The Formation of Marriage

Theories of marriage formation during the late thirteenth and early fourteenth centuries emphasized, as had those current in the previous generation, that intimacy and fidelity were central to marriage.⁷⁰ Sexual attraction motivated some marriages and, William of Pagula declared, it is not always sinful to marry a woman because of her beauty; but if her physical attractions were the prin­cipal reason, the marriage might be considered seriously sinful.⁷¹ Spouses do many things for each other besides providing sexual partnership, and for this reason if sexual attraction waned or if sex became impossible, the marriage did not necessarily end.⁷² Indeed Pierre de La Palude (ca.

⁶⁷Nicholas of Lyra, Postilla to 1 Cor. 7:2 V. mulierem non tangere and propter fornicationem.

⁶⁸Aquinas, ST Supp. 41.1 in c.; Nicholas of Lyra, Postilla to Matt. 19:4 v. qui re­spondens and Matt. 19:6 v. homo non separet∙, the opinions of the lesser writers are quoted in F. Salerno, “La definiziorie nominale del matrimonio canonico nei secoli XII-XIII,” in Ims populi Dei 3:161 n. 20.

⁶⁹Salerno, “Definizione nominale,” p. 167 n. 24, citing Brussels MS 1542 (11,614), fol. 223ra.

⁷⁰Nicholas of Lyra, Postilla to Eph. 5:25 v. υiri diligite uxores vestras.

⁷¹ William of Pagula, Summa summarum 4.1, Pembroke 201, fol. 202va: “An peccatum sit contrahere cum aliqua muliere propter pulchritudinem? Die quod hoc potest esse sine peccato et quandoque cum peccato ueniali. Si autem libido pulchritudinis esset causa principalis non excusaretur a peccato mortali, sed esset effrenata multitudo secun­dum tho.

⁷²Guido de Baysio₁ Rosarium to C. 32 q. 5 c. 18, fol. 349rb. ing clouds.⁷³ Marriage was not necessarily full of joy and pleasure, Nicholas of Lyra added, and it often led to tears and sadness.⁷⁴

Despite it all, people persisted in marrying and often did so with a love and affection that surpassed the emotional ties between parent and child.⁷⁵ Indeed Bernard of Montemirato (ca. 1225-1296) declared that marriage was a basic right and added that a son whose father refused to allow him to marry had grounds for an action against his father. Bartolus of Sassoferrato argued that daughters had a similar right and that under some circumstances they could force their fathers to provide them with dowries so that they could marry.⁷⁶ Both in law and reality, marriage for love was not only conceivable but also practiced, at least by men and at least in some regions of medieval Europe.⁷⁷ “Everyone should know that a good marriage is highly pleasing to God—and highly profitable to man,” declared the Assises de la cour des bourgeois in the Latin Kingdom of Jerusalem, and the profit that the author had in mind was spiritual and emotional, as well as mundane.⁷⁸

The more positive attitude toward marriage adopted by Catholic writers in the thirteenth and fourteenth centuries was partly a reaction against the Cathar heresy, which as we have seen held marriage worthless. The Cathars likewise denied that marriage was a sacrament. Those who supported that position often found themselves suspected of heresy.⁷⁹ Notable among these dissidents was Peter Olivi (1248-98), one of the most original theologians among the Spiritual Franciscans and, ironically, the principal begetter of the theory of papal infalli­bility.⁸⁰ Olivis views about many matters, including infallibility, troubled ortho­dox authorities, who in 1279 appointed a committee of theologians to examine his writings for heresy.

⁷³Pierre de La Palude (Petrus Paludanus), Lucubrationum opus in quartum Senten­tiarum 26.1.1 (Salamanca: Andreas a Portonariis, 1552), p. 321.

⁷⁴Nicholas of Lyra, Postilla to 1 Cor. 7:30 v. et qui flent.

⁷⁵Guido de Baysio, Rosarium to C. 35 q. 10 c. 1.

⁷⁶Bernardus de Montemirato, Commentarium to X 4.1.11 v. non est nobis, in Abbatis antiqui, Bernardi Compostellani, Guidonis Pape, et ]oannis a Capistrano com­mentaria ad libros decretalium (Venice: Apud Iuntas, 1588), fol. 124rb; Bartolus, Com­mentaria to Dig. 44.7.51, in his Opera, 8 vols. (Venice: Apud Giuntas, 1580-81) 5:163rb-va. In his Consilia 1.124 Bartolus also argued that a woman could provide her own dowry if her father failed to do so; see his Consilia, quaestiones et tractatus (Lyon: Thomas Bertellus, 1547), fol. 38vb-39rb. See also Sheedy, Bartolus on Social Condi­tions, pp. 60-61.

⁷⁷LeRoy Ladurie, Montaillou, p. 189; Alan Macfarlane, The Origins of English Indi­vidualism: The Family, Property, and Social Transition (New York: Cambridge Univer­sity Press, 1979), pp. 197-98.

^mAssises de la cour des bourgeois 159, in RHC, Lois 2:108.

⁷⁹Johann Joseph Ignaz von Dollinger, Beitriige zur Sektengeschichte des Mittelalters, 2 vols. (Munich: Beck, 1890; repr. New York: Burt Franklin, 1966) 2:23.

⁸⁰Brian Tierney, Origins of Papal Infallibility, 1150-1350: A Study on the Concepts of Infallibility, Sovereignty, and Tradition in the Middle Ages, Studies in the History of ChristianThought, vol. 6 (Leiden: E. J. Brill, 1972), pp. 93-96. marriage. In an effort to escape condemnation Olivi defended his views by evading the issue. He retracted, without formally admitting, earlier statements that marriage was not a sacrament. But he then tried to distinguish marriage as less perfect and less virtuous than the other sacraments. Further Olivi seemed to believe that matrimony, unlike the other sacraments, did not confer grace.

Even thoroughly orthodox teachers sometimes expressed reservations about the sacramentality of marriage. Albert the Great maintained that marriage was a sacrament, and he also distinguished between it and the others. Albert held that while marriage did confer grace, it did so only in the limited sense that the power of the sacrament helped married persons to achieve the goals of mar­riage, such as raising children and getting on with one’s spouse. He failed to make it clear, however, just why he considered the grace imparted by marriage to be so limited.⁸³

John Duns Scotus (1270-1308) took another tack. He distinguished between the sacrament of marriage and the marriage contract. As Scotus saw it, not every marriage was sacramental. A couple could enter into marriage by mutual consent, and this created a perfectly legitimate and binding, but not sacramen­tal union. The couple received the sacrament of marriage only when their con­tract was ratified by the Church. For Scotus, then, the sacrament of marriage was conferred by the nuptial blessing, not by the mere fact of the marriage con­tract.⁸⁴ Other writers linked the sacramental character of marriage to sexual

⁹¹Annelicsc Maier, “Per la storia del processo contro Γ Olivi,” in Ausgehendes Mit- telalter: gesammelte Aufsatze zur Geistesgeschichte des 14.

⁸²Pierre de La Palude, Lucubrationum 26.4.1, pp. 327-28; Maier, “Per la storia del processo,” pp. 252-53.

⁸¹⁹Clifford, “Ethics of Conjugal Intimacy,” pp. 12-14; Noonan, Contraception, pp. 286-88.

⁸⁴John Duns Scotus, Quaestiones in IV Iibros Sententiarum 4.26.14, in his Opera consummation. On this theory there were two stages in the reception of the matrimonial sacrament: one occurred when the couple exchanged consent, the other when they physically consummated their union. This view resurrected Gratian’s distinction between initiated and ratified marriage.^{[1647] [1648]}

The teaching of Aquinas and others in this period, however, affirmed that marriage was a sacrament and that the exchange of consent itself conferred grace in the same way that other sacraments did. This view was adopted as a dogmatic truth by the Council of Florence; the Council of Trent ultimately con­demned contrary views as heresy.^[1649]

In order to marry validly, the couple must be of age, they must consent freely, and they must not be too closely related.^[1650] Canonists continued to refine the rules concerning each of these matters. The anonymous Notabilia Aliter de­bet cautioned against too literal an interpretation of the rule of twelve for girls, fourteen for boys. A couple who had not quite attained the minimum age, but who were within six months of it, could marry validly, according to this writer.^[1651] But Hostiensis reminded his readers that the real criterion of readiness for mar­riage was sexual capacity; a girl who was able and willing to consummate a sex­ual union was fit for marriage, whatever her chronological age, and boys who were fit for sex were likewise capable of contracting marriage.^[1652] Civil authori­ties sometimes adopted the canonical minimum age for marriage as the age of majority for other actions, such as fief-holding.^[1653]

Hostiensis puzzled over the question of why women attained puberty at an earlier age than boys.

The noble jurists of the Latin Kingdom of Jerusalem, where legal expertise and forensic skill were highly prized qualities, reasoned that since the law es­tablished a minimum age for marriage, both intellectual symmetry and prac­tical considerations demanded a maximum age as well, one beyond which par­ents or liege lords could no longer demand that a person take on the burdens of marriage. Jean dTbelin pointed out that the law excused male vassals from mili­tary service after they attained the age of sixty. He argued that by analogy women over that age should not be required to marry and that a feudal lord who required an elderly man or woman to marry acted against God and reason. He added that it was the “usage, custom, law, or reason” of the Kingdoms of Jerusa­lem and Cyprus to exempt the elderly both from marriage and from military service, but that those who claimed this exemption were also bound to guard their chastity and not to indulge in sexual debauchery.^[1655]

As for incest, the four-degree rule adopted by the Fourth Lateran Council was re-enacted and adopted by numerous local synods and by secular authori­ties as well.⁹³ A considerable body of evidence suggests that the rule was gener­ally observed, although Beaumanoir (ca. 1250-96) claimed that simple people remained ignorant of the niceties of the incest prohibitions. Studies of marriage practices in English villages during the late thirteenth and early fourteenth centuries indicate that marriage was a common vehicle of mobility and that women often married outside their villages of origin. Presumably this hap­pened in part at least to avoid marriage with relatives. Court records also sug­gest, contrary to Bcaumanoir, that the ban on consanguine and affine marriages may even have been more scrupulously observed among the peasantry than among the higher nobility.⁹⁴ It is certainly true that marriage litigation involv­ing consanguinity and affinity was relatively uncommon in England during this period.⁹³ Studies of Occitan and north Italian urban marriage patterns show similar results.⁹⁶ The laws of the Latins in the Levant required that persons who proposed to marry must make a sworn declaration that they were free to do so and that they were not related by ties of affinity or consanguinity to their prospective marriage partners.⁹⁷

Only the pope, according to Pierre de La Palude, was empowered to dis­pense couples from the rules governing consanguinity and affinity. Joannes An- drcae observed that these rules had been established in order to avoid the quarrels and frictions that arose in marriages between closely related persons.⁹⁸ Canonists, theologians, and civilians continued throughout this period to in-

^aiHostiensis, Summa aurea, lib. 5, tit. De adulteriis et stupro § 12, fol. 245ra; Mag­ister Serio, Summa de penitentia 26, ed. J. Goering in Mediaeval Studies 38 (1976) 33-36; Assises des bourgeois 158-59, 161, in RHC, Lois 2:107-11; Sheehan, “Mar­riage Theory and Practice,” ρ. 420.

⁹⁴Philippe de Beaumanoir, Coutumes de Beauvaisis § 585, ed. A. Salmon, 2 vols., Collection des textes pour servir a I etude et a Tcnseignement de Thistoire (Paris: A. & J. Picard, 1899-1900; repr. 1970) 1:284; J- Ambrose Raftis, Tenure and Mobility: Studies in the Social History of the Medieval Village, Studies and Texts, vol. 8 (Toronto: Pon­tifical Institute of Mediaeval Studies, 1964), pp. 178-82; Helmholz, Marriage Litiga­tion, p. 80.

⁹⁵Helmholz, Marriage Litigation, pp. 86-87. Adams and Donahue, Select Cases D.2, pp. 350-65, present the documents in Alice de Marescal c. Elias de Suffolk (1292-93), a case in which the central issue on appeal was Elias’s claim that his alleged marriage to Alice was null because of affinity contracted as a result of his sexual relations with Christine de Thorley, a blood relative of Alice. This is one of the few cases based on this issue and also one of the even smaller number of cases in which we know the out­come: thejudge found Elias’s exception proved.

⁹⁶LeRoy Ladurie, Montaillou, pp. 182-83; Jacques Heers, Family Clans in the Middle Ages: A Study of Political and Social Structures in Urban Areas (Amsterdam: North-IIolland, 1976), p. 56.

⁹⁷Assises des bourgeois 162, in RHC, Lois 2:111-12.

