Sex and Marriage in the Canonists, 1000—1140

The canonists of the Church reform period subscribed to a definition of mar­riage borrowing from Roman law the concept that couples created their own marriages by free consent.³⁵ Marriage by consent was, of course, nothing new: the Fathers of the Church had long before adopted the notion.

During the second half of the eleventh century, both Anselm of Lucca and

³²Constantinus Africanus, De coitu, in his Opera (Basel: Henricus Petrus, 1536), pp. 302-304; Joan Cadden “Medieval Scientific and Medical Views of Sexuality,” paper pre­sented at the XVIII International Congress on Medieval Studies, Western Michigan University, 1983, pp. 3-4.

³³Albert of Aachen, Historia Hierosolymitana 5.40, in Recueil des Jiistoriens des croisades, Historiens Occidentaux, 5 vols. in 6 (Paris: Impriinerie royale, 1844-95; cited hereafter as RHC, Occ.) 4:459.

³⁴ Hans Zeimentz, Ehe nach der Lehre der Fruhscholastik: Eine Uioralgeschichtliche Untersuchung zur Anthropologie und Theologie der Ehe in der Schule Anselms von Laon und Wilhelms von Champeaux, bei Hugo von St. Victor, Walter von Mortagne und Petrus Lombardus (Dusseldorf: Patmos Verlag, 1973), pp. 81-82; Tentler, Sin and Con­fession, p. 167; Delhaye, “Dossier antimatrimonial,” pp. 71-73.

³⁵Ivo, Decretum 8.1 (= Panormia 6.1, citing Inst. 1.9.1) and 8.17 (= Panormia 6.107, citing Pope Nicholas’ letter to the Bulgarians).

³⁶Basic formulations of Roman consensual doctrine occur in two passages from Ulpian in Dig. 24.1.32.13 and Dig. 35.1.15 (= Dig. 50.17.30); on patristic adaptation of Roman consensual theory see Jean Gaudemet, “Originalite et destin du mariagc romain,” in his Societes et mariage (Strasbourg: CERDIC, 1980), pp.

the author of the Collection in Seventy-four Titles included consent, not of the couple, but of parents, among the requirements for valid marriage and found authority for this position in one of the forged decretals of Pseudo-Isidore.³⁷ This view, however, aroused little enthusiasm among reform-minded canonists, who wished to minimize the role of parents in arranging marriages.

Another matrimonial issue that concerned the reform canonists was the role of sexual relations in the formation of marriage. Was an unconsummated union binding, or not? On this point opinions differed. Ivo of Chartres cited a letter of Pope Leo I, originally written in 458/59, in support of the theory that only con­sent of the parties was required. Ivo cited this letter repeatedly in both his Panormia and Decretum. According to Leo’s letter, marriage exists between a couple whether they have consummated their union or not, for even an uncon­summated marriage fully symbolized the tie between Christ and the Church.³⁸ This text, supported by a few others, became a key element in the reformers’ teaching on marriage.³⁹ The leaders of the reform movement strongly opposed the coital theory of marriage that Hincmar of Reims had proposed about 860.⁴⁰ Although Hincmars position found some support among theological writers on marriage in the late eleventh and early twelfth centuries, the canonists were less than enthusiastic about it. The coital theory found no place in the can- onistic manuals until it was incorporated in the Collection in Ten Parts, a com­pilation oflimited circulation written between 1123 and 1130.⁴¹

³⁷Pseudo-Evaristus, Epist.

³⁸Leo I, Epist. 167.4, 'ⁿ PL 54^:1204-1205 (JK 544); Ivo, Decretum 8.74 (= Panor- mia 6.23) in PL 161:599-600, and 8.139 i- Panormia 6.35) in PL 161:615. This text had appeared previously in Burchard, Decretum 9.1, in PL 140:815, and had been used by other canonists. On its history and the transformations it experienced, see Jean Gaude- met, "Recherches sur les origines Iiistoriques de Ia faculte de rompre Ie manage non consomme, in Proceedings of the Fifth International Congress of Medieval Canon Law, Salamanca, 21-2.5 September 1976, ed. Stephan Kuttner and Kenneth Pennington, MIC, Subsidia, vol. 6 (Vatican City: Biblioteca Apostolica Vaticana, 1980; cited hereafter as Salamanca Proceedings'), pp. 309-31, as well as his Tndissolubilite et Consommation du manage: L’apport d’Hincmar de Reims,” RDC 30 (1980) 28-40.

