo.”

In the bedchamber and in the midst of their embraces she ought to speak softly to him, and if he is a hard-hearted and merciless op­pressor of the poor, she should urge him to be merciful.²¹¹

Concubinage

Canonists of this period found the legal status of concubines perplexing. They considered concubinage immoral, but doubted that it was illegal, since both civil law and the Old Testament tolerated the institution.²¹² The distinction be­tween concubinage and marriage was hazy. If a man called his concubine his wife, Argumentum quod religiosi declared, then that is what she was.²¹³ From this it followed, according to some, that a concubine must be faithful to her lover, and their relationship created an affinity that precluded subsequent liai­sons with other members of the lover’s family.²¹⁴

But canonists were uncomfortable with the policy of tolerating concubinage and advised couples to regularize their unions. The Church also fashioned a mechanism for encouraging this result: abjuration under pain of marriage. Church courts could require couples who lived in open concubinage to swear an oath that they would not subsequently have sexual relations with one an­other. If they were later discovered keeping company, they were subject to the penalties for perjury, unless they immediately solemnized their union by for­mal marriage.²¹⁵ Married men who kept concubines were required to renounce

²¹¹Thomas of Chobham, Summa 7.2.15, ed. Broomfield, p. 375.

²¹²Johannes Teutonicus, Glos. ord. to D. 34 d.p.c. 3 v. Coniunctione and C. 32 q. 4 c. 4 v. de legibus; Placentinus, Summa Codicis 5.26 (Mainz: Ivo Schoeffer, 1536; repr. Turin: Bottega d’Erasmo, 1962), p. 218; Glossa Palatina to C. 32 q. 2 c. 6, Trinity 0.10.2, fol. 57rb: “Hie uidetur surgere quedam inextricabilis Contrarietas₁ nam in deu­teronomio licitum erat habere concubinam et contrahere cum ea postea uel dare ei pre­tium sue pudicitie (et) eam dimittere; sed in decalogo secundum interpretatione au­gustini prohibita fuit omnis fornicatio, ut hic dicit. H(uguccio) dicit quod non sunt contraria, nam aliud est permissio de qua in deuteronomio, aliud preceptum de quo in decalogo. Sed hec solutio nulla uidetur quia circa illud non possit habere locum per­missio et preceptum siue prohibitio immo dicendum illud intelligi de Comparatiua per­missione, simile infra xxxiii. q. ii. si quod uerius [c. 9], nam in ueritate illud semper fuit peccatum, extra de diuortiis, gaudemus [3 Comp. 4.14.2 = X 4.19.8].’’

²¹³ Argumentum quod religiosi to C. 32 q. 4, Pembroke 101, fol. 6ovb: “Ar. quod con­cubinam uxorem facit qui eam uxorem nominat. Nam desinit esse adulter, ut c. dicat [C. 32 q. 4 c. 9].”

²¹⁴RudolfWeigand, "Quaestionen aus den Schule des Rolandus und Metellus,” Ar­chio fur Iiatholisches Kirchenrecht 138 (1969) 87.

²¹⁵Johannes Teutonicus, Glos. ord. to C. 31 q. 1 c. 3 v. claudatur; Statutes of Winchester I (1224?) c. 54, 58, and Statutes of Coventry (1224 ~ 1237) c. 15, in Powicke and Cheney, Councils and Synods 1:134-35, 213; Thomas of Chobham, Summa 7.2.5.5, ed. Broomfield, pp. 345-46; Sheehan, “Marriage and Family,” p. 209; and see generally Richard H. IIelmholz., “Abjuration sub pena nubendi in the Church Courts of Medieval England,” Jurist 32 (1970) 80-90.

their mistresses under pain of fines, excommunication, and other penalties.^[1427] Despite efforts to discourage the practice, men of wealth and power con­tinued to have concubines. Their companions were usually women of lower so­cial status, and marriage to them would have been scandalous or even illegal by civil law. The canonists refused, as their predecessors had done for centuries, to accept disparity of social status as an impediment to marriage; but the use of limitations on marriage to support class distinctions still persisted, as some ci­vilians noted with apparent complacency.^[1428] Occasionally the rights of the con­cubine and her lover were spelled out in formal contracts. Such a contract be­tween King James I of Aragon and Countess Aurembaix of Urgel, dated 23 October 1228, for example, made detailed provisions for the status of any chil­dren they might have, property-sharing between the principals, and the dis­position of assets Ownedjointly.^[1429] No churchman apparently cared to declare this contract void.

Divorce and Remarriage

Late twelfth-century canonists were dissatisfied with the theory of separation, divorce, and remarriage that they inherited. The critical issue was indissolu­bility. Popes and theologians in the West had insisted since the eleventh cen­tury that valid marriages were indissoluble; canonists wanted to reconcile that principle with the realities of practice. Some authorities believed that the pope could under certain circumstances dissolve a valid marriage. Tancred reported an argument that held that the Church could dissolve a valid marriage if a grave impediment arose after the exchange of consent.^[1430] But popes were reluctant to use this power, even if they had it—a reluctance that accounts in part for their disinclination to hold clandestine marriages null.^[1431]

Civilians and canonists both knew that Roman law allowed civil authorities, or even the parties themselves, to dissolve marriages on a variety of grounds, or on none at all.²²¹ They also knew that Mosaic law allowed the dissolution of marriages.²²² Whether this could be done under the Christian dispensation was another question. The author of the Glossa Palatina (probably Laurentius His­panus),²²³ acknowledged that the Mosaic law permitted divorce and remarriage because of adultery, but declared that canon law no longer allowed this.²²⁴ It was easy enough to distinguish the dissolution of marriage from repudiation of a betrothal; the latter was perfectly legal and could be done by mutual consent of the parties and their families.²²⁵ But terminating a marriage was more complicated.

Divortium in canonistic language meant either a declaration of nullity (that a valid marriage had never existed) or else permission for a married couple to separate and establish independent households, but not to remarry. Both of these actions could also be differentiated from dissolving a valid marriage, and the Church’s power to do both was not in question. Nonetheless, the law on marital separation was also in flux, since the circumstances that justified separa­tion were by no means universally agreed. Bernard of Pavia, for example, held that the Church should authorize separation only if one party committed adul­tery.²²⁶ Others believed that the Church had broader discretion to grant separa­tions: Argumentum quod religiosi, for example, maintained that a married per­son could rightfully seek a separation for any major failing on the spouses part. Most writers were unwilling to stretch the law this far.²²⁷

²²¹Accursius, Glos. ord. to Dig. 24.2 rubric; gloss to C. 33 q. 2 c. 2 v. non prohibet, in Pembroke 162, fol. 273r: “In Auth. licet matri uel auie § causas [Auth. 8.13 = Nov. 117.9]; lex humana admittet diuorcium propter multas alias causas.”

²²²Gloss to C. 31 q. 1 d.p.c. 7, in Caius 283/676, fol. 189ra: “Johannes Crisostomus super hoc locum Matthei [In Matt, homil. 17.4, in PG 57:259]: Qui uoluit dimitere uxorem, det libellum repudii et dimittat eam,’ [cf. Matt. 5:31; 19:7] exponens ait: �?Moyses permisit eis dare libellum repudii ne sanguinus fundaretur innoxius’; permisit minora ne fient grauiora.”

²²³Alfons M. Stickler, “11 decretista Laurentius Hispanus,” Studia Gratiana 9 (1966) 4θ3-549∙

^22lGlossa Palatina to C. 31 q. 1 c. 9 pr., Trinity O.1o.2, fol. 54vb: “Casus in ueterem testamentum facta fuit a moyse permissio dandi repudii et aliam ducendi uiuente prima. In nouo uero testamento fuit ab apostolo alia permissio de ducenda uxore, �?habeat unus­quisque suam propter fornicationem’ [cf. 1 Cor. 7:2]; in hoc ergo capitulum Crisostomus comparat istas duos permissiones inter se, Mosaycum et apostolicum, et ostendit eos similes esse et dissimiles; et hec sunt similes quia uterque permittit minus malum ut maius uitetur; mosayca adulterium ut uitetur homicidium, apostolica coitum ut uitetur fornicatio.” Cf. Benencasa, Casus to the same passage.

²²⁵Gloss to C. 32 q. 7 c. 1 v. repudium, in Pembroke 162, fol. 270vb: “Id est diuor- tium, nam repudium proprie est inter sponsos, ut ff. de adulteriis, rite nuptiarum § 2 [Dig. 24.2.2.2?].”

²²⁶ BernardofPavia, Summa decretalium 4.20.1, ed. Laspeyres, p. 187.

²²⁷Argumentum quod religiosi to C. 28 q. 1, Pembroke 101, fol. 6orb: “Ar. quod pro

Canonists commonly maintained in this period that separation, but not re­marriage, might be authorized because of physical or spiritual infidelity by the spouse.^{[1432] [1433] Yet the law did not require a husband to leave his wife because of her extramarital affairs.[1434] And under some circumstances, as Bernard of Pavia re­minded his readers, husbands were forbidden to separate from their adulterous spouses—if, for example, a husband had forced his wife into prostitution, or if he himself had been guilty of extramarital sexual adventures.[1435]}

There was general agreement that separation, with or without remarriage, required a formal judgment from an ecclesiastical court.^[1436] Informal separation by mutual consent was not acceptable, and Laurcntius declared that the law presumed those separations lacked reasonable grounds.^[1437] Thomas of Chobham, writing about 1216, also warned couples against attempts to hoodwink the Church’s courts in separation cases and discussed two examples that he appar­ently drew from actual situations.^[1438]

Separation, even when sanctioned by the courts, did not terminate mar­riage, but simply relieved the parties of their obligation to live together and cancelled their right to the marital debt. If the separated couple reconciled, however, marital rights, including sexual ones, were fully restored.^[1439]

A priori separated persons were not allowed to remarry—although Johannes Teutonicus hinted that in exceptional circumstances even this might be per­mitted.^[1440] Parties whose petition for separation was still in litigation were of course barred from remarriage.^[1441] A series of rulings by Alexander III, Clement III, and Innocent III established guidelines for dealing with marriages con­tracted while one party was still bound to a previous spouse.^[1442] A man who sepa­rated from his wife was better advised, some writers said, to remarry bigamously than to commit fornication.^[1443] But after Clement III ruled that a separated wife could reinstate her marriage if her husband committed fornication after their separation, this seemed rather dubious advice.^[1444]