⁹⁸Pierre de La Palude, Tractatus de potestate papae 2.2.4, θd. P- T. Stella, Textus et studia in historiam scholasticae, vol. 2 (Zurich: Pos-Verlag, 1966), p. 127; Joannes An- dreac, Novella to X 4.1.3; Nicholas of Lyra, Postilla to Matt. 19:5 v. propter hoc. sist that neither party could unilaterally cancel a promise of future marriage. Synods in England also demanded that betrothal, like marriage, be celebrated publicly and in the presence of a priest, although there is little evidence that this demand was systematically enforced." Either betrothal or marriage could be contracted by proxy, provided that the agents had received a sufficient man­date from their principals.¹⁽¹⁰ If a couple exchanged promises of future marriage and subsequently had sexual relations, this created either a binding marriage, according to some authors, or a presumption of marriage, according to others.¹⁰¹ Bartolus noted that simple cohabitation by partners of equal social status estab­lished a presumptive marriage in civil law, even without a promise of future marriage; he added, however, that the canonists required some exchange of consent before they would recognize these unions as marriages.¹⁰² In actual practice the records of the Cerisy court make it clear that at least in Normandy couples treated betrothal as a trial marriage and normally slept together once

⁹⁹ι Canterbury (1213/14) c. 55, 2 Winchester (1247?) c. 51, 3 Winchestcr (1262 ~ 1265) c. 26, Coventry (1224 ~ 1237) c. 13, in Powicke and Cheney 1:34-35, 212, 410, 707; Sheehan, “Marriage Theory and Practice,” pp. 425-26. On the dissolution of spon­salia sec Synod of Licge (1287) 9.9, in Edniond Martene and Ursin Durand, eds., The­saurus novus anecdotorum, 5 vols. (Paris: Florence Delalunc, 1717; repr. New York: Burt Franklin, 1968) 4:848-49; Bernardus de Montemirato, Comm, to X 4.1.2 and 5, fol. 123vb; Joannes Andreae, Novella to X 4.1.2; Assises des bourgeois 163, in RHC, Lois 2:112.

'⁰⁰Gloss to Geoffrey of Trani, Summa super titulos 4.1. pr., in MS McLean 137, fol. 168ra, of the Fitzwilliam Museum, Cambridge: “Nota quod matrimonium potest con­trahi inter absentes, et sponsalia.”

¹⁰¹Bernardus de Montemirato, Comm, to X 4.1.15, fol. 124rb, held that intercourse following future consent created a matrimonium verum, as did Pedro de Albalat, Summa septem sacramentorum, ed. Peter Linehan in Hispania sacra 2.2. (1963) 26. Aliter debet to X 4.4.1, Caius 23/12, fol. 45va, thought that this was true even if their intention was to commit fornication. William of Pagula, Summa summarum 4.1, Pembroke 201, fol. 203rb, however, understood the matter differently: “An uir cognoscens carnalitei’ spon­sam de futuro peccet? Die quod si cognoscat eam fornicario affectum tunc est peccatum mortale nec facit uerum matrimonium huiusmodi copula carnale, sed facit matrimonium presumptum.” Vincentius Hispanus, Lecliira to X 4.1.31, Salamanca 2186, fol. 173vb, thought that coitus following future consent established a presumption of marriage, re­gardless of the couples intention: “Item copula carnalis non facit matrimonium (sed) presumptio(nem) tamen, nisi ubi fuit prestita fides solute de futuro, supra c. i., ubi due mulieres prostent eundem maritum et probaretur equaliter de intentione sua et una probaret amplius coitum: illa que coitum allegat potius uidetur habere, quia presumitur pro illa, iiii. q. iii. item in criminali [d.p.c. 2] et supra de testibus, licet [X 2.20.23?].” See also DauvilIier, Mariage, pp. 61, 67; Sheehan, “Marriage Theory and Practice”, pp. 429-30.

¹⁰²BartoIus, Super Auth. 6.2.5 (⁼ Nov. 74∙4) ⁱⁿ his Opera w.29vb-30ra; Shcedy, Bartolus, pp. 56-57; Paul Ourliac, “Note sur Ie mariage a Avignon au XVe siecle,” in Recueil de memoires et travaux publies par la Societe d’histoire du droit et des institu­tions des anciens pays de droit ecrit 1 (1948) 59.

they had exchanged future consent. If the relationship failed to work out satis­factorily, couples often contrived to create an impediment to marriage, for ex­ample by becoming co-godparents of a child, in order to cancel their obligation to marry.¹⁰³ Similar customs were common elsewhere in Europe, and while some thirteenth-century English synods legislated against these practices it is not clear that they succeeded in suppressing them.¹⁰⁴

Although custom often insisted that sexual consummation was essential to complete a marriage, canonists and theologians continued to insist that only present consent was needed to create a valid and indissoluble union.¹⁰⁵ Authori­ties disagreed over whether tacit consent was adequate to seal a binding mar­riage.¹⁰⁶ Whether spoken or tacit, all authorities agreed that free consent to marriage was essential for, as Bartholomew of Brescia remarked, coerced mar­riages rarely turned out well.¹⁰⁷ Despite the canonists’ efforts to discourage par-

¹⁰³â€śLe registre de Tofficialite de Cerisy, 1314-1457,” ed. M. G. Dupont, in Memoires de la Societe des antiquaires de Normandie, 3d ser., 10 (1880) 602; Jean-Luc Dufresne, “Les Comportemcnts amoureux d’apres Ie registre de Tofficialite de Cerisy,” Bulletin philologique et Iiistorique (jusqua 1610) du Comite des travaux historiques et scientifi- ques (1973), pp. i34-35∙ ₁

¹⁰⁴3 Worcester (1240) c. 28, in Powieke and Cheney 1:302; Sheehan, “Marriage The­ory and Practice,” p. 431; Turlan, “Recherches,” pp. 485-86; Madeleine-Rose Marin- Muracciole, L honneur des femmes en Corse du XIIIe siecle d nos jours (Paris: Cujas, I9θ4)> P∙ 73∙

¹⁰⁵Bcrnardus de Montemirato, Comm, to X 4.1.3, fol. 123vb. The consensual prin­ciple was likewise accepted by some secular law-makers, e.g., Assises des bourgeois ¹58-59, in RHC, Lois 2:107-108, and Las siete partidas del don Alfonso el Sabio... glosadas por Gregorio Lopez 4.2.5, ed. J. de Vargas y Ponce, 3 vols. (Paris: Rosa Bouret, 1851) 3:20-21. William of Pagula cautioned, however, that marital consent must be de­liberate and adequately considered before it could be deemed binding; Summa sum­marum 4.1, Pembroke 201, fol. 199ra: “Quid enim si duo uadunt per uiam et sibi in- uiccm complacent et unus in alterum consentit matrimonialiter? Absurdum esset dicere inter tales esse matrimonium. ”

¹⁰⁶Hostiensis, Lectura to X 4.1.7 and Summa aurea, lib. 4, tit. De matrimoniis § 13, fol. 195va-vb; Bernard of Parma, Glos. ord. to X 4.1.25 v. υerba; Geoffrey of Trani, Summa super titulis 4.1.14. William of Pagula, once again, was inclined to be cautious; Summa summarum 4.1, Pembroke 201, fol. 199ra: “An matrimonium potest contrahi solo consensu sine uerbis? Johannes, Goffredus, et ber. dicunt quod uerba sunt neces­saria ad matrimonium inter illis personis qui loqui possunt. Dicit magister sententiarum quod solus consensus interior non facit matrimonium, sed requiritur expressio uer- borum, quia sacramentum est res sensibilis, unde non sufficit actus interior adesse satis, sed requiritur exterius signum expressum. Expressio autem Conuenieneior non [?] fit per uerba et hoc dicit Innoc. qui reddit hanc rationem, quia sic statutum est ab ecclesia [App. to X 4.1.25 v. consensum] et merito, alias multa pericula imminuerent.”

¹⁰⁷Bartholomew of Brescia, Questiones dominicales 29.5, in Tractatus Universijuris, 22 vols. in 28 (Venice: Franciscus Zilettus, 1584-86; cited hereafter as TUJ) 17:38111. I have also used the earlier edition of TUJ, 18 vols. (Lyon: Petrus Fradin, 1548-49), here­after cited as TUJ*.

ents from choosing wives and husbands for their children, and despite munici­pal statutes in some areas that made it an offense to attempt to force unwilling persons to marry, parents and public authorities often pressured couples into contracting marriage. In regions outside of the mainstream of legal institutions, such as Corsica and Iceland, for example, canonical doctrines about freedom of choice had little influence, and parental consent continued to be required for marriage.^[1656] Even where the canonical principle of free consent was in force, marriage remained part of the larger social process of the community and was often treated as a family matter to be decided in light of the common interests of the group, not merely of the contracting parties.^[1657]

Family and community were not the only sources of constraint on the free choice of marriage partners. Feudal lords demanded that widows and heiresses who controlled property for which they owed military service must marry men who were capable of making good the obligation. This concern, as we have seen, was especially acute in the Levant. Philippe de Novarre, who finished his legal treatise about 1260, explained that the early monarchs of the Latin King­dom had allowed women to choose their own marriage partners freely. The kings soon discovered, however, that heiresses did not always choose husbands who would or could serve the needs of their lords. Consequently, Philip con­tinued, the Latin kings insisted that no widow or heiress be allowed to marry without first securing the consent of the lord from whom she held property. But marriageable women and their families protested at this, and the Latins of the Levant arrived at a compromise solution.^[1658] Seigneurs demanded that eligible women marry only men acceptable to their lords, for whom the right to approve these marriages was extremely profitable. Seigneurs however undertook not to force women to marry against their wills.^[1659] Women who did not wish to marry could not be summarily dispossessed; they had a right to be summoned, to ex­plain their reasons for refusing to marry, and to be represented by counsel at their hearing.^[1660] If the lord insisted that the woman marry, he must give her a choice from among three suitable candidates. Should none of them be accept­able to her, she was entitled to demand a second slate of three candidates. Once she received their names, she had a year and a day to make up her mind.^[1661] Should she still refuse to marry any of the men proposed by her lord, he could, at the end of the statutory term, dispossess her.^[1662] Jean d’lbelin, who wrote at about the same time as Philippe de Novarre, carefully detailed tactics that wid­ows and heiresses could use to escape the exercise of their lords’ marriage rights over them.^[1663] These complex regulations were neither a mere figment of the jurists’ imaginations nor a simple subterfuge to enable lords to do as they pleased. Peter I of Cyprus discovered this the hard way when he attempted to circumvent these rules and as a result precipitated a revolt in 1369 that nearly toppled him from the throne.^[1664]

No Western monarchy seems to have adopted the tactics used by the Latins in the East to shield feudal heiresses and widows from the matrimonial schemes of feudal overlords, but even in the West, feudal control of a womans marriage was not necessarily inconsistent with a free choice of marriage partners. The Church, both East and West, provided a safeguard against the more blatant types of coercion, since its courts were prepared to annul marriages when coer­cion could be proved. In practice complaints that feudal lords forced women into marriages were rare. Feudal heiresses and widows in the West often made up their own minds about whom they would marry or whether they wanted to marry at all and then paid fines to their overlords for permission to exercise that choice.^[1665]

The interests of families and feudal lords in regulating the marriages of those under their control required that couples marry publicly, so that their marital status would not be in doubt. Although the Western Church prescribed no uni­form marriage rite and tolerated a wide degree of variance in wedding rituals, marriage ceremonies in France became far more uniform during the thirteenth century. In Italy, however, local variations continued to proliferate and even when controls were ultimately imposed, practices there were far less uniform than in France.^[1666]

Town governments, both in Italy and in France, began during this period to restrict expenditures for weddings. Local ordinances on this subject often limited the numbers of people who could be invited to nuptial ceremonies and the lavish feasts provided for them.^[1667] Italian cities also introduced during this period a practice, uncommon north of the Alps, of having present consent exchanged in the presence of a notary, who made a formal public record of the event. The notary often played an active role in the proceedings, putting questions to the couple, which he recorded together with their answers.^[1668] Re­gardless of the form employed—and the canonists were prepared to accept any intelligible formula for the exchange of consent—families and communities wished to assure that weddings were properly witnessed and often demanded more witnesses and greater formality than Church law required.^[1669]

Weddings were accompanied almost everywhere by feasts and drinking bouts, often marked by excess. Ecclesiastical authorities objected to these ca­rouses and complained that they led to unseemly tumults and disorders. The Second Council of Westminster demanded that couples forego the practice of holding their wedding ceremonies in taverns. Other English synods condemned the practice of staging mock weddings in drinking establishments, and warned that this custom sometimes resulted in people being bound by matrimonial ties that they had never seriously considered or desired.^[1670]

The growing efforts of municipalities to control and regulate weddings re­flects the continuing problem of secret unions. Canonical writers and secular lawgivers attempted to define clandestine marriage more precisely. Hostiensis, for example, distinguished no less than six types. These included secret mar­riages in the rigor of the term, where there were either no witnesses or very few witnesses to the exchange of consent; marriages celebrated without the nuptial blessing; marriages between minors without prior dispensation or be­tween persons bound by a previous marriage or religious vows; marriages cele­brated during an ecclesiastical interdict; and marriages celebrated without prior proclamation of the banns.¹²³ Nonetheless all of these marriages, save for those between under-age persons and persons bound by vows or previous mar­riages, were valid, even though they were contrary to law.¹²¹ The fact that a couple married secretly provided no grounds for divorce or separation and if a clandestine marriage preceded a public one, the clandestine union prevailed over the formal marriage.¹²⁵ Although lawgivers complained about clandestine marriages and repeatedly condemned them, they refused to strip clandestine marriage of legal force.¹²⁶

¹²³Hostiensis₁ Lectura to X 4.3.1; see also John of Fribourg, gloss to Raymond of Penafort, Summa de mat. 2.4 v. matrimonium iudicari, in Summa Sancti Raymundi de Peniafort de poenitentia et matrimonio cum glossis Ioannes de Fribourgo (Rome: Ioanncs Tallinus, 1603; repr. Farnborough: Gregg, 1967), p. 512; Siete partidas 4.3.1, ed. Vargas y Ponce 3:35-36; Diebold, “L’application,” p. 189.