^3eSeealsoIvo, Decretum 8.2-3(= Panormia 6.14-15), in PL 161:583-84.

⁴⁰Zeimentz, Ehe nach der Lehre der Friihscholastik, pp. 108-109; Gaudemet, “In- dissolubilite,” pp∙ 39-40, ^a∏d “Recherche sur les origines,” pp. 313-18, 329-30.

⁴¹Thcological support for a version of the coital theory came mainly from the School of Laon; Zeimentz, Ehe nach der Lehre der Friihscholastik, p. 114; on the incorporation of Hincmars doctrine in the Collection in Ten Parts see Gaudemet, "IndissolubiIite,” p. 38, and “Recherche sur les origines,” pp.

To Peter Damian the notion that marriage depended for its validity upon sexual relations seemed outrageous:

If they [the defenders of the coital theory] maintain that marriage rests on intercourse [Peter fumed] then how is it that the holy can­ons forbid people to be joined in marriage without public weddings? Do they want the man to mount his wife in public?... If indeed marriage is made by coitus, then every time a man makes love to his wife no doubt they get married all over again."¹²

Damian and others insisted that consent must be at the center of marriage for­mation and that consummation merely affirmed consent.⁴³

Reform canonists were also determined to establish the principle that mar­riage must be legitimate, that is, it must be contracted publicly and formally, with full solemnity, not entered into casually and secretly.⁴⁴ Legitimate mar­riage, according to the authorities that Ivo relied on, involved a public exchange of vows, marriage gifts, a wedding ring, and blessing by a priest.⁴⁵ Not all of these were necessary in every case, but a legitimate marriage must at Jeast be contracted with public knowledge. Secret marriages were improper, and those who contracted them might be subject to penitential discipline, according to several of Ivo’s authorities.⁴⁶ A number of councils in the late eleventh and early twelfth centuries reiterated the ban on secret weddings.⁴⁷ Save for one English canon, these prohibitions of clandestine marriage stopped short of ruling that

⁴²Peter Damian, De tempore celebrandi nuptias ι, in PL 145:660-61: “Si cnim jure in concubitu constare nuptias perhibentur, quid est quod sacri canones prohibent ut abs­que publicis nuptiis nunquam matrimonium copuletur? Nunquid hoc volunt, ut vir ux­ori publice misceatur?... Enim vero si concubitus nuptiae sunt, quoties vir mulieri admiscetur, toties procul dubio nuptias celebrare convincitur.” See also Sara Acuna₁ “La forma dei matrimonio hasta el Decreto �?Ne temere’,” Ius canonicum 13 (1973) 154-55; Gaudmet, “Recherche sur Ies origines,” pp.

⁴³Mullendcrs, Mariage presume, pp. 11-12; Zcimentz₁ Ehe nach der Lehre der Fruhscholastik, p. 114.

⁴⁴ Burchard₁ Decretum 9.2 (= Anselm of Lucca 10.3; Ivo₁ Decretum 8.140 and Panor- mia 6.36). The canonists cite Pope Leo as their authority, but the passage actually came from the forged capitularies of Benedictus Levita 3.179₁ in MGH₁ Capitularia 2:113.

⁴⁵Ivo₁ Decretum 8.4-5 (⁼ Anselm of Lucca 10.2 and Panormia 6.31) in PL 161: 584-85₁ taken from Pseudo-Evaristus₁ decretal 2 in Hinschius₁ DPI, p. 87; see also Ivo₁ Decretum 8.6 (= Panormia 6.9) and 8.40-41 (= Panormia 6.33-34)₁ in PL 161:585, 592- 93∙

⁴⁶Burchard₁ Decretum 9.3 (= Ivo₁ Decretum 8.141 and Panormia 6.5), in PL 140:816; also Burchard₁ Decretum 19.5(= Corrector 43) ₁ in PL 140:958.

