SPOUSAL DISPUTES, THE MARITAL PROPERTY SYSTEM AND THE LAW IN LATER MEDIEVAL SWEDEN

Mia Korpiola

Recent research has emphasized the nexus of separation customs and marital property systems in medieval Europe.^[75] Indeed, the practice of marital separa­tion across the late-medieval Franco-Belgian region may have been influenced by its communal property system.

In my previous research, I have observed some resemblance between Swed­ish marriage patterns and those of the Franco-Belgian region. Parental consent was important in Swedish law and practice. The decision to marry, as well as the process of marriage formation, remained a very collective undertaking in Swe­den throughout the Middle Ages.^[78] From the little we know of the Swedish me­dieval church courts, separation-related causes formed a substantial part of their matrimonial legal activity.^[79] In addition, the medieval Swedish marital property system was based on a communal pool of property, in addition to separate and lineal inherited land.

As will be discussed below, Swedish law authorized husbands to administer both communal property and their wives’ inherited property during marriage. Nevertheless, their managerial rights were limited both by law and in practice. In this context we might ask: did marital disputes affect these powers to manage property? How did the law regulate marital problems and separation? What kind of property consequences did marital difficulties and breakdowns have according to the law? These are some of the questions that I will address in this essay. How­ever, before analysing these issues, Sweden’s two marital property systems have to be presented; one applied to the countryside and the other to towns. Both marital property systems were basically governed by separate, though partly similar, laws enacted in the mid-fourteenth century.

The Marital Property System in Medieval Swedish Law: Protecting Inherited Land

The Swedish marital property system was partly separate and partly communal. In the countryside, where over 95 per cent of the Swedish population resided, sharp distinctions were drawn between inherited land and other property (chattels and acquired land).

Spousal Disputes, Property and the Law in Sweden paternal line), and spouses could neither have rights to that property nor inherit it. Only a tenth of inherited land could be willed to the church for pious purposes. Otherwise, it could not be alienated outside the kin group without the consent of the next heirs.^[82] Even in towns, inherited land had first to be offered to one's near­est relatives in the maternal or paternal line, depending on its provenance. Closest relatives had the right to redeem land (byrdh) that had been bartered or alienated outside the family without their consent.^[83]

Sweden practised partible inheritance; both daughters and sons inherited. While daughters and sons had equal inheritance shares in Swedish towns, in the countryside a son inherited double the amount that his sister inherited.^[84] Any property given by parents as dowry (hemfylghp) or advanced inheritance to sons or daughters would revert to the parental estate after the death of the benefactor for a new and final division between the heirs.^[85] Thus, daughters inherited along with their brothers and, unlike in many other European countries, they were not separated from the parental estate in advance through their dowry. Women regu­larly inherited land in Sweden - not only women in towns, but also among the nobility and the large landowning peasantry.

Unlike elsewhere on the Continent, where written marriage contracts were customary, Swedish dowry arrangements hardly ever left traces in the existing sources. However, hundreds of medieval morning gift letters and documents have been preserved. In the countryside, the morning gift consisted of land, chattels or money, given by the husband to the wife on the morning of the sec­ond wedding day for her maintenance in widowhood. In towns, the morning gift was given on the first wedding day.^[86] Among the wealthy, the morning gift was usually specified land, being one or several manors or farms.

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Married Women and the Law in Premodern Northwest Europe important status symbols. The maximum values were totally and universally disregarded, especially among the nobility.^[89]

The legal subjection of married women to their husbands was sanctioned by most legal authorities of the time, based upon the Bible. As the man was the head of his wife (vir est caput mulieris),^[90] she was to obey him. Her legal subjection also largely applied to property concerns as men managed the marital economy, including the property of their wives, both separate and communal, during mar­riage. As the law stated, �after man and wife are married and have lain a night together in the same bed, he is her mdlsman [mals maper] and has the right to rep­resent her in court’.^[91] Mdlsman has often been translated as legal guardian, which meant that the husband became manager of his wife’s property and, by law, her representative in legal affairs.

Both in the countryside and in towns, the authority of the husband to manage the wife’s affairs was assumed after the couple had spent the wedding night to­gether. After this, all other property - except inherited land - was pooled together. According to the mid-fourteenth-century laws, this communal property was di­vided in the countryside so that two-thirds went to the husband and one-third to the wife.

Legal guardianship did not mean that the wife was treated as a minor in all respects, but her capacity to conduct business transactions independently with outsiders, without the knowledge of the husband - and his tacit authorization by non-opposition - was restricted. In the countryside, husbands could annul all transactions made by their wives without their knowledge if the interest was high­er than one ore, a relatively small sum. In addition, the person who had conducted

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Spousal Disputes, Property and the Law in Sweden business with the wife was liable for a three-mark fine. Conducting business with a man's servants or children without his knowledge was altogether forbidden and similarly punishable by a three-mark fine.^[95] This hardly encouraged people to en­gage in business with married women, although the situation may have been more fluid than the law suggests. By contrast, in Swedish towns, wives were expected to play a more active role in their husbands' businesses or trades - as was the case elsewhere in northwest Europe.^[96] King Magnus Eriksson's town law did not limit a wife's authority to conduct sales. The husband's knowledge or authorization was immaterial. However, purchases from a man's children or employees were forbid­den and punishable by a three-mark fine unless they had expressly been made sales assistants.^[97]

Despite the rules of guardianship, very occasionally some married women ap­pear in documents acting as their husbands' representatives or conducting their land transactions themselves, with their husbands' consent.

Although wives were under the authority of their husbands, they had legitimate authority both over members of the household and over property as mistresses of their household. The keys of wives were visible cultural symbols of this authority over the household, and taking them away from a wife was a serious insult to her status and family.^[101] For example, Klemit the Pouch-Maker's wife complained that her husband disliked (vanelzkar) her, drove her away from their home, and was

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always in the company of the maid-servant.^[102] Ousting the wife from the home and replacing her with the maid turned the domestic roles and hierarchies upside down, as wives had disciplinary power over servants in the household as the sec­ondary co-manager in household affairs.