¹²⁴Bernardus de Montemirato, Comm, to X 4.3.2, fol. 126ra; Pierre de La Palude₁ Lucuhrationum 28.2.4, P∙ 35²> Magister Gratianus uolens compilare to C. 30 q. 5, in Peterhouse MS 169(2), fol. 26va-vb: “In quintam soluitur quod clandestina fieri non debent, sed si fiant et probari possunt et ualent, alias non; nec debet pro malis Ieuis aliquis Condempnari₁ infra eodem § his ita [C. 30 q. 5 d.p.c. 9] et e. incerta et al. c. [?] et § se.usque in finem questionis.” See also Synod of Wells (1258) c. 11₁ Carlisle (1258/59) c. ιι₁ and 2 York (1259) c. 11, in Powicke and Cheney 1:597-98, 626-27, 658-59, as well as Sheehan₁ “Choice of Marriage Partner,” p. 17, and “Marriage Theory and Prac­tice,” p. 451.

^l25Petrus de Salinis₁ Lectura to C. 30 q. 5 pr., in B.L.₁ MS Arundel 435₁ fol. 152vb: “In themate fuit proposita v. questio an clandestina (desponsatio) [MS dispensatio] pre- iudicet manifestam et deductum est quod preiudicat si de ea constet; non enim deficit ius sed probacio....” Ibid, to d.p.c. 8: “Supra dictum est in § hiis omnibus [d.p.c. 6] quod clandestina coniugia pro infectis haberi debent; nunc allegat gratianus pro con­traria parte dicens quod multa fieri non debent, facta tamen non rumpuntur, ut matri­monia simpliciter uouencium. Sic et clandestina coniugia fieri non debent, facta tamen tenent et ad hoc inducit lex sequens.”

¹²⁶Synod of Liege (1287) 9.1, 4-6, in Martene and Durand₁ Thesaurus 4:847. For England see Synod of Coventry (1224 ~ 1237) c. 13; Lincoln (1239) c^,. 42; Norwich (1240 ~ 1243) c. 39; 2 Winchester (1247?) c. 51₁ 57; Wells (1258) c. 10; Statutes of Bishop Fulk Basset (1245 ~ 1259) c. 1-2; 2 Exeter (1287) c. 7₁ in Powicke and Cheney 1:212, 274, 351₁ 410₁ 412, 597₁ 630-31, and 2:997-99. For Spain see Pedro de Albalat, Summa, ed. Linehan₁ p. 25, and Siete partidas 4.3 pr., 3, 5, ed. Vargas y Ponce 3:34-35₁ 37-39. See also Sheehan, “Marriage Theory and Practice,” pp. 423, 443, 449-50; Diebold, “Lap- plication,” pp. 188-91; Ruiz de Conde, Amor y matrimonio secreto, pp. 8, 12, 29. For a case that illustrates strikingly the complications that arose in attempting to prove the celebration of a clandestine marriage see Norman c. Proudfoot (1269-72) in Adams and Donahue₁ Select Cases C.2, pp. 102-12. William of Pagula, Summa summarum 4.1, Pembroke 201, fol. 203rb, concluded that those who contracted clandestine marriages

Civic authorities occasionally legislated on this subject, too. The Ferrara statutes of 1287, for example, imposed heavy fines on parties to secret mar­riages and levied further penalties upon anyone assisting at such affairs.^{[1671] [1672] The kings of Sicily went even further. In marked contrast to the usual rules else­where in Europe and in flat contradiction to canon law, the law of Sicily and southern Italy required the presence of a priest and the bestowal of a nuptial blessing: marriages that lacked these formalities were devoid of juridical effect in the Two Sicilies.[1673] The Sicilian pattern remained unique in the West, how­ever, and reflects the continuing influence in that area of Byzantine customs, which also required the presence of a priest and a sacerdotal blessing as a condi­tion of matrimonial validity.[1674]}

Elsewhere in Western Europe, valid clandestine marriages presented the Church, secular governments, and individuals with innumerable problems. Since secret marriages were illegal, though not invalid, both canonists and theologians urged parties to celebrate their marriages publicly. Conscientious officials sometimes insisted that couples who intended to marry furnish certifi­cates that the banns had been read and couples anxious to secure their mar­riage against possible legal attack saw these certificates as safeguards for their own interests.^[1675] But not all officials were conscientous, nor did all couples insist on having their marriages documented. Picrre de La Palude enumerated six situations in which dispensations from the requirement for publication of the banns and public marriage were usually granted:

1. Marriages of great nobles, since these marriages were usually considered carefully and discussed in advance with family, friends, and associates.

2. Marriage between a person of noble rank and a non-noble, since these unions excited opposition and scandal.

3. Marriage of a rich person to a poor one, as these upset the social order.

4. Marriages in which one of the parties was very old.

5. Marriages in which there was reason to fear parental wrath and where the parties had already exchanged informal consent.

6. Marriages in which the couple had been living together for a long time and wished to regularize their relationship.^[1676]

Although dispensations were readily available for secret marriages in these circumstances, a great many people ignored the legal requirements and mar­ried informally without dispensation. This was so common that Sir Gerard de Gommegnyes could declare casually in a petition to Pope Clement VI (1342-52) that it was not customary in his part of the world to bother about the banns at all; there is little reason to think that he was exaggerating.^[1677] Clandestine wed­dings were by all indications commonplace, and the number of them was suffi­ciently large that certain places achieved notoriety as rendezvous for clan­destine nuptials. A more or less organized trade provided couples who wished to marry on the sly with complaisant clergymen prepared to furnish the sem­blance of a formal service and nuptial blessing, without the irritation of await­ing the proclamation of banns or the fuss and bother of finding witnesses.^[1678] Un­doubtedly many, perhaps most, clandestine marriages were contracted in this way in order to avoid opposition from parents or family.^[1679] Faced with the fait accompli of a valid, if irregular, marriage, families often chose to make the best of the situation. Those who sought to break up the union faced a formidable struggle. Poets and preachers in this period hinted rather broadly that eccle­siastical judges were sometimes not above taking bribes from families who wished to secure a canonical judgment against a marriage, but it is difficult to determine how well founded those allegations may have been.^[1680] Pierre de La Palude counseled parents to put up with these situations with as much grace as they could muster and warned fathers that they themselves committed an of­fense if they expressed their displeasure with a clandestine marriage by disin­heriting their sons or daughters.^[1681]

Concubinage among the Laity

Clandestine marriage raised problems closely related to concubinage. Canonists usually read marriage law restrictively; this led them to classify as concubinage all cases of long-continued cohabitation where evidence of matrimonial intent was not apparent.^[1682] The civilians were more lenient. Bartolus preferred to view concubinage as quasi-marriagc and to treat the children of such unions as legitimate, a position that Odofredus (d. 1265) had adopted earlier.^[1683] Odofrcdus was even more concerned than Bartolus to uphold the legitimacy of concu­binage, even when marriage could not be presumed, although he was careful to draw the line at plural concubinage or concubinage by married men.^[1684] Another leading civilian of the period, Cino da Pistoia (1270—1336/37), similarly main­tained that concubinage was licit and not subject to legal penalties.^[1685] Con­cubinage, like marriage, was a social fact that created bonds of relationship be­tween the parties and their families, according to the legists, so that a son was forbidden to marry his father’s concubine and, in the Latin East at any rate, sons who slept with their father’s concubines might be ineligible to inherit the paternal estate.^[1686]

The legists’ toleration of concubinage was not shared by all of their contem­poraries. From the early fourteenth century onward, municipalities began to enact statutes forbidding concubinage and imposing penalties upon men who openly cohabited with women to whom they were not married.^[1687] Some can­onists and theologians, while acknowledging the different position taken by civil law,^[1688] declared that concubinage was forbidden by the canons, while Thomas Aquinas dec^,lared that it was contrary to natural law as well.^[1689] Can- onistic opinion was divided: some authorities wished to extend legal toleration to concubinage, as they did to prostitution, although they disapproved of both on moral grounds.^{[1690] [1691] Guido de Baysio argued, however, that the Church should not allow divorced or separated men to take concubines in place of their legal}

^, 146

wives.

Court records make it clear that, despite the reservations of academic law­yers and theologians, concubinage was common in many regions. Most con­cubinage cases that appear in the court registers of Cerisy, for example, in­volved couples who lived together for short periods prior to marriage, but some reports deal with what were obviously long-term relationships, such as the case of Jean Dupont, who had six children by his concubine, and Pierre de Limen- gais, whose concubine was pregnant with their third child when they appeared in court.^[1692] In one Cerisy case a single man kept two widows, both of them re­lated to him, as concubines,^[1693] while on the manor of Halcsowen in Worcester­shire, Margery Port seems to have been the concubine of two men simultane­ously. "^[1694]' The inquisitorial records of Carcassonne show that about ten percent of the couples in the village of Montaillou during the years from 1300 to 1320 were living in concubinage.^[1695] In Spain both Church and state seem to have tol­erated barragania among the laity and men were rarely penalized on account of these relationships.^{[1696] [1697] Likewise in Italy concubinage remained common throughout this period and was sometimes formalized by contractual agree­ments between the partners, agreements that included promises of sexual fidel­ity, stipulations about support obligations, and provisions for care of the con­cubine in case of illness. At least one such contract was made for the lifetime of the parties, but the more usual practice seems to have been to limit the agree­ment to a specified term, at the end of which it could be renewed if both parties agreed.l5a}

Although some medieval canonists, as well as some modern scholars, as­sumed that men took concubines because they were not content with a single sexual partner and wished to indulge their taste for sensual pleasure, other fac­tors helped to account for the frequency with which concubinage appears in thirteenth and fourteenth-century records. Economic and social considerations almost certainly made concubinage a useful alternative to marriage for many families. Families who dreaded or who could not afford the loss of property that dowry entailed found it preferable to encourage their daughters to agree to con­cubinage relationships, which may well have had the additional attraction of attaching the woman’s family to the political and social networks of wealthier and more prominent men than they could have hoped to attract into marriage.^[1698] In some cases concubinage ultimately led to marriage; certainly canonists consid­ered this a realistic possibility, '^m

Despite the willingness of many academic lawyers to view concubinage as a tolerable, if not desirable, institution, ecclesiastical authorities continued to discourage the practice. They commonly did so through some variety of abjura­tion suh pena nubendi. Bishop Peter des Roches at Winchester, for example, required men whom he discovered to be living with a concubine to agree to a conditional marriage with their mistresses. In effect the agreement forced the man either to marry his amasia or to agree that further sexual relations with her would constitute marriage. The bishop enforced these agreements by re­quiring the parties to swear an oath before witnesses that they would honor the commitment; if they were reluctant to do this, he demanded a promise with sureties that if the man and his mistress were found together in future they would be subject to a fine.¹"

Sexual Behavior in Marriage

Both canonists and theologians remained commited to the well-established principle that husband and wife enjoyed equal sexual rights in marriage.^{[1699] [1700] [1701] In other aspects of the marriage relationship the husband continued to be held superior to the wife, although some writers emphasized that woman was cre­ated to be man’s companion, not his servant.[1702] Nicholas of Lyra observed that mutual pleasure in marital intercourse created a bond of attraction that helped to keep married couples together. A married man, he wrote, gladly returns to his wife because of the sexual delights that she will provide for him, while Hos- tiensis observed that women whose husbands were absent pined and sighed until their men returned.1,s It was generally agreed that a satisfactory sexual relationship between spouses was a desirable, even necessary, ingredient of marriage and that a union predicated on an agreement that the partners would never have intercourse was not binding. Nonetheless Aquinas warned couples not to place too great an emphasis on the pleasures of the marriage bed. He added that a man who had intercourse with his wife solely for enjoyment was treating her as if she were a whore.'59}

Although a few heretics maintained that marital sex was sinful under all cir­cumstances, orthodox writers in the thirteenth and fourteenth centuries in­creasingly rejected this teaching.^{[1703] [1704] [1705] All of the major theologians and canonists of the period taught that marital relations were free from sin under some circum­stances, although they failed to agree just what those circumstances might be.[1706] [1707] Albert the Great and a few others went so far as to contend that marital sex was good in itself and might even be spiritually meritorious if approached in the spirit of love and with procreative intentions.lβ2 This view was by no means uni­versally accepted, however, for the older notion that sex was evil and a source of moral and spiritual impurity remained very much a part of theological belief.[1708]}

Leading authorities distinguished between situations in which marital sex was sinful from those in which it was not. The Franciscan theologian, Alexander of Hales (d. 1245), whose Summa theologica, Roger Bacon complained, was heavier than a horse, identified three situations in which marital relations were without sin. It was no sin, according to Alexander, for a couple to have sex in order to conceive a child, to pay the conjugal debt, or to avoid danger of fornica­tion. If a couple had relations just for pleasure, however, the act was sinful; how sinful depended upon whether both parties agreed to the act. If it proceeded from mutual agreement, the sin was venial; but a lustful husband who took his wife to bed against her will sinned mortally.¹⁶¹ Another Franciscan, St. Bona­venture (1221-74), rejected the two extreme positions on the sinfulness of marital sex. Bonavcnture reminded his readers of the rigorist teaching of Huguccio that marital sex was sinless only if it was not pleasurable, but added that he found this teaching too harsh (nimis dura). Married men could enjoy their wives so long as they did so with marital affection; although this was ven- ially sinful, it was saved from being mortally sinful because of the good of mar­riage."” Aquinas took a moderate position, rejecting the rigorist doctrine, but holding that marital sex for pleasure alone, so long as it remained within the bounds of proper matrimonial behavior (infra Iimites matrimonii), was only venially sinful.¹⁶® Albert the Great maintained that the sinfulness of marital sex depended on the intention of the parties. If one of them initiated the sex act out of lust, but also had a conscious hope of conceiving a child, the act was ven­ially sinful. If the couple went to bed solely in order to conceive and “endured” the pleasure because it was unavoidable, their act was not sinful and might be meritorious. But if pleasure was the only reason for coitus, this was a serious sin, although not actually mortal.¹⁶⁷ Other teachers proposed even more elabo­rate analyses. The Dominican, Roland of Cremona (d. 1271), distinguished five legitimate reasons for marital sex. In addition to the four reasons usually cited (payment of marital debt, procreation, avoiding incontinence for one’s self, pre­venting incontinence by the spouse), Roland added as a further acceptable rea­son the intention of avoiding the anger of one’s wife, since anger might lead her into mortal sin; it is well known, Roland added, that sex diminishes women’s anger.¹⁶⁸ On the other hand some reasons for marital intercourse, even though virtuous in themselves, were not adequate to overcome the evil inherent in the sex act. Thus, according to William of Pagula, a man who had intercourse with his wife in order to regain his own bodily health, sinned by doing so.¹⁶⁹

Several English synods of the thirteenth century sought to discourage a

�“Alexander of Hales, Glossa in quattuor Iibris Sententiarum PetriLombardi 4.30.11, 4 vols., Bibliotheca Franciscana scholastica medii aevi, vol. 12—15 (Quaracchi: Col­legium S. Bonavcnturac, 1951-57); Siete Partidas 4.2.9, ed. Vargas y Ponce 3:26; Nich­olas of Lyra, Postilla to 1 Cor. 7:6. For Bacon’s comment see Etienne Gilson, History of Christian Philosophy in the Middle Ages (New York: Random House, 1955), p. 327.