⁴⁷Council of Rouen (1072) c. 14₁ in Mansi 20:38; Council of Winchester (1076) c. 6₁ and Council of Westminster (1102) c. 23₁ in Councils and Synods with Other Documents Relating to the English Church, ed. Dorothy Whitelock, Martin Brett₁ and C. N. L. Brooke₁ 2 vols. (Oxford: Clarendon Press, 1981) 2:620, 677; Council of Troyes (1107) c. 7₁ in Uta Renata Blumenthal₁ The Early Councils of Pope Paschal II, 1100-1110, Studies and Texts, vol. 43 (Toronto: Pontifical Institute of Mediaeval Studies, 1978)₁ secret weddings were invalid.^{[719] [720]} Those who married secretly did so illegally, but common opinion held that they were nonetheless tied to each other by the marriage bond.

Formal betrothal was a usual preliminary to marriage in customary law and practice at this period, but the reformers refrained from making betrothal a requirement for ecclesiastically valid marriage.^[721] They did, however, accord betrothals the status of valid contracts and prohibited those who had made such agreements from marrying anyone but the person to whom they were pledged.^[722] The reformers encouraged the practice of giving dowries, which they linked to the requirement that marriage must be public.

Nuptial rites also underwent considerable change during this period. Al­though marriage ceremonies originally were treated as private, family affairs (a character that they long retained in many regions) the clergy by noo played more prominent roles in wedding rituals than they had in ιooo.⁵⁴ Yet no major canonist of the period required a nuptial blessing for validity, although Ivo en­visioned a wedding ritual in which the constitutive element was an exchange of oaths sworn by the parties.⁵⁵ An English council in 1076 did stipulate that a blessing by a priest was essential to marriage and that unblessed unions were invalid, but this appears to have been an isolated aberration.⁵⁶

As festive occasions, weddings were prohibited during Lent, Advent, and other fasting periods. The canonists, however, did not link this prohibition ex­plicitly to the older penitential practice that forbade sexual relations during Lent and other penitential seasons.⁵⁷ According to Burchard, priests and other clerics who were supposed to observe celibacy ought to avoid attending the feasts and entertainments that accompanied upper-class weddings. No matter what the season, Burchard maintained, they ought to shun exposure to love songs, obscene gestures, and the Iewdjokes common at these affairs.⁵⁸ Even the laity, according to one canon, were forbidden to dance at weddings; rather they should dine solemnly, as befits Christians. This injunction, of course, repre­sented no more than a pious hope, not a seriously enforced policy.⁵⁹

Canonistic writers of the Church reform movement were greatly concerned with incest. Burchard devoted the entire seventh book of his Decretum to the subject and added an appendix to clarify the calculation of the seven forbidden degrees of relationship. Burchards canons prescribed excommunication for those who contracted forbidden marriages, declared the contracting parties and their children legally infamous (infames), and held the marriages themselves invalid.⁶⁶ The anonymous compiler of the Collection in Seventy-four Titles found still further texts, and Ivo’s Decretum contains massive numbers of addi­tional authorities on this topic.⁶¹

⁵⁴Karl Ritzer, Le manage dans les eglises chretiennes du Ier au XIe siecle, Lex orandi, vol. 45 (Paris: Editions du Cerf, 1970), pp. 296-312, 447-50; Sheehan, “Choice of Mar­riage Partner,” pp. 25-27; Jochens, “Church and Sexuality,” p. 381; Duby, Knight, Lady, and Priest, 150-53.

⁵⁵Ivo, Decretum 8.44 (= Decretum 16.142 and Panormia 6.7) in PL 161:594. This may, however, have been simply a display of Ivo’s Romanist erudition, as the canon is taken from the Epitome novellarum.

⁵⁶Winchester (1076) c. 6, in Whitelock, Brett, and Brooke 2:620; of. Westminster (1101) c. 23, in ibid. 2:677, ^{as we}H ^as B^e wifmannes beweddunge,” c. 8, in ibid. 1:431; Sheehan, “Marriage Theory and Practice,” pp. 410, 423-24.

⁵⁷Burchard, Decretum 9.4 (— Ivo, Decretum 8.142 and Panormia 6.2), in PL 140:816.

