Marriage Theory and Practice

Beginning in the fifteenth century, detailed information concerning actual mar­riage practices survives from several communities, most of them in northern Italy. These records show that late medieval marriage patterns were highly di­verse.

While we do not have comparable records in any quantity from other parts of fifteenth-century Europe, sixteenth-century data from England show fea­tures similar to those found earlier in Italy: a high incidence of celibacy, delay in marriage until the mid-twenties or later, and differences in marriage patterns between town and country.^[1850] Fifteenth-century evidence from Dijon shows something else that was probably common: a striking disparity of age between married couples. In Dijon, at any rate, men in their thirties generally had wives who were eight to sixteen years younger. Men in their forties and fifties often had wives between twenty and thirty years their juniors. Over all, more than a third of marriageable women wound up with substantially older hus­bands. This meant that young bachelors in Dijon faced strong competition for brides from older men, many well established in the civic hierarchy and able to bring pressure to bear on families to give them the girls they desired. That situation could lead men to identify strongly with others of their own age group and to show hostility to rivals in other age groups by indulging in demonstra­tions known as charivaris.^[1851] Both civic and Church authorities condemned these demonstrations and ordered participants punished, but the practice con­tinued.^[1852] Municipalities ordered stiff penalties for participants, and these sanc­tions no doubt reflected fears and personal concerns of lawmakers, who tended to be mature males and likely targets for such demonstrations.^[1853]

The fact that a good many men delayed marriage until a relatively late age, and that many people of both sexes never married at all, helps explain several features of late medieval society, especially the rigorist sexual doctrines com­mon among theologians and canonists.

The pattern of postponed marriage for many, and lack of any marriage pros­pects for others, helps explain the popularity and wide circulation of anti- matrimonial tracts and misogynist propaganda during this period. Chaucer (ca. 1340-1400) described the genre and one of its devotees in the Canterbury Tales. Jankyn, the latest husband of the Wife of Bath:

... Every nyght and day was his custume,

Whan he hadde Ieyser and Vocacioun

From oother worldly Occupacioun,

To reden on this book of wikked wyves,

He knew of hem mo Iegendes and Iyves

Than been of good wyves in the bible.

For trusteth wel, it is an impossible

That any clerk wol speke good of wyves.

Poor imprudent Jankyn got his comeuppance when the Wife of Bath snatched the “book of wikked wyves” from his hands, tore out three pages, and burnt the rest. Jankyn personifies an undoubtedly wide audience who found it comforting to reflect that postponement of marriage was, after all, perhaps not such a bad thing and that avoidance of it altogether might be a stroke of luck.³¹ The people of Provence, according to Jean Montaigne, considered it folly to get married at all because of the countless burdens that marriage imposed on both men and women. His report reflects a rationalization common throughout the period.³²

Humanist writers in the fourteenth and fifteenth centuries, on the other hand, ofte.n esteemed the married life and praised the joys of domestic bliss. They described the married man as the ideal human type and marriage as the foundation of social order.³³

Critics who thought less well of marriage raised once again the question of its sacramental character—a question that most theologians during the preced­ing three centuries had considered essentially closed.

³⁰Geoffrey Chaucer, Wife of Bath’s Prologue, 11. 682-91, in his Poetical Works, ed. F. N. Robinson (Boston: Houghton Mifflin Co., The Riverside Press, 1933), p. 99.

³¹ Robert A. Pratt, “Jankyn’s Book of Wikked Wyves: Medieval Antimatrimonial Prop­aganda in the Universities,” Annuale medieval# 3 (1962) 5-17; Francis Lee Utley, The Crooked Rib: An Analytical Index to the Argument about Women in English and Scots Literature to the End of the Year iζ68 (Columbus: Ohio State University Press, 1944; repr. New York: Octagon Books, 1970). A striking specimen of the genre is the Alpha­betum malarum mulierum in MS Lat. 43, fol. 2r-6v, of the University OfPennsylvania Library.

³²Jean Montaigne, De bigamia 2.7, in TUJ* 14:107vb-108ra.

³³Herlihy, Medieval Households, pp. 116-17, Citingamongothers Coluccio Salutati, Leonardo Bruni, and Franccsco Barbaro.

considered invalid because they were usually contracted under the influence of sexual attraction, because the parties were often drunk when they exchanged consent, and because these unions could be manipulated by persons who stood to profit from them.^[1855] Peter of Ancharano (ca. 1330-1416) noted that marriage was not “strictly speaking” a sacrament, while the theologian, Melchior Cano (1509-60), thought marriages became sacramental only when a priest offici­ated. Cano questioned the sacramentality of marriages by proxy as well, a view that Cardinal Cajetan (1469-1534) strongly upheld.^[1856]

Despite doubts about its sacramental status and despite the propaganda at­tacking it, however, marriage remained the connective tissue of late medieval society.^[1857] Most people continued to marry, apparently without overmuch worry about the reservations of canonists and theologians or the gloomy picture pur­veyed by misogynist writers.

The prospective bride and groom were usually not present at betrothal ne­gotiations and might not even be informed about them until after an agreement had been reached. In Tuscany, family agreement on a prospective marriage was usually followed by a formal betrothal at which the couple were present and during which they exchanged future consent. The wedding ring was often given to the prospective bride at this point as a token of her new status as a sponsa.^[1859] The couple sometimes met for the first time at the betrothal ceremony for, as Peter of Ancharano remarked, there was no legal requirement that they know or understand each other in order to contract either betrothal or marriage.^[1860] Nor did the couple have to be present in person, either for betrothal or mar­riage; cither or both could be contracted quite legally through duly appointed proxies (usually parents).^[1861] Communities, as well as the Church, began during this period to reimpose controls upon the process of betrothal and to penalize those who failed to conform to regulations.^[1862] Betrothal, once formalized, was binding on both parties. John Mirc, writing about 1450, cautioned parish priests that they must not allow couples to break engagements without formal process:

He that wole chese hym a fere,

And seyt to hyre on thys manere,

�?Here I take the to my wedded wyf,

And there-to I plyghte Joe my trow∣ιe

Wyth-owten cowpulle or Ueschly dede,

He Joat worn mon mote wedde nede;

For Joage he or ho a-nother take,

That word wole deuors make.^[1863]

Ifboth parties wished to be released from betrothal, there was little problem in securing permission; but if only one wished to escape from the engagement, he or she must be prepared to prove adequate grounds.

