LAW AND SEX IN EARLY MEDIEVAL EUROPE - SIXTH TO ELEVENTH CENTURIES

The Germanic Invasions and Germanic Law

From the closing decades of the fourth century onward, the Roman Empire experienced a series of migrations in which non-Roman peoples forced their way into the imperial provinces of the West. The newcomers settled more or less permanently within the Western Empire's territories and gradually replaced Rome's administrative and legal systems with their own laws and institutions.

These events are conventionally referred to as the "barbarian invasions" or the "Fall ofthe Roman Empire," but it should be emphasized that the incursions and the collapse were gradual processes, not abrupt, cataclysmic events. Migration and settlement took place over a period that spanned roughly three generations, and the displacement of Roman institutions happened even more gradually-so gradually, indeed, that many people who lived through these changes seem to have been unaware that the Empire had fallen at all.

It is conventional to refer to the groups who migrated into the Western Empire and settled there as "Germans" or "Barbarians." They were barbarians in the Greco-Roman sense of the term, because most of them did not speak Greek or Latin, and their customs were likewise alien to Roman sensibilities. As for their Germanic identity, the great majority of the immigrants apparently spoke tongues that fell into the family of Germanic languages, but they were by no means a homogeneous group, either in language or culture. Considerable numbers of non-Germanic people also participated in the invasions. Still, it is convenient to have some common label for the migrants as a group, and "Germanic" describes the majority of them reasonably well.

By the beginning of the sixth century, Germanic kingdoms had supplanted the highest levels of imperial government in the West. In place of a single Roman government, the West was now divided into competing successor states, ruled by Anglo-Saxons in Britain, by Franks in Gaul, by Visigoths in Spain, by Burgundians in the Rhone valley, by Ostrogoths in Italy, and by Vandals in the old Roman province of Africa.1

The Roman population of these regions, however, remained largely intact. Latin-speaking Roman Christians continued to live and work, to marry and raise families, and no doubt to worry a good deal during these decades. Nor did the displacement of Roman military power and government result in the immediate disappearance of Roman law courts, Roman traditions, or Roman social customs. Neither the immigrants nor the Romans among whom they settled had any wish to see Roman law or Roman society disappear. The Germanic settlers brought with them their own laws, customs, and traditional practices, but they did not seek to impose their law on their new neighbors; on the other hand, the Germans had no desire to adopt Roman ways, including Roman laws, as their own. As a result, the West became culturally and legally pluralistic.

Roman law and Roman law courts continued to function and to deal with problems that arose among people of Roman heritage; Germanic law and Germanic courts simultaneously handled problems that arose among people of Germanic heritage. But although both Romans and Germans preferred to retain their ethnic identities, including their laws, there was inevitably some spillover from one group to the other and from one law to the other. Roman law in the West became simplified and, especially after the disappearance of the Roman law schools, vulgarized or barbarized. At the same time, Germanic courts and rulers adopted some Roman ways of doing things. Each law influenced the other, each was modified by the other.

What little we know about Germanic folklaw prior to the migrations indicates that it was based upon two foundations: the collective responsibility of the kindred for the actions of its members and the principle of reciprocal revenge. The extended kinship group was prominent in archaic German society and remained fundamental to Germanic institutions for generations following the invasions. The kindred bore responsibility for fulfilling the obligations incurred by any of its members and for seeing to it that each member both paid what he owed and received what he had a right to. The group also tried to protect the peace and security of its members against outside interference.2 Reciprocal revenge meant in effect that wrongs were avenged by inflicting injury upon the person responsible for the damage or, failing that, upon some other member of his or her household, or their kin.

By the time that Germanic peoples began to settle in the West Roman Empire these institutional pillars of archaic Germanic law were already beginning to crumble, and the migrations hastened the pace of change. The kindred gradually lost many of its earlier functions, especially the protection of its members from wrongs done by outsiders. Increasingly Germanic kings began to assert their authority to safeguard their subjects and to intervene in quarrels and disagreements between members of the various households they ruled.

At the same time, a system of compensation for wrongs gradually replaced reciprocal revenge. Compensation was based on a calculation of the severity of the injury, usually expressed in money terms as a fraction of the wergeld. The amount of the wergeld varied according to sex and social status. In some Germanic law systems, notably that of the Salian Franks, age was also a factor in determining the wergeld. The king and his court determined which party had to pay and how much compensation was due in each case. Redress of grievances ceased to be the responsibility of the household and kindred; redress instead became the prerogative of king and court: successful complainants received property compensation for the damages they sustained, in lieu of taking physical revenge upon the offender.