The change in the rules about the forbidden degrees of kinship adopted by the Fourth Lateran Council brought the law on that subject into line with mat­rimonial practice.^[1445] Reducing the radius of the circle of relationship within which marriage was barred meant that after 1215 fewer unions were open to attack on grounds of consanguinity or affinity. While academic canonists con­tinued to treat this complex area of the law in considerable detail, petitions for nullity declarations on these grounds appear only infrequently in the scanty records of marriage litigation that survive from this period.^[1446] Affinity cases also dwindled as the result of the growing disenchantment of canonists with super­vening affinity and their inclination to interpret strictly the law on this matter.²⁴²

The greater emphasis on consent in matrimonial law after Alexander III meant that nullity cases increasingly centered on defects of consent resulting from force and fear, or because one party was under the minimum age for mar­riage, or as a result of incapacity to consent because of a previous valid marriage or religious vows.²⁴³

Early thirteenth-century canonists paid special attention to the complica­tions that arose when a spouse disappeared without a trace, as often happened in war. Roman law had automatically terminated the marriages of prisoners of war and men missing in action, but the canonists rejected this rule.²⁴⁴ Alexander III had established a ten-year waiting period before remarriage,²⁴⁵ but Lucius III ruled that the death of the first husband must be clearly demonstrated be­fore his widow could remarry. If the missing man reappeared, his marriage re­mained in force and his wife, even if she had remarried, must return to him.²⁴⁶ Pope Celestine III shortened the waiting period to seven years. If the missing husband failed to return within that time, his wife might remarry. If her first husband reappeared later, and if the first marriage had been consummated, she must go back to him. If the first marriage was unconsummated, however, she could remain with her new husband.²⁴⁷ Vincentius Hispanus maintained that Ad liberandum, the crusading canon of the Fourth Lateran Council, required persuasive proof of the missing man’s death before remarriage, but his inter-

²⁴²Tancred to 3 Comp. 4.9.3 v. separatis, Caius 28/17, p. 288b, and Vat. Iat 1377, fol 254v: “Nota quod affinitas Superueniens sponsalibus rumpit ea, supra de co qui cog. con- san. uxo. suo, ueniens 1. i [1C0mp. 4.13.3]. Sed non est ita si Superueniat in matri­monio, supra eodem titulo c. i 1. i [1 Comp. 4.13.1]; supra xxxiiii. q. ult., in lectum [C. 34 q. 1 & 2 c. 6]. Vinfccntiusj.”

²⁴³Sefect Cases A. 1, ed. Adams and Donahue, pp. 1-3 (1198 ~ 1204); Dolezalek, Im- breviaturbuch, no. 45, 47, 51, pp. 132-34, 136-37.

²⁴⁴Albertus to 2 Comp. 4.1.3, B.N. lat. 3932, fol. 93rb: “ff. de diuor., uxores [Dig. 24.2.6] contra, ubi dicitur quod cum incertum est uirum captum uiuere, post quinquen­nium expectetur. Solutio: illud secundum leges antiquos, sed authenticum C. de re- pudi., aut hodie [Cod. Auth. 5.17.9] et secundum canones per quos hodie reguntur mat­rimonium tenet, quod hic dictum, ii. q. iii. § hinc colligitur [C. 2 q. 3 d.p.c. 7]; Cxtrafuagantesj titulos de secundis nuptiis [1 Comp. 4.22; 2 Comp. 4.15]; xxxiiii. q. ii. cum per bellicum [C. 34 q. 1 & 2 c. 1]. Sponsa uero triennio expectat spon­sum, C. de repu. 1. ii. [Cod. 5.17.2], et hoc cum sola uoluntate absens est; si uero iusta causa, quamdiu causa illa durat, ff. de sponsa., sepe [Dig. 23.1.17], nisi per absentem ante recessum steterit, ar. 8. de spon. de ili. au. et i. [?]” In addition see above, pp. 201.

²⁴⁵Holtzmann, Decretales ineditae, p. 55, no. 32; also followed by Celestine III; Wal­ther Holtzmann, “La �?Collectio Seguntina' et les decretales de Clement III et de Celes­tin III,” Revue d’histoire ecclesiastique 50 (1955) 438, no. 68(c).

²⁴⁰1 Comp. 4.22.3 = X 4.21.2, JL 15,211.

²⁴⁷Holtzmann, “Collectio Seguntina," RHE 50 (1955) 438, no. 60; see generally, Pfaff, “Kirchliche Eherecht," ρ. 93.

pretation strained the words of the canon, which did not specify the degree of certainty.²⁴⁸ Laurentius Hispanus believed that the putative widow must ac­tively inquire about her missing husband. Ifher investigation produced no evi­dence of his fate, Laurentius held that the wife could remarry.²⁴⁹

Separation of married couples in order to enter religion also troubled can­onists and legislators. While no one denied a couple’s right to take this step, popes during the late twelfth and early thirteenth centuries limited the prac­tice stringently—as the twenty-one decretals on this subject in the title De conversione Coniugatorum of the Liber Extra attest.²⁵⁰ While the canonists in­sisted that couples who wished to separate in order to enter religion must do so before consummating their marriage,^[1447] the decretals themselves show that popes sometimes allowed separation after consummation.^[1448] Repeated insis­tence that both parties must enter religious communities and that neither of them could remain in the world, probably indicates that this condition, too, was breached with some frequency.^[1449] Thomas of Chobham cautioned women to be wary of priests and monks who tried to persuade their husbands to assume the religious habit on their deathbeds. The wife who allowed this, he warned,

²⁴⁸Vincentius to 4 Lat. c. 71 v. certissime cognoscatur, ed. Garcia y Garcia, p. 383.

²⁴⁹Tancred to 1 Comp. 4.22.3 v. uita, Caius 28/17, p. 107b, Admont 22, fol. 67r: “Tunc enim constat ei de morte uiri ex quo per quinquennium expectauit, ut ff. de diuor, uxores [Dig. 24.2.6]. Sed contra C. de repudi. aut. hodie [Auth. Cod. 5.17.7] et infra de spon., in prescncia [2 Comp. 4.1.3]. Sed quid faciet si nec per magistrum militum ut ibidem dicitur Certifieari poterit de morte uiri, sicut sepe accidit in magnis preliis et precipue Sarracenorum et Christianorum, ubi multi pereunt, de quibus nichil nouerunt hii qui ducebant exercitum? Mittat ad uicinas Ciuitates si potest; alias contrahat. la(urentius).”

²⁵⁰The authors of the decretals in X 3.32 are:

would find herself obliged to practice perpetual continence after her husband’s death, a consequence that clerical recruiters might not make clear.^[1450]

Impotence and Frigidity

The canonists were fascinated by the legal problems that sexual incapacity created. So, too, were the artists who illuminated canonistic texts (see Pl. 14). This topic raised basic questions both about the role of sexual relations in mar­riage and also about the scope of papal authority over marriage. One issue concerned the pope’s power to dissolve unconsummated unions and the basis of that power. Earlier Bolognese decretists, as we have seen, considered the proposition that the pope could dissolve an unconsummated marriage almost self evident, since according to Gratian such a marriage is imperfect and incom­plete. Once Alexander III had rested matrimonial validity squarely on consent, however, the legal significance of inability to consummate a marriage became problematical. Accordingly canonists between 1190 and 1234 were wary of as­cribing to the pope a power to end unconsummated unions. Several writers, among them Laurentius Hispanus and Tancred, denied that the pontiff had any such power and maintained that decretals claiming to exercise this right were in error.^[1451] Alanus and Tancred were equally skeptical about terminating marriages because of senile impotence. They argued that elderly men who could not consummate their marriages remained validly married nonetheless. Tancred also observed that senile impotence might well prove intermittent and able to be cured by proper diet and medication.^[1452] Tancred held that vaginal con­striction, however, furnished adequate grounds for declaring a marriage null. If the condition later disappeared, moreover, the prior marriage need not be reinstated.^[1453]

Other writers saw things differently. Alanus maintained that the pope had absolute power to dissolve unconsummated marriages because the binding power of these unions rested on the constitution of the Church, not on divine or natural law. Hence the popes power to dissolve these marriages was not con­strained by higher authority.²⁵⁸ John of Tynemouth simply declared that natural frigidity rendered a marriage dissoluble, as did emasculation; however he pro­posed no theory to account for his conclusion.²⁵⁹ Richardus Anglicus presented an elaborate analysis of various types of impotence and concluded that sexual incapacity nullified marriage only if the condition was permanent and preceded the exchange of consent. Like John of Tynemouth, however, Richardus ad­vanced no theory to account for the Church’s power to dissolve these unions.²⁶⁰ Johannes Teutonicus adopted much of Richardus s analysis and noted that opin­ions differed as to whether a marriage could be dissolved on these grounds. He believed that this was permissible, and that the parties could remarry, although he considered it better if they did not.²⁶¹

Writers who held that impotence justified dissolving marriages usually cau­tioned their readers to be careful with these cases, since divorcing one wife often seemed to restore a man’s sexual capacity, whereupon he married again. When a divorce was granted on grounds of sexual incapacity, therefore, the Caius glosses maintained that the judge should deny the man permission to take another wife.²⁶² The Caius glosses also recognized, however, that men

²⁵⁸Weigand, “Unauflosigkeit, ” pp. 54-55, 62.

²⁵⁹GIoss to C. 32 q. 7 c. 27, Caius 283/676, fol. 195vb: “In hoc articulo Jofannes dej Tifnmuthj fauet Sententie Jofannisj Faufcntinij et hic habet rationem. Cum enim frigidi­tas que est impossibilitas de iure, tale dissoluat matrimonium, multo forcius truncatio membrorum quod est impossibilitas de facto.’

²⁶⁰In his Distinctiones decretorum to C. 33 q. 1 pr. (B.L. Royal 10.C.Ill, fol. 39v), Richardus Anglicus distinguishes three fundamental types of�?impossibilitas coeundi’: (1) �?animo et corpore’, (2) �?anime tantum’, and (3) �?corpore tantum’. The first type of impo­tence, he writes, �?prouenit ratione etatis, ut in pueris; hec dirimit contractum, ut xxx. q. iiii. his qui neque [?]’. The second type occurs �?ut in furiosis et energumenis; hic dirimit contractum, supra prox.’ Richardus subdivides the third type into two categories: �?acci­dentalis’ and �?naturalis’. He disposes briefly of natural (i.e., congenital) bodily impo­tence, observing �?Hec impedit et dirimit matrimonium, ut hic c. i, ii.’ He subdivides accidental bodily impotence into two sub-categories, �?ex sectione’ and �?ex maleficio’. Under the sub-category �?ex sectione’ Richardus distinguishes between cutting which preceded marriage and cutting subsequent to marriage and comments: �?Si precedit, im­pedit et dirimit matrimonium, Extra de frig. Quod sedem in fin. [1 Comp. 4.16.3]. Si sequitur, non dirimit, ut supra prox Q. vii. ille qui [C. 32 q. 7 c. 7]’. As for accidental bodily impotence that results �?ex maleficio’, Richardus again distinguishes between situations in which the condition commenced before marriage and those in which the condition began after marriage. Accidental bodily impotence �?ex maleficio’ that pro­ceeded marriage, he says, is either temporary or permanent: �?Si temporale est, non di­rimit, i.e. Si per sortiarias [C. 33 q. 1 c. 4]. Si perpetua est, nihil agitur.’ But if accidental bodily impotence �?ex maleficio’ followed marriage, then �?non fiet diuortium’.