⁵⁸Burchard, Decretum 2.132, 134-35, in PL 140:648.

⁵⁹Burchard, Decretum 9.10, in PL 140:817.

⁶⁰Burchard, Decretum, book 7, in PL 140:779-88, comprising 30 canons and a chart to facilitate calculations of the degrees of relationship. For an analysis of Burchard’s sys­tem of computing relationships see Ernest Champeaux, “Jus sanguinis; trois faςous de calculer la parente au moyen age,” RHDF, 4th ser., 12 (1933) 244-62.

⁶¹Coll. 74T 65.281-84, ed. Gilchrist, p. 170. These canons are taken from Pope Gre-

These prohibitions against incestuous marriage were by no means merely theoretical. Pope Gregory VII, for example, intervened in several cases to for­bid consanguineous marriages that involved, among others, such powerful fig­ures as Countess Matilda of Tuscany, Count Centullus of Bearn, and King Al­fonso VI of Castile and Leon.^[726] The letters of Ivo of Chartres likewise show him warning correspondents to avoid projected marriages that would expose them to the charge of incest.^[727] Both Peter Damian and Anselm of Canterbury consid­ered the issue of consanguineous marriages sufficiently pressing to devote spe­cial treatises to the problem. A number of local councils and synods also legis­lated on the subject, mainly repeating the prohibitions they found in the earlier canonical collections.^{[728] [729] Two general councils during the early twelfth century enacted prohibitions against consanguineous marriage, and this legislation was reiterated by local synods.63}

This vigorous activity by lawmakers, legal writers, and Church adminis­trators demonstrates that the prevention of endogamous unions and the nullifi­cation of marriages between relatives, even distant ones, was a major concern of Church reformers. Their prohibitions and condemnations were couched in rhetoric designed to show that consanguineous unions contravened divine law, and the penalties they imposed on such unions involved mainly ecclesiastical sanctions—excommunication, infamia, and penances.

Worldly interests were also involved in the campaign against consanguinity. The eleventh-century reformers drew a firm legal line, for example, between bequests of land to the Church and the residual interests in those estates held by members of the donor’s family.^[730] Restricting the capacity of families to create extensive webs of interrelations through marriage helped to safeguard Church property from the legal claims of numerous relatives. Ecclesiastical authorities demanded that families desist from intermarrying with members of their own clans in part, at least, to accomplish this aim and to break up the concentrations of landholdings that supported the economic and political power of the feudal nobility.

Although clear and explicit evidence for their rationale is difficult to come by, popes, bishops, church councils, and canonists seem to have reckoned that if blocs of feudal property were dispersed among large numbers of holders it would be possible for the Church to free itself from the power of the grand noble clans whose power rested squarely on the control of extensive landed es­tates. A policy of exogamy was well-calculated to achieve these goals, and Church reformers used the canon law on consanguinity to pursue them with vigor and tenacity.^[731] The law of consanguinity proved to be a two-edged weapon, how­ever: in the hands of the clergy it could prevent (or at least discourage) endoga­mous unions, but laymen quickly learned that they could use the consanguinity provisions of canon law to dissolve marriages that had proved unprofitable or unpalatable. Thus the weapon that the canonists forged to combat endogamy became a tool that laymen could use to combat clerically imposed indissolubility.

Closely linked to restrictions on consanguineous marriages was a battery of canonistic prohibitions against marriage with affinal, or Active, relatives. Mar­riages with relatives by marriage or adoption had long been forbidden, and the major canonists included numerous earlier pronouncements on this topic in their collections.^[732] The reform canonists placed much greater emphasis than had their predecessors on other and more tenuous affinity ties, notably the rela­tionship between godparent and godchild or between co-godparents.^{[733] [734] Since at least the Carolingian period, marriages between persons related by affinity contracted through godparenting had been forbidden; earlier generations of Christians disapproved of these marriages, but did not ban them.™ Reform can­onists, however, gave much greater prominence to the limitations on affinal marriages, and it seems likely that their reasons for this were not entirely theo­logical. Godparent relationships involved, after all, a means of creating bonds between families. The bond was not as close and intimate as that created by marriage, but the relationship resulted nonetheless in a significant social link­age. The reform canonists may perhaps have seen the ban on marriages be­tween persons related by affinity as a further means both to attack legal claims of donors’ families to Church estates and to break up blocs of feudal property held by groups of families connected to one another by godparenthood.[735]}