As has been discussed, Swedish law gave married men substantial power to manage the household and the property of their wives during marriage. The morning gift property received by the wife from her husband was considerable among the nobility. Women also received property from their natal family as dowry and inheritance, regularly inheriting land. A woman's closest relatives, as potential heirs to her inherited lands, had vested interests in assuring that they were neither mismanaged nor alienated without their consent. This brings us to the Swedish legal provisions safeguarding property from negligence.

Safeguarding Property from Spousal Mismanagement and Elopement

Property, moveable as much as immovable, and its management have always been potential sources of marital conflict. We get two vivid descriptions of such instances of spousal tension because of property loss in the miracles associated with Saint Katarina [Ulfsdotter, 1331-81] of Vadstena, daughter of Saint Birgitta [Birgersdotter, 1303-73] of Sweden.^[103] Peter Petersson of Vadstena and his wife had been blessed with thirteen children but, because of his wife’s lack of milk, she could not nurse any of them herself. Thus, they had been forced to hire a string of wet nurses, causing extra expenditure and an obvious burden on the family econ­omy. Peter felt great indignation towards his wife, reviling and verbally abusing her because of her inability to nurse the infants herself.^[104] In 1470, another married Vadstena woman was returning home from church carrying her small son in her arms. The child started to cry and she put a silver spoon into the baby’s hand in order to calm him. But, the infant dropped the spoon on the ground. When the mother later realized this, she was distraught, fearing the wrath of her husband after losing the valuable silver item.^[105]

However, these were minor troubles concerning matrimonial funds. The au­thority of the husband to represent his wife in court and to administer her prop­erty during marriage was potentially far more problematic. Maria Agren has observed that medieval Swedish law �implicitly depicted husbands as the ones against whom [married] women might need protection, and the law consequently provided means by which the power of husbands was circumscribed’.^[106] The means

Spousal Disputes, Property and the Law in Sweden

of curtailing the power of their husbands were granted to wives' male relatives, though, rather than to the married women themselves.

The threat posed to a married woman's property by her husband's mismanage­ment was countered by various means. The law required that people managing the possessions of others, as curators or guardians, could not alienate property belonging to their wards or charges either by barter or sale unless this was ben­eficial for the ward or charge. If not, the transaction was revocable.^[107] Regarding husbands managing the property of their wives in particular, the law expressly specified that regardless of whether the couple had children together or not, the husband could only barter his wife's lands with her consent and that of her heirs. Even if this consent was given, the exchange had to be �for better land, not worse’.^[108] This is what Katarina Larsdotter claimed when her husband bartered away her inherited land. According to her, he had not exchanged her land for better land, as the law stated, but for worse. The court found in her favour and annulled the transaction because of her lack of consent.^[109]

Although claiming a wife's lack of consent could be a strategic pretext for an­nulling land transactions later discovered to be disadvantageous, it is also prob­able that some such cases resulted from real disputes between the spouses or a husband's mismanagement of his wife's property. The interests of a wife's natal family in her land, which they potentially stood to inherit from her, ensured that she would have their support if the alienation was unlawful or disadvantageous.^[110] Women occasionally complained in court that their husbands had sold their land without authorization. In the countryside, as a general rule, husbands could not alienate their wives' property without their consent unless there were extraordi­nary circumstances. If foreign troops invaded the country, taking one spouse into captivity of war, the other spouse - even if it was the wife - was allowed to sell the captive's land in order to redeem them. If there was famine and dire necessity, the husband had a limited right to sell his wife's land, provided he also sold double the amount of his own lands. In such a case, the sale had to be made at the assizes (district courts in the countryside) and the selling spouse had to define the neces­sity that drove them to sell the other's land.^[111]

Even in towns, where livelihood was less dependent on landed property, and the exigencies of the market economy were better taken into account, husbands could not freely dispose of their wives' inherited land. Her consent and that of her closest relatives were needed. Nevertheless, under exceptional circumstances, either spouse could again unilaterally sell the other's land in order to redeem him/ her from foreign captivity of war. Town law mentioned famine but added poverty in general as another acceptable reason for selling land. However, it was expressly

stipulated that the poverty was not to be caused by wastefulness such as gambling if a spouse's inherited land was to be sold.^[112] In 1397, Helga Anundsdotter, widow of lord Valdemar Eriksson, complained how her - probably former - husband Joar Konigsmark had violently forced her (med store n∂dh, at jac var slaghin oc trughat oc illa haldnat ther til) to cede her seal. Then he had used it against her will for alienating her estate of Bro without her consent.^[113] Luckily for lady Helga, un­lawfully ceded lands would be returned, even if much later, to the rightful owner if no acute emergency had driven the husband to alienate the land (vtan besynderlig n∂d driffuer han thdr til), as she claimed.^[114]

A wife's interests were protected, as her inherited lands could never become the property of her husband without the consent of her kinsmen. She could not validly alienate her inherited land without their consent, but neither could her husband. If a married woman received her inheritance in the form of land, this provided her the best protection against her husband's mismanagement. The legal capacity of the owner of inherited land was curtailed by the law as �legally he [or she] was only holding it on behalf of his family, as a trustee'.^[115] Therefore, not only sentimental reasons, but also property-related self-interest, ensured that a wife's natal kinsmen would come to her aid if her husband proved incompetent and wasteful.