Betrothed couples who wished to proceed with their marriages, on the other hand, usually did so with some formality, although the ceremonies were often family affairs and did not necessarily involve participation by the clergy. In Tuscany, for example, fourteenth-century marriage ceremonies among the wealthy featured a ritual procession of the bride and her family to the house of the groom s family, where the bride was formally delivered to her new husband and the couple exchanged present consent. This was followed by a ritual ban­quet and, in particularly pious households, by the nuptial blessing. A notarized record was frequently made of the event. Following this the couple consum­mated their marriage.^[1865]

Although the church had centuries earlier rejected the requirement of parental consent to marriage, a strong feeling still persisted that couples who married against the wishes of their families acted wrongly. Such a practice was contrary to good morals, declared Felino Sandeo (1444-1503) and municipal statutes imposed heavy fines on couples who married without first obtaining parental consent.⁴⁵ Still, the Church remained committed to the principle that individuals could choose their marriage partners freely, whether their parents consented or not, and Petrus de Monte (d. 1457) maintained that the courts could compel reluctant parents to approve the marriages of their children.⁴⁵

Some towns penalized women who chose to marry men who lived outside the city limits.⁴⁷ People who wished to evade this and other restrictions could marry secretly, and clandestine marriage continued to be a serious problem throughout the period.⁴⁸ Ecclesiastical prohibitions of secret marriage were well established in canon law, but synods nonetheless continued to condemn the practice and to remind the faithful of the penalties attached to it.⁴⁹ Can­onists and moral writers tried to classify various forms of Clandestinity—St. An­toninus (1389-1459), the Archbishop of Florence, distinguished six varieties— and disagreed about how many witnesses it took to make a marriage public.⁵⁰ Ordinary people, meanwhile, continued to disregard rules against clandestine unions. Courts usually dealt with that reality by ordering the parties to regu­larize their union with a formal wedding.⁵¹ Some clandestine unions were cele-

⁴⁵Felino Sandeo, Consilium no. 26, in Consilia seu responsa, fol. 26va; Statuta civitatis Parmae 3.76 (Parma: Angelas Ugoletus, 1494), fol. 132v-133r; Statuta duitatis Pisauri 2.107 (Pesaro: Impressa per B. q. Francini de Carthularis, 1531), fol. 40r.

⁴⁶PetrusdeMonte, Repertoriumutriusque iuris, s.v. mulier (Padua: Johannes Hereot, 1480), fol. 76ra. Serfs likewise had the right to marry without the consent, or even the knowledge, of their lords; Petrus de Ancharano, Comm, to X 4.9.1, 1580/81 ed. 4:77. Rossiaud, “Prostitution, sexualite, soeiete,” pp. 82-83, claims that effective freedom of choice became more common, especially for young women, during the early sixteenth century than it had previously been, but the evidence for this conclusion seems rather weak.

⁴⁷Statuta et capitula Canisculi (1405) 71; Statuta concessa communitati ex hominibus Romani (1515) 6; Statuta et ordinamenta communis et hominum ac universitatis loci Fabricii (1422) 88, all in Corpus statutorum Canavisii, ed. Giuseppe Frola, 3 vols., Bib- Iioteca della Socicta Storica Subalpina, vol. 92-94 (Turin: Scuola tipografia Salesiana, 1918) 2:50, 346, and 3:184.

^4eRudolfWeigand, “Die Rechtssprechung des Regensburger Gerichts in Ehesachen unter besonderer Berucksichtigung der bedingte Eheschliessung nach Gerichtsbuchern aus dem Ende des 15. Jahrhunderts," Archiv fur katholisches Kirchenrecht 137 (1968) 428-29.

"Provincial Council of Narbonne (before 1310) c. 8; Synod of Nantes (ca. 1350) c. 3; Bourges (1368) c. 25; Nantes (1389) c. 2; Strasbourg (1435) c. 13; Avignon (1447) c. 4; Lyon (1449) c. 14, all in Martene and Durand, Thesaurus 4:378, 533, 589, 647, 960, 990-92∙

⁵⁰St. Antoninus, De censuris; De sponsalibus et matrimonio 19 (Venice: Johannes de Colonia & Johann Uanten, 1474; unpaginated); Antonio de Rosellis, De Iegitimatione 5.5, in TUJ* 6:27ira; Joannes ab Imola, Consilia, no. 135 (Venice: Apud Damianum Zenarum, 1581), fol. 78ra-vb.

⁵¹ The Courts of the Archdeaconry of Ruckingham, 1483-1523, no. 214, ed. E. M. Elvey, Publications of the Buckinghamshire Record Society, vol. 19 (Welwyn Garden brated in the presence of a priest, but without the publication of the banns and other formalities required by law; in these cases the normal practice was to punish the offending priest, usually by temporary suspension from his office.⁰² The parties themselves could be excommunicated latae sententiae if they failed to obey a court order to solemnize their marriage.^{[1866] [1867]} A few cities asserted their civic interest in discouraging clandestine marriages by fining those discov­ered to have contracted such unions.⁵¹ Families sometimes meted out less for­mal, but perhaps more effective, penalties to children who ignored their par­ents’ warnings and married informally. Thus when seventeen-year-old Margery Paston secretly married the bailiff, her parents sequestered her on one of the family estates and kept her incommunicado for two years. The matter ulti­mately came to the attention of the Bishop of Norwich, who ruled that her mar­riage was valid and ordered that she be reunited with her husband. The family reluctantly complied, but expelled Margery from the family home and thence­forth treated her as if she were dead.^[1868] More prominent offenders, such as Joan Plantagenet, the Fair Maid of Kent, seem to have escaped such harsh treatment: Joan entered two clandestine marriages (the second one with the Prince of Wales), as well as a bigamous public marriage, which was ultimately declared invalid by the Roman Rota. While her conduct was scandalous, there is no evi­dence that she was ever seriously penalized for her marital adventures.^[1869]