^2βl Glos. ord. to C. 32 q. 7 c. 25 v. ex secti; C. 33 q. 1 pr. v. quod autem; and C. 33 q. 1 c. 2 v. naturaliter.

²⁶²Gloss to C. 33 q. 1 pr., Caius 283/676, fol. 196rb: “Queritur si uiro ob frigiditate ab uxore sua separato uxor alii nupserit, et uiro postea restituatur facilitas coeundi, quid fiet, quia eius iuramento iterum non creditur, sed nec licentiam dabit ei ecclesia aliam might be impotent only with one particular woman, but might be perfectly ca­pable of coitus with others. This is the result of sorcery, not congenital impo­tence, he declared, and remarriage could be authorized because the man would be able to consummate his marriage to another woman.^[1454]

Tancred discussed with evident relish the case of a woman whose first mar­riage was dissolved on the grounds that she could not consummate it. She then remarried and had sex successfully with her second husband. Should she return to her first husband so that he could try once more to consummate their mar­riage? Tancred believed that she should, but added that if the attempt were unsuccessful she ought to go back to her second husband. But how many times could this process be repeated? Tancred thought that the first husband should be limited to three attempts to consummate the marriage with his ex-wife. Johannes Teutonicus, however, argued against setting any limit at all and was prepared to see the wife shuttle back and forth between her first and second husbands in perpetuity.^[1455]

Mixed Marriages

The Anglo-Norman canonists advanced some interesting speculations about marriages between Christians and non-Christians. John of Tynemouth dealt with the problem of a pagan wife who deserted her Christian husband because of religious antagonism, but who subsequently converted to Christianity her­self. Could she then demand reinstatement of the marriage that she had been instrumental in breaking off? Huguccio discussed this situation and concluded that she could do so. John disagreed; he argued by analogy that since a woman dismissed by her husband for adultery had no right to reinstate her prior mar­riage, even after she had done penance, the desertion of a Christian husband by a non-Christian wife must also shatter the nuptial bond.²⁶⁵ The Caius glosses quoted an unnamed Anglo-Norman commentator who held that baptism itself broke the marriage bond, although the bond could be mended, as it were, if the convert had intercourse with the non-Christian spouse after baptism.²⁶⁶

[Auth. 4.1.6 = Nov. 22.6], et potest utroque eorum nubere alteri, ut xxxiii. q. i. si per Sorciarias [c. 4], quia potest esse aliquis maleficiatus cum una muliere et non cum alia, sicut tales quando(que) uidi et hoc est uerum quando impedimentum illud precessit matrimonium. Si uero post contractum matrimonium Superueniat maleficium uel ali­quid aliud impedimentum, non debet separari matrimonium prius contractum, ut supra xxxiii. di. illi qui sani [?]. t(ancredus).” Further, Tancrcd to 3 Comp. 4.11. un. v. pre- textu fornicationis, Caius 28/17, p. 290a, and Vat. lat. 1377, fol. 255v: “Ad hoc dicas quod sicut ex sequenti euento apparet matrimonium, ut dicitur in fine, sic ex sequenti euentu apparet retro fuisse factam iniuriam priori uiro, sic ff. de capti, et postlimi. re- uersis, in bello § 1 [Dig. 49.15.12.1] et ff. ad macedoni. 1. i. [Dig. 14.6.1]. Sed quid si post primum coitum cum secundo reserate sunt sere mulieris, prior ceperit eam et dicat se nolle separari cum adhuc sit apta amplexibus suis? Dico quod ei est reddenda et si non inuenit eam aptam, est secundo uiro reddenda; et post iterum in secundo coitu re­petit eam prior ut experiatur an sit apta ei, et si non sit ei apta, iterum restituatur se­cundo et sic in infinitum. Jo(Iiannes). Ego dico hanc infinitatem uitandam, ut ff. de con­trahen. empt., rutilia polia [Dig. 18.1.69]. Undo dico eam restituendam priori uiro ad plus tribus uicibus, quia tantum due Sententie post primam sunt ferende, quia non licet tertio appellare, ut ii. q. vi. Si quis in quacumque [c. 41?]. t(ancredus).” Cf. also Ber­nard of Parma, Glos. ord. to X 4.15.6 v. fornicario modo.

^ae5Gloss to C. 28 q. 2 c. 2, Caius 283/676, fol. 185ra: “Queritur utrum si mulier que relinquit uirum suum ob odium fidei christiane, postea post annum uel plus uel minus Conuertatur ad fidem possit petere uirum suum? Hug(uccio) dicit etiam, ar. ff. de re. uen. quando., Celsus [Dig. 18.5.1] et 61 secundum his omnibus [?] in fi. Secundum Jo(hannem de) ti(nemuth) petere non potest quia maritus uxorem propter adulterium dimissam, peracta penitentia, repetere non potest, ar. 27 q. 2 agathosa [c. 21] et pre- terea ruptum fuit uinculum matrimonii inter eos.”

²⁶⁶Gloss to C. 28 q. 1 c. 9, Caius 283/676, fol. 184rb: “In arbitrio uiri fidelis est (cum) uxore infideli cohabitare, (seu) dimittere uel non. Si dimittit, non tenetur ei coitus red­dere; num ergo in eius arbitrio est utrum uinculum mutue seruitutis rumpitur an non? Respondeo, non est in eius uoluntate utrum obligetur an non, C. de contrah. empt., in uendentis, etc. [Cod. 4.38.13], quia uinculum istud rumpitur in instanti quo ille bap-

Innocent III dealt with the law on interfaith marriages in two important de­cretals. In Quanto te (1199), Innocent ruled that marriage between a Christian convert and his infidel wife might be dissolved, but that if one party to a Chris­tian marriage renounced Christianity, the marriage nonetheless remained in force. This ruling, which contradicted a decretal of Celestine III, was appar­ently designed to prevent men who wished to rid themselves of their wives from fraudulently simulating a reversion to paganism or a lapse into heresy in order to accomplish their purpose.^{[1456] [1457] Two years later in Gaudemus (1201), Inno­cent affirmed that non-Christian marriages were sacramental. He added that infidels who married within the degrees of relationship forbidden by the Church were not, on that account, to be separated from their wives—a clear contradic­tion of the position taken by the Caius gloss.[1458] Gaudemus also required polygy- nous pagan men to become monogamous upon conversion. Previously divorced and remarried converts were left free to choose which mate they preferred to live with after baptism, a position at odds with the teaching of other contempo­rary writers.[1459]}

Fornication

It has been maintained that Western theologians did not clearly take the posi­tion that sexual relations between unmarried men and women constituted a deadly sin until the late twelfth century.^[1460] If this is true, theologians lagged well behind canonists in the development of their doctrine about nonmarital sex. As we have already seen, Gratian and the early decretists made it clear that any sort of extramarital use of the sex organs constituted a canonical offense. The canonists of the late twelfth and early thirteenth centuries built upon that premise.^[1461]

Johannes Teutonicus observed almost wistfully that nearly everyone com­mits fornication, and people are more prone to this offense than to any other failing.^[1462] For this reason, Johannes continued, canon law punishes fornication less severely than other offenses.^[1463] Moralists, however, considered fornication a powerful subverter of Christian morality, and Thomas of Chobham termed it the master builder of the Devil’s temple.^[1464]

Canonists and moral writers of this period often described sexual relations between two unmarried persons as “simple fornication”; they occasionally used “compound fornication” to designate intercourse between a married person and an unmarried partner.^[1465] Simple fornication, the canonists maintained, was a canonical crime, even though it was not an offense in civil law, but this distinc­tion was not widely understood or accepted among the laity. The synod of Salis­bury, for example, urged the clergy to drive home the message that fornication is a mortal sin and commanded them to repeat this teaching in confession and in sermons, particularly on solemn feast days. Priests who failed to do this might themselves be punished as fornicators.^[1466] Writers on penance often reiterated this message, since their readers routinely dealt with ill-informed penitents who refused to believe that so commonplace an activity could possibly be a se­rious sin.^[1467] Those who maintained that fornication is either a minor transgres­sion or no sin at all, according to Thomas of Chobham, were guilty of a far graver sin than fornication itself.^[1468] Penance for fornication, Thomas added, should vary according to the circumstances—the confessor ought to take into account whether the offense was secret or notorious, continuous or intermit­tent, with one partner or with many.^[1469]

Circumstances, however, could sometimes make fornication no sin at all: a man who mistakenly slept with a woman thinking that she was his wife, for ex­ample, was held blameless. Carlo di Tocco argued in addition that sexual rela­tions with a concubine or a harlot did not qualify as fornication?⁸⁰ The Caius glosses also noted that a woman whose husband had deserted her did no wrong if she had sex with another man.²⁸¹

Sexual relations, whether licit or illicit, meant that the partners became one flesh.²⁸² Hence some canonists concluded that all sexual relations, even if il­legal, created affinity, although Johannes Teutonicus denied this.²⁸³ The doc­trine that fornication created affinity furnished the basis for rulings (such as In­nocent Ill’s decretal Ex Iitterisj that prohibited marriage between the fornicator and close relatives of his partner in crime.²⁸⁴

Innocent III also addressed the complications that resulted from fornication

²⁸⁰Gloss to C. 29 q. 2 c. 4 v. Sdeverat, Caius 283/676, fol. 186ra: “Queritur de talium coitu num fornicatus sit? Respondeo etiam quoad actum, non quoad reatum, 34 causa in Iectum [C. 34 q. 1 & 2 c. 6.” Carlo di Tocco, gloss to Leg. Lomb. 1.31.1 v. si puella and de fornicatione, fol. 83rb-va.

²⁸¹Gloss to c. 27 q. 2 c. 21 v. quodam, Caius 283/676, fol. 181vb: “Bene dicit �?quodam’, quia si post discessum uiri fornicata esset, non imputaretur ei ubi non posset uirum repetere, quia uir uideretur prestitisse causa eius delicti, infra eodem, Si tu ab­stines [C. 27 q. 2 c. 24], in extra de diuorcio propter adulterium, significasti, et capitula sequenti [1 Comp. 4.20.4-5].”