Occasionally, when women sought aid from their male relatives, their marital difficulties had probably also caused other disputes between their kin and hus­bands. For example, in 1458, Olof Jonsson and his son-in-law (magh) Marten first appeared at the town court of Arboga in connection with a dispute concern­ing some barrels of malt and grain, but the court then moved on to consider the state of Marten's marriage. This reflected the connection between two disputes. At Marten's request, two men had gone to Olof demanding the return of Marten's wife. Olof had replied that Marten would neither have his wife back that day nor the next day, and she had remained with Olof for two nights. The court sentenced Olof Jonsson to an extremely high eighty-mark fine for taking away Marten's wife, but, in reality, he only paid a small fine for the offence.^[116]

Hiding or smuggling away communal property from the marital estate was a sign of a failing marriage. The hidden property would form a nest egg for life after separation. As men managed the household assets, they were better posi­tioned to liquidate the property and abscond with valuables. Their power to man­age chattels was uncontested, while only the wife's inherited land was especially protected. Peder Kopman from Stockholm secretly made off to Germany with his own property, that of his wife Kristina, widow of Evert the Goldsmith, and that of his stepchildren, leaving them to cope with his debts. However, the Councils of the Realm and town freed them of all Peder's debts, observing that �he had trans-

Spousal Disputes, Property and the Law in Sweden gressed against them by his own neglect and crime' (hans egin forsyn och brot).4 Margaretha, wife of the Danzig barber Jacob Blumenstein, chose to write to the bishop of Turku explaining how the woman staying with Jacob in Turku was, in fact, a common woman (gemen wiff), not his lawful wife (getrude wyff). Jacob had taken Margaretha's property with him to Turku, and she now wanted him pun­ished for his adultery.⁴⁴

Such disloyal and dishonest behaviour could also frustrate attempts at recon­ciliation. In Stockholm, rumours circulated of a matrimonial fracas between Kris­tina Kuste and her husband Klaus Grabow, both from the patrician elite. She was accused of adultery. Sten Sture, regent of Sweden (1470-97 and 1501-3), and the Council of the Realm had probably been informally called to the rescue by per­sons in social circles close to the parties. Both the two mayors of Stockholm were required to demand an oath from Grabow that he would not desert his wife and sail away - probably to Lubeck where he had relatives - or send his possessions overseas.⁴⁵

Spousal elopement raised several property issues, partly related to the eloping spouse (for example, bigamous new marriages), and partly related to the remain­ing spouse (for example, management of the estate). The reasons for spousal de­sertion could be financial, such as those of the above-mentioned Peder Kopman. Alternatively, crime could lead to desertion. In Arboga, in 1546, Karin's husband committed homicide and deserted her because of that.⁴⁶ Knight Krister Nilsson, governor of Viborg castle, wrote in 1429 to Tallinn complaining of Cort, a gunner (bussenschutte), who after having committed misdeeds and causing injuries (grote bosheit hevet bodreven unde my groten drepeliken schaden hevet gedan) had run away, deserting both wife and children.⁴⁷

Runaway husbands could try to contract another, bigamous, marriage with un­suspecting women if the officiating clerics were lax and failed to enquire into the potential impediments to the marriage. Swedish late-medieval synodal statutes demonstrate that unknown couples asking for solemnization without presenting proper evidence of their freedom to marry were perceived as a major problem. To remedy this, synods insisted that priests demand proof from unknown couples wishing to get married, â€?for many come running with wives of others'.⁴⁸ Consci­entious clerics required evidence, especially if there were rumours that another spouse was still alive.⁴⁹

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7 September 1489, SST II, pp. 378-9; M. Lamberg, ^cSaadyllisyyden vartijat: Tukholman valtapor- variston sukupuolimoraali myohaiskeskiajalla, Jyvaskylan historiallinen arkisto 3 (1997), 68-70; Lamberg, Dannemannen, p. 134.

20 October 1509, R. Hausen, ed., Finlands medeltidsurkunder [I-VIII, hereafter FMU] VII (Hel­singfors, 1910-53), doc. 1655, pp. 272-3.

1 August 1487, SST II, p. 207; Lamberg, ^cSaadyllisyyden vartijat, 68-70; Lamberg, Dannemannen, pp. 132-7.

8 March 1546, AST IV, pp. 59-60.

25 June 1429, FMU II, 1891, p. 409.

E.g., Statutes of Archbishop Jons Hakansson, 14 February 1425 and 4 March 1425, H. Reuterdahl, ed., Statuta synodalia veteris ecclesite sveogothicw (Lund, 1841), p. 40.

2 December 1522, H. Gunneng, ed., Biskop Hans Brasks registratur. Textutgdva med inledning

Swedish secular medieval law, considering bigamy one of the most serious sex­ual crimes, penalized male bigamists by beheading and female bigamists by ston­ing or burning if the second marriage had been consummated.⁵⁰ The bigamists prosecuted and executed in medieval Swedish towns tended to be male.⁵¹ Because of the heinousness of the crime, secular authorities tried to trace deserters before they could actually do their wicked deed. Knight Niklis Kurck, in around 1420, warned the Tallinn town council that the daughter of a local woman, Margeret Laisghe, was getting married to an unworthy (unwerdich) man with a wife still liv­ing in Sweden. The council was requested to prevent the union and the injustice it would cause.⁵² Namely, the wedding would have given the man access to the property of Margerets daughter, and he could have wasted it under the pretence of being her lawful husband and legal guardian.

For bigamists, wealth acquired by second marriages compensated for the pos­sible loss of property left behind when absconding. Runaway spouses usually had to leave some of their property behind, especially if they owned real estate. De­serting wives, most particularly, carried off property from the communal home to compensate for the financial difficulties likely to threaten them later. Occasionally, circumstances suggest a premeditated elopement with a lover.⁵³ For example, in 1506 Olof Skroma complained that David Kolstok had absconded with his wife, taking two rugs (ryghor) and a pot (gritto) with her.⁵⁴ Bengt of Skovlingsryd, in 1480, accused Jon of Beth of taking away his wife and some property from his house. The list of items taken largely concerns women's clothes: four kirtles, three chemises (sxrkia), two hats or outer garments (kappa), one sheet, and a conical hat (strwthxtta).^ss In a letter in an ecclesiastical model letter collection from the early fifteenth century in which the exact names of the parties and dates are omit­ted, it was alleged that the wife of N., burgher of Linkoping, had gone even further. Not only had she deserted her husband at the instigation (ipso machinante) of the newly-appointed vicar in Skanninge, but she also had taken with her almost all of her husband's chattels (omnibus quasi rebus Suppellectilis sue distractis).⁵⁶ The court records fail to mention explicitly whether or not the property carried off by eloping wives was part of their dowries but, irrespective of this, it was managed by their husbands as communal property.