But clandestine marriage was far commoner among ordinary folk than among the rich and well-born. Secret marriages made up a sizeable part of the case load in many ecclesiastical courts. The Synod of Nantes in 1386 complained that clandestine unions occurred daily and the records show that this was no exaggeration.^[1870] Nearly half of the mid-fifteenth-century marriage cases heard by the Augsburg court, for example, involved clandestine marriages, as did about one-third of the Regensburg cases in 1490.^[1871] As wc have already noted, clandestine marriage provided escape from an unwelcome betrothal. Beyond this the availability of clandestine marriage proved to be an effective check on the principle of indissolubility, which may have been dear to the hearts of theo­logians and canonists but which many Iayfolk saw as an intolerable nuisance. In practice clandestine marriage made it possible for people to contract and dis­solve their own marriages. If a couple made promises to each other privately in the future tense, and then settled down together, there was no effective way to prevent them from separating and marrying again should the experiment not work out. If one party haled the other into court to try to hold the union to­gether, there was often so little evidence available that the judge had no choice but to separate them legally, even if they had children.^[1872]

The exchange of promises of future consent followed by sexual intercourse remained throughout this period a widely practiced method of creating a mar­riage, despite the fact that lawyers and theologians had insisted for centuries that marriage was more properly contracted by present consent. In popular opinion, however, marriage required sexual consummation and, despite the theoretical triumph of the consensual model of marriage, couples and their families continued to act as if consummation was essential. Delivery of the bride to the groom’s home, and her voluntary election to remain there, were taken in fourteenth-century Florence to establish a presumption that the couple had consummated their marriage, although that presumption could be rebutted by proof that the bride remained a virgin.^[1873] Some authorities held that the gift of a ring by a man to a woman created a presumption that they were married, although Baldus (1327?-1400) considered that it did so only if the gift was made in the man’s house or in a church.^[1874] If a man described a woman as his wife when he spoke to others, this also created a presumption that they were married.^[1875]

The formalities and rituals that surrounded the marriage contract varied considerably from one place to another. Fourteenth- and fifteenth-century En­glish synods insisted that marriage ought to take place in church, which was also the common practice in France. In northern Italy, however, nuptials were usually celebrated in the home, and it was not common for couples to receive the nuptial blessing as part of the wedding rite. At Florence, when the nuptial blessing was given, the bride often received it alone, since the groom did not usually accompany her to the church. Even in the same region or city, wedding practices varied considerably between different classes of the population. Cler­gymen typically played more prominent roles in the weddings of lower-class North Italian couples, for example, than they did in weddings among the upper classes. Wealthy and prominent persons usually had their marital consent wit­nessed by a notary; their humbler neighbors were much more likely to ex­change consent in the presence of a priest.^[1876]

Sexual Behavior in Marriage

Discussions of sexual behavior in marriage during the fourteenth and fifteenth centuries centered upon the moral dangers inherent in marital intercourse, save for reproduction. John Bromyard (d. ca. 1390), an English Dominican, pic­tured marriage as “a life-long curbing of desire, ” punctuated occasionally by se­rious and solemn attempts to conceive a child.^[1877] Sexual pleasure in marriage should be feared and shunned; when experienced, it troubled the conscience, lest enjoyment be found to have been, after all, the principal goal of coitus. A married woman who prepared a love potion in order to stimulate her husbands sexual interest in her was open to severe condemnation.^[1878] A few writers, par­ticularly among the Franciscans, adopted a less condemnatory approach to marital sex, but theirs was a minority position. Marcus von Weide (ca. 1450-ca. 1516), a Dominican, agreed with the conventional view that sexual sins in mar­riage were a daily occurrence and that scarcely any married persons were free from them. But unlike most contemporaries, Marcus believed that daily mari­tal offenses were minor matters that did not require either confession or formal penance. They were forgiven and penance paid for them by blessing oneself with holy water or saying an “Our Father.”^[1879] But this was an exceptionally per­missive approach to the matter.

How far these attitudes got through to the general run of people is hard to say. On the one hand, Egidio of Bellamera (d. 1392) related that the people of Angers were scandalized when a Mendicant preacher told them that sexual pleasure in marriage was a sin, which would seem to indicate that the rigorist teachings common among the learned had failed to take root in the popular con­science.^[1880] On the other hand, Margery Kempe (ca. 1373-after 1439), a shrewd but illiterate townswoman and self-proclaimed mystic, was convinced that her sexual relations with her husband amounted to incontinence. She browbeat him into agreeing that they should both take vows of chastity for their souls’ sake. Once they had done so, she reported that her neighbors were scandalized when she returned to her husband’s house to care for him after he suffered a serious accident, for everyone assumed that they had gone back to their “unclennesse.” Granted that Margery was uncommonly obsessed with the nas­tiness of sex, she was also soaked in the popular piety of her age. She appar­ently reflected notions of sexual morality common among the people of King’s Lynn in her day. Chaucer’s Parson corroborated her evidence when he reproved married couples who “Assemble oonly for amorous love and... for to accom­plice thilke brennynge dclit, they rekke nevere how ofte. Soothly it is deedly synnc; and yet, with sorwe, somme folk wol peynen hem moore to doon than to hire appetit suffiseth.”⁶⁸ The differences in perception between Marcus von Weide and Margery Kcmpc testify to the fact that there was no broad general consensus about the morality of marital sex in this period.