²⁸²Gloss to C. 32 q. 4 c. 12 v. fornicator, Caius 283/676, fol. 193ra: “Ar. fornicarium et fornicariam unam carnem effici, quod uerum est, sed aliter quam uirum et uxorem.”

²⁸³GZos. ord. to C. 32 q. 4 c. 12 v. erunt and C. 35 q. 2 & 3 c. 8 v. concubitu-, also gloss to C. 32 q. 4 c. 12 v. carne una, Caius 283/676, fol. 193ra: “Per coitum fornicarium contrahitur affinitas, sed non ualet quia hic �?in una came’ id est in unica carnis commix­tione feda non est; contra 34 q. 3 De incestu [c. 8], Nec eam [c. 10].” Glossa Palatina to C. 35 q. 2 & 3 c. 11 v. in naturalibus-. “Ar. affinitatem contrahi fornicario coitu sicut et legitime, ar. supra prox. c. nec eam [C. 34 q. 2 & 3 c. 10]. ” Tancred to 1 Comp. 4.5.1 pr., Caius 28/17, P- iota: “Quod si ex fornicario coitu huius(modi} proles sit suscepta, num­quid idem est impedimentum? Notauit Iaurentius quod non est impedimentum. Ego contra per sequentem cap. et quia ita contrahitur affinitas per fornicarium coitum sicut per legitimum, extra iii. de eo qui cognouit consanguineam uxoris, discretionem [3 Comp. 4.9.1]. t(ancredus}." Tancred to 3 Comp. 4.9.1 v. affinitas, Caius 28/17, P- 288b, and Vat. lat. 1377, fol. 254v: “Hic reprobatur opinio illorum qui dicunt quod per for­nicarium coitum non contrahitur affinitas, sic infra t. prox, tue fraternitas [3 Comp. 4.10.3 — X 4.13.10], ar. supra xxx(i)v. q. iii. nec eam [c. 10]; ar. contra ff. de gradibus, non facile § sciendum et § efficies [Dig. 38.10.4]. Sed est uerum per talem coitum affini­tatem contrahi. t(ancredus}.” But see Vincentius to 3 Comp. 4.9.1 v. affinitas, B.N. lat. 14,611, fol. 120rb: “Affinitas ergo per fornicarium coitum contrahitur, quod concedit Hug(uccio), sed secundum hoc consanguinea matrimonium in secundo gradu non potest contrahere cum eo qui cognouit consanguineam meam, quod non credo.” On the other hand, see Glos. ord. to C. 35 q. 1 pr.

²⁸⁴3 Comp. 4.9.3 = X 413-8 (Po. 1942); also 1 Comp. 4.13.1 = X 4.13.1, from the Decretum Vermeriense c. 11 (758 ~ 768?), in MGH, Capitularia 1:41; Burchard, De­cretum 19.5, in PL 140:966. Alexander IH and Celestine III had previously dealt with some aspects of this situation.

by a betrothed person. In Quemadmodum, Innocent ruled that fornication by a betrothed man with a close relative of his fiancee prior to the time of their be­trothal did not bar marriage between the two principals, but that the same of­fense committed after betrothal would do so.²⁸⁵ Quemadmodum suggests that legislation on this point aimed to discourage intrafamilial sexual rivalries.

The major decretal collections of the period showed that many contempo­raries found Gratians treatment of fornication unsatisfactory. Bernard of Pavia not only devoted an entire title of his Breviarium to adultery and fornication, but he also drew five of the six chapters in that title from sources that had been available to Gratian.²⁸⁶ Raymond of Penafort incorporated all of the material in Bernard’s title on fornication into the Liber Extra, although he assigned one of Bernard’s chapters to a different title.^[1470]

Bernard of Pavia, like other canonists of his generation, equated fornication with the Roman delict of stuprum. The identification was only half-true—but this was not the first (and certainly not the last) time that historical half-truths, or even downright fables, furnished foundations for legal doctrines.^[1471] If stu-

²⁸⁵ 3 Comp. 2.15.11 = X 2.24.25 (Po 3168); Tancred to 1 Comp. 4.1.9 v. filios et filias, Caius 28/17, p. 87b, Admont 22, fol. 54v: “Hic queritur de eo qui iurauit ducere unam de filiabus Lotharii et postmodum Stuprauit unam ex eis; queritur an precise illam ducere teneatur, cum aliam ducere non possit? Ar. quod sic, ff. de contrahen. emp., si in emptione § si emptor [Dig. 18.1.34.3], ff∙ de solutio., Stichum, an pamphilium [Dig. 46.3.95 pr.]; preterea ipse Secoartauit, ff. siquiscau., 1. iii [Dig. 2.11.3], ^xv∙ Q∙ >∙ ^s' quis insaniens [c. 12]; immo uidetur quod statim sit matrimonium, ex quo eam cognouit tan- quam desponsatione precedente, ar. infra de eo qui duxit in matrimonium quam prius polluit, Significauit [1 Comp. 4.7.2 = X 4.7.2], s.e. de illis [1 Comp. 4.1.4 = X 4.1.5]; ar. contra ff. de ritu nup., generandi [Dig. 23.2.34] § si quis caut., sed et si quis rei [Dig. 2.11.4], ff- de usur., quociens [Dig. 22.1?] ar. contra. Solutio: Dicunt quidam eum non compellendum quia inuite nup., etc.; xxxi. q. ii. § i et c. i; ego contra, quia ut fiat uolens compelletur, ar. i. de eo qui duxit in matrimonium quam prius polluit [1 Comp. 4.7], causaxxiii q. vi. uides [c. 3]. lau(rentius).’’

²⁸⁶1 Comp. 5.13. It contains:

prum meant any sexual congress between unmarried persons, then it was pos­sible to maintain that fornication had from time out of mind been contrary both to civil law and to the law of the Church.^[1472]

The law, according to Richardus Anglicus, imposed excommunication on for­nicators in order to persuade the peccant parties to marry one another.^[1473] If they would not, or could not, marry, they must renounce further relations with one another and do penance for their misdeeds. If one party agreed to reform and the other refused, the repentant one was required to denounce his partner as part of his own rehabilitation.^[1474] Those whose sexual failings were public knowl­edge might be pressured through other sanctions to mend their wicked ways. Notorious fornicators were barred from preferring criminal charges against others, although according to some writers they were still entitled to bring civil actions to protect their own property.^[1475] Civil law also penalized unmarried women who were guilty of sexual indiscretions.^[1476] In principle, neither civil nor canon law courts would enforce contracts that required one party to give sexual favors to the other.²⁹⁴ Had this rule been followed in practice, then concubinage agreements, such as the one between James the Conqueror and Countess Au- rembaix, would have resulted in the union being classed as a marriage.²⁸⁵

Fornication also created problems of ecclesiastical status, especially for women. The Glossa Palatina carefully distinguished various situations: a woman whose hymen ruptured during masturbation or foreplay still counted as a virgin for ecclesiastical purposes. But if her hymen were broken as the result of pene­tration, however slight, by a penis, she irrevocably lost her virgin status and could never become a consecrated virgin or a choir nun, although she could still take the veil as a lay sister.²⁹⁶

The perils of extramarital sex were not limited to legal penalties. Physicians cautioned their patients to abstain from nonmarital sex, warning that it would expose them to numerous diseases and afflictions, especially leprosy.²⁹⁷

Adultery

Adultery, like fornication, could be committed in the mind, as Johannes Teu­tonicus noted, but both were primarily crimes against the body.²⁹⁸ Adulterers of either sex sinned both against their own bodies and the bodies of their spouses.²⁹⁹

²⁹⁴Tancred to ι Comp. 4.4.1 v. si promiserit, Caius 28/17, P- 93b: “Hee conditio tur­pis est si de fornicario coitu Intelligatur, et ideo ea abiecta teneat simpliciter sponsalia, ut infra de condi, appo. c. i. l.e. [1 Comp. 4.5.1 = X 4.5.1], unde si postea rem secum habuit, confirmatur matrimonium, ar. supra de spon., de illis [1 Comp. 4.1.4 = X 4.5.3]. Si de coitu legitimo intellecta fuit, multo forcius per sequentem coitum matrimonium confirmatur; potius enim est hortacio quam odium, ut sit simile ff. de tutel., muto [Dig. 26.1.6]. ala(nus). Ego credo quod istud si non tenetur condicionaliter sed tentatiue notat enim causam, quia in omni matrimonio hec causa, scilicet carnalis copula, debet inter- uenire, saltem quo ad propositum, ut xxvii. q. ii. § cum ergo [d.p.c. 2] uerbo �?beata maria’ et expone si i. quia promiserit etc., simile si habeatur; supra de elect., significasti [1 Comp. 1.4.2 = X 1.6.4], ff- quando dies legat, cedat, (si) [MS quando] ticio, § quedam [Dig. 36.2.22.1]. t(ancredus).”

²⁹⁵See above, p. 370.

^2aeGlossa Palatina to C. 32 q. 5 c. 9 v. carne non utitur, Trinity 0.10.2, fol. 58ra, Salzburg, fbl. 202r: “Ar. quod puella que corrupta est, si talis etatis sit que non possit libidinose agere, si cum manu uel palo confracta esset, non impeditur ut inter uirgines consecratur; secus si membro uirili licet inuita, etiam si talis sit qui Spermatizare non possit.”

²⁹⁷Thomasset, “Representation,” pp. 8-9.

²⁹⁸GZos. ord. to C. 32 q. 5 c. 13 v. studiosa-, cf. Azo, Summa super Codicem 9.9, Corpus glossatorum juris civilis, vol. 2 (Pavia: Bernardinus et Ambrosius fratres de Rou- ellis, 1506; repr. Turin: Bottega d’Erasmo, 1966), p. 329.