When husbands eloped, in addition to the wives' potential loss of property, the restrictions on married women's ability to make legal transactions hindered

[hereafter BHBR] (Uppsala, 2003), no. 46, p. 138; Korpiola, Between Betrothal and Bedding, pp. 213-23.

⁵⁰ Hogmalsbalken [Chapter on Heinous Crime] 3, MESL, pp. 231-2; Hogmalsbalken 4, MEL, p. 214; Torkeitten asiain kaari [Chapter on Heinous Crime] 5, KrL, pp. 132-3.

⁵¹ E.g., 17 June 1476, SST I, p. 60; 18 February 1505, SST IV, p. 103.

⁵² Circa 1420, FMU II, 1655, pp. 272-3.

⁵³ Cf. Johnson's essay in this volume.

⁵⁴ 27 July 1506, SST IV, p. 123.

⁵⁵ Year 1480, C. M. Kjellberg, ed., Jonkopings stads tankebok, 1456-1548 [hereafter JST] (Jonkoping, 1918), p. 149.

⁵⁶ P. Stahl, ed., Johannes Hildebrandi, Liber epistularis (Cod. Upsal. C 6). 1. Lettres nos 1 a 109 (fol. 1r a 16r). Edition critique avec des analyses et une introduction (Stockholm, 1998), no. 73, p. 106.

Spousal Disputes, Property and the Law in Sweden

property management. To remedy this, Swedish law contained specific provisions for alienating property in the case of a spousal desertion or a husband's pilgrim­age. The remaining spouse had the right to sell any chattels belonging to the other if necessary for her/his livelihood or that of their children, provided he/she also sold an appointed fraction of his/her own property. Under these circumstances, wives could make valid transactions without husbands.^[117] For manager-husbands, the situation was less complicated. In a property case from the 1420s, the town court of Kalmar investigated the ownership of a house. Sven the Smith argued against Storge the Smith, Sven's brother- or father-in-law (swagh), that a part of the house had been his wife's dowry. As she had �behaved badly and run away from her husband', Sven was allowed to keep the dowry and administer it until his wife should die. Then, the property would go to her lawful heirs �in accord­ance with the chapter [of law] on inheritance’.^[118] Swedish law had explicit, separate provisions for adultery.

Wages of Sin: Punishing Adultery

God had constituted marriage to save people from sexual sin and fornication. As St Paul said, �It is better to marry than burn.' Marriage being a remedy of sexual sin, the Church had introduced the notion of conjugal debt obliging each spouse to have sex with the other on demand. ^[119] Otherwise, the threat of adultery loomed. Even with this legitimate outlet for sexuality, the devil could ensnare married men and women. The canonization records of Saint Katarina of Vadstena tell how the wife of Andor was secretly pestered by Satan's temptations and the impure thoughts in her heart. Luckily, the saint intervened and helped her.^[120] Others, less fortunate, acted on their impulses and broke the Sixth and Ninth Commandments (�Thou shalt not commit adultery' and �Thou shalt not covet thy neighbour's wife'). As a corollary of the avoidance of sin, the couple had to live together. Long absences by one spouse required the permission of the other so that paying the conjugal debt was not jeopardized. Separate residences were, in effect, unacceptable for the Church unless a judicial separation had been pronounced by the local bishop.^[121]

Adultery had connotations of theft, a property crime. These were emphasized in the text of King Christopher's Law of the Realm of 1442, which sharpened the penalties for adulterous elopement by equating elopement with theft. Although the law did not consider married women as chattels, it stated that �the best thing the man has in his household is his lawful wife. He who steals [her] from him is the worst and greatest thief.' Consequently, men caught in the act would be

Married Women and the Law in Premodern Northwest Europe hanged - like thieves were - whereas the fate of the women, facing a maximum penalty of burial alive, depended on their husbands. Alternatively, if the eloping couple had not been taken in the act, paying a high fine was required.⁶² Although the 1442 law was hardly applied during the Middle Ages, it still demonstrates a hardening of attitudes towards adultery.⁶³

While the medieval Church largely insisted on equal treatment for both sexes for similar crimes, secular society fostered a double standard, partially related to wom­en's reproductive role.⁶⁴ The legal presumption that matrimony determined pater­nity (pater est quem nuptiae demonstrant) was widely accepted in medieval Europe. Unless there was proof to the contrary, children born to married women were pre­sumed to be their husbands'.⁶⁵ In Swedish law, a child born within ten months after the husband's demise was considered his legitimate descendant and heir.⁶⁶ If the wife had been forcefully taken from her husband, the presumption of paternity extended to forty weeks calculated from when â€?she last shared his bed’.⁶⁷ Through clandestine and treacherous female infidelity, a husband and his family could be defrauded of their property by a bastard. According to the Church, a woman had to perform penance for concealing the true paternity of her child and deceiving her in-laws.⁶⁸

In medieval Swedish secular law the penalty for adultery, a forty-mark fine, was divided between the injured party, king and community. An additional fine to the church was over thirteen marks.⁶⁹ In practice, the size of the fines depended on the wealth, or poverty, of the offender and whether or not he or she was married. Records of the medieval town court of Stockholm usually fail to mention explic­itly whether the adultery was single or double, that is, whether one or both parties were married. Exceptionally, Eskil, a married man, was sentenced to pay both a forty-mark fine for violating a virgin (compensation for the virginity of Anna, daughter of Olof the Carpenter) and another forty-mark fine for the adultery.⁷⁰

Adulterous men were regularly punished with fines.⁷¹ A few male adulter­ers were executed but the circumstances were unusual. In two cases, theft was

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Varkaankaari [Chapter on Theft] 1, KrML, p. 157. See also R. Hemmer, ^cKristofers landslag Tju- vabalken 1', Kyrkohistorisk Arsskrift 58 (1958), 154-5; L. Carlsson, ^cTolkningen av Tjuvabalken 1 i Kristofers landslag', Kyrkohistorisk Arsskrift 58 (1958), 156-61; R. Hemmer, ^cAnnu i fragan om Kristoffers landslag Tjuvabalken 1', Juridisk Tidskriftfor Finland 95 (1959), 154-5.