Both clergy and laity generally believed, however, that the ability to have sexual relations was essential to marriage and that those unable to have sex could not marry validly.⁶⁹ Couples were not supposed to have sexual relations, of course, until after marriage and spiritual counselors advised that even after marriage they should not do so until they had spent their first three days and nights together in prayer and meditation. Then they should approach consum­mation in a spirit of solemn devotion and with the fear of God in their minds.⁷⁰ While this may have been the practice of a pious few, many more couples prob­ably consummated their marriages in advance of any formal ceremony. Among the well-to-do in Florence, at any rate, this practice seems to have become more common, not less so, during the fifteenth century. Consummation was also frequently linked to property considerations. In Italian towns couples often initiated conjugal relations only when the dowry had been paid.⁷¹ For the mon­eyed classes of society, marital sex, especially its commencement, was in many respects a social event, rather than the private business of the newlyweds.⁷²

Several canonists in this period felt that marriage was not completed or per-

^fsiThe Book of Margery Kempe, ed. S. B. Meeeh and II. E. Allen, Early English Text Society Publications, vol. 212 (London: EETS, 1940), pp. 23, 179; Chaucer, Parson’s Talc, 1. 942, ed. Robinson, p. 308.

⁶⁹Johannes Bosch, De nuptiis 1.17, and Antonio de Rosellis, De Iegitimatione 2.33, in TUJ*6:2vb, 266rb; MartindeAzpilceuta, Consilia 4.2.4.4, in his Opera hactenus ined­ita, 3 vols. (Lyon: Apud haeredes Culiehni Rovilii, 1589—94) 3/2:14.

⁷⁰Synod of Nantes (ca. 1350) c. 3, in Martenc and Durand, Thesaurus 4:960-61; St. Bernardino, Le prediche υolgari 20, ed. Piero BargeIlini (Milan, Rome: Rizzoli, 1936), PP∙ 439-40; C∙ N∙ L. Brooke, “Aspetti del matrimonio e della famiglia nel mondo di Santa Catarina e di San Bernardino,’’ in Atti del simposio Mernazionale Cateriniano- Bernardiniano (Siena: Accademia senesi degli intronati, 1982), p. 888.

⁷¹Klapisch-Zuber, Women, Family, and Ritual, pp. 191-92; Heers, Family Clans, P∙ 59∙

⁷²Jeay, "Sexualityand Family,’’ p. 336.

fected until the couple had consummated it.^[1881] There was, as noted earlier, a tendency to go back to Gratian’s belief that coitus was not only an important element of marriage but a necessary one. A few canonists accordingly gave con­summation great prominence in their definitions of marriage. Peter of An- charano in particular explored the topic in detail. It was possible, he wrote, for a couple to consummate their marriage even prior to the time when the wife attained the age of puberty. A marriage so consummated should, in his view, be treated as complete and valid. Consummation was, according to his reasoning, the defining term, and because it was the central element in marriage, its pres­ence outweighed in importance defects of age and consent. Peter was also more concerned than his predecessors with the question of whether insemination, as well as penetration, was essential for consummation. Could a man who, for ex­ample, in his first marriage had managed to penetrate the vagina, but who failed to ejaculate during intercourse, claim that the marriage was unconsummated and marry again? Or, at the other extreme, should a marriage be deemed con­summated when the man ejaculated in the vulva, but failed to penetrate the vagina? Both questions had been canvassed by earlier writers—notably Joannes Andreae—but these problems fascinated several writers of this age, including Egidio of BeIlamera and Niccolo de’ Tudeschi, commonly known as Panormi­tanus (1386-1445), in addition to Pctcr of Ancharano.^[1882] This increased attention to the definition of consummation arguably indicated the beginning of a return to the view that consent alone did not make a complete marriage.

Canonists of this period attempted to define ever more precisely the circum­stances under which Courts Christian might intervene in order to compel mar­ried couples to fulfill their conjugal debt obligations.^[1883] No doubt this reflected the fact, evident from court records, that this was a period of vigorous judicial activism in enforcing the marital debt. Orders requiring husbands and wives to treat each other with marital affection and to pay the conjugal debt became common and were issued even when the couple no longer lived together. Thus in one separation decree the court stated:

We hold the defendant bound to pay the conjugal debt to the plain­tiff in her father’s house one night each week and to keep [this obli­gation] faithfully, until we shall order otherwise.^[1884]

Marital affection orders were routinely used to terminate informal separations or de facto divorces and required couples to reestablish a marital relationship with one another under pain of excommunication or other serious penalty; they served, in other words, many of the functions that in Common Law might be served by an injunction.^[1885] Here too we find fifteenth-century towns involving themselves in matters that earlier had been an exclusive concern of the Church. Thus the Faenza statutes, for example, provided:

We decree and ordain that anyone in the city, county, or district of Faenza who does not keep his wife in his house and who fails to treat her with marital affection shall forfeit half of the dowry of his said wife.... And, on the other hand, if a wife fails to treat her husband with wifely affection, but lives dishonorably, commits adultery, or wanders about without her husband s permission, she shall lose her dowry and her husband may profit thereby. In order to sustain [charges on] these matters common knowledge proved by five wit­nesses shall suffice.^[1886]

Courts did not concern themselves with husbands occasionally absent from home on business, but preachers and moralists did, on the no doubt sensible ground that such disruptions created strains in the marital relationship and ex­posed the parties to sexual temptations. St. Bernardino identified merchants as particular offenders and encouraged the wives of tradesmen to use every means to force their husbands to return home at frequent intervals. He added that he was not concerned with brief absences—a week or two, or a month at a time— but with absences of two or three years, which he said were displeasing to God. Precisely such prolonged absences were, however, a common feature of mer­cantile careers. Resident factors for Italian traders in the Levant, for example, typically remained overseas, almost always separated from wives and children, for years on end. Other young women, particularly those from prominent fami­lies, found themselves “widowed” by the exile of their husbands for political reasons. Communes often intensified the pain of exile by preventing family members from joining the exiled miscreant. Such episodes as these, however, affected only a tiny segment of society. Commercial activities undoubtedly dis­rupted the lives of many more families than political factionalism did.^[1887]

Sexual relations in other families might end by the unilateral decision of one family member, often a wife who had borne as many children as she could en­dure. Voluntary unilateral termination of marital sex was sometimes based on religious grounds, too, despite the often reiterated prohibitions of such conduct by both canonists and theologians. Still a determined spouse could often find a way to secure what he or she wanted.

