The Enforcement of the Church’s Sexual Regulations: Jurisdiction and Procedure
By the end of the eleventh century and the beginning of the twelfth the reÂformers had transformed the Western Church’s law on sexual behavior. The abilÂity of the church to translate that law into practical reality depended upon its success in asserting its jurisdiction over sex and in developing effective proceÂdures to enforce its rules.
By the mid-twelfth century the Church had achieved only partial success in these areas.Canonical courts enjoyed their greatest success in securing exclusive jurisÂdiction during this period over marriage litigation. Although no detailed litigaÂtion records survive from this era, episodes reported by chroniclers make it plain that by about 1100 even kings and great nobles ordinarily brought quesÂtions concerning the validity of their marriages to ecclesiastical authorities and were often prepared, however reluctantly, to abide by their decisions. This moÂnopoly on marriage questions represented a momentous victory for Church reÂform, as well as a source of considerable power for the Church’s judicial system. Royal and local courts, to be sure, continued to exercise jurisdiction over some aspects of domestic relations—matters concerning marital property and (for some purposes) the legitimation of children continued to be handled by secular courts in most areas. But by 1100 the Church had secured virtual supremacy in the adjudication of issues relating to the formation of marriage and the separaÂtion, divorce, and remarriage of those whose marriages failed.[897]
Procedures and the law of evidence in the eleventh- and twelfth-century canonical courts remained fluid and lacked any great intellectual or juristic rigor. A notable exception to this general rule involved procedures for dealing with adultery, which were perhaps a shade more sophisticated than those emÂployed for most other sex offenses.
Two letters of Ivo of Chartres illustrate the more advanced nature of the procedures in adultery cases. In a letter to ArchÂdeacon Gerbert of Paris, Ivo described the problems that courts faced when they dealt with adultery: it was difficult to secure reliable testimony from witÂnesses, Ivo declared, because people were afraid to give evidence out of fear of reprisal, while those who did testify were often motivated more by attachment to one of the parties than by love of the truth. Further, the bona fides of many witnesses were dubious, particularly those who managed brothels and were otherwise engaged in the prostitution industry. Still, Ivo continued, judges should make every effort to secure reliable testimony; should credible witÂnesses be lacking, however, defendants might refute the charges against them by undergoing the ordeal of the glowing iron, although Ivo had serious reservaÂtions about the value of this type of proof.[898] Despite respected authorities who taught that husbands were entitled to bring adultery charges against their wives on suspicion alone,[899] Ivo tried to discourage frivolous or poorly grounded actions of this sort. In another letter he advised a knight who suspected his wife of adultery that something more than mere suspicion and a bit of circumstantial evidence were needed. The woman in this case had carried a child a week longer than normal and delivered while her husband was absent from the kingÂdom. Moreover, the man suspected of corrupting her had suffered a burn when he attempted to purge himself of guilt in the hot-iron ordeal. Ivo advised his correspondent that this was insufficient evidence to warrant a divorce on the grounds of adultery. Ivo had consulted midwives, and they had advised him that there was nothing unusual in a child being born a few days later than exÂpected. As for the ordeal, Ivo thought the procedure overrated, for the results might have a perfectly innocent explanation and did not necessarily indicate guilt. He advised the knight to drop the case and to accept his wife’s sworn statement of her innocence.[900]Questions concerning evidence in adultery cases were also under debate at about the same time among Irneriuss disciples at Bologna. Bulgarus cautioned judges to beware of discrepancies in the testimony of witnesses. He also mainÂtained that in order to sustain an adultery charge the accuser must be able to show that the defendant knew that his extramarital sexual partner was married and that their relationship was in fact adulterous.[901] Both civilians and canonists in this period also maintained that complaints about adultery must be timely in order to be heard.[902]
Divorce actions brought before Church courts on the grounds of impotence presented peculiarly difficult evidential problems. One view current in this peÂriod held that the sworn statement of the husband in such a suit should preÂvail.[903] Other authorities were willing to credit the wife’s statement, but only if it was supported by corroborative evidence, although they failed to specify what types of corroboration they required.[904]