M. Korpiola, �Rethinking Incest and Heinous Sexual Crime: Changing Boundaries of Secular and Ecclesiastical Jurisdiction in Late Medieval Sweden, Boundaries of the Law: Geography, Gen­der and Jurisdiction in Medieval and Early Modern Europe, ed. A. Musson (Aldershot, 2005), pp. 108-13.

E.g., Brundage, Law, Sex, and Christian Society, pp. 462-3; R. M. Karras, Sexuality in Medieval Europe: Doing unto Others (New York, 2005), pp. 87-9, 120-4.

Brundage, Law, Sex, and Christian Society, pp. 543-4.

Giftermalsbalken 23, MEL, p. 46; Giftermalsbalken 17, MESL, pp. 45-6; Naimiskaari 22, KrL, p. 50. Arvdabalken 5, MEL, p. 59; Arvdabalken 5, MESL, p. 57; Perintokaari 6, KrL, p. 52.

Penitential regulations, diocese of Skara, J. Gummerus, ed., Beitrage zur Geschichte des Buss- und Beichtwesens in der Schwedischen Kirche des Mittelalters (Uppsala, 1900), p. xvi.

E.g., Giftermalsbalken 10, MESL, p. 43; Korpiola, cRethinking Incest', pp. 110-11.

16 July 1485, STT II, p. 102.

E.g., JST, pp. 39, 112; 9 June 1507, AST III, p. 205; 21 January 1478, SST I, pp. 142-3; 1 December 1473, AST II, p. 23; 12 May 1483, AST II, p. 209.

Spousal Disputes, Property and the Law in Sweden

also involved, which alone warranted death by hanging.^[122] Usually husbands were not vindictive enough to insist on the lives of their unfaithful wives, who could generally expect fines instead.^[123] As men living in the countryside received bigger inheritances than women, such men were usually wealthier and better able to af­ford to pay fines, while women more often had to undergo shaming penalties and banishment. For adulteresses living in towns, this could involve carrying publicly the heavy �stones of the town', two stones linked with an iron chain and weighing more than twenty-five kilos in total. In towns, adulterers could theoretically be put on parade, with a rope around the penis by which their lover would lead them around the town.^[124] The threat of this penalty probably motivated the parties to pay the fines. Part of the population in Swedish towns was German and - through the Hanseatic league and German immigration - Swedish town law had, to some extent, been influenced by northern German town laws, as these two penalties show.^[125] A spell in the pillory or carrying the town's stones was usually the prologue to permanent banishment from the town.^[126]

According to Swedish law, only the personal property of a criminal could be forfeited or used for paying a fine.^[127] One might assume that male criminals in par­ticular would use household funds, regardless of whether these were derived from communal or inherited property, for fines. In 1504, Cecilia, Bertil Michelsson's wife, bought a house in Stockholm using inherited funds. She then energetically denied that her property could be used to cover any fines her husband might be sentenced to pay. According to her, �on no account could he pay fines using her property as she had had enough of his beatings and blows due to his ale-drinking and drunkenness and his madness (yrgalinheet)'.^[128]

Paying fines for crimes such as adultery could cause problems regarding the ownership of inherited land. According to medieval Swedish law, only the prop­erty of a criminal spouse was to be confiscated, while the lands and chattels of the innocent spouse were to be separated before confiscation.^[129] Thus, the property of the innocent party was not wasted because of the spouse's crime. In 1558, when the rights to a farm were disputed, it was proven that the land had been law­fully sold by Lasse of Gardsbys maternal grandmother, who needed the money in order to pay a fine for adultery.^[130] A more problematic case arose in the town

court of Jonkoping in 1547. Ingerd, wife of Mans Obo, complained that Mans had mortgaged their jointly-owned house (gard) to Bengt Larsson for forty-five marks. With the money, Mans had paid his fine for adultery after a relationship with a certain Esbjorns wife. The court ruled that as Mans had personally wasted the money, he had to pay his fine out of his own half of the house and not her share. Therefore - and because she had no other domicile - Ingerd was granted her half.^[131] Nevertheless, the innocent spouse occasionally consented to pay the fine of the adulterous spouse. In 1544, the Stockholm burgher Henrik Finne ac­cused Jon Mansson of adultery with his wife, whom he wanted to be rid of, but not by insisting on the death penalty. He even wanted to pay her fine to enable her to leave the town unhumiliated (oskamjcerath aff by), as she was to be banished from the city for life.^[132] Undergoing public shaming penalties, such as the pillory or car­rying the stones, made reintegration into society more difficult.