The self-revelations of Margery Kempe once more give insight into the do­mestic drama surrounding such occurrences. Margery was atypical, to be sure, but a good part of her atypicality consisted in her extraordinarily frank and de­tailed recording of her experiences. Margery tells us that she heard a heavenly song while lying abed one morning and, on the strength of that experience, de­cided that heaven was so splendid that she must make sure that she got there. She therefore determined to cease having sexual relations with her husband,

for Jje dette of matrimony was so abhominabyl to hir Jiat she had Ieuar hir trowt etyn or drynkyn Jjwose, ]jc mukke in Jjchanel, J>an to Consentyn to any Aeschly comownyng....

Having come to this decision, she told her husband that their sex life was finished. He was not amused. When he finally realized that Margery was se­rious, he was furious and demanded that she have intercourse with him then and there. Margery protested, but “He wold haue hys wylle.” He brushed aside her objections, “And so he vysd her as he had do be-for, for he wold not spar,” despite the fact that Margery shrieked, wept, and howled at the top of her voice on this and every subsequent occasion when he took her against her will. At length, worn down by her persistent protests and rejections, he de­sisted from marital rape and agreed to join Margery in taking a vow of chastity.^[1888] It is highly unlikely that this was the only story of its kind, though just how common such episodes were we will never know.

Writers on moral problems during this period often repeated earlier injunc­tions against variations in the sexual techniques that married couples used, but rarely dealt specifically with anal or oral sex. Although variant sexual practices were condemned both because they might be contraceptive and also because they promoted sexual pleasure as an end in itself, writers of the period rarely distinguished explicitly between the two reasons for their disapproval.

A few authors criticized critics of deviant coital positions. The most out­spoken of them, Silvester Prierias Mazzolini (1460-1523), denied that varia­tions from the “missionary position” were contraceptive, as Pierre de La Palude had claimed. Silvester also argued that even Ifcouples employed unusual coital postures in order to enhance their pleasure, this was not in itself sinful.^[1889] In­junctions to married folk to abstain from sexual relations during the solemn li­turgical seasons, pregnancy, and menstruation also recur in the moralistic literature of the period, but violations of these rules ranked low in the scale of sexual offenses. A surprising development in this respect was the resurrection of the old rule against intercourse during lactation. This prohibition had largely disappeared from the literature on marital sex during the high middle ages, but suddenly reappeared toward the end of the fourteenth century.^[1890] On the other hand, the ban on sexual foreplay, which a number of earlier authorities had taught was mortally sinful, found little support among fourteenth- and fifteenth­century authors. The Sylvestrina, which this time agreed with the teaching of Pierre de La Palude, maintained that erotic stimulation prior to marital inter­course was not sinful, so long as it was not indulged in for pleasure alone and so long as it was “completed” by intercourse. St. Bernardino, on the other hand, sternly warned audiences that they must avoid excessive sexual stimulus as a prejude to marital relations, for such practices were contrary to the ethics of Christian marriage. Couples, he declared, must avoid lascivious kisses and fon­dling, they should on no account touch one another’s genitals, and they must never see their spouses naked or allow their own bare bodies to be seen by their mates.^[1891]

As for contraception, probably the most effective technique available during this period continued to be coitus interruptus, a practice that was apparently common in some regions. Writers from northern Italy seem to have been par­ticularly sensitive about this issue and more inclined to condemn it explicitly than did those from other areas. This may well reflect concerns that stemmed from the relatively high birth rate in this region during the late fourteenth cen­tury. Elsewhere coitus interruptus seems not to have been perceived as a par­ticularly grave issue until the sixteenth century, when for the first time it be­came a common theme in the literature on moral problems.^[1892]

Divorce and Remarriage

Canonists during the fourteenth and fifteenth centuries were commonly much more concerned with divorce and remarriage than with marital sex. This no doubt reflected the relatively high frequency with which marital conflicts ap­peared in ecclesiastical courts. The experience of Courts Christian in England seems to have differed from that of ecclesiastical tribunals on the Continent. An analysis of cases that came before the Canterbury Consistory Court in the late fourteenth-century, for example, showed that matrimonial causes accounted for approximately one-third of the total business. During the fifteenth century, how­ever, the proportion of matrimonial cases declined precipitously. In 1373/74, for example, more than thirty marriage cases were introduced per year; after 1400 cases declined to less than ten. After 1500, the number of marriage cases rose once again. This decline does not appear to have been characteristic of the ex­perience of canonical courts on the Continent, however, and therefore it pre­sumably reflects social and legal developments peculiar to England.^{[1893] [1894] [1895]}

The grounds on which marriage cases were brought to court also differed from England to the Continent. Most marriage litigation in French canonical tribunals consisted of suits to enforce promises of future marriage, whereas the Courts Christian in England more often dealt with cases of present consent marriage, sometimes followed by consummation, sometimes not. But even here patterns varied. The practice of courts in the south of France resembled that found in England much more closely than it did that of northern French courts.^[1896]