^1e5Bonaventure, Comm, to Sent. 4.31.2.3; Muller, Lehre des hl. Augustinus, pp. 229-39. William of Auxerre, Summa aurea, fol. 288ra, on the other hand, still sub­scribed to the rigorist position.

¹⁶⁶Thomas Aquinas, Comm, to Sent. 4.31.2, 3.

¹⁶⁷Albertus Magnus, Comm, to Sent. 4.31.21; Muller, Lehre des hl. Augustinus, p. 254; Clifford, “Ethics of Conjugal Intimacy,” pp. 6, 11.

¹⁶⁸Roland of Cremona, Summa, quoted in Muller, Lehre des hl. Augustinus, p. ιgo.

¹⁶⁹William of Pagula, Summa summarum 4.1, Pembroke 201, fol. 202vb: “An cog­noscere carnaliter mulierem propter sanitatem corporalem sit peccatum? Die quod sic, quia querit sanitatem corporalem Conseruandi uel recuperandi per hoc quod ad hoc non popular belief that married persons who received the sacrament of extreme unction committed a mortal sin if they later had sexual relations for any reason whatever. The synodal canons enjoined priests to make it clear to their parish­ioners that this notion was erroneous, for, the lawmakers believed, married folk who thought that extreme unction meant the end of marital sex often refused to receive the sacrament, even when laboring in their final agony.^{[1709] [1710]}

The conventional opinion of canonists and theologians was thus fairly clear. Marital sex was permissible, but only provided that the partners brought the proper intentions to the act. Marital relations required forethought, delibera­tion, and conscious reflection if one wished to avoid serious sin. Above all, mar­ried persons must observe moderation in their sexual habits, and they should not use their marital rights to achieve improper ends, such as physical plea­sure.^[1711] Given these guidelines, few married persons can have escaped sinning through lust, excessive affection, or a desire for pleasure. The constant danger of committing sin in daily contacts with one’s husband or wife obviously troubled many people. Jacques de Vitry was no doubt right when he observed that mar­riage was morally more demanding than the monastic life.^[1712]

Medical writers took a different view of marital sex. Coitus, they believed, furnished both husband and wife with healthy pleasure, and William of Sali- ceto’s Summa conservationis described in detail methods for enhancing the en­joyment of both parties. Avicenna, followed by James of Forli and a few other Latin authors, gave special attention to methods for ensuring the wife’s orgasm.^[1713] Female orgasm seemed critical not only to medical writers but also to theolo­gians who relied on their expertise in such matters, since they believed that only when a woman “emitted her seed” could conception occur. Failure of ei­ther partner to achieve orgasm rendered intercourse nonprocreative and thus presented a moral problem, particularly if the woman deliberately refrained from yielding to sexual pleasure.^[1714] On the other hand, those who wished to avoid conception were advised to try to inhibit orgasm during intercourse. Pierre de La Palude, writing early in the fourteenth century, advised couples who already had as many children as they could support to practice coitus inter­ruptus if they were unable to achieve complete sexual continence.^[1715]

According to the Summa Astensis it was the more common opinion among theologians of this era that sexual pleasure in marriage was always a venial sin, although the author added, “Some say that there is no sin at all in it.”^[1716]® There was almost universal agreement, however, that kissing and “indecent touching” between married persons was sinful, although some would tolerate such behav­ior as a prelude to intercourse, provided that the couple’s intention was pro­creative, and there was no danger of premature ejaculation.^[1717] The pseudony­mous treatise De secretis mulierum, ascribed to Albert the Great, gave detailed instructions for the technique of marital coitus. The spouses should prepare themselves physically and mentally: they should not make love immediately after eating and they ought to make sure that bladder and bowels were empty. Some foreplay—kissing, embracing, and fondling of “the lower parts”—was prescribed, since the author considered it essential to raise the womans body heat to the proper level. The husband would know that the critical moment had arrived when his wife commenced “to speak as if she were babbling.” The hus­band should immediately commence intercourse when this happened and the woman was instructed to lie absolutely still, since if she moved the seed might divide with the result that a defective child would be conceived. The woman should also pay attention to what was going on and not let her thoughts wander to other matters, since if she were musing at the critical moment about, say, a cow, her child might turn out to resemble the animal.^[1718]

Earlier prohibitions against intercourse during pregnancy and menstruation produced a rich casuistry to deal with doubts about these practices, but most thirteenth- and fourteenth-century writers treated ritual purity as a minor issue.^[1719] Albert the Great thought that sex during pregnancy ought to be excused, since he believed that the fetus stimulated the expectant mother’s nerves, which made her hunger for sexual satisfaction. “A woman,” he de­clared, “never desires sex so much as she does when she is pregnant,” and he believed that this furnished ample reason for allowing coitus during this period, since “Medicine is most needed in the time of greatest illness.”^[1720]

Many theological and canonical authorities of this period repeated earlier censures against the use of unconventional coital positions. Alexander of Hales, for example, considered coitus a tergo unnatural. It was, he declared, a very serious sin and was never allowed for any reason. Other variations from the missionary position were also sinful, he believed, but less seriously so than penetration from the rear.^[1721] Alexanders views were shared by many others.^[1722] Some thought that preferences for particular coital positions might be inborn as a result of the configuration of the planets at the time of a person’s birth, al­though extraterrestrial influences seem not to have been considered seriously by writers on moral questions.^[1723] The author of De secretis mulierum suggested that using nonstandard coital positions might result in birth defects in children conceived during their parents’ experiments.^[1724]

During the latter part of the thirteenth century and the first half of the fourteenth, however, modifications of earlier opinions about irregular coital positions began to surface, and several respected theologians and canonists questioned whether these practices were sinful at all. The best-known ques­tioner was Albert the Great. Albert described five coital positions (missionary, side-by-side, seated, standing, and a tergo) and maintained, conventionally enough, that the missionary position was the most natural of these. He con­sidered use of the other four morally questionable, but not mortally sinful.^[1725] Albert and a few other writers observed, moreover, that use of unconventional positions could be perfectly justified and not sinful at all in certain situations. Where one party was grossly obese, for example, the missionary position might be impractical and one of the others might be substituted. Pregnancy was an­other contingency that justified the use of unusual coital positions, since there was fear that coitus in the missionary position might harm the fetus. Use of aberrant coital positions was seriously sinful only if they were adopted in order to heighten sexual pleasure.¹⁸⁶

Intimate details of the sexual habits of married persons rarely came before the courts, although one case in the Cerisy court register refers in oblique lan­guage to what may have been a complaint about use of strange coital postures.¹⁸⁷ Confcssors presumably heard about such practices more often than judges did.

Other facets of the sex lives of married persons, however, did crop up in the courts with considerable frequency. The most common was the charge that one party refused to pay the marital debt. In many, probably most, of these cases the underlying issue was in fact desertion—the commonest situation was one in which the husband had left his wife (often in order to set up housekeeping with another woman). The wife then came to court petitioning for payment of the conjugal debt. In effect she was asking the court to order her husband to return to her. Actions for payment of the conjugal debt furnished a procedural mechanism for dealing with this situation.^ιss

Separation, Divorce, and Remarriage

Legal modes of terminating marriages between living partners had by this pe­riod effectively been reduced to two: separation from bed and board (α mensa et thoro) and nullification of invalid unions. The first carried with it no right of remarriage, but in the second, when marriage was annulled, the parties could, if they wished, marry someone else.¹⁸⁹ Canonists repeatedly asserted that mari­tal separation was never permitted without a formal ecclesiastical decree, but this was difficult to enforce. Actual cases show many examples of parties who not only separated but also remarried without seeking, much less securing, any sort of judgment. These situations entered the record, of course, only when the

^lsePierre de La Palude, Lucubrationum 31.3.2, p. 367; William of Rennes, gloss to Raymond of Penafort, Summa de mat. 4.2.13 v. nihil fediιιs.

^wRegistre de Cerisy, no. 75b, ed. Dupont, p. 335.

¹⁸⁸ 2 Synod of Exeter (1287) c. 7, in Powicke and Cheney 2:999; Bernard of Parma, Glos. ord. to X 5.16.7 v. fornicationis; Pierre de La Palude, Lucubrationum 32.1.1, p. 368; Nicholas of Lyra, Postilla to 1 Cor. 7:3; Guido de Baysio, Rosarium to C. 27 q. 2 pr., C. 32 q. 1 c. 3 v. jus exigendi, and C. 32 q. 4 c. 5 v. amator, fol. 331ra, 343rb, and 347va. For some cases see Registre de Cerisy, no. 95c, 124b, 261b, ed. Dupont, pp. 350, 371, 456. See also Sheehan, “Theory and Practice,” p. 252; Flandrin, “Vie sexucllc,” p. 105.

¹⁸⁹Joannes Andreae, Novella to X 5.16.4 v. plus caeteris; Pierre de La Palude, Lu­cubrationum 42.2.3, p. 435.

matter arose in the course of other litigation, often when a subsequent mar­riage came before the courts. In practice the laity, at least on the lower socio­economic levels, exercised far greater control over marriage and divorce than academic commentators acknowledged or than the Church’s lawgivers were prepared to concede.¹⁹⁰

But records of marriage litigation in England during this period show that practice more often conformed rather closely to ecclesiastical marriage law. Certainly this seems to have been true for the law on consanguinity and affinity, and cases in which those problems were at issue were quite uncommon. Since marriage cases tended to be strenuously contested, it is difficult to believe that these issues would have been passed over in silence had there been grounds for raising them.¹⁹¹

Recent studies of the particularly rich English records also indicate that mar­riage cases that came into the courts almost always centered on issues involving consent. The issues raised in most of the cases studied involved either pre­contract (i.e., exchange of consent between one of the couple and a third party prior to the time of the contested marriage), force and fear, or incapacity to consent (usually because one party was allegedly under age at the time of marriage).¹⁸²

Discussions of these issues by canonists in the late thirteenth and early four­teenth centuries followed long-established patterns.¹⁸³ Adultery and fornication

¹⁹⁰Bernardus de Montemirato, Comm, to X 4.19.3, fol. 131rb: Helmholz, Marriage Litigation, p. 59; Dufresne, "Comportements amoureux,” p. 137. An anonymous gloss to X 4.19.6 v. Conpellendam in U.L.C., MS Ee.5.4(B), fol. 177rb, held that husbands may dismiss their wives without formal process for fornication: “Nota secundum host(iensem) quod uir potest dimittere uxorem suam sine iudicio ecclesie propter for­nicationem, ut pater Augustinus dixit: Si uxor alicuius fornicationem fecit Iicitum est uiro istam dimittere, xxxii. q. iii. § Dixit dominus [recte D. 4 de pen. c. 3]. Ad hanc tamen quod mulier dotem amittat post mortem uiri sui necessaria est Sentencia diuor- cii.” For the Hostiensis reference see Summa aurea, lib. 4, tit. De divortiis § 7, fol. 218va; but on the other hand see ibid. § 13, fol. 219rb. Magister Gratianus uolens com­pilare to C. 33 q. 2, Peterhouse 169(2), fol. 27vb-28ra, maintained that couples who separated informally might be forced to reconcile when their situation came to the atten­tion of authorities. William of Pagula, Summa summarum 419, Pembroke 201, fol. 215vb, disposed of the contradiction by a distinction: “Dic quod uxor fornicans potest dimitti dupliciter: aut quo ad thorum solum, aut quo ad thorum et Cohabitationem. Primo modo potest uir uxorem de cuius fornicatione sibi constat dimittere propria auc­toritate et debitum ei denegare quousque compellatur auctoritate ecclesie.... Se­cundo autem modo non licet uiro uxorem dimittere sine iudicio ecclesie, et si dimissa fuerit, debet cogi uir ad cohabitandum nisi incontinenti uir fornicationem probare pos­sit, secundum tho. et pe. in scrip.”

¹⁹¹Helmholz, Marriage Litigation, p. 79.