²⁹⁹GZos. ord. to C. 32 q. 1 c. 4 v. si quis and C. 32 q. 7 c. 6 v. causam fornicationis; Ecce vicit leo to C. 32 q. 1 c. 3 v. queeumque peccata, Trinity O.5.17, fol. 125vb: “Scil­icet alia a fornicatione, quia qui fornicatur in corpus suum peccat, id est in uxorem cum qua est unum corpus.” Likewise the gloss to the same passage in Caius 283/676, fol. The adulterer is not much different from a harlot, declared Ecce vicit leo, and the two were often compared, usually to the harlots advantage.^{[1477] [1478]} The crime of adultery is more detestable when committed by a woman than when com­mitted by a man, added Johannes Teutonicus, whose sentiment reflected the common belief in the peculiar sexual rapacity of women.^[1479] Besides, as Benen- casa of Arezzo (d. 1206) noted in his Casus on the Decretum, it is much more common for a man to accuse his wife of adultery than for a woman to accuse her husband of this crime. Benencasa added that other reasons might account for this, namely feminine reluctance to air sordid charges against their husbands, the greater care that women took to conceal their love affairs, and the fact that pregnancy often made a womans adultery easier to prove than a mans.^[1480] Com­mon belief held that a wife’s adultery was often due to her husband’s sexual shortcomings, which may also have made men reluctant to press charges.^[1481]

Although legal writers continued to complain that their sources used the terms adultery, fornication, and stuprum loosely and inconsistently, they them­selves usually distinguished adultery from other sex offenses with some preci­sion.^[1482] Canonists by 1190 had largely abandoned the earlier practice of using “adultery” to designate any type of sexual misdemeanor and reserved the term to describe sexual intercourse by a married person with anyone other than the spouse.^[1483] Although, strictly speaking, adultery was a married person’s crime, Johannes Teutonicus was willing to stretch the concept of adultery sufficiently to include the marriage of a person bound by a vow of chastity.³⁰⁶ The definition of adultery raised further questions: did a woman whose marriage had not been consummated commit adultery if she had sex with a man other than her hus­band?³⁰⁷ Did a party to an invalid marriage commit adultery by sleeping with someone else?³⁰⁸ Was it adultery for a woman who was legally separated from her husband to have an affair with another man?³⁰⁹ What if the husband com­mitted sodomy with another man—was that adultery?³¹⁰ Various writers ad­dressed each of these questions.

Yet another aspect of adultery that attracted canonistic attention during this period was malice. Adultery can only be committed if the offender knowingly has sex with someone other than the lawful spouse.³¹¹ Thus a married man in an extramarital affair might be guilty of adultery, while his girlfriend committed only simple fornication if she was unaware that her lover was married.³¹²

Other circumstances might mitigate the seriousness of the deed. Some can­onists considered adultery an occupational hazard for women employed in tav­erns and therefore held that a husband who allowed his wife to work as a bar­maid could not charge her with adultery if she succumbed to the temptations associated with her calling.³¹³ Furthermore, a married woman who was sexually assaulted by force or by guile was also immune from adultery charges.³¹⁴ A hy­pothetical question often used by law professors when they discussed mitigat­ing circumstances in adultery cases involved a gravely ill man whose physician would treat him only on condition that the patient allow the physician to sleep with the patients wife. The invalid reluctantly agreed, the deed was done, the patient treated, and the illness cured. What should happen in this case, the law teachers asked, if the recovered husband then accused his wife of committing adultery? The question provided ample scope for examining the ramifications

^30βGZos. ord. to C. 27 q. 1 c. 41 v. adulteria and C. 32 q. 5 c. 15 v. qui prefer suam.

³⁰⁷Tancred to 3 Comp. 4.9.1 v. adulterii, Caius 28/17, P∙ 288b, and Vat. fat. 1377, fol. 254v: “Cum primus sit ei maritus et non secundus et est hoc notabile quid committitur adulterium cum sponsa alterius de presenti, licet non sit cognita a uiro suo. t(ancredus).”

³⁰⁸Tancred to 3 Comp. 4.8.1 v. videbatur, Caius 28/17, p. 288a and Vat. lat. 1377, fol. 254r: “Quo ad opinionem omnium ita quod quamuis in ueritate nullum esset adulterium quia nullum erat matrimonium, tamen poterat sicut uxori accursari, ut ff. ad leg. Iuliam de adulter. [MS C; aquil.] si uxor [Dig. 48.5.14(13)]. t/ancredus).”

³⁰⁹Glossa Palatina to C. 27 q. 2 pr., Trinity 0.10.2, fol. 45rb: “Ibi non est adulter, separatus enim maritus est, licet aliam ducit, uel hoc intellige quo ad possessionem ciuilem qua quis possidet uxorem, nam animo non corpore quis amittit possessionem, ff. de acq. pos. 1. i. [Dig. 41.2.1].”

³¹⁰Anonymous gloss on Glos. ord. to C. 32 q. 7 c. 13 v. Sodomitarum, in Vat. Borgh. lat. 370, fol. 277vb: “Adde hanc sententiam dicunt hu. et lau. esse ueram... scilicet adulter sodomita. Nonenimpropteraliapotestdimittisecuundumhoc....”

³¹¹Johannes Teutonicus, Glos. ord. to C. 32 q- 5 c. 1 v. adulterari.

³¹²Johannes Teutonicus, Glos. ord. to C. 32 q. 5 c. 4 v. unus admisit and C. 34 q. 2 c. 6 v. in lectum.

³¹³Bernard of Pavia, Summa decretalium 5.13.10, ed. Laspeyres, p. 230.

³¹⁴Fransen, “Questiones (IV),” no. Bb.98, Traditio 20 (1964) 502. of adultery law and distinguishing the shades and degrees of guilt assigned to the parties.³¹⁵

There was general agreement that adultery was a serious crime and that it often led to further crimes.³¹⁶ The canonists stressed that although folklaw might permit a husband to slay his wife if he discovered her in bed with another man, canon law absolutely denied him this right.³¹⁷ Thomas of Chobham as­serted, on the basis of John 8:3-11, that Jesus himself had abolished the death penalty for adultery.³¹⁸ Johannes Teutonicus even claimed that it was a greater offense for a man to kill his adulterous wife than to kill his mother.³¹⁹ Moreover, he added, even the old law that permitted husbands to kill their unfaithful wives penalized the husband by depriving him of his wife’s dowry.³²⁰ But de­spite the protests of canonists, customary practice usually held husbands blame­less in these situations.³²¹

While the canonists forbade husbands to take revenge on their faithless wives, their legal system provided other remedies, both civil and criminal, for the offense.³²² In addition to the standard canonical penalties—deposition of adulterous clerics, excommunication of adulterous laypersons, and separation on grounds of adultery³²³—Johannes Teutonicus noted that it was usual to mete out other punishments, such as shaving the heads of adulterous women, parad­ing them ignominiously with torn clothes through public places, and whipping them publicly (this last was administered by civil, not ecclesiastical, authori­ties).³²⁴ Beyond this, the aggrieved husband had the right to expel his wife from

³¹⁵Johanncs Teutonicus, Glos. ord. to C. 32 q. 7 e. 23 v. si se continere; Fransen, “Questiones (III),” no. 25, Traditio 19 (1963) 523.

³¹⁶Bernard of Pavia, Summa decretalium 1.27.3, ed- Laspeyres, p. 22; Johannes Teu­tonicus, Glos. ord. to C. 32 q. 7 c. 16 v. grauius; Azo, Summa to Cod. 9.9; Thomas of Chobham, Summa 7.2.9.1, cd. Broomfleld, pp. 357-58.

³¹⁷GZos. ord. to C. 33 q. 2 c. 6 v. liceat; Argumentum quod religiosi to C. 33 q. 2, Pembroke 101, fol. 6ovc: “Ar. quod non sit reus homicidii qui deprehensam in adulterio uxorem occidit, ut c. Interfectores [ c. 5] et c. Quicumque [c. 6] et Admonere [c. 8], uer. sine causa mortis. Ar. contra c. Inter hec [c. 7] et c. Si qui [c. 9]. Ex eodem collige quod in his que sunt de genere criminum sola secularis legis permissio non excusat a culpa, ut in usuris; secus si hec et lex diuina permittit in legis ministris maxime, ut supra c. xxiii. q. v. Sunt quedam [e. 39] et c. Rex [c. 40] et c. Si homicidium [c. 41] et c. Sunt homines [c. 42].” Cf. Glos. ord. to Dig. 4.2.7 v. quamquam adulter.

³¹⁸ThomasofChobham, Summa 7.2.9.3, cd. Broomfield, p. 362.

³¹⁹GZos. ord. to C. 33 q. 2 c. 8 v. penitentia.

³²⁰Glos. ord. to C. 33 q. 2 c. 6 v. liceat.

³²¹E.g., Elfuero de Estella segun el manuscrito g44 de la Biblioteca del Palacio de Madrid, 51, ed. Gustav Holmcr, Leges hispanicae medii aevi, vol. 10 (Karlshamm: E. G. Johansson, 1963), p. 51.

³²²BernardofPavia, Summa decretalium 5.13.9, ed. Laspeyres, p. 230.

³²³BernardofPavia, Summa decretalium 5.13.6, ed. Laspeyres, p. 229.

³²⁴GZos. ord. to C. 32 q. 1 c. 5 v. et calvatas; Thomas of Chobham, Summa 7.2.11, ed. Broomfield, p. 368.

the matrimonial home and to keep her dowry.³²³ Neither party could remarry during the lifetime of the other, although after separation the innocent party could enter a religious community, with or without permission of the other.^{[1484] [1485]}

All of these provisions operated only if the infidelity became known to the innocent party. When the spouse remained ignorant of the affair, adultery was a matter for the confessional, not the courts, and moralists cautioned confessors to assign penances in such a fashion that the spouse would not become aware of the transgression. The public adulterer, on the other hand, could be punished publicly if he refused to abandon the adulterous liaison. In extreme cases he might be barred from communion so long as his legal spouse lived.^[1486]

Canonical doctrine concerning the marriage of couples guilty of adultery changed markedly in the decades following 1190. While the early decretists, notably IIuguccio, had held that these couples are permanently barred from marrying each other, even after the death of their earlier wives or husbands, Bernard of Pavia characterized this teaching as old-fashioned and declared that nowadays such marriages are allowed. Johannes Teutonicus also rejected the earlier teaching, while other writers distinguished between the consequences of notorious adultery (following which marriage was forbidden) and secret adul­tery (following which marriage was allowed).^[1487]

Prostitutes, Pimps, and Panders

Harlots, Accursius declared, are not worth the law’s notice; nonetheless both civilians and canonists paid considerable attention to prostitution and its social consequences.^[1488] Canonists of this period, like their predecessors, identified prostitution with public sexual promiscuity.^[1489] Authorities disagreed, however, on the fine points of definition: just how many lovers must a woman have had before the law classed her as a whore? Johannes Teutonicus declared that she must have slept with “more than a few” men and suggested that this could mean a minimum of 23,000! Johannes did not take this figure altogether seri­ously, however, for he suggested elsewhere that sixty, or possibly even forty, lovers qualified a woman as a prostitute. Even these figures were much higher than those in some Spanish Fueros, which suggested that a woman who had five or more lovers was legally a prostitute. Thomas of Chobham argued that a woman who is secretly promiscuous or who engages only in long-term liaisons with a number of men should not be classed as a harlot. Accursius added that accepting money or other consideration is not an essential element of prostitu­tion, even though that was normal practice.^[1490]