English litigants presented matrimonial problems to the courts much more often to establish the validity of an alleged marriage than to secure a nullity decree rescinding an acknowledged union.^[1897] Although preachers and poets la­mented the frequency with which false divorces were obtained, and the ease with which courts could be corrupted, litigation records do not bear out those complaints. The volume of nullity cases during this period was not large, but they were often hard-fought. Although evidence may have been fabricated from time to time and advocates no doubt coached witnesses on occasion, the records furnish little basis for the suspicions that were voiced about judicial corruption.^[1898]

Canonistic opinion remained divided on the question of papal power to ter­minate marriages. Martin de Azpilceuta (1492-1596), for example, was con­fident, as most of his predecessors had been, that the pope could dissolve un­consummated marriages for good cause.^[1899] When it came to dissolving valid consummated marriages the problem was far more difficult. Egidio of Bellamera (d. 1392), after reviewing conflicting opinions on the matter, concluded that the pope lacked this power, but Peter of Ravenna (fl. 1497-1508) thought other­wise. The saying of Jesus, “What God has joined together let no man put asunder,” did not apply to the pope, Peter declared, because he is the vicar of Christ: when he dissolves a marriage it is not man who sunders the nuptial tie, but God acting through the pope.^[1900]

In any event canonical courts at every level were in practice less rigorous than legal theory required and on occasion granted divorces that ruptured the bond of marriage, even though theorists claimed that they could not do so. They also granted separations and nullity decrees on grounds that had no foun­dation in the canons.^[1901] When Luther complained that Church courts autho­rized separations for reasons not specified in Scripture he was certainly report­ing accurately.^[1902] The clearest example of a situation in which the courts created new grounds for separation was the introduction of cruelty or mistreatment (saeυitia) as a basis for separation, which the courts began to use during the late

thirteenth century (as mentioned previously); it began to become prominent in the commentaries during this period. Legal scholars tended to be conservative on this issue but held that where a petitioner could show that his or her spouse had made death threats, or had acted in ways that constituted a danger to life and limb, canonical separation was warranted.^[1903] Courts, however, did not always require such critical situations before they would take action. They granted separation, for example, on grounds of habitual drunkenness, as well as cruelty and mistreatment, although mere quarrelsomeness and bad temper ap­parently did not furnish adequate basis for so drastic a remedy. Saevitia became a common basis for separation decrees during this period—the Augsburg court granted fourteen such decrees in 1350 alone, while at Regensburg more than a third of the fifty-two separations granted in 1490 were based on this.^[1904] Another innovation in practice was the granting of separation of residence but not im­munity from the marriage debt. Again this appears to have no clear basis in the canons—at least not until the practice was sanctioned by the Council ofTrent— but it was certainly common by the end of the fourteenth century. This type of separation was usually granted because of hatred (odium), quarrels (rancores), fiscal irresponsibility (dilapidatio seu dissipatio bonorum), or stinginess (aus­teritas). Decrees dealing with this type of separation usually specified that marital rights were reserved (iure thori reservato) and, as we have already seen, courts might specify the times, places, frequency, and circumstances under which sexual rights were to be exercised.^[1905] Couples were sometimes for­bidden to have sexual relations while litigation concerning their marriage was pending, but opinion about the propriety of this was by no means unanimous.^[1906]

Other causes for separation or divorce were better grounded in the canons. Although academic lawyers devoted a great deal of time and ingenuity to discus­sions of consanguinity and affinity, these grounds rarely appeared in practice and affected only insignificant numbers of cases.^[1907] Force and fear were likewise not a common basis for nullity, in part no doubt because of the stringent stan­dards of proof required.⁹⁸ Pre-contract continued to be a common basis for an­nulment, and multiparty suits for enforcement of a marriage also appear in the records with some frequency. These cases often involved clandestine marriage and presented difficult problems in the evaluation of evidence."

Impotence also remained a common basis for nullity. Here, too, one finds occasional discrepancies between theory and practice. Although academic com­mentators taught that a castrated man could not marry, an Augsburg judge thought otherwise, for he held in a case on g March 1350 that a eunuch (spado) had successfully consummated his marriage.¹⁰⁰ Courts seem to have been as skeptical as commentators about the evidence supporting impotence pleas. Thus, for example, in the Poynant case (1378-80) at Ely, John Poynant received a divorce on the grounds that he was impotent. After the divorce John success­fully consummated a second marriage with another woman, who testified that he was potent enough, not only to have intercourse but also to beget a child, with whom she was pregnant when the matter came to court. The court then rescinded John’s divorce from his first wife, quashed both his and his wife’s sec­ond marriages, and commanded John and his first wife to resume married life together and to treat each other with marital affection. What happened to John’s second wife and their child does not appear in the record.^[1908]

Courts might also bend their own rules and treat prostitutes and other women as credible witnesses in impotence cases. They continued, as well, to rely on testimony from medical experts, physical examination by midwives, and other forms of expert evidence in dealing with these cases.^[1909] Complaints of im­potence caused by sorcery and magic also continued to trouble both the com­mentators and the courts in this period.^[1910]

^9sHelmhoiz, Marriage Litigation, pp. 90-94; Weigand, "Zur Inittelalterlichen Idrch- Iichen Ehegerichtsbarkeit,” pp. 238-39; for two additional Augsburg eases see Frens- dorff, "Ein UrtheiIsbuch," pp. 18-19.

⁹⁹Helmholz, Marriage Litigation, pp. 57-62, 76-77; Weigand, “Zur mittelalter- Iichen kirchlichen Ehegerichtsbarkeit/' p. 230.

¹⁰¹¹HeImholz, Marriage Litigation, pp. 87-90; Weigand, "Zur Inittelalterlichen kirchlichen Ehegerichtsbarkeit," pp. 234-35; Petrus de Ancharano, Comm, to X 4.15.2, 1580/81 ed. 4:97.

^lalIn re Poynant (1378-80), E.D.R. D/2/1, fol. 100r-102v, 105v, 110r, 130r, 134v, 136r, 140v, 142r-v.