¹⁹²Helmholz, Marriage Litigation, pp. 74-77, 90-99; Sheehan, “Formation and Sta­bility,” pp. 257-62; Donahue, “Policy,” p. 267.

¹⁹³These include among others stock assertions that men and women should be treated equally in marriage, reiteration of the “constant man” standard for force-and-fear were in practice not often cited as grounds. By this period, of course, adultery no Iongerjustified dissolution of marriage and consequently remarriage follow­ing separation for this reason was, at least in theory, not allowed.^{[1726] [1727]} Innocent IV, followed by Guido de Baysio, maintained that a wife was entitled to separate from her husband if he attempted to persuade her to consent to anal inter­course, although she could not secure a separation if her husband practiced sodomy with other persons of either sex.’^[1728] Another basis for separation from bed and board that began to appear in the record during the late thirteenth century was cruelty (saevitia), which justified separation when the spouses cruelty had become unbearable. This cause for separation was created by prac­tice, not by legislation. By about 1300, saevitia had emerged as a common cause for canonical separation and was recognized in the civil law of some re­gions as well.^[1729]

Judicial determination that a marriage had ceased to exist was often grounded on presumption of death. Remarriage in these cases was permitted, although some authorities in the late thirteenth century took less liberal attitudes toward presumption-of-death situations than their predecessors had done. Both Hos- tiensis and Bernard of Montemirato, for example, cautioned their readers to be wary of these cases. Hostiensis noted that although earlier canons had pre­scribed that a woman who remarried might be subject to the penalties for adul­tery if her missing husband returned, this was applied in his day only when remarriage had taken place despite reasonable belief that the first spouse still lived.¹⁹⁷ In this respect, too, civil law in some regions followed the lead of the canonists.¹⁹⁸

Divorce with the right to remarry was largely restricted in this period to nonconsummation cases. Several authors dealt with the problems of men who were incapable of consummating their marriages because they had been cas­trated. Pierre de La Palude believed that so long as the castrated man was able to achieve an erection and penetrate the vagina, he was capable of contracting a valid marriage. Pierre thus advised that marriages of such men should not be considered void, despite the fact that they were unable to ejaculate semen or conceive a child.¹⁹⁹ Other authorities disputed this conclusion. William of Pagula and the author of Aliter dehet, for example, held that castrati were un­able to contract valid marriages. If a man was castrated after marriage, however, his marriage remained valid.²⁰⁰ Both Thomas Aquinas and Bonaventure, on the other hand, held that permanent incapacity to copulate created a bar to mar­riage, no matter what the origin of the disability, while Bernard of Montemirato maintained that both capacity to have intercourse and ability to inseminate were necessary for valid marriage.²⁰¹

¹⁹⁷Hostiensis, Summa aurea, lib. 4, tit. De sponsa duorum § 6, fol. 203ra; Bernardus de Montemirato₁ Comm, toX4.21.2, fol. j32rb; BeaumanoirS 1636, ed. Salmon2i337∙

¹⁹⁸Bresnier, “Manage en Normandie,” p. 85.

¹⁹⁹Pierre de La Palude₁ Lucuhrationum 34.2.1₁ p. 387.

²⁰⁰William of Pagula₁ Summa summarum 4.13₁ Pembroke 201₁ fol. 211vb: “Die quod tales quibus Utriusque testiculos abscissus est, quia inepti sunt ad reddendum debitum matrimonium contrahere non possunt, sicut nec (imjpuberi, extra de frigidis et malef­iciis, quod sedem [X 4.15.2], et si contraxerunt dimittendi sunt, quoniam nullum est matrimonium. Si uero matrimonium precessit sectionem, non separatur, licet uir factus sit ineptus ad reddendum debitum, ut xxxii. q. vii. illi qui [c. 25].... Secundum autem Iegistas spado potest contrahere matrimonium et adoptare, licet non potest generare, sicut notat hug. xxxii. q. vii. hii qui [c. 25], sed host, hanc reprobat quia spado emittit semen, licet sit inualidus ad generandum secundum Ray. § iii. [Raymond of Penafort₁ Swmma de mat. 8.3] set secundum host. e.t. unde accidentalis [Hostiensis₁ Summa au­rea, lib. 4, tit. Defrigidis et maleficiatis § 7].” Aliter debet to X 4.1.3 v. iuuenis, Caius 23/12, fol. 44vb: “Item contrahere potest matrimonium qui in carnalem copulam con­sentire potest, nisi sit minor uel carens utroque testiculo uel furiosus.”

^20lThomas Aquinas, Comm, in Sent. 4.34.1.2, as well as his Questiones quodlibetales 11.9.2; Bonaventure, Comm, to Sent. 4.34.2.1. See also Bernardus de Montemirato₁ Comm, to X 4.1.30 and 4.13.7, fol. 125ra, 128va. Vincentius Hispanus₁ Lectura to X 4.1.32, Salamanca 2186, fol. 174ra₁ on the other hand, believed that penetration, even without ejaculation, was all that was essential, and Aliter debet to X 4.2.6 v. con­tinebatur, Caius 23/12, fol. 45rb, agreed. Petrus de Sampsone, Lectura to X 4.1.30₁ A.C.A., Ripoll 30, fol. 116ra, held that insemination without penetration constituted consummation: “Ita quid si quis seminet in aras mulieris et non intrabit nunquam con­summatur matrimonium? Respondeo quod sic.... Ecce ergo... matrimonium con­summari posse sine effractione claustri pudoris.”

Writers continued to debate the distinction between natural, inborn impo­tence, which they considered permanent, and impotence caused by sorcery, which might be temporary. Impotence that lasted for three years was presumed to be permanent and justified an annulment with right of remarriage.^[1730] Proof of impotence or frigidity (impotentia coeundi and frigiditas could refer to sexual incapacity in persons of either sex) continued to be troublesome. The three conventional modes of proof found in earlier literature (physical examination of the parties, sworn testimony of neighbors, and evidence of three years of co­habitation) continued in use. While earlier writers usually assumed that physi­cal examination was used primarily to determine whether the womans hymen was intact or not, Bernard of Montemirato advised inspection of the man’s geni­talia as well, to discover whether he showed evidence of immaturity or physical abnormalities that might warrant a finding of impotence.^[1731] The practice of the English courts went a step further: they sometimes employed “honest women” to determine the man’s ability to copulate by attempting to arouse him sexually. The examiners bared their breasts, kissed and fondled him, stroked his penis and testicles, and generally attempted to entice erection. Men who failed to respond to these provocations were presumed to be incapable of sexual inter­course. Under the stressful circumstances of such an inspection, men who were being examined might well have failed to show arousal—particularly after being cursed for failure by the examiners—regardless of their sexual capacities in less frightening situations.^[1732] A miniature painting of the period depicted the conduct of such an examination (see Pl. 14).

Female impotence resulting from vaginal constriction was considered more amenable to treatment than male impotence, as well it might have been, since many cases so described presumably resulted from what physicians and sex therapists now call vaginismus. William of Pagula advised surgical hymenotomy as a possible treatment if the difficulty was simply due to indurated membrane that was impervious to male thrusting.^{[1733] [1734] If there was gross disparity of genital size between the parties, however, that treatment would do little to relieve the situation, as William acknowledged; in such cases the only hope was that fur­ther maturation and perhaps repeated intercourse with another partner more closely adapted to the womans vaginal capacity might enable her to accommo­date her husband. If intercourse did become possible, writers of this period differed, as earlier authors had done, over the question of reinstating the origi­nal marriage.200 Jacobus Butrigarius and Odofredus dealt with the further diffi­cult question, ignored by most other writers, of the partition of dowry property in cases where a marriage was dissolved because of impotence. Both authors maintained that in such a situation the woman had a right to restitution of her dowry, regardless of which party suffered from sexual incapacity.[1735]}

In practice, divorce grounded on impotence appears fairly often in litigation during this period, although by no means all cases where nonconsummation was at issue involved impotence. Nor were all separations because of impotence brought before the courts; many couples parted informally, without ceremony Orjudicial intervention.^[1736] Formal proceedings were far more common when the parties were socially prominent and when large amounts of property were at issue, as happened, for example in the well-documented case of Alυaro de Urgel c. Constanza de Moncada (1261), where the alleged impotence of Alvaro was fiercely contested in an action that involved some of the most eminent per­sonages of the Kingdom of Aragon, including King James I and Raymond of Penafort. The Moncada divorce was scarcely typical, but it illustrates the ways in which a plea of impotence might to used to secure release from a union that had ceased to serve the interests of the parties.^[1737]

Fornication and Adultery

Although Western theologians were aware that the Greek Church considered simple fornication between two unmarried persons no sin, this belief was for­mally condemned as a heresy in 1277, during the controversy over Averroist teaching at the University of Paris.^[1738] Several leading theologians, including Aq­uinas, held that fornication was prohibited by natural law. This was so, St. Thomas argued, not because the sex act itself was evil, but rather because natu­ral law forbade sex outside of marriage.^[1739]

Lawmakers during this period for the first time sought to implement the ban on fornication by institutionalizing procedures for systematic reporting of sex offenses. An English synodal decree dated between 1238 and 1244 provides an early example of the type of system that was developing: it charged parish clergy­men with the task of reporting to their rural deans notorious fornicators and men who openly lived with concubines. The dean in turn was to prefer a formal complaint against the offenders to the archdeacon, who was empowered to summon the accused and to determine whether the complaint had substance. If he found that it did, the archdeacon could either punish the parties by fines and censures or, preferably, induce them to marry one another voluntarily, pro­vided that they were legally free to do so. If they refused, the archdeacon could require them to abjure further relations with one another under penalty of marriage.^[1740]

Not all authorities were prepared to go so far as this, particularly with cases involving casual sexual contacts. Bernard of Parma, for example, characterized fornication by separated persons as a minor offense and Hostiensis observed that many circumstances might excuse fornication or mitigate the penalties at­tached to it.^[1741] Although lawmakers might decree heavy penalties, as the Synod OfWinchester did, on the grounds that small fines were inadequate to discour­age sex offenders, the courts often disposed of fornication complaints by impos­ing small fines and public humiliation on offenders. Only in aggravated cases, where multiple relationships were involved, or where the relationship lasted for a protracted period and caused public scandal, for example, were more se­rious penalties invoked. Even then it was not unheard-of for the convicted for­nicator to settle the case with a cash payment in lieu of flogging or other serious penalties.²¹¹

Certainly one reason why the courts treated fornication and other kinds of extramarital sex as minor offenses had to do with the enormous numbers of these cases that came before them as the enforcement system improved. The registers of the Cerisy court, for example, show that fornication and adultery accounted for about seventy percent of the court’s business. Further, the inci­dence of sex offenses in relationship to the total population was very high. The parish of Deux-Jumeaux, for example, produced eleven fornication or adultery cases in 1314, although the parish contained only forty households. This was an usually high incidence, to be sure, but other parishes in the region were not far behind. The ratio of sex offenses to households in Cerisy itself during that same year amounted to 1:6 and even in the placid parish of Litry it stood at about 1:8.^{[1742] [1743]}

Although an academic observer such as Nicholas of Lyra might profess as­tonishment and dismay that people would fornicate publicly and in plain sight (a practice, he declared, that not even pagans tolerated), people who lived in rural communities in the thirteenth century were apparently not overly zealous to conceal even their illegal sexual activities from their neighbors. In Wood c. Clapton (1270), for example, three witnesses asserted that while on their way to a tavern they had observed Richard Wood copulating with Matilda Goderhele in a neighbors croft.^[1744] Similar testimony in two cases from Aragon, one of them a sodomy case, shows that there, too, concealment of even very heinous activi­ties from public gaze was at best imperfect and sometimes disdained.^[1745] Illumi­nations in legal manuscripts of the period confirm the documentary evidence that copulation in public places was not unusual; see for example Pl. 20. Under circumstances where privacy was difficult to secure, it is not surprising that court records show high levels of detection of extramarital sexual dalliance.

The penalties attached to fornication varied greatly. The canonists generally sought to repair the damage caused by seduction by requiring the couple to marry, provided that both parties agreed and that the woman’s family also con­sented; Hostiensis indicated that some degree of coercion might be applied, if necessary, to induce the man to agree.²¹⁸ Where marriage was impossible be­cause of some canonical impediment, or where one party withheld consent, the seducer might be obliged to provide an appropriate dowry for the woman.²¹⁹ Men who refused to marry their partners in crime and who were unable or un­willing to provide a dowry for them might be subject to corporal punishment in place of the normal canonical remedies.²²⁰ Customary practice was often consid­erably harsher than this, and vengeance killings were not uncommon.²²¹ By the end of the thirteenth century, a few municipalities were also beginning to pre­scribe penalties, usually fines, for men found guilty of fornication with unmar­ried women of respectable social status.²²² The aim of the canonists, however, was characteristically to heal the social wounds that fornication caused by in­ducing the couple of marry, if possible, rather than simply to punish them for their behavior.²²³ One major exception to this rule concerned fornication be­tween Christians and non-Christians, mainly Jews or Saracens. Penalties for miscegenation with non-Christians were often harsh: commentators on Bar- tolus thought the death penalty was appropriate, and their opinion agreed with

²¹⁸Bernard of Parma, Glos. ord. to X 5.16.1 v. uxorem; Hostiensis, Lectura to X

5.16.1 v. noluerit.