In addition to punishments in secular or ecclesiastical courts, adulterers - and particularly adulteresses - faced property penalties. Adulteresses lost their morn­ing gifts, regardless of whether they lived in town or countryside. In the country­side, they also lost their third of the communal marital property.^[133] Occasionally, the wife's previous behaviour was commented upon in court, in connection to inheritances and distributions of estates; �the wife had behaved badly towards her husband, stolen and run away from him’, thus forfeiting her rights to the husband's estate.^[134] Loss of property and/or property rights was the typical penalty for adul­teresses: morning gift property, dowry and/or dower rights. Similarly, research has shown that medieval English abduction legislation was largely used, in prac­tice, to publicize adultery and elopement, and thereby to deprive adulteresses of their dower rights.^[135]

Medieval Swedish society demonstrated its sexual double standard by allowing adulterers living in the countryside to retain their property rights while, in towns, adulterous husbands suffered somewhat by losing their right to take certain privi­leged personal property from the joint estate (jordel) after the wife's death. This privileged property of a husband lost consisted of the best bed in the household, his best outfit, his saddle, weapons and chest.^[136] The estranged spouses could freely be reconciled, but what happened then with the forfeited property rights? In 1488, Ragnar and his wife appeared at the court of Arboga because she was guilty of an unnamed offence, possibly adultery. He declared himself ready to take back his wife and pardon all the wrongdoings she had done to offend him. Nevertheless,

Spousal Disputes, Property and the Law in Sweden should she transgress again, she would be punished for all her deeds - even the past ones.⁸⁷ At the town court of Stockholm, in 1504, Jakob Walske of the town of Nykoping swore publicly that he had never learned of any dishonour in his wife since he last took her back.⁸⁸ But, it is not completely clear whether or not forgive­ness and resumed cohabitation also re-established the spouse's property rights that had been lost by the adulterous act, as was the case in England.⁸⁹

The loss of property rights provided incentives for rapacious relatives to accuse a woman, after her husband's death, of adultery. When Kettil Jonsson, brother­in-law of the noble widow Arfrith Knutsdotter, accused her of adultery during her husband's lifetime, the court observed that her own husband had never ac­cused her of the deed, there was no adulterine child, nor could Kettil produce proper witnesses to the deed. Therefore, her innocence was proclaimed.⁹⁰ As will be discussed below in more detail, the prolonged case between Kettil Jonsson and Arfrith Knutsdotter indicates that the property rights of widows also motivated some accusations of adultery and murder.

Sleeping with the Enemy: Spousal Violence, Homicide and Property

Swedish law reinforced a traditional gender hierarchy, but not domestic tyranny, by observing that God had given the husband his wife to assist him and to be subjected to him, â€?but not for a slave and footstool' (til hielp oc wnderdan, tho ey til trxl eller fota trodh).⁹¹ Because of this, mutual love was expected: â€?the wife was to love him as [her] head, and the husband her as [his] limb' (elska, hon han som howd, oc han hona som lim).⁹2 As head of the household, the husband's esteem and honour partly depended on the kind of house he ran. He was expected to control it and its mistress, his wife. As elsewhere in Europe, the husband, as head of his wife, was authorized by both ecclesiastical and secular law to correct her improper or bad behaviour with moderate physical violence.⁹³ Medieval Swed­ish law limited the husband's authority to chastise his wife with respect to the

87

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28 April 1488, AST II, p. 330.

14 October 1504, SST IV, p. 26.

Brand, �“Deserving” and “Undeserving” Wives, pp. 8, 12-15.

31 December 1453, diocese of Skara, Fotostatkopior av medeltida pergamentsbrev i Riksarkivet [hereafter FMPR]. For the restrictions on making accusations of adultery, see M. Korpiola, �On Ecclesiastical Jurisdiction and the Reception of Canon Law in the Swedish Provincial Laws, How Nordic Are the Nordic Medieval Laws?, ed. D. Tamm and H. Vogt (Copenhagen, 2011), pp. 229-31. See also Giftermalsbalken 10, MESL, p. 42; JST, p. 112; 3 June 1477, SST I, p. 107; 11 December 1475, AST II, pp. 64-5.

Tahallisen haavoittamisen kaari [Chapter on Intentional Wounding] 19, KrL, p. 154. Citation from Konung Christoffers Landslag, ed. C. J. Schlyter. Corpus iuris Sueo-Gotorum antiqui, 12 (Lund, 1869), p. 361.

Tahallisen haavoittamisen kaari 19, KrL, p. 154. Citation: Konung Christoffers Landslag, ed. Schlyter, p. 361.

E.g., J. A. Brundage, �Domestic Violence in Classical Canon Law, Violence in Medieval Society, ed. R. Kaeuper (Woodbridge, 2000), pp. 186-7; S. M. Butler, The Language of Abuse: Marital Violence in Later Medieval England (Leiden, 2007), esp. pp. 2-3, 25-9, 41-65, 144-50, 183, 230-6, 262-3.

Married Women and the Law in Premodern Northwest Europe amount of violence used and the motivation for that violence. Chastisement was permitted, intentional homicide was not. If the husband's disciplining was exces­sive and the wife died thereof, he had to pay fines and compensation but he did not atone for the crime with his life.^[137] The law of 1442 held that if the husband caused wounds, bruises or even worse injuries to his wife, he was to pay a sum that was double the usual fine for such an injury. He was not authorized to beat his wife �out of hatred, wickedness, drunkenness, or love towards another woman’.^[138] Sharp-edged weapons, like swords or knifes, were not considered permissible for such �chastisement’^[139]

If one spouse caused the death of the other, whether intentionally or acciden­tally, the surviving party lost his or her rights to the communal estate. Even here, a husband forfeited less than a wife because, in addition to her share of the com­munal property, a widow would also lose her morning gift, both in towns and in the countryside.^{[140] [141] If either spouse was fined for causing the death of the other - depending on whether the death was accidental or intentional - a third of the fine went to the relatives of the deceased spouse and could not be inherited by the culprit (that is, the killer). In instances where the couple had children, after the death of the spouse, the fines went to the relatives of the deceased spouse. This confirmed the principle that one was not allowed to inherit from a person whom one had killed, nor could the killer's relatives (dtlinger).9s}

If one spouse died at home under unclear circumstances, the other tended to be the prime suspect. In Stockholm, in 1516, Olof the Goldsmith managed to clear himself of suspicion of killing his wife after a doctor had investigated the corpse and concluded that Olof had not caused her death.^[142] Therefore, Olof did not lose his marital property rights. In another case from Stockholm, in 1507, the wife of Rolof - who had probably belonged to the castle garrison - had behaved suspi­ciously when her husband was killed. She had �walked or run' to the monastery in order to seek asylum there. Consequently, she had to take an oath, together with eleven compurgators, that she had not been a party to her husband's death. Unless she did this, Roleff's heirs were to be granted her property share.^[143]