¹⁰²Petrus de Ancharano, Comm, to X 4.15.1, 7, 1580/81 ed., 4:96, 103; Etienne Aufreri, Decisiones capelle sedis archiepiscopalis Tholose no. 380 (Lyon: Venundantur ab Stephano Gueynard, 1508), fol. 94v-96v; Mario Ascheri, �?“Consilium sapientis’, perizia medica, e �?res iudicata’: Diritto dei �?dottori’ e instituzioni eomunali,” in Salamanca Pro­ceedings, pp. 534-35, 537.

¹⁰³Petrus de Aneharano, Comm, to X 4.15.2, 1580/81 ed., 4:97; Depositions and Other Ecclesiastical Proceedingsfrom the Courts of Durham Extendingfrom 1311 to the Reign of Elizabeth, ed. James Raine, Surtees Society Publications, vol. 21 (London: J. B. NichoIs and Son, 1847), p. 27.

Marital separation because of adultery was an infrequent cause of action. The Officialis of Paris, when dealing with such cases, sometimes awarded the complainant a share of the assets of the marriage, without granting a decree of separation.^{101 * * [1911] One reason for the comparative rarity of adultery litigation may well have been the feeling that bringing such a cause to the courts was itself shameful:}

Only humble and powerless men bring their [adultery] cases before a judge [wrote Paulus de Castro] for according to common reckoning no small amount of shame flows from these actions and the com­plainant who does not avenge himself with his own hands but waits for a judge to vindicate him is considered a vile cuckold. Even the judges often do not do right by him, but smirk and chuckle and snig­ger, so that a husband is right not to have recourse to the judge, but is better off dealing with the affront on his own authority.^[1912]

Another consideration that may well have dissuaded many potential plain­tiffs from bringing separation actions on the grounds of adultery was the fact that the defendant spouse might well react with a countercharge of adultery. Moreover even if, say, a husband secured a separation from his wife on grounds of her adultery, and if she subsequently discovered that he was sexually in­volved with another woman, the separated wife could have the separation quashed and a court could well require him to return to live with her. This might, to say the least, create an awkward situation.^[1913]

The Roman Church remained strongly opposed throughout this period to the practice of granting absolute divorces, with the right of remarriage, on grounds of adultery, despite the fact that in earlier times this had often been done.^[1914] This matter became an issue in negotiations over reunion between Rome and various Eastern Orthodox communities. Despite the difficulties that the issue presented, however, the papacy refused to compromise, and Pope Eu­gene IV (elected 1431, suspended 1438, deposed 1439, d. 1447) inserted in the Decree for the Armenian Church a specific affirmation of Rome’s position on the subject.¹⁰⁸

Canonists continued to condemn the practice of informal divorce, and couples who simply separated and went their own ways were occasionally haled before courts and ordered to resume married life. The problem of desertion and infor­mal separation also became the subject of legislation in a few cities, which im­posed fines on couples who parted without formal process.¹⁰⁹

Concubinage among the Laγγy

Legal writers in the fourteenth and fifteenth centuries were more concerned about concubinage among the laity than were previous generations. Although earlier authorities generally did not treat concubinage as a punishable offense, several writers of this period questioned whether it was equitable to punish fornicators and prostitutes while tolerating men who kept concubines.¹¹⁰ Some went further and concluded that while concubinage had formerly been per­mitted, canon law no longer allowed this and should force men to dismiss their concubines. This finally became official policy early in the sixteenth century, when the Fifth Lateran Council (1514) prohibited concubinage among the laity.¹¹¹ But well before 1514, sentiment for abolishing concubinage had per-

¹⁰⁸Council of Florence, Sess. 8 (1439), Bulla unionis Armenorum, in COD, p. 526; De Sanctis, “Coniuge abbandonato,” p. 218.

¹⁰⁹Petrus de Ancharano, Comm, to X 4.1.20, 1580/81 ed., 4:18; Elvey, Courts of the Archdeaconry of Buckingham, no. 344, p. 250; In re Blair, an ex officio Rochester case from 1439/40, is reported in B.L., MS Add. 11,821, fol. 2r-v; Rieti, Statuta 3.18, fol. 38v; Statuta Burgi Sexii, MCCCLXXXXVII § 164-65, ed. Carlo Guido Mor, in Statuti della Valsesia, pp. 203-204. Canonists of this period had little new to say about remar­riage of widows and widowers. While they deplored remarriage on the grounds that it displayed an unseemly desire for continued sex after the death of a prior spouse, author­ities admitted that remarriages were commonplace, that they were preferable to fornica­tion, and that they were permitted by ecclesiastical law; Joannes Garonis, De secundis nuptiis, inTUJ* 6^2va-87rb; Johannes Bosch, De nuptiis2:36-37, inTUJ* 6^vb-5ra.

¹¹⁰Fortunius Garcia de Erzilia, Tractatus de ultimo fine iuris canonici et civilis §§ 126, 128, in TUJ 1:13ra; Albericus de Rosate, Vocabularius Utriusque iuris longe castiga­tissimus, s.v. concubinatus (Paris Johannes Cornilleau, 1525), fol. 51vb-52ra; Ludovicus Sardus, De naturalibus Iiberis 1.13, in TUJ* 6:249rb; Egidio Bossi, Tractatus varii, qui Omnemfere criminalem materiam excellenti doctrina complectuntur, tit. De coitu dam­nato 76 (Venice: Apud Heredes I. M. Bonelli, 1574), fol. 189ra; Hieronymus Olives, Commentaria et glossa in Eleanora of Arborea, Carta de logu, legum et ordinationum Sardarum 50 (Calari: I. B. Canauera, 1708), p. 91.