Prostitution, like other illicit sexual activities, was condemned as an offense against natural law.^[1491] Moreover a prostitute who had intercourse with any man who came along ran the risk of commiting adultery or incest or sleeping with a monk, which made her calling even more despicable.^[1492]

Despite this, the Church rarely took vigorous measures to suppress prostitu­tion. Thomas of Chobham argued that toleration was necessary because the people of his generation were exceptionally prone to sexual excess. Besides, he continued, referring to the classical Augustinian rationale, if prostitution were suppressed even worse evils would arise—among them murders and sexual perversion.^{[1493] [1494] The known incidence of murder and buggery in such thirteenth­century cities as Paris and Oxford undermines this rationalization, however, since prostitution flourished in both cities, together with a burgeoning crime rate.}

Jacques de Vitry, writing in the first quarter of the thirteenth century, penned a lively description of Parisian prostitutes in his day. Strumpets were everywhere in the city, Jacques complained, soliciting passing clerics to pa­tronize their brothels and crying out “Sodomite!” after those who chose not to sample their delights. Both a brothel and a school might occupy the same house, he continued, with the master giving lessons above, while the bawds entertained their clients below. Whores and pimps quarreled on one floor, while scholars disputed fine points of law and philosophy on the other.³³⁵ An anonymous preacher described Parisian streetwalkers who strutted along the city’s main thoroughfares, displaying their attractions and crying out, “Look at me! Look at me! Who would like to straddle a body like this!”^[1495] With their bouncing curls, gold jewelry, and strings of pearls, the ladies of the street not only advertised their trade but also, as moralists complained, set a flashy stan­dard of dress that respectable women were far too eager to imitate.^[1496]

Nor were Europe’s capitals and university towns the only places where thir­teenth-century harlots plied their trade. They boldly importuned pilgrims, Crusaders, and sailors visiting the shrines of the Holy Land itself. In the army camp at Damietta during the fifth Crusade, the whores slipped silently from tent to tent during the night, proffering their costly solaces to the soldiers of the Cross, feeling aggrieved if they left a client with the shirt on his back.^{[1497] [1498]} During periods of crisis, mortal fear, and high moral fervor, the Crusading he­roes banished the ladies of the evening from their camps, as had their prede­cessors on earlier expeditions, but welcomed them back as soon as danger receded.³³⁰

Although prostitution seemed inevitable, canonists considered this no ex­cuse for its practitioners. A man might be excused for stealing because he was hungry, but hunger and poverty did not justify a woman in selling her body.^[1499] On the other hand there was little sentiment for penalizing her harshly. King Roger of Sicily, for one, commanded that prostitutes in his kingdom should not be mistreated, although he forbade them to live in neighborhoods frequented by decent women.^[1500] Actresses and barmaids were presumed to be prostitutes and fell under the same ban.^[1501]

Both civilians and secular officials were harsher on those who forced women into prostitution than they were on prostitutes themselves. Azo reminded his readers of the stern penalties that Justinian had prescribed for pandering, while Roger of Sicily ordered that mothers who sold their daughters into harlo­try should have their noses cut off.³⁴³ The canonists did not go quite this far, but they made their disapproval equally plain. Pimps and panders were by defini­tion infames and were personally accountable for every transgression com­mitted by the women under their control. Persons who promoted prostitution, such as those who helped to adorn harlots and to bestow on them a beauty that God had not given them, were likewise guilty, though to a lesser extent.³⁴⁴ The owners of premises in which prostitution was practiced could also be pun­ished.³⁴⁵ The canonists were especially critical of husbands who allowed their wives or servants to become prostitutes. Although a husband cθuld not charge his wife with adultery if she turned to whoring, he was obliged either to compel her to reform or to divorce her. Complaisant husbands were guilty of pandering and subject to the penalties for pimps.³⁴⁶

Nor did law writers overlook the brothels found in virtually every city, town, and hamlet. True, as Johannes Teutonicus observed, the brothels themselves were not infamous, since only persons could suffer infamia, but sporting houses were wicked places, and decent persons, including judges, should avoid them.³⁴⁷ Raymond of Penafort pointedly noted the Roman ban on holding court sessions in brothels.³⁴⁸ Bathhouses often doubled as brothels, and are frequently so de­picted in late medieval art (see Pls. 3 and 4). No doubt because of this associa­tion, Johannes Teutonicus and Benencasa warned against the moral dangers of bathing in mixed company, “for even pagans scarcely tolerate this practice.”³⁴⁹ Municipal bathhouses in Spain customarily segregated the sexes by setting aside certain days of the week for male bathers and others for female patrons, but these restrictions failed to rehabilitate their reputation as dens of iniquity.³⁵⁰

³¹³Azo, Summa to Cod. 11.41; Frederick II, Constitutiones 3.80, 85, in Huillard- Breholles, Hist. dip. 4/1:170, 173, anded. Conradetal., Konst. Friedrichs II., pp. 338, 342

³⁴⁴Accursius, Glos. ord. to Dig. 3.2.4. v. ait pretor, non in officina; Thomas of Chobham, Summa 7.2.20, ed. Broomfield, pp. 403-404.

³⁴⁵Azo, Summa to Cod. 11.41.

³⁴⁶ 1 Comp. 5.13.3 = X 5.16.3; Johannes Teutonicus, Glos. ord. to C. 32 q. 1 d.p.c. 10 v. adulterio uxorem; Azo, Summa to Cod. 9.9; Accursius, Glos. ord. to Cod. 9.9.2 v. crimen Ienocinii and to Cod. 9.9.28(29) v. et stupri et adulterii.; Thomas of Chobham, Summa, 7.2.3, 11, 20, ed. Broomfield, pp. 339-40, 366-68, 404; Frederick II, Consti­tutiones 3.74, 3.76, 3.79, 3.84, ed. HuiIlard-Breholles, Hist. dip. 4/1:168-70, 172, and ed. Conrad et al., Konst. Friedrichs H., pp. 334, 336, 338, 342.

^m7GIos. ord. to C. 32 q. 6 c. 1 v. Iupanaria.

³⁴⁸Raymond of Pehafort, Summa de pen. 2.8.3, ed. Ochoa and Diez, col. 562.

³⁴⁹GZos. ord. to D. 81 c. 28 v. omnino, and Casus to ibid.

³⁵⁰James F. Powers, “Frontier Municipal Baths and Social Interaction in Thirteenth­Century Spain,” American Historical Review 84 (1979) θ57-59∙

Folklore taught that prostitutes cared only for money, and preachers warned their hearers against the mercenary guile of immoral women.³³¹ Both lawyers and moralists continued to maintain, as Carlierwriters had done, that the prop­erty that a prostitute received in return for her services was rightfully hers. A prostitute’s right to her earnings could be questioned only if she made herself out to be something that she was not. If deceit was involved, the prostitute might be obliged to make restitution. Otherwise she could keep what she got.^{[1502] [1503]} She had no recourse, however, if a client failed to pay the fee that he had agreed to—a point on which Duke Leopold VI of Austria handed down a ruling in 1192.^[1504] If a client slapped a harlot in the face or cut off her hair, and if she could prove this by credible witnesses, then the attacker was liable for damages.^[1505]

Learned opinion was divided over the question of whether the Church should accept alms from whores. A substantial body of opinion held that since harlots acquired their property from the practice of an immoral trade, the Church ought to refuse their gifts—Huguccio had argued that gifts from any­one in a state of mortal sin should be rejected, which probably would have reduced the Church’s income rather sharply. Peter of Blois, Accursius, and Johannes Teutonicus disputed Huguccios argument. Some ill-gotten gains ought to be refused, they maintained, such as gifts from the proceeds of theft or usury. But harlots, unlike thieves or usurers, had a legal right to keep their earnings, and therefore could give them away.^[1506] In practice, authorities only occasionally refused their offerings. Thomas of Chobham relates that the whores of Paris habitually thronged to the Cathedral of Notre Dame on Saturday after­noons and offered gifts of candles for the altars, although they were not permitted to make contributions during Mass, “lest they mingle the stench of the stews with the odor of sacrifice.” When a group of harlots offered to donate a “noble glass window” to Notre Dame, the bishop also felt obliged to refuse their gift, lest by accepting it he seem to condone their activities.^[1507]

Disagreements arose over the tithe liability of prostitutes. Some argued that it was unseemly to take money from them, as that would amount to the Church living on the proceeds of prostitution. Moreover, this argument continued, ac­ceptance was forbidden by the Scriptures (Deut. 23:18). The majority view, however, justified imposing tithes on harlots on the same basis as it justified accepting charitable donations from them. Besides, some authorities added, it was better to take their tax money and use it for pious purposes than to leave it in their hands to be spent on vanities.³⁵⁷

Throughout these discussions of the Church’s use of property acquired from harlots, there ran a common thread: the ancient notion that sex creates pollu­tion. Arguments over accepting gifts and taxes from harlots implicitly assumed that their money was tainted by its association with sexual intercourse. The un­derlying premise of the discussion by canonists and moralists held that this pollu­tion could be transmitted through contact, even indirect, with the participants.