The cluster of developments in matrimonial law and practice championed by the Church reformers has led Georges Duby to postulate two theoretical models of marriage in eleventh-century society: an ecclesiastical model— marked by an insistence upon strict exogamy, indissolubility, and free choice of marriage partner—as contrasted with a lay model, whose characteristic ele­ments included endogamy, the possibility of divorce and remarriage, and family control of the marital choices of young persons.^[736] These are useful constructs for organizing and analyzing the evidence of law and practice in the eleventh cen­tury. Like any models, they achieve clarity by simplifying reality, which means that they disregard variables that do not fit the conceptual scheme. Eleventh­century popes and canonists worried a good deal about the matrimonial issues that feature in Dubys analytical scheme. But they were also concerned about other important issues that do not fit so neatly into the system.

One of those issues concerned the role of sex in marriage. Canonists of this period insisted that sexual intercourse, in marriage or outside of it, created a matrimonial affinity.^[737] This concept seems to be rooted in the belief that sex creates a bond of intimacy between the partners, and that this bond ought to bar subsequent marriage between either partner and close relatives of the other. The social objective here was presumably to prevent rivalries between males of the same family over sexual access to females. None of the canonical sources spell out this rationale, but it seems implied in the law’s provisions. The sources never speak of eliminating rivalries; rather they evoke notions of ritual purity.^[738] Here again we may be seeing both an attack on immorality and an effort to prevent the perpetuation of closed systems of propertyholding through sexual conquest—perhaps even an attack on informal marriage by ravishment.

Impediment by reason of sexual intercourse was not just a speculative notion of lawmakers. Four actual cases discussed in the letter of Ivo of Chartres make this clear.^{[739] [740] [741] Two cases that Ivo dealt with concerned marriages between men and their concubines, while the other two cases arose out of more casual kinds of fornication. Ivo’s treatment of these issues shows that he considered the question of affinity created by sexual intercourse difficult to deal with, for the law on this point was not well settled. Ivo’s conclusion in each case turned on the point that intercourse creates what later authorities would call a prohibitive (or impedient), but not a diriment, impediment. In other words, previous inter­course was a sufficiently serious problem to block a proposed marriage, but if the parties were already married before the impediment came to light, the problem was not sufficiently grave to justify separating the parties and annull­ing their marriage.[742]}

A substantial number of consanguinity and affinity canons appeared in Pseudo-Isidore. Burchard and Ivo were particularly important in the transmis­sion of these from the Pseudo-Isidorian collection to later canonists, notably Gratian. Table 5.1 in the Appendix shows, for example, that twenty-four of fifty- three canons on consanguinity current in this period (about 45 percent) appear in Gratian, some of them more than once. Every one of the twenty-four canons that Gratian adopted had previously appeared in Ivo’s Decretum, and all but three were also in Burchard’s work.

Canonists of the reform era detailed other impediments to lawful marriage in addition to consanguinity and affinity. Nuns, as well as widows who had taken the veil and other women pledged to God, were forbidden to marry. If they attempted to do so, a Church court might hold their unions void.^[743] Insane per­sons were likewise incompetent to marry.^[744] Church authorities continued to dis­approve of marriages between Christians and Saracens or other non-Christians. The evidence suggests, however, that that such unions sometimes did take place, particularly in the Crusader kingdoms of the Levant and in Spain.^[745] Al­though no law at this point forbade Latin Catholics to marry Byzantine and other Eastern Christians, many contemporaries disapproved of these unions also.^[746] Significantly, however, canon law protected the marriages of slaves and serfs, even when man and wife belonged to different masters, and forbade own­ers to break up these unions.^[747]