¹¹¹Nevizzani, Sylva nuptialis, fol. 69ra; Sylvestrina s.v. concubinatus, 1546 ed. 1:154; Ludovicus Sardus, De naturalibus liberis 1.9 and Antonio de Rosellis, De Iegit- imatione ∙z.∙z, in TUJ* 6:2491a, 264vb-265ra; Rochus Curtius, Tractatus de con­suetudine 84, in TUJ 1:127v; 5 Lateran Council (1514), Constitution Supernae disposi­tionis, in COD, p. 599.

suaded towns and cities in many regions to outlaw the practice and to impose sanctions on men who continued to cohabit with women to whom they were not married. As early as 1387, Cremona had forbidden men to keep harlots as con­cubines, and in many cities during the fifteenth century it became a crime to keep a concubine.¹¹² The offense was compounded and the penalties increased if the offender was a married man.¹¹³ Both Courts Christian and secular tri­bunals regularly took action against couples suspected of living in sin. Those convicted—and convictions were routine—were usually punished by fines, sometimes supplemented by public penitential acts, such as offering a candle during Mass or marching barefoot and in penitential garb around the Church during services on Sundays or feast days.¹¹⁴

It was presumably no coincidence that precisely during the period when concubinage was beginning to be regarded as illegal, the practice of dealing with these relationships by abjuration sub pena nubendi commenced to disap­pear. Although not uncommon, at least in fourteenth-century English courts, abjuration diminished in frequency from about the beginning of the fifteenth century. By the end of that century it had virtually vanished.¹¹⁵ Fifteenth­century canonists, instead, departed from the doctrine of their predecessors and began to teach that long-continued cohabitation created a presumption of

¹¹²Statuta civitatis Cremonae 117 (Cremona: Apud C. Draconium & P. BozoIam et socios, 1578), p. 42 (but cf. c. 112, p. 40); Statuta communitatis Bergomi 9∙74 (Brescia: Angelus et Jacobus Britannicus, 1490), fol. 143v; Reggio Emilia, Statuta 7.5, fol. 291v; Urbino, Statuta 4.39, fol. 91r; Avignon, police ordinances (1458) art. 9, in LePiIIeur, Prostitution, p. 13; Lowenstein, Bekiimpfung, pp. 19-22, cites similar statutes from Ulm (1364), Wurzburg (1393), SchIettstatt in Alsace (1418), Frankfurt a/M (15th cent.), Bern (1459), and Basel (1448, 1498). See also Albericus de Rosate, Vocabularium, s.v. concubinatus, fol. 52ra, and Boulting, Woman in Italy, p. 279.

¹¹³Borgosesia, Statuta 163, ed. Mor, p. 203; Faenza, Ordinamenta 4.23, fol. 41r; Lucca, Statuta 4.106, fol. 217v; Perugia, Statuta 3.83, fol. 33va; Rieti, Statuta 3.18, fol. 38v; Statuti di Forli 3.18, quoted in Evelina Rinaldi, “La donna negli statuti del com­mune di Forli, sec. XIV,” Studi Storici 18 (1909) 191 n. 1; edict of the Bishop of Avignon (1448) in LePilleur, Prostitution, p. 10; Bossi, Tractatus varii, tit. De coitu damnato 22, 26, fol. 186rb-vb.

’“Venice, decree of the Council of Ten, 17 June 1355, in Leggi e memorie, p. 203; Levy, “L’ofiicialite de Paris,” p. 1283 n. 134; Ourliac, “Notes sur Ie mariage,” p. 61; Raine, Depositions, pp. 34, 53-54; Elvey, Courts of the Archdeaconry of Buckingham, no. 338, p. 246; Bannister, “Visitation Returns,” 44 (1929) 281-82, 288-89, and 45 (1930) 100, 444, 449-50; Before the Bawdy Court: Selections from Church Court and Other Records Relating to the Correction of Moral Ojfences in England, Scotland, and New England, 1300-1800, ed. PauI Hair, no. 36, 519 (London: Elek, 1972), pp. 45, 200. Saustra c. Barbo was a concubinage case of some complexity, in which the couple had lived together, parted, and then reconciled; there was some question as to whether they had married clandestinely and there was an appeal to Canterbury, which was declared frivolous; see E.D.R., D/2/1, fol. 39v-40r, 87r, 91v.

^ll5Helmholz., Marriage Litigation, pp. 180-81.

marriage, a presumption that in many cases must have been virtually impos­sible to rebut.^[1915]

In addition to facing penances and secular sanctions, men who kept con­cubines might find themselves disadvantaged in other ways. According to Bar­tolomeo Cipolla (d. 1477), for example, a tenant who introduced his concubine into premises that he had leased thereby violated an implicit term of his agree­ment and was liable to lose his title to the leased property and to be summarily evicted by his landlord.^[1916] A married man who kept a concubine might also pay dearly for his pleasure since, according to an opinion of Paulus de Castro (fi. 1400), this entitled his wife to secure a separation and to recover her dowry in full.^[1917] Concubines themselves were already disadvantaged, but their situation worsened during this period. Fourteenth-century Sardinian customary law as embodied in the Carta de logu, for example, incorporated a Roman law rule that a concubine who removed property from premises that belonged to her consort was guilty of theft.^[1918] She was forbidden to testify in court and, at least in theory, ineligible to receive legacies or to inherit from her lover’s estate, al­though it is clear that in practice this last provision was not regularly enforced.^[1919] Her children were also theoretically ineligible to benefit from their fathers es­tate unless, of course, she had regularized their relationship by marriage.^[1920]

The volume of cases in the courts, however, suggests that concubinage re­mained common long after systematic measures were taken to repress it. This suggests that the institution met a continuing social need. It is reasonable to suspect that in many cases concubinage represented a viable alternative to mar­riage for those who lacked the resources to enter into more formal and conven­tional relationships.^[1921] Certainly this was not always true, however, for some men were able to furnish dowries for their concubines and to provide them with annual pensions.^[1922]