Although the law commonly protected prostitutes against robbery, theft, and assault, legal writers were dubious about whether they ought to be protected against sexual assaults, since by the nature of their trade harlots made them­selves generally available to whoever wanted them. Accursius held that a whore was not entitled to redress against a customer who forced her to have sex with him, and the municipal law of Vienna (1221) also adopted this view.³⁵⁸ In Sicily and South Italy, however, the Constitutions of Melfi (1231) protected whores against rape and prescribed the death penalty for men who ravished them by force, provided that the victim made a timely complaint.³⁵⁹

Harlots were unable to initiate criminal accusations, save for personal injury, although the canonists did allow them to lay complaints against laymen who were guilty of simony.³⁶⁰ Pimps suffered many of the same disabilities as prosti­tutes, although Accursius noted that a harlot, unlike a pimp, was not ipso iure infamous, unless she was caught in the act of adultery with a married man.³⁶¹

³⁵⁷Robert of Flamborough, Poenitentiale 4.213, ed. Firth, p. 188; Johannes Teu­tonicus, Glos. ord. to C. 16 q. 1 c. 66 v. negotio and App. to 3 Comp. 3.23.5 v. de lucro, Adinont 22, fol. 209r: “Set numquid meretrix uel ystrio dabit decimam? Non uidetur, quia ut dixi honorandus est dominus de iustis laboribus, et decime tantum de licitis dan­tur, ut supra eodem, Ex transmissa, lib. ii. [2 Comp. 3.17.7]. Item quia scriptum est,�?Non accipies mercedem prostibuli’ [Deut. 23:18], et est arg. ad hoc xiiii. q. v. Ele- mosina [c. 7] et xxxii. q. iiii. Sic non sunt [c. 10]. Nam illicite quesita non sunt in bonis nostris, ut ff. pro socio, Cum duobus § ult. [Dig. 17.2.52.18]. Ad hoc dicunt quidam quod a talibus non est sumenda decima, ne ecclesia uidetur approbare delictum eorum, arg. ad hoc xxiii. q. i. Paratus, in fine [c. 2]. Alii dicunt quod decima sumenda est potius ab eis quam apud eos remaneat, arg. xxii. q. i. Considera [c. 8]. Melius dicas quod si transfertur dominium in aliquos ita quod non competit repetitio licet illi peccent, tamen tenentur dare decimas. Et licet ecclesia petat decimam a talibus, non tamen approbat officium eorum quia conuenit eos tamquam quemlibet possessorem lucri, unde de iustis spoliis danda est decima exemplo Abrahe₁ ut xxiii. q. v. Dicat [c. 25]. Jo(hannes).” My thanks to Professor Kenneth Pennington for readings from Admont 22.

³⁵⁸GZos. ord. to Cod. 9.13.1 v. Virginumhonestarum; Schrank, Prostitution in Wien, P∙ 5i∙

³⁵⁹FrederickII, Constitutiones 1.21, in Huillard-Breholles, Hist. dip. 4/1:23-24 and ed. Conrad et al., Konst. Friedrichs ∏., p. 32.

³⁶⁰ I Comp. 5.2.7 = X 5.3-8; 4 Comp. 5.1.1 = X 5.1.20; Johannes Teutonicus, Glos, ord. to C. 6 q. 1 pr. v. quod autem.

^3elGlos. ord. to Dig. 37.12.3pr. v. meretricem.

Both moralists and canonists in this period were much concerned with re­habilitating repentant prostitutes. Thomas of Chobham furnished guidance for confessors who dealt with such women. The confessor should require them to do penance for adultery, incest, and “every uncleanness and debauchery that they might have incurred.” He should also be sure to absolve them from any excommunications that they might have been subject to_; even unwittingly. Thomas remembered that he had seen harlots doing penance with shaven heads and he approved of this as well, “since they cannot purge themselves of carnal uncleanness without many afflictions of the flesh. ” Once shriven, the reformed prostitute was freed from the legal disabilities attached to her former trade.^[1508]

Fulk of Neuilly, a popular preacher, launched a campaign early in the thir­teenth century to induce Parisian prostitutes to reform. Many of the women whom Fulk rescued from a life of sin entered houses of religion, at least for a time. To accommodate them, Fulk was instrumental in founding near Paris a Cistercian convent dedicated to St. Anthony the Hermit.^[1509] In the Rhineland, meanwhile, Rudolph of Worms, chaplain of the papal legate, Conrad of Zah- ringen, was founding the Order of St. Mary Magdalen as a refuge for repentant harlots. The Magdalen Order was a great success; Gregory IX granted papal approval in 1227, and houses of the order sprang up in a number of cities, mainly in France and Germany. The sisters wore a white habit, whence they were often known as the White Ladies, and followed the Augustinian Rule.^[1510] Reformed harlots often preferred to marry rather than to remain nuns, and Magdalen convents apparently served many of them as something like halfway houses on the road to rehabilitation.^[1511]

Reformers encouraged former prostitutes to marry, once they had shown evi­dence of a firm purpose of amendment. Fulk of Neuilly induced the bourgeoisie of Paris to subscribe more than a thousand livres to create a dowry fund for reformed prostitutes, and the university students of the city scraped up a fur­ther 250 livres to augment the fund. ^[1512] Accursius warned of the pitfalls in such schemes, however: if the woman took the money but persisted in her sinful ways, he cautioned, the donors had no legal recourse to recover it from her.^[1513]

Innocent III actively encouraged the reform campaign: in the decretal Inter opera caritatis (1198) the pope declared that men who married prostitutes were performing a pious work, one that “is not the least among the works of charity.” Their action, he added, would count toward the remission of their own sins.³⁶⁸

Rape, Abduction, and Elopement

“Rape,” declared Thomas of Chobham, “is a detestable crime, according to both divine and secular law.” On that account, he continued, rape is punishable by death.³⁶⁹ The canonists were less rhetorical and more systematic in their analysis of the crime.³⁷⁰ The victim of the crime might be either the woman or her parents—it rarely happens, Accursius added, that a woman rapes a man, although in law, if not often in life, that was also possible.³⁷¹

Rape involved illicit sex, but the offense was far more serious than voluntary sex crimes.³⁷² It Was of the essence of forcible rape that the victim did not con­sent, and in practice this meant that she must resist and protest audibly: silence signified consent, Johannes Teutonicus noted.³⁷³ Several canonists held that once a woman had consented to sex with her husband or fiance, subsequent abduction or assault by them was not punishable as rape, although civil law held otherwise.³⁷⁴ A married woman who was forcibly ravished by someone

³⁶⁸ 2 Comp. 4.1.5 = X 4.1.20. Lea, Hist, of Auricular Confession 3:188 refers to this as an indulgence, but strictly speaking, it was not.

³⁸⁹Thomas of Chobham, Summa 7.2.7.1, ed. Broomfield, p. 353.

³⁷⁰Bemard of Pavia, Summa decretalium 5.14.1, ed. Laspeyres, p. 231; Raymond of Penafort, Summa de pen. 2.5.1, ed. Ochoa and Diez, col. 464-65. Cf. the discussions by Glanvill 14.6, ed. Hall, pp. 175-76, and Carlo di Tocco, gloss to Leg. Lomb. 1.30.2 v. faciat, fol. 8ova. Zurowski, "Einfliisse,” pp. 358-59, describes the situation in Poland, where during this period there was a concerted effort to repress forcible abduction, while permitting elopement. See also Kalifa, "Singularites matrimoniales,” p. 217.

³⁷¹ Glos. ord. to Cod. 9.13.1 v. sponsam.

^37zGlos. ord. to C. 36 q. 1 c. 1 v. qui raptu; Benencasa, Casus to C. 36 q. 1 d.p.c. 3; Alain de Lille, Poenitentiale 1.28, ed. Longere 2:34.

³⁷³Glos. ord. to C. 32 q. 5 c. 3 v. putaverit and C. 34 q. 1 c. 3 et non clamaverit. Johannes added that a girl who had not attained the age of marital consent was legally unable to agree either to elopement or to sexual relations; hence any abduction of an underage girl was violent rape, regardless of whether she resisted. Here we have the elements of the offense that later came to be called statutory rape; Glos. ord. to C. 36 q. 2 c. 1 v. eos qui rapiunt.

³⁷⁴Johannes Teutonicus, Glos. ord. to C. 36 q. 1 c. 2 v. lex ilia; Argumentum quod religiosi to C. 27 q. 2, Pembroke 101, fol. 6ora: “Ar. quod sit raptus in sponsam propriam secundum canones, ut c. lex illa [c. 2] et C. xxxvi. cap. iiii. et v. [sic!].” But cf. Argumen­tum quod religiosi to C. 36 q. 1, fol. 61rc-va: “Ar. quod in sponsam propriam quis rap­tum non committit, ut c. Iex [c. 2] et c. de puellis [C. 36 q. 2 c. 4] et c. si quis uirginem [C. 36 q. 2 c. 5].” See also Tancred to 1 Comp. 5.14.4 v. admitti, Caius 28/17, P∙ 119b, and Admont 22, fol. 76r; “Secundum leges etiam in sponsa propria raptus committitur, ut C. de raptu uirginum 1. i. in medio [Cod. 9.13.1]. a!a(nus). Sed canon preiudicat ut hic et xxvii. q. ii. §. i. et c. Iex illa [C. 36 q. 1 c. 2]; quicquid tamen sit raptor potest contrahere cum rapta, (x)xxvi. q. ii. tria sunt, infra eodem tit. c. i., lib. iii. t(ancredus).” other than her husband was not guilty of adultery, even if she voluntarily placed herself in the situation that led to the assault.^[1514]

Women were morally justified in using deceptive stratagems to forestall sex­ual attackers. Faced with an assault upon her virtue, an unmarried woman could rightfully pretend that she was married, according to Raymond of Pena- fort: the lie involved was only a minor sin.^[1515] A woman who promised to pay a would-be attacker in order to persuade him to desist had no obligation to keep her promise, and if the assailant tried to enforce the promise, the law would not require her to pay.^[1516]

In keeping with the Church’s policy of enabling couples to marry despite op­position from their families, legislators and canonists sought to eliminate ab­duction as a marriage impediment. Johannes Teutonicus noted that the law had formerly forbidden an abductor to marry his victim, but added that nowadays things are different.^[1517] His claim rested on decretals of Lucius III and Innocent III that greatly enhanced the opportunities for couples to marry in the face of parental disapproval.^[1518] Johannes Teutonicus observed that although civil law would punish a woman who consented to elopement, the canons rejected that policy.^[1519] A father was entitled to disinherit a daughter under the age of twenty- five who married against his will. But he was still obliged to furnish her with a dowry, provided that she married a man of an appropriate social class.^[1520]

The easing of older prohibitions against marriage following abduction soon altered the practice of the courts. One twelfth-century case illustrates some of the practical issues in these situations. The plaintiff complained that his fiancee had been abducted by a rival, who had subsequently married her; on this ac­count the plaintiff petitioned the court for redress. The defendant denied that he had abducted the girl. He admitted that he and the alleged victim had mar­ried hastily, but he maintained that they had done so in proper form. Moreover, he asserted that prior to the alleged abduction he had proposed marriage and had discussed the matter with the girl’s family; he further claimed that credible witnesses could prove these negotiations. Going over to the offensive, the de­fendant counterclaimed that the plaintiff had laid his charges out of vindic­tiveness and asked the court to penalize the plaintiff for bringing a baseless ac­tion. He further requested that the same penalties be imposed on the plaintiff that the defendant would have suffered had he been found guilty.^[1521] Those penalties were not negligible. Forcible rape was a capital crime at civil law. Canon law punished it by excommunication, jailing, whipping, and the loss of up to half of the convicted mans assets. If the guilty party was a cleric, he also forfeited his clerical position and was permanently confined in a monastery.^[1522] The mixture of penalties in a particular case depended on the circumstances, particularly on the degree of violence involved, whether fraud or deceit had been employed, and whether the offender showed signs of sorrow for his offense.^[1523]