²¹⁹Bcrnard of Parma, Glos. ord. to X 5.16.1 v. et dotabit eam; Hostiensis, Lectura to X 5.16.1 v. iuxta modum, 5.16.2 v. poena, 5.23.11 v. et qualiter puniatur, as well as Summa aurea, lib. 5, tit. De adulteriis et stupro § 11, fol. 244vb-245ra; Nicholas of Lyra, Postilla to Dent. 22:30 v. si invenerit vir; William of Pagula, Summa summarum 5.16, Pembroke 201, fol. 239rb: “Quid indicetur si quis seduxerit uirginem et eam cor­rupit? Die quod eam dotabit et in uxorem habebit. Si autem pater puelle noluerit ei dare in uxorem, reddet pecuniam iuxta modum dotis, nam estimabitur dos iuxta facultates illius uiri et dignitatem puelle, extra e.t. c. i et in gio. ult. [Gfos. ord. ad X 4.20.1 v. totam].” The same practice was observed in the customary law of Corsica and, no doubt, elsewhere as well; Marin-Muracciole, ILhonneur des femmes, p. 197.

²²⁰Hostiensis, Lectura to X 5.16.2 v. corporaliter.

²²¹Thus, e.g., Eric Clipping, King of Denmark (1259-86), was assassinated by a group of noblemen who claimed that the king had seduced their wives; see William Ur­ban, The Baltic Crusade (DeKalb, IL: Northern Illinois University Press, 1957), p. 242.

²²²Sarzana, Statuti (1330) 2.11, ed. Gianfranceschi, pp. 110-11; Statuti de Bologna dell’anno 1288, 4.30, ed. Gina Fasoli and Pictro Sella, 2 vols., Studi e testi, vol. 73, 85 (Vatican City: Biblioteca Apostolica Vaticana, 1937-39) ^1:195; Modena, Statuti (1327) 4.27, p. 398; Archives de la ville de Lectoure: coutumes, statuts, et records du XIIIe siecle, a.55, ed. P. Druilhet, Archives historiques de Gascogne, fasc. 9 (Paris: H. Cham­pion, 1885), p. 45; Flandrin, “Manage tardif,” p. 1371; Bennecke, Strafrechtliche Lehre von Ehebruch 1:129; May Geistliche Gerichtsbarkeit, p. 169.

²²³Joannes Andreae, Novella to X 5.16.2 v. a gat; Bernard of Parma, Glos. ord. to X

5.16.2 v. excommunicatusque; Bernardus de Montemirato, Comm, to X 5.16.1. customary practice. The Fueros of Seprllveda, Teruel, and Cuenca prescribed execution of religiously mixed couples who were caught inflagrante delicto, either by burning them alive or by hurling them from a precipice. If they were not taken in the act, however, they were to be flogged in public and sent into exile. The laws of the Latin Kingdom of Jerusalem were equally stern toward Latin colonists who took Muslim sexual partners.^[1746]

Adultery, while not so common as fornication, was certainly a pervasive so­cial problem. Several reported cases involved multiple relationships, some of them long-continued, which considerably complicated the difficulties.^[1747] Preachers thundered warnings about the awful consequences of adultery, and reinforced their admonitions with such cautionary tales as the one about a mor­alistic lion who hunted down adulterers and tore them to shreds. None of this seems to have diminished very seriously the rate at which married folk yielded to extramarital temptations.^[1748]

Canonists and theologians were not entirely agreed whether adulterous men were more culpable than adulterous women. Thomas Aquinas argued that women should be more severely punished for adultery because of the danger that they might furtively introduce into their families children conceived by their lovers. Master Serlo and William of Pagula, on the other hand, felt that the adulterous man offended more seriously and deserved stricter punishment, a position that Hostiensis apparently shared.^[1749] Customary law, however, gener­ally penalized women far more severely than men for adultery. Some Spanish fueros allowed husbands, and sometimes other family members, too, to slay women caught in the act. Old notions that female adultery dishonored hus­bands and their kinsmen remained very much part of popular morality during this period.²²⁸ In principle canon law equalized one of its penalties for adultery by insisting that a prior adulterous relationship constituted an impediment to subsequent marriage, but the canonists themselves usually interpreted this impediment restrictively, and few actual cases mention prior adultery as an issue.²²⁹

Prostitutes, Pimps, and Panders

Late thirteenth- and fourteenth-century canonists and theologians remained by and large faithful to the traditional concept that prostitution was a species of fornication, although a few writers noted differences between canon and civil law on this point.²³⁰ While the Ordinary Gloss to the Bible observed that the Scriptures forbade men to have sexual relations with prostitutes, and both ec­clesiastical and royal authorities occasionally penalized men who violated this prohibition, legal action was usually directed against bawds, not their clients.²³â€™ A few cities decreed that all prostitutes were to be expelled—Bologna did so in 1259, Venice in 1266 and again in 1314, and Modena in 1327—but there is little evidence that these actions ever had more than a short-term effect.²³² Most legal writers and theologians continued to advocate a policy of practical tolera­tion. The prostitute had a certain public usefulness, they believed, and what

^22eFTerucl 479, cd. Gorsch, p. 296; Beaumanoir §§ 930, 933, 1637, ed. Salmon 1:470, 472-73, and 2:337-38; Dillard, “Women in Rcconquest Castile,” p. 81.

²²⁹1 Salisbury (1217 ~ 1219) c. 79, in Powicke and Cheney 1:85-86; William of Pagula, Summa summarum 4.1, Pembroke 201, fol. 203rb: “An intencio non seruandi fidem excludat matrimonium? Die quod de bono fidei duo aetus sunt: unus essentialis, scilicet non negare usum sui corporis coniugi, et intencio opponita huic excludit matri­monium; alter accessorius, scilicet non exhibere corpus suum alteri quam coniugi, et imo intencio huic opposita non excludit matrimonium, quia si alius contrahit matri­monium et tamen habet propositum adulterandi, nihilominus tenet matrimonium.... Si uero habeat propositum numquam reddendi debitum, si hoc deducitur in peccatum non est matrimonium secundum pe. Quidam tamen dicunt quod contrahitur matri­monium in hac casu.” See also Sheehan, “Marriage Theory and Practice,” p. 420, and Helmholz, Marriage Litigation, pp. 94-95.

²³⁰Hostiensis, Summa aurea, lib. 5, tit. De adulteriis et stupro § 9; Guido de Baysio, Rosarium to C. 32 q. 4 c. 11 v. accedere; Bloch, Prostitution 1:20; Leopold Brandl, Die Sexualethik des heiligen Albertus Magnus: Eine Inoralgeschichtliche Untersuchung, Stu- dien zur Geschichte der katholischen Moraltheologic, vol. 2 (Regensburg: F. Pustet, 1955), p. 244; LeRoy Ladurie, Montaillou, pp. 150-51.

²³¹ Glos. ord. to Deut 23:17 v. non; Registre de Cerisy, no. 410h, ed. Dupont, p. 607; Joinville, Life of St. Louis 140.702, trans. Hague, p. 205; Ordonnances des roys de France de la troisieme race, 23 vols. (Paris: Imprimerie Royale, 1723-1849; repr. Farnsborough, Hants.: Gregg Press, 1967-68) 1:74 § 34 (1254) and 1:105 § 5 (1269).

²³²Bologna, Statuti 12.4, cd. Frati and Sclla 3:509-10; Modena, Statuti 4.76, pp. 428-29; Leggi e memorie Venete sulla prostituzione finito alia caduta della Republica (Venice: n.p., 1870-72), p. 30; Elizabeth Pavan, “Police des moeurs, societe, et po­litique a Venise a la fin du moyen age,” Revue historique 264 (1980) 243. was required was to set limits to her practice, rather than to eliminate her from society.^[1750]

In practice, prostitution was and remained a flourishing part of the medieval social system and provided a marginally acceptable outlet for male sexuality.^[1751] Legal commentators often speculated on the causes that led women into harlo­try. Some laid the blame on poverty and the necessity for poor girls to make a living, both matters about which attitudes seem to have been changing during this period.^[1752] Whereas twelfth- and early thirteenth-century writers tended to treat poverty as a misfortune that was also spiritually virtuous, late thirteenth­century writers had begun to see it as a menace, a condition to be viewed with suspicion and alarm. The poor were becoming a distinct social class, particu­larly in cities, where the criminal courts often treated them harshly. The result was the emergence in some cities, such as Bologna, of a criminal underworld, whose social centers were often located in one or more of the city ’s taverns or in the baths. Both of these tended to be the haunts of prostitutes, who thus be­came increasingly identified with urban criminals.^[1753] Other theories abounded to account for the prostitute s choice of vocation. Thomas Aquinas believed that women were attracted into the life because of their greed; Hostiensis, on the other hand, seemed to think that prostitutes were exceptionally lustful, a view that was contradicted by medical writers, who taught that prostitutes did not enjoy sex and were sterile.^[1754] Others laid the blame on astrological influences at the time of the woman’s birth, thus relieving her of some blame for the life that she led.^[1755] Hostiensis could see no excuse for the prostitute. It might be pos­sible, he declared, to pardon some crimes, even homicide, that were com­mitted accidentally or in order to protect one’s self; but these considerations did not apply to a woman who voluntarily consented to sex with a man to whom she was not married. The harlot’s only excuse was that she had been forced into the life against her will.^[1756]

Promiscuity remained the defining feature of prostitution for legal writers of this period. So long as a woman made herself available to anyone who wanted her, she was a prostitute; Odofredus, however, maintained that a woman who confined herself to one or two lovers did not qualify as a prostitute, even if they paid for her sexual services.^[1757] Local authorities sometimes tried to define the matter more precisely. The statutes of Savigliano in 1305 declared that a woman who had four or more lovers was a prostitute; several Spanish fueros set the minimum number at five, while the fuero of Alfambra stipulated a minimum of eleven. Cremona, on the other hand, cast the net much wider: its statutes classed any woman who had sex with two or more men as a harlot.^[1758]

Although canonists considered the prostitutes profession demeaning and contemptible, harlots occasionally gained a degree of civic recognition and sometimes participated marginally in the life of their communities. The prosti­tutes of Paris are said to have organized a guild under the patronage of St. Mary Magdalen, while the prostitutes of Perugia played a colorful role in celebrating their city’s conquest of Arezzo in 1335—they seized the victory banner, at­tended the victory Mass as a group, and dressed in scarlet finery to bear their banner in triumph through the conquered city.^[1759]

As for the financial implications of prostitution, Guido de Baysio, for one, puzzled over the question of whether a man who paid a prostitute for her ser­vices committed an additional wrong by rewarding her. After reviewing the opinions of his predecessors, Guido concluded that it was wrong to pay a pros­titute only if payment was promised in advance in order to persuade her to do what otherwise she might have refused to do. If payment was made after the event, there was no harm either in the client offering or in the harlot accepting her fee; indeed, it was only right to compensate her for her labor.^[1760] On the other hand she could not sue to collect a promised fee, as the maggior Consiglio of Venice ruled in 1303.^[1761] Authorities continued to disagree over the tithe obli­gations of harlots. Hostiensis thought that they had no obligation to pay, while Thomas Aquinas held that they must pay, but that the Church should not ac­cept their payments until they had reformed.²⁴⁵

Similar doubts arose concerning other religious obligations of whores. Hos- tiensis discussed the intriguing case of a prostitute who had vowed to go on crusade. Should she be required to fulfill her promise? Or should she be made to redeem it by a money payment in lieu of personal service? If she went on crusade, he argued, many men could follow her and this would certainly help the Holy Land, although the good faith of her followers might be questioned. He concluded that she could not personally participate in a crusade and that her offerings in compensation for her failure to accompany the expedition should also be refused.²⁴⁶ In actual practice, large numbers of prostitutes regu­larly did attend crusading armies, although whether they actually made crusad­ing vows remains uncertain. During St. Louis’s Crusade in Egypt, for example, the king felt obliged to dismiss a considerable number of his followers because they were operating brothels within a stone’s throw of his tent.²⁴⁷

Both law writers and law makers continued to limit the ability of prostitutes to protect themselves from violence and abuse. Bernard of Parma thought that they should be barred from accusing others of crimes, and the statutes of Bo­logna, like the fueros of Sepulveda and Cuenca, gave legislative force to this opinion by exempting assaults on prostitutes, pimps, and panders from the remedies provided against battery. Prostitutes were particularly exposed to the danger of rape, from which authorities were frequently unwilling to protect them. Hostiensis declared that the penalties for rape applied only to attacks on honest women, and Alberto de Gandino (d. ca. 1300), discussing a Mantua rape case, concluded that if the victim hired out her body, as the attacker claimed, her assailant could not be punished.²⁴⁸ Vienna was more vigilant than most cities in protecting its strumpets from rape and other assaults.²⁴⁹

Even attacks on the property of harlots might be ignored, as Alberto de Gandino pointed out, recalling the classical Roman ruling that a man who smashed the door of a harlots house and thus made it possible for thieves to make away with her goods could not be held responsible for the loss, since the doorbreakers motive was lust, not greed.²⁵⁰ Further, according to Bernard of

²⁴⁵Hosticnsis, Lectura to X 3.30.23 § 2; Thomas Aquinas, ST 2-2.87.2 ad 2; cf. Glos, ord. to Deut. 23:18 v. nem offeres.

²⁴⁶Hostiensis, Summa aurea, lib. 3, tit. De υoto et voti redemptione § 11, fol. 177rb.

²⁴⁷Joinville, Life of St. Louis 36.171, trans. Hague, p. 66.