Reform canonists maintained the Church’s longstanding opposition to big­amy, but their position on digamy, or remarriage, was less clear-cut.^[748] Several collections included canons that prescribed penances for those who remarried^[749] and provided that widows who took second husbands might forfeit guardianship of their children.^{[750] [751] They were, however, grudgingly prepared to allow second marriages “as a concession to human frailty,” in the words of one Pseudo-Gela- sian canon.8,5 There was some doubt about third marriages, but apparently no attempt was made to ban them.[752] As a token of the Church’s disapproval of sec­ond marriages, some authorities admonished priests not to participate in cele­brating these unions.[753] Twice-married men continued, of course, to be ineli­gible for clerical office.[754]}

Marital sex concerned many reform canonists, but there was no consensus concerning its proper role in marriage. At one end of the spectrum of opinion was the rigorist position, staunchly defended by Peter Damian. Damian held that sexual intercourse, under any circumstances, for any reason, was always sinful, even in marriage.^[755] A more temperate opinion, based upon Augustine’s teaching that procreation was one of the good purposes that marriage served,^[756] held that marital sex was allowed only when the couple specifically intended to conceive a child.^[757] St. Bernard of Clairvaux (1090-1153), who certainly could not be accused of encouraging moral laxity, added that a further reason for per­mitting marital sex, even aside from procreation, was to provide a legitimate outlet for sexual urges that would otherwise lead people into debauchery, in­cest, and homosexual relationships.^[758]

At the other end of the spectrum of opinion about marital sex were a few writers who thought that it provided both a physical outlet for sexual energy and an emotional bond between the couple. Marriage, according to a certain William (writing between 1133 and 1135), is not merely a contract, but an agreement between two people to orient their lives toward one another. Love, including physical love, between man and wife, according to William, ought to be a central value in marriage.^[759] Anselm of Laon (d. 1117) likewise praised the value of married love—love in marriage, he maintained, had a worth all its own, so that even a childless union had merit, so long as the parties loved one another.^[760] Hugh of St. Victor (d. 1141), writing in the 1130s, added that marital sex was a central part of married love, along with affection and fidelity, and that sexual relations provided married couples with a focus for their loving union, a view that echoed the sentiments of the eleventh-century author of the life of St. Geoffrey of Savigny.^[761]

But even those who defended the value of marital sex had reservations about it. Hugh of St. Victor, for example, cautioned couples against immoderate indulgence. He encouraged them to cultivate an attitude of conjugal chastity, so that they could subordinate sensual enjoyment to the serious business of procreation.^{[762] [763]}

The canonists of the reform period reiterated the principle, familiar from patristic writings, that sexual rights and responsibilities were the same for men and women.⁰⁷ This meant that both parties must abstain from extramarital af­fairs. In addition, both husband and wife had a positive obligation to respond to the sexual needs of the other by paying the conjugal debt upon demand.^{[764] [765] [766] The right to marital sex was taken seriously, and even powerful monarchs might be compelled to make accommodations in order to enable their subjects to fulfill the canonical requirements concerning marital debt. William the Conqueror felt the power of this policy in 1068, when a group of Norman women success­fully demanded that William release their husbands from the campaign to con­solidate his English conquests so that they could return to Normandy in order to satisfy their wives’ sexual needs.90}

Despite a generally warmer approach to marital sexuality, canonists during the reform era reiterated one of the favorite themes of penitential writers on marriage: the need for periodic abstinence from marital sex. The canonists warned that those who failed to observe the rules on this matter would beget bastards, not legitimate heirs.™ The major canonists of this period borrowed their sexual abstinence rules in large part from earlier penitentials, as Table 5.2 shows (see Appendix). The canons enjoined married couples to avoid sex during the three Lenten seasons associated with Easter, Pentecost, and Christmas,^[767] on all Sundays of the year,^{[768] [769] on feast days,™ prior to receiving communion,[770] while doing penance,[771] on their wedding night,[772] during the wife’s menstrual period,[773] during pregnancy, and during lactation.[774]}

The major reform canonists also condemned “unnatural” coital practices. They frowned on sexual experimentation and demanded rigorous standards of bedroom behavior. Burchard forbade the use of aphrodisiacs, including some rather exotic ones, by women who wished to stimulate their husbands’ sexual ardor.^[775] Ivo emphasized in his Decretum that marriage did not confer a license for unbridled sexual experimentation or lascivious comportment. Ivo adjured both husband and wife to observe modesty and to avoid indecent and immoder­ate use of their sexual rights.^[776]