Homosexuality, Bestiality, Masturbation

Legal and moral literature during this period had little to say about sexual practices that theologians regarded as deviant, although comments on these matters were often more explicit than those in previous generations. Raymond of Penafort attempted to define the term “unnatural” as it applied to sexual prac­tices. Unnatural sex, he declared, meant any sort of sexual activity “save for that between man and woman using the appropriate organs.” Only heterosexual vaginal intercourse, therefore, was natural.^[1524] All other sex practices, Benencasa declared, are rejected and punished by everyone, and several of his contempo­raries elaborated on that theme, citing Justinian’s declaration (Nov. 77 pr.) that sexual deviance is responsible for disasters such as famine, pestilence, and earth­quakes.^[1525] From this time forward, Justinian’s comment became a stock item in the rhetoric of medieval vituperation.^[1526]

Popular writers sometimes associated Sodomitical practices with Islam, and Jacques de Vitry declared that Muhammad himself had introduced sodomy to the Arab world.^[1527] Perhaps because of this association, Vincentius Hispanus pointedly declared that homosexuals were not wanted in the army of the Crusade.^[1528]® Sodomy was also associated with heresy, as well as with Islam; the Cathars, in particular, were suspected of unnatural sexual preferences, in part no doubt because of their negative attitude toward marriage.^[1529]

The Third Lateran Council (1179) thought it necessary to adopt a canon spe­cifically prohibiting “that incontinence which is against nature” and decreed that clerics guilty of unnatural vice must either forfeit clerical status or be con­fined indefinitely in a monastery. Laymen, the canon continued, were to be excommunicated and entirely excluded from society.^[1530] Elaborating on these prescriptions, canonists concluded that sodomy is the most serious sexual of­fense—even worse than incest between mother and son, according to Raymond of Penafort. Raymond added that the vice is so dreadful that even hearing about it could cause pollution. He therefore cautioned confessors to be exceptionally careful in questioning penitents about these matters.^[1531] Robert of Flamborough noted that his own practice in confession was to allude to unnatural sex only in the most vague and general terms, in order to avoid giving penitents ideas that had not already occurred to them. Rather inconsistently he added that every­one knows that these things are sinful, which implies that everyone knows about them anyway.^[1532]

Although the canonists condemned sexual deviance as an exceptionally hor­rid crime, the canonical penalties, while serious, were not extraordinarily se­vere; civil law, as Johannes Teutonicus noted, punished sexual perversion more harshly than did canon law.^[1533] Those guilty of sodomy, said Damasus, are auto­matically infames, but legal opinion was divided on the question of whether this constituted sufficient grounds for marital separation or divorce.^[1534] Bernard of Pavia was of the opinion that in any event it did not create affinity and thus constituted no impediment to marriage.^[1535]

Writers of this period rarely mentioned lesbianism. The few references that do occur indicate that sexual relationships between women were thought more shocking than male homosexual relationships.^[1536] Despite this, however, can­onists apparently did not perceive lesbian practices as a major problem or as a serious threat to the social order.

Bestiality concerned moral writers of this period much less than it had the authors of penitentials. The most detailed treatment of bestiality in the early thirteenth century was provided by Thomas of Chobham, who counseled that when a case of this kind was detected, the animal should be killed and its car­cass burnt or buried. The human offender should be required to go barefoot for the rest of his or her life, should be permanently barred from entering the church, and should practice lifelong abstinence from meat, fish, and intoxicants.^[1537]

Masturbation had no legal consequences, was dealt with in confession, not the courts, and hence did not concern the canonists of this generation. Moral writers, however, continued to denounce it as a serious sin.^[1538] Thomas of Chobham devoted no less than four chapters of his Summa to nocturnal emis- sion, a problem of great concern in clerical circles, but again a matter for con­fession, not a public adjudication.^[1539]

Clerical Celibacy and Clerical Sexuality

Involvement with women discolors clerical life, declared Bernard of Pavia, who went on to warn clergymen against sharing living quarters or even talking with any woman whose presence might cause scandal.^[1540] The Dominican Constitu­tions commanded members of that order not to make a practice of gazing at women or conversing with them, save when hearing their confessions.^[1541] Johannes Teutonicus held that while members of religious communities could bathe in public bathhouses, they must never do so when women, or even non­Christian men, might be present.^[1542] Since drinking tended to excite lust, the Fourth Lateran Council cautioned clerics to be temperate in their libations, lest they stumble into sexual sins while tipsy.^[1543] Raymond of Pehafort was in­clined to think that clerics who disobeyed these rules could be presumed to be unchaste and should be punished accordingly.^[1544] Johannes Teutonicus adopted a much more lenient view: such behavior, he thought, should always be inter­preted benignly. If a cleric was seen embracing a woman, said Johannes, he should be presumed to be blessing her!^[1545]

Although mandatory clerical celibacy was by this time well established as a matter of law, if not of practice, the policy continued to come under attack both from the clergy themselves and from the laity. Thomas of Chobham, who was certainly no moral Iaxist, strongly criticized the celibacy policy, arguing that the clergy had not consented to it, that it was not required by the Eastern Church, and that, since God and the Apostles allowed marriage, it was temerarious to forbid it to the clergy. Ile rejected the theory that a vow of continence was somehow annexed to the sacrament of holy orders. “But,” he concluded, “it is foolish to dispute in this way, for we are obliged to obey the decisions of the Holy Roman Church.”^{[1546] [1547] [1548] Other critics were not so resigned. An anonymous poet writing shortly after 1215 harshly criticized the Fourth Latcran Council’s attempt to enforce clerical celibacy. The result, declared the poet, will be an increase in fornication and adultery:}

Priests who lack a girl to cherish

Won’t be mindful lest they perish.

They will take whom er they find

Married, single—never mind!'¹⁰⁸

He raged particularly against Innocent III, arguing that separating priests from their wives or concubines was a crime both against Scripture and against natu­ral law:

Innocent? No sweetheart he,

He’s just as deadly as can be!

What God established, he’ll destroy,

Our knavish, Roman bully boy.

Our Lord decreed we should have wives;

Our pope demurs—and spoils our lives.⁴⁰⁰

Despite the protests and laments of critics, however, the celibacy policy re­mained in place, and the Fourth Lateran Council ordered bishops to make re­newed efforts to enforce it.^[1549] The Council even penalized clerics in minor orders who took wives by decreeing that those who did so should forfeit their benefices.^[1550]

Thomas of Chobham thought that this was going too far. He advised con­fessors that they could counsel minor clerics to wed secretly and to keep quiet about their marriages. It would only be a trivial sin, and Thomas considered it morally better for minor clerics to marry secretly and keep their benefices (so long as they were discreet about it) than for them to fornicate openly. If the cleric’s superiors later demanded that he take major orders, Thomas still thought it better for him to keep his secret wife, rather than to fornicate with other women, assuming that he would in any event be unable to restrain his sexual desires completely.^[1551] Thomas’s advice ran counter both to official policy and to the opinions of the jurists. It is better, an anonymous glossator declared, for those bound by vows not to marry than to burn, while Johannes Teutonicus held that clerics in major orders sinned more seriously by marrying than by fornicating.^[1552]

Many clerics were unwilling or unable to observe the law of celibacy. Odo, the conscientious Bishop of Rouen, recorded that about one-eighth of the cler­ics in his diocese were gravely suspect of sexual incontinence, indicating that this figure is more likely to underestimate than to exaggerate the problem.^[1553] Vincentius Hispanus complained that some favored groups—he had the Tem­plars in mind—got off scot free, even though the pope was well aware that they habitually broke the celibacy rule.^[1554] In practice, both popes and lawyers knew that strict enforcement of the celibacy policy was not working and was perhaps not workable. Enforcement procedures were gradually modified to take ac­count of the realities. Although the law continued to prescribe stern punish­ment for married or Concubinary priests,^[1555] some decretals of the late twelfth and early thirteenth century tolerated clerical fornication so long as it was dis­creet, directing prelates to take action only against notorious offenders.^[1556] The legal writers treated this policy of selective enforcement as a dispensation from the full rigor of the law and thus achieved a precarious harmony between prin­ciple and practice.^[1557]

If clerical marriage remained a problem despite generations of campaigns against it, clerical concubinage was an even greater one. In England, particu­larly in the northern province, clerical concubinage was the rule, not the ex­ception. The practice was also common in France, Spain, and Norway. As for Germany and Italy, Benencasa lamented that in these lands “priests, deacons, and subdeacons keep their concubines publicly,” and concluded that the old law forbidding clerics who kept concubines from holding ecclesiastical office was no longer in force.^[1558] This last was a considerable exaggeration, however, for councils and synods reiterated the ban with increasing frequency throughout this period. But, as with clerical marriage, enforcement was selective. Notori­ous offenders might be prosecuted, but unless the situation was scandalous, au­thorities usually preferred not to make an issue of the matter.^[1559] Notorious or manifest offenses meant those of which the offender had been convicted or to which he had publicly confessed; in addition a cleric who openly flaunted his relationship with a suspect woman and kept her in his house might be deemed a notorious offender.^[1560] Where concubinage was not open or manifest, however, bishops were advised to warn clerics suspected of keeping concubines that they must give up their mistresses. If, after the warning, the cleric failed to mend his ways, he might be suspended, deposed, or excommunicated.^[1561] The offense was transformed, in effect, from a sexual offense (i.e., concubinage) into an offense against ecclesiastical discipline (i.e., disobedience).

As for concubines themselves, Thomas of Chobham observed that the harsh punishments prescribed in the old canons—notably enslavement—were no longer enforced and that bishops usually ignored the problem so far as they could. In Thomas’s opinion bishops ought to deal more firmly with the con­cubines of their priests; they should at least forbid these women to be given the kiss of peace during Mass and several English synodal statutes of the early thir­teenth century prescribed just that punishment.⁴²³ Others had sterner ideas: some synods, both English and Continental, prescribed shaving the heads of priests’ concubines, denying them the sacraments, ostracizing them socially, and the like.⁴²⁴ In the opinion of Laurentius Hispanus, the concubines of clerics should not be allowed to receive legacies or bequests from their lovers, al­though he was willing to allow clerics during their lifetimes to give their con­cubines gifts inspired by affection.⁴²⁵ Much of the fervor seems to have gone out of the campaign against the concubines of clerics, and Church officials during this period at last abandoned the strategy of discouraging clerical concubinage by penalizing the women who were really its victims.