²⁴⁸Hostiensis, Summa aurea, lib. 5, tit. Depenisraptorumcorporum, pr., fol. 245vb; Alberto de Gandino, Tractatus de maleficiis, ed. Hermann Kantorowicz in Albertus Gandinus und das Strafrecht der Scholastik, 2 vols. (Berlin: J. Guttentag, W. De Gruyter, 1907-26) 2:360-61; Powers, “Frontier Municipal Baths,” pp. 659-60.

²⁴⁹BernardofParma, Glos. ord. t0X5.1.20 v. Concubinarios-, Bologna, Statuti 4.47, ed. Fasoli and Sella 1:210; Dillard, “Women in Reconquest Castile,” p. 86; Boulting, Woman in Italy, p. 293; Schrank, ProstitutioninWien, pp. 52, 54. quoting a law of Duke Friedrich II, 1 July 1244 § 8.

²⁵⁰Alberto de Gandino, Tractatus de maleficiis, ed. Kantorowicz 2:214, recalling Ul- pian in Dig. 47.2.39.

Parma, a whore who was charged with an offense should not be allowed to an­swer the charge in person; instead, like a madman, she must appoint a proctor to present her defense to the court.²³¹ Given the many restrictions on their civic rights and the lack of protection that society generally afforded to them, it is not surprising that harlots were commonly believed to harbor grievances that they might work out in peculiar ways. Pseudo-Albertus, for example, related a version of the ancient male anxiety myth of the vagina dentata—the vagina with teeth. Pseudo-Albertus’s version featured prostitutes who hid sharp pieces of iron in their vaginas in order to lacerate their clients’ penises. Etienne de Bourbon, a popular preacher, warned captains not to allow whores on board their ships, since the presence of a harlot would cause storms at sea.^{[1762] [1763]}

The civic disabilities incurred by prostitutes often applied as well to their pimps, panders, and procurers. These occupations were broadly defined so as to include anyone who encouraged, promoted, or profited from prostitution. Traditionally any man who failed to expel his adulterous wife or who attempted to conceal her crimes was classed as a pimp. A woman who concealed her hus­band’s infidelities, however, was not considered guilty of pandering or procur­ing.^[1764] The Cerisy registers suggest that authorities in rural Normandy may have been more assiduous in prosecuting procurers, pimps, and keepers of bawdy houses than they were in dealing with prostitutes themselves, while Al­berto de Gandino apparently conducted a brief campaign against promoters of prostitution at Bologna in 1289.^{[1765] [1766] A civic ordinance at York in 1301 ordered that brothels discovered in that city were to be destroyed and their proprietors im­prisoned (though only for a day and a night). But fits of civic rectitude such as these seem to have been sporadic, short-lived, and generally ineffective.253 Most cities strove for the more modest goal of controlling the activities in their brothels and bathhouses by forbidding gambling in them, as Avignon did in 1243, or by forbidding harlots to frequent the public baths, save on certain days of the week, as Marseille did somewhat later in the century. At Paris, super­vision of the city’s prostitutes and enforcement of the regulations concerning their behavior was entrusted to a royal official, the roi des rihauds, who had counterparts in many other French towns and cities.[1767] Small towns and vil­lages, such as Montaillou, rarely had brothels at all, but prostitutes were suffi­ciently common that those who required their services could easily find them in nearby communities. A few French cities—Paris, Chartres, Sens, and Or­leans—apparently had male homosexual brothels, in addition to the usual het­erosexual establishments, but nothing is known about their operations.[1768]}

Canonists of this period believed that prostitutes should be distinguished from respectable women by their style of dress and Bernard of Parma pointedly referred to an ancient civil law text in which Paulus had declared that matrons who dressed like whores lost their social privileges.^[1769] Town statutes sought to implement this strategy by prescribing dress codes to mark out harlots from other women. A tactic often used in German-speaking lands required prosti­tutes to wear clothes of a distinctive color: in Augsburg the designated color was green, in Vienna and Leipzig it was yellow, in Zurich, red.^[1770] Other cities pre­ferred to mark out their whores by the style and cut of the clothes they were permitted to wear. Statutes sometimes even prescribed the fabrics from which their clothing could be made. Some towns also restricted the use of certain types ofheaddress and jewelry to prostitutes.^[1771] An increasingly popular strata­gem was to segregate prostitutes from respectable women by forbidding harlots to live or even to walk in certain parts of a city.^[1772] An Avignon statute of 1243 went so far as to forbid whores and Jews to touch bread or fruit put up for sale in the marketplace and required them to buy any item on which they laid a fin­ger.^[1773] A few cities designated a civic official to supervise local prostitutes and made him responsible for enforcing the rules governing the dress and behavior of the towns harlots. In Augsburg, the municipal hangman was assigned this duty on holidays and Saturday evenings, when presumably he was not occupied with more demanding tasks.^[1774] In England the royal marshal employed a clerk and a serjeant specifically for the purpose of keeping harlots out of the house­holds of the king and queen and the royal children. Strumpets apprehended in the forbidden precincts were to be let off with a warning the first time; if they reappeared they could be imprisoned; a third offense resulted in a shaved head; if they were so foolhardy as to make a fourth appearance, their upper lips were to be cut off; this presumably diminished their ability to carry on their trade.^[1775]

Efforts to encourage the reform of prostitutes continued to receive support during this period, especially from Louis IX of France, who endowed a number of convents for reformed harlots.^[1776] Not all prostitutes, by any means, entered the trade willingly, and the eminent proceduralist William Durand included in his Speculum iudiciale instructions for dealing with petitions from women who wished to be liberated from the stews, together with models of the documents needed in these cases.^[1777] Canonists also continued to encourage men to marry prostitutes who wished to reform and characterized this as a meritorious ac­tion—although Bernard of Montemirato added that it was not nearly as mer­itorious as going on a Crusade.^[1778]

Rape and Abduction of Women

Abduction and rape of women, particularly wealthy ones, remained a serious but not common crime; it does not appear nearly so frequently in civic court records as larceny, burglary, theft, or even homicide. It is likely, howeyer, that then, as now, rape was seriously under-reported.²⁶⁸ Men tended to be skeptical about rape complaints, and defendants often claimed that the woman had in­vited the attack, but courts rarely found the charges wholly without merit.²⁶⁹

The French customary law writer, Bcaumanoir, furnished the most lucid dis­cussion in the legal literature of this period of the problem of defining the de­gree of force and the level of resistance necessary to constitute rape. Beau- manoir outlined the nucleus of a resistance standard for rape. He deemed that the victim must at least show that she had protested, that she had attempted to escape, and that her abductor had threatened her life or the lives of members of her family.²⁷⁰ If there had been a prior marriage agreement, however, the can­onists maintained that the penalties for rape were inappropriate.²⁷¹

There was no general agreement on the question of whether abduction, with or without carnal knowledge, was an impediment to subsequent marriage be­tween attacker and victim.²⁷² Oldradus da Ponte (d. 1335) described a case in point. A certain John from the diocese of Utrecht wished to marry a girl named Margaret. She refused to marry him and John then abducted her by force and violence. Once John had her under his control, he compelled Margaret to ex­change words of present consent with him, under threat that he would kill her if

^xsRegistre de Cerisy no. 3, 205, 235b-d, 292-94, 371, ed. Dupont, pp. 287-89, 428, 442-43, 480-81, 545; Dufresne, "Comportements amoureaux,” pp. 144-45; Bar­bara A. Hannawalt, “The Female Felon in Fourteenth-Century England,” in Stuard, Women in Medieval Society, p. 137; LeRoy Ladurie, Montaillou, p. 149, Synod of Liege (1287) 9.9, in Martene and Durand, Thesaurus 4:848.

^2e9Bartholomew of Brescia, Questiones dominicales 80.3, in TUJ* i7:48vb; Tubach, Index exemplorum, no. 4035, p. 310; Thomasset, “Representation,” p. 11. The only ac­tual case of a finding that a rape accusation was false and malicious that has come to my attention is in Registre de Cerisy, no. 394h, ed. Dupont, p. 591.

²⁷⁰Beaumanoir § 929, ed. Salmon 1:469-70; Bernard of Parma, Glos. ord. to X 5.17.6 v. dicatur admitti; William of Pagula, Summa summarum 5.17, Pembroke 201, fol. 239vb, 240va: “An rapiens puellam excusatur a pena si rapta que est nubilis etatis ci consenserit? Dic quod liberatur a pena corporali, non tamen a pena pecuniaria quam sustinere debet, xxxvi. q. i. de raptoribus [c.3] et in prin. glo.... An potest dici raptor qui habet consensum mulieris? Die quod non, extra e.t. cum causam [X 5.17.6].” See also Walker, “Free Consent,” p. 127; Wohlhaupter, "Germanistische Rechtsgedanken," p. 238; Giuseppe Ferroglio, “Studi in tema di â€?impedimentum raptus,’ ’’Annali della Fac- oltd giuridica deU’Universitd di Studi di Camerino 20 (1935) 175.

²⁷¹Hostiensis, Lectura to X 5.17.6 v. dicatur admitti; William of Rennes, gloss to Ray­mond of Penafort, Summadepen. 2.5.4 v. Contraherepotest, p. 168; Esmein, Mariage ι^392∙

²⁷²Bcrnard of Parma, Glos. ord. to X 5.17.7 v. cum raptore; Hostiensis, Lectura to the same passage; Bernardus de Montcmirato, Comm, to X 5.17.6 v. cum causa; Joannes Andreae, Novella to X 5.17.6; Esmein, Mariage 1:392-93. Indeed, rather than con­sidering rape as an impediment to marriage, popular belief often considered marriage an alternative to the death penalty for the rapist; Tubach, Index exemplorum, no. 3037, 4040, p. 310. In the following century municipal statutes sometimes offered that alternative; see below, p. 531.

she refused. Once she had uttered the required words, John locked Margaret up in a secluded house, where he had intercourse with her repeatedly over the course of twelve days. Finally Margaret seized a chance to escape and fled to complain to the authorities. In discussing this case, Oldradus gave special weight to the circumstances of the escape and concluded that Margaret’s flight proved that the exchange of consent was a sham and had no force in law. The simulated marriage, Oldradus declared, was null, and Margaret, or her family, was free to prosecute John for rape.^[1779] Had the words of consent been valid, however, Margaret would have had no case, since the canonists refused to ad­mit the possibility that a husband could rape his wife.^[1780]

If Margaret had been married to another man, her husband would probably have had grounds for action against John for “criminal diversion” of his spouse— English statutes, for example, expressly granted an action for these cases. The husband, if successful, might be awarded damages by the royal courts; the ec­clesiastical courts, although they were prepared to entertain such complaints, could do no more than order the wife restored to her husband and impose a penance upon the abductor. Understandably, therefore, English husbands in this situation normally resorted to the royal courts.^[1781]

In rape cases where the victim was unmarried, the ecclesiastical courts had other remedies to offer. They might impose fines or order the offender to be flogged (at least so long as the whipping drew no blood).^[1782] The convicted rapist might also be denied Christian burial when he died.^[1783] Secular tribunals offered a choice of penalties, ranging from the death penalty through mutilation (cas­tration was an obvious favorite, although by the end of the thirteenth century it had begun to fade out of fashion), exile, forfeiture of property, fines, compensa­tion for the victim or her family, imprisonment, and, of course, flogging (but without the limits imposed by canon law).^[1784] Accessories to the crime could also be punished, although usually more lightly than principals.^[1785] Clerics guilty of rape or abduction were, in addition, liable to be deprived of clerical prefer­ment, which, at least in theory, they could not regain without papal license.^[1786] In practice, ravishment and abduction were rarely punished with anything like the severity that either secular or ecclesiastical law prescribed. This was espe­cially true, of course, when the victim consented to abduction and, as some­times happened, even cooperated in the affair.^[1787]

Sodomy and Sexual Deviance

The second half of the thirteenth century witnessed a sharp growth of legisla­tion about homosexual relationships. Municipal statutes, during this period prescribed far more savage penalties for deviant sexual behavior than appear earlier. The new hostility toward homosexuals may have stemmed in part from fear that their presence might trigger a salvo of divine wrath against the whole community—at least such fears are often cited as a rationale for imposing hor­rendous penalties upon sexual deviants.^[1788] Popular belief identified sodomy as a particularly common vice among the clergy, and also as a peculiarity of urban populations.^[1789] Perhaps the fashion for imposing exemplary penalties upon men convicted of sodomy stemmed in part from anticlerical sentiments; the fact that the most savage penalties occur in city statutes and ordinances, however, makes it improbable that the phenomenon reflected antiurban prejudice.^[1790]

While moralists, theologians, and canonists usually assumed that sexual de­viance resulted from moral defects, medical writers attempted to account for this behavior on the basis of physical abnormalities. Rhazes described male ho­mosexuality as inborn, while William of Saliceto identified the causes of les­bianism as either uterine prolapse or abnormal enlargement of the clitoris.^[1791]

While Master Serlo incorporated in his penitential a list of old-fashioned prescriptions—primarily fasting and other ascetic disciplines—for homosexu­ality, others favored drastic action against homosexual offenders. The Templars and Teutonic Knights were supposed to expel those guilty of sexual deviance from their orders, while the diocesan statutes of Cambrai (1300 ~ 1310) treated these crimes as reserved sins that ordinary confessors could not forgive and that required recourse to the bishop. “Manual pollution,” according to these stat­utes, was also reserved to diocesan penitentiaries. Parish priests in Cambrai were left to deal only with fornication, masturbation by boys under fourteen and by girls under twenty-five, together with “irregular” heterosexual inter­course, which meant either coitus in unusual positions or anal and oral sex.^[1792] Municipal laws were far more bloodthirsty. The Bologna statutes of 1288 re­placed the earlier fine levied for homosexual offenses with death by burning; thirteenth-century Portuguese practice, adapted from the Fuero real of Alfonso the Wise, prescribed castration for male homosexuals, followed (three days later) by hanging by the legs until death; Siena also prescribed hanging, but “by the virile members,” while the customs of Tortosa prescribed the death penalty without specifying the means.^[1793]