The property interests involved explain, in part, why the dead spouse's relatives might accuse the widow of murder. For example, Erik and his sons Ingemund and Lars Eriksson, father and brothers of Anders Eriksson, accused Anders's widow Cecilia of murdering her husband. Cecilia had cleared herself of the accusation by producing twenty-four compurgators, and when the case was heard again in 1490, the jury was also ready to confirm this sentence, acquitting her of the homicide.^[144] In contrast to this, in 1417, Sven Lax had felt compelled to deny at court that he

Spousal Disputes, Property and the Law in Sweden had ever accused his son Lasse Svensson’s widow Birgitta, daughter of the lesser nobleman (knape) Brynolf Magnusson, of having murdered her husband.^[145]

Nobleman Kettil Jonsson obviously wished to play it safe when he accused his sister-in-law, Arfrith Knutsdotter, niece of superior judge (lagman) Bengt Gylta, of both adultery and killing her husband (Kettil’s brother), Torsten Jonsson. Ket- til seems to have been motivated by the morning gift property that came into Arfrith’s possession as a widow. When the case first came before the court, in 1442, she managed to free herself from the charge of homicide but was ordered to free herself from the adultery charge by compurgation in the ecclesiastical court. Failing this, she would forfeit her morning gift.^[146] However, Kettil Jonsson seems to have been unhappy that Arfrith managed to prove her innocence, as the case came up again eleven years later. Arfrith’s innocence, in relation to both accusa­tions, was reconfirmed, as Kettil only found one witness to her supposed adultery. The jury observed that Kettil had not proven his allegation by witnesses or by the birth of an illegitimate child. Moreover, Torsten had never accused Arfrith of the crime when he was alive. But the long dispute regarding the morning gift was only settled some days later by eight arbitrators, who confirmed Arfrith’s morning gift, consisting of several estates and a mill. Some of the farms Kettil or his heirs could redeem after twenty years, but the rest remained Arfrith’s for life.^[147] Obviously Torsten Jonsson had given what his relatives considered an over-generous morn­ing gift, which then triggered long litigation on various pretexts after his death.

Although malice or greed explains some accusations of viricide or uxoricide, gruesome murders did occasionally take place. For example, Katerin Pedersdotter of Estuna was condemned to the stake for murdering her husband by hitting him on the head with an axe. However, the execution was postponed until she had given birth to the child she was carrying.^[148] The community had no understanding for such cruel and premeditated murders, and the culprits had to atone for them with their lives without mercy.

Severe cases of spousal violence were certainly monitored, and unclear cir­cumstances in a spouse’s death sent the widow(er) to the dock immediately. As we have seen, the spouse who caused the other’s death forfeited matrimonial prop­erty rights, which may have spurred some relatives of the deceased to make ac­cusations of murder. And at least some cases suggest that litigation was motivated by an attempt to deny the widow her property rights.

Separation and Division of Property

Medieval Swedish secular law did not discuss the possibility of judicial or vol­untary separation but left it to the ecclesiastical jurisdiction. In addition to in-

formal ways of separating, adultery, heresy and cruelty (serious physical abuse) constituted grounds for judicial separation in church courts, according to later medieval canon law.^[149] Unlike some church courts in the Franco-Belgian region, wastefulness and mismanagement of communal property seem not to have been accepted as grounds for judicial separation in medieval Sweden, despite the rela­tively liberal practice of separation.^[150] The Swedish episcopal courts worried about the conjugal bond, not marital property. Based on the little we know of Swedish medieval episcopal courts, ecclesiastical sentences of separation also seem to have failed to mention post-separation property provisions or divisions. For example, a sentence between Lars Johansson and Katarina Staffansdotter, pronounced by Bishop Hans Brask of Linkoping in 1525, noted the grounds for the separation (her adultery) and forbade both parties to remarry, but did not refer to their prop- erty.^[151] Nor did secular law regulate property divisions of separated couples. The existing records of secular courts are nearly completely silent on spousal agree­ments regarding the division of property.

The Swedes did not normally use written contracts when marrying, nor did they register agreements of division of goods when separating. Property divisions were made privately by the parties and their friends. In an exceptional case, Kata­rina Jakobsdotter, daughter of the late Stockholm town councillor Jakob Moyse, and Katarina’s husband, Olof Nilsson, had their property divided when separating in 1499. Eleven men, including several town councillors and noble councillors of the Realm, made the division in Stockholm. Katarina and Olof had �on both sides completely given themselves to [the appointed noblemen and burghers] from their own hands’.^[152] The separation agreement was written down in the court re­cords and it divided the townhouses and some chattels of the couple. Katarina was freed from any debts in the town, while both were liable to half of possible non­Stockholm debts. The couple had only been married for a few years but they had obviously had serious marital difficulties of an unspecified kind, as both spouses had been forced to find sureties for not angering the other spouse �with words, acts, counsel or deeds’^[153] In a Stockholm inheritance dispute from 1596, it was recorded that a married couple had separated - probably informally - decades ago because of the noble husband’s adultery. The couple had agreed on a division of property between themselves.^[154]

Another late sixteenth-century property dispute involved the consequences of divorce. The main legal issues in the case between Anders Jonsson and the heirs of Arvid Bosson, including Anders’s ex-wife Elin Arvidsdotter, revolved around whether Anders and Elin Arvidsdotter had been separated by the bishop. It also

Spousal Disputes, Property and the Law in Sweden

mattered who was the guilty party because this determined how the property of the couple was to be lawfully divided. Already, some years before, Anders had received on these grounds a considerable, listed amount of property belonging to his wife, including her clothes and the domestic utensils that had then been in the house. The same inventory indicated that the wife had received very little or near to nothing. Anders had to provide the court with a letter from the bishop proving that he had indeed been granted a lawful divorce from his wife and specifying who was to blame for the divorce; the town council had already tried to find out which of the two was the guilty party. It would then be calculated what Anders Jonsson and his wife had each received, and a lawful division of property would then be made between the spouses.^[155] Elin - who still lived in the same town - and some of her relatives, had to return gifts (spoons, a pot, a bearskin, and a hat) to Anders. Anders also wanted back all the money he had spent on his wife and her family concerning the wedding, gifts, clothes, and shoes.^[156] Guilt thus mattered, and mattered largely for reasons of property.

Swedish wives, when separated, usually received their third or half of the com­munal estate, and their heritable lands (unless guilty of adultery, in which case they lost their morning gifts and the right to communal property). Thus, specific maintenance payments seem to have been unnecessary. By contrast, English ec­clesiastical courts dealt with claims of alimony in connection to separation causes, and they were ready to grant maintenance even to adulterous or abusive separated wives (although common law courts stripped adulteresses of dower rights).^[157]

Although a separation de jure put an end to cohabitation and the conjugal debt, as well as giving cause to a division of property, it left the marriage bond intact. This settlement was sometimes not enough. In one instance, in 1513, the wife's family helped to rid her permanently of her husband. Jon of Starback and his sons accused Jon Pedersson, the son-in-law and brother-in-law of the Starback men, respectively, of theft. Here, the supposed larceny probably was the final straw in a longer conflict. Namely, Jon Pedersson had been living in adultery with a woman called Gunnil, slighting his own wife, Jon of Starback's daughter. Not content with this, adding injury to insult, Jon Pedersson had stolen silver items from his in­laws. One of these, a silver hair decoration, could have been intended for his mis­tress. Intra-family thefts were hardly ever taken to court and, even more surpris­ingly, Jon Pedersson's in-laws insisted on having him hanged for his deed. As Jon had confessed to the crime and the injured parties demanded the death penalty, the court reluctantly condemned Jon to the gallows.^[158] Probably he had managed to permanently and fatally alienate his wife and in-laws by his brazen behaviour.

His wife could have been judicially separated from him on the grounds of his adultery by the bishop of Linkoping, but this outcome seems not to have been felt sufficient. Starbacks daughter and her family probably considered Jon Pederssons death the best, and permanent, solution to her domestic predicament, protecting her spousal property, widowing her, and thus enabling her to remarry.

Conclusions

In Sweden, the marital property system was largely based on communal posses­sion, so that all the property of the spouses was managed by the husband dur­ing marriage and could be freely alienated by him. Nevertheless, inherited land was to remain within the paternal or maternal line and formed an exception to the husband's managerial powers as both the consent of the wife and that of her closest heirs - possessing rights of redemption - were required for its alienation. Without their consent, land transactions could be revoked. Only in extraordinary circumstances (war captivity, famine and elopement) were husbands allowed to sell their wives' inherited land, or wives allowed to sell property in the absence of their husbands. In these circumstances, Swedish law took into account the pos­sible impasse caused by the long absence of the wife, or of the husband who man­aged the communal marital estate. In these exceptional circumstances, wives had the same power as husbands to administer and alienate property.

In cases of gross neglect of the duties of conjugal loyalty (that is, in cases of adultery or elopement), a spouse could have his/her marital property rights cur­tailed or lost in Swedish secular law and practice. However, in accordance with a prevailing sexual double standard, the law penalized adulteresses with a more thorough loss of property rights (that is, their morning gift and rights to com­munal property) than was experienced by men, especially if the wife's property did not include inherited land. This encouraged eloping spouses - wives in par­ticular - to take property with them, as they risked losing everything when leav­ing their marital home. Moreover, as women in the countryside inherited only half as much as their brothers, when adulteresses lost their matrimonial property rights those in the countryside could not afford to pay their fines as often as men. Consequently, women had to undergo shaming penalties and banishment more often than men, which contributed to their pauperization and could drive them to crime and prostitution. If one spouse killed the other, either accidentally or inten­tionally, the culprit lost his or her marital property rights (that is, their share of the communal property and, for widows, their morning gift), which went to the heirs of the deceased. Accusations of adultery and homicide were occasionally made by a dead husband's relatives, intent upon stripping the widow of her property rights, thereby acquiring property for themselves.

Swedish law mentions neither judicial separations nor the division of prop­erty between spouses after such a separation. The first was left to canon law and the second to the married couple and their trusted friends. Consequently, it was not customary to record information of such divisions after separation in either ecclesiastical or secular medieval courts. There are some similarities with the

Spousal Disputes, Property and the Law in Sweden

Franco-Belgian region, concerning the relatively high frequency of separation causes in ecclesiastical courts and a similar communal marital property system. Nevertheless, in medieval Sweden, wastefulness or mismanagement of property as such never became accepted as grounds for separation in ecclesiastical courts. Spousal property divisions were not regularly registered in Swedish court records, but rather left to be privately negotiated. The publicizing of separations, necessary for practical reasons, was usually achieved more informally in the relatively small communities of Sweden. Unlike the Low Countries, Sweden did not use written marriage contracts, which probably partly accounts for the difference.

Severe spousal discord was certainly taken seriously in medieval Swedish so­ciety because it disturbed the peace of the community, but also because marriage breakdown could be caused by property mismanagement or because marital property and its management could be affected by the conjugal difficulties. The scarce Swedish medieval sources do not divulge to us how often property issues were behind spousal disputes or separation. However, analyses of the relatively rare English ecclesiastical separation causes have suggested that property issues or economic concerns may, in many cases, have acted as the ultimate trigger to initiate litigation.^[159] This study can only suggest directions for further research, but certainly the interplay between matrimonial property systems and spousal disputes, in a general sense, merits more attention in the future.