Also striking is the frequency with which homosexual behavior comes to be identified with heresy. The charge of sodomy became a more or less routine ingredient of political and social invective just when secular penalties for homo­sexual practices were becoming markedly more savage. The Knights Templars were suppressed, in part for practicing sodomy; William of Nogaret included sodomy among the numerous other vices that he ascribed to Pope Boniface VIII and to Bishop Guichard of Troyes; the sodomy charges preferred by KingJames II of Aragon against Count Alvaro of Urgel were a potent weapon in a political vendetta; if these charges also had some foundation in fact, that was a conve­nient coincidence.^[1794]

Other sexual practices considered deviant in this period were heatedly de­nounced, but seldom prosecuted. Bestiality, which Alexander of Hales charac­terized as the most grievous kind of unnatural sex crime, hardly ever appears in the records, while cross-dressing seems to have carried no penalties at all— Cypriot knights were described as fighting tournaments while dressed as women and, although this was treated as peculiar, it was not criminal.^[1795]

Sex practices deemed unnatural apparently did not diminish as a result of the greatly increased penalties attached to them. Indeed Pierre de La Palude even found it necessary to explain at length why the Church did not allow ho­mosexuals to marry one another, which may indicate that he was aware, or at least fearful, of attempts to extend social recognition to same-sex relationships through some type of wedding ritual.^[1796]

Sexual Behavior of the Clergy

In a circular letter to his archdeacons written about 1244, Bishop Robert Grosseteste of Lincoln (d. 1253) lamented that many parish priests in his dio­cese continued, despite all the rules against it, to live publicly with concubines. Grosseteste acknowledged, however, that they had the good grace, not to say prudence, to send them away when he visited their parishes. Grosseteste in­structed his archdeacons to remain vigilant and to report to him any cases that they detected.^[1797] It is unlikely that Grosseteste’s efforts met with much success. Clerical concubinage and fornication remained persistent problems throughout the fourteenth century, and priests seem to have lived with their female com­panions almost as openly and as often as had their eleventh-century predeces­sors. The chief difference was that, as we have seen, these unions were no longer legitimized as marriages, and so clerical couples lived in sin, under threat of suspension and deposition if a vigilant archdeacon or a reforming bishop should find them out. Not all bishops took great pains to ferret out such cases, since some of them were doing much as their priests did: Bishop Henry of Gelders at Liege, to take a flagrant example, boasted that he had sired four­teen sons in twenty-two months. A recent study has shown that in Norway and Sweden during the early fourteenth century large numbers of the clergy were themselves illegitimate sons of priests, and it is not unreasonable to assume that many of them in turn had children of their own.^[1798] Those whose incontinence was detected, moreover, could often rely upon their colleagues to help fend off punishment. William Bordenn, rector of Wittersham, in 1342 found twenty-two clerics willing to act as compurgators in clearing him of charges of sexual irregu­larities, as well as kicking and beating one of his parishioners in the parish church during Mass.^[1799] Others simply defied the courts and challenged their authority to punish clerics for fornication.^[1800]

Despite their predecessors’ lack of success in implementing the policy of mandatory clerical celibacy, legal commentators and synodal lawmakers con­tinued to insist that the policy must be enforced; they continued to adopt addi­tional, often redundant, enactments requiring clerics to give up their con­cubines, and sought to devise new penalties in the apparent hope that sooner or later they would hit on an enforcement mechanism that would work. But the new remedies failed just about as regularly as the old ones.²⁹⁵

Some authorities were resigned to ignoring clerical fornication and con­cubinage, at least so long as it was not notorious, and attempted enforcement only where an offender caused public scandal that could no longer be ignored.²⁹⁶ Synods also tried to prevent clerics from leaving legacies to their concubines and from buying or building houses for them; these enactments further re­inforce the impression that many clerics lived in relatively stable relationships over long periods of time and treated their companions as de facto wives.²⁹⁷

²⁹⁵Joannes Andreae, Novella to X 3.2.4; Odofredus, Lectura to Cod. 5.26; Siete par­tidas 1.6.43-44, θd∙ Vargas y Ponce 1:249-50; Vincentius Hispanus, Lectura to X 3.2.2 v. canonice, Salamanca 2186, fol. 128rb: “Id est in monasterio trudatur, xxxiii. alii expo­nuntur: id est in Seruitutem redigatur, xxxii. eos quibus [?]; si fuit ex concubina iniun- getur ei penitentia pro adulterio et sacrilegio, xxvii. q. i. que Christo [c. 10]; si uero publice ducta fuit in uxorem magis punietur, quia ipsa uxor et proles in Seruitutcm re­digentur et itaintelligo Ixxxi. di. quidam [c. 30], xi. q. ult. cum multe [recte C. 15 q. 8 c. 3] de uxoribus etiam non concubinis.” Synodal statutes are numerous, especially in En­gland; see Lincoln (1239?) c. 10, 3 Worcester (1240) c. 100, Norwich (1240 ~ 1243) c. 9-10, 2 Salisbury (1238 — 1244) c. 37, 2 Winchester (1247?) c. 13, 2 Durham (1241 ~ 1249) c. 20-21, 1 Chichester (1245 ~ 1252) c. 58, 1 York (1241 ~ 1255) c. 7, 2 Lincoln (1245 ~ 1259) c. 55, 3 Winchester (1262 ~ 1265) c. 43, Legatine Council of London (1268) c. 8, 2 Exeter (1287) c. 18, 2 Chichester (1289) c. 2, all in Powicke and Cheney 1:269, 320, 346-47, 380-81, 405, 427-28, 463, 486, 645-46, 710, 756-57, and 2:1013-14, 1083. On the Continent see, e.g., Constitutions of Fiesole (1306) and Flor­ence (1310), in Richard C. Trexler, Synodal Law in Florence and Fiesole, 1306-1518, Studi e testi, vol. 268 (Vatican City: Biblioteca Apostolica Vaticana, 1971), pp. 18g, 220, 247-48; Council OfValladolid (1322) c. 7 in Mansi 25:700-703, and Winterer, “Zur Pricstcrehe in Spanien,” p. 376.

²⁹⁶Joannes Andreae, Novella to X 3.2.7; GulieImus Durantis, Speculum iudiciale 4.2, tit. De Cohahitatione clericorum et mulierum; Magister Gratianus uolens compilare to D. 28, Peterhousc 169, fol. 3vb: “In xi.a probat quod possumus audire missam a pres- bitero Concubinario quamdiu toleratur, quod Iaici non indicent clericos licet mali sint, infra eodem consulendum [D. 28 c. 17].” In 1322, at the Council of Valladolid, Cardinal William Godin abrogated the excommunication of Concubinary priests; Mansi 25:703; Kelly, Canon Law and the Archpriest of IIita, p. 83. In England a priest who failed to abjure his mistress after being commanded to do so might be required to undertake a penitential pilgrimage; William of Hoo, Letter-Book, no. 152, p. 81.

²⁹⁷3 Winehester (1262 ~ 1265) e. 44-45, in Powicke and Cheney 1:710-11; William of Pagula, Summa summarum 3.2, Pembroke 201, fol. 139va: “An clericus beneficiatus potest aliquid relinquere concubine sue in suo testamento? Die quod non, et si fecerit hoc quod Iegauit debet conuerti in usus ecclesie quo rexit defunctus.” A concubinage contract between a priest and his mistress is summarized in Le registre d’inquisition de Jacques Fournier, eveque de Pamiers (1318—1325), ed. Jcan Duvernoy, 2 voΓs., Bibli-

Efforts to penalize the concubines themselves persisted. Although Church officials had long since ceased their efforts to enslave the concubines of priests, they continued to demand that these women be excommunicated, that they be forbidden to enter churches, that parishioners refuse them either social or business relations, and that at death they be consigned to the “burial of asses” outside of consecrated precincts.^{[1801] [1802] Spanish authorities went so far as to require that priests’ concubines observe the sumptuary laws that applied to prostitutes, so that their status would be immediately apparent to all who saw them.[1803] How effective any of these measures may have been in humiliating and disadvantag­ing the consorts of priests is uncertain; what is clear is that they did not greatly decrease the incidence of clerical concubinage.}

It would have been surprising had these measures met with success, for some communities—upon whom these measures depended for their effective­ness—not only supported the wives and children of their clerics, but even forced priests to take a concubine in order to protect their own women.^[1804] Intel­lectual opposition to the celibacy policy surfaced occasionally during this pe­riod. Jean de Meung described celibacy in the Roman de la rose as an unnatural state, while William Durand questioned the value of the policy and concluded that if ought to be repealed. Durand and other opponents of the celibacy rule sometimes cited in support of their position the fact that the Byzantine Church allowed clerical marriage. When substantial numbers of married Greek clergy officiated side by side with Latins, as happened in Sicily and southern Italy, this doubtless created acute problems both of morals and morale.^[1805] There is no evi­dence, however, that the popes of this period ever seriously entertained pro­posals to alter the celibacy policy. Since the popes were reluctant to abandon mandatory celibacy, some unknown forger attempted to do it for them by fab­ricating a spurious papal constitution, ascribed to Pope Boniface VIII and dated 13 May 1297, rescinding the existing policy and authorizing clerical marriage once more.^[1806] How widely this forgery circulated and how many people may have been taken in by it cannot, unfortunately, be established.

Digamy, Bigamy, and Polygamy

Multiple marriages attracted considerable interest among canonists and other law writers during the late thirteenth and early fourteenth centuries. The re­marriages of widowers apparently resulted in more numerous expressions of popular hostility during this period than they had earlier. In addition, bigamy and polygamy seemed more pressing problems to writers of this generation than they had to their predecessors. Perhaps bigamy had become more com­mon as a result of the proliferation of clandestine marriages. Beyond that, some canonists were dissatisfied with the categories and concepts traditionally used in discussing these matters.

Authoritative writers continued to support the church’s long-established pol­icy of recognizing second and subsequent marriages of widows and widowers as perfectly valid and lawful—even the thousandth remarriage would be licit, Hostiensis declared.^[1807] Some restrictions were attached to remarriage, how­ever: secular law occasionally specified a mandatory mourning period that must elapse between the death of one spouse and marriage to another, and widows who remarried might lose custody of the children of their first marriages as a result of remarriage.^[1808] St. Bonaventure believed, in addition, that although second marriages were lawful, they were also sacramentally incomplete. That was the reason, he declared, why no nuptial blessing was given to those who married for a second time.^[1809] Popular resentment also ran deep against second marriages, particularly unions between elderly widowers and much younger brides. This animosity reflected competition among young men for attractive and desirable young women and anger at seeing an older, previously married rival remove an eligible candidate from the pool of choices. The problem was more critical in country districts than in cities, but outpourings of rage and re­sentment occurred in both urban and rural communities. The wrath of young bachelors who saw an elderly man take off one of their potential brides found expression in charivaris, organized harassment of the newly married couple. These affairs were often frightening and sometimes degenerated into violence against the newlyweds, occasionally culminating in gang rape of the bride. Both civic authorities and Church officials condemned these goings-on and imposed penalties upon participants, but episodic reports of charivaris surfaced through­out the later middle ages and the early modern period.^[1810]

The law concerning second marriages was considerably confused by the con­ventional habit of using the same term, bigamy, to refer indifferently to simulta­neous marriage to two spouses and to remarriage following the death of an ear­lier spouse. Hostiensis attempted to clarify matters by distinguishing between true bigamy (two spouses at once) and interpretative bigamy (remarriage after death or divorce from the first spouse). An elaborate diagram of the “Tree of Bigamy” attempted to relate these concepts to theological issues (see Pl. 18).^[1811]°⁷

Doctrinal writers unanimously rejected true bigamy and other forms of po­lygyny, as their predecessors had done for centuries. Thomas Aquinas main­tained that polygyny was contrary to natural law, although he conceded that under some circumstances the practice was allowed, since it had plainly been practiced by the Old Testament patriarchs. Aquinas maintained on a more prac­tical level that any type of polygamy was undesirable, since it tended to create family stress and complicated marital relationships.^{[1812] [1813] [1814] St. Bonaventure asserted that the practice of polygyny by Lamech had produced such intolerable compli­cations that God responded by sending the great flood to straighten things out.300}

Canonical prohibitions of simultaneous bigamy were reinforced by munici­pal laws that imposed substantial fines upon persons guilty of contracting biga­mous marriages—a further example of the extension of municipal jurisdiction into areas that previously had been dealt with almost exclusively by canonical qι∩

processes.

Digamy, or constructive bigamy, remained a concern for canonists, while secular lawmakers ignored it. Canonistic commentators continued to explicate the tangled web of rules that their predecessors had woven around St. Pauls declaration that “A bishop should be a man of one wife. ” The complexity of the regulations bewildered ordinary clerics and even some bishops. A thirteenth­century Orleans professor described his confrontation with “a great ass,” whose asininity consisted in misunderstanding the digamy rules. The fool asserted that a digamist could not be validly ordained and that even the pope was unable to dispense from this canonical impediment. When the professor contradicted these assertions, the ass denounced him as a heretic to three bishops, who were themselves in doubt as to what the rules required and had to be instructed in them by a theological expert, retained at great cost for the occasion.^[1815]