Prior to the late fifth and early sixth centuries, Germanic law had been transmitted orally as custom from one generation to the next. Beginning in the late fifth century, Germanic kings in one region after another began to have their laws set down in writing in compilations that we usually refer to as the Germanic law codes. The codes that originated on the Continent were written in Latin; those from England, Iceland, and Scandinavia were usually written in the local vernaculars. These compilations furnish us for the first time with detailed evidence about the laws that Germanic courts were supposed to enforce.

Germanic kings in the West, also authorized the publication of substantial extracts from Roman law texts for use among their subjects of Roman descent. These manuals of elementary Roman law document the process by which Roman jurisprudence in the West was gradually vulgarized during the generations that followed the invasions.3

Law and Sexual Behavior in the Germanic Kingdoms

Our knowledge of archaic German law dealing with sexual behavior comes mainly from a late first-century account by Tacitus, who gleaned his information secondhand from the tales of soldiers and travellers, supplemented perhaps by additional information gained from contacts with Germans who had settled within the Empire.4 According to Tacitus, the Germans strongly disapproved of extramarital sexual adventures by their womenfolk. Women who transgressed the rules had their heads shaved, were driven from their homes, and received a public beating. There is no indication in Tacitus's account, however, that sexual adventures by men were similarly discouraged. Tacitus professed great admiration for the purity of sexual mores among Germanic women. His account implicitly contrasted their behavior with that of upper-class Roman matrons of his own time. Germans, according to him, did not allow their wives to gad about unescorted or to participate in late-night parties and drunken revels, nor did they consider adultery smart and up-to-date.5 Tacitus portrayed the sexual habits of the Germans as upright and austere and marriage as a solemn undertaking in which monogamy was implicit, at least for women.6

Tacitus wrote nearly three centuries before the beginning of large-scale Germanic migrations into the West, and his account was colored by his tendency to idealize the rude and simple morality of the Germans. When our knowledge of Germanic law becomes fuller and more reliable, which is to say after the first phase of migration had ended, there had evidently been significant changes since Tacitus's time.

The Germanic law codes treat marriage as a union created by cohabitation, rather than by formal act. Marriage was a social fact, not a legal status, in fifthand sixth-century German society.7 Polygyny was also a common feature of Germanic domestic life, although most men probably contented themselves with a single wife because they could not afford to do otherwise. Among royal families and the upper ranks of the nobility, however, polygyny was common prior to the conversion of the Germans to Christianity. In many cases the practice persisted for several generations after conversion, and the law continued to ignore sexual promiscuity among men while penalizing it among women.8

Early Germanic law recognized three legitimate methods of contracting marriage: by capture (Raubehe), by purchase (Kaufehe), and by mutual consent (Friedelehe). Bride purchase involved an agreement between two families. An exchange of property was an essential part of Kaufehe and the Germanic law codes encouraged this type of marriage. Most of the codes envisioned a three-stage process of contracting Kaufehe. It began with an agreement (Muntvertrag) between the suitor or his father and the father or guardian of the prospective bride, concerning the compensation to be paid to the woman's family by the groom's family. This stage of the process corresponded more or less to desponsatio in Roman law. Muntvertrag was followed by a public transfer (Anvertrauung) of the bride to the head of the groom's family. This was followed by a wedding ritual (Trauung), during which the members of the bride's clan stood in a circle around her to witness the transfer and to signify their consent to the transaction.

The process involved conveyance not only of the person of the bride to the family of the groom, but also of legal power (Munt, mundium) over her to the husband and his family group.9 The bride's ties with her family of origin were, in effect, severed, and she was integrated into her husband's family. This type of union, involving active participation and control by the families of the parties, was the preferred type of marriage.

Marriage by capture or abduction (Raubehe) was accomplished by forcible abduction and ravishment without the consent of the woman or her family; it is therefore sometimes referred to as marriage by rape. 10 The law codes discouraged such marriages, and some of them imposed heavy fines on men who forcibly married free women. 11

A man who did not wish to risk the legal and physical hazards of marriage by abduction and who was either too poor, too powerless, or too mean to purchase a bride had the alternative of marrying by consent. Friedelehe may in fact have been an outgrowth of Raubehe. The term Friedelehe designated marriage by elopement, to which the bride consented, but her family did not. It was distinguished from Kaufehe by the lack of a betrothal or dowry agreement and by the fact that the husband did not acquire Munt over his wife. In Friedelehe the woman's Munt remained with her family: she continued in effect to be a member of her family of birth, even though she lived with a man who belonged to another family.12

The distinction between marriage and concubinage in early Germanic society was unclear, both in practice and in law, a situation that has led some writers to claim that concubinage was unknown among the Germanic invaders. That claim, however, can only be sustained by artful definitions that distinguish marriage between free persons with full legal consequences from quasi-marriage between free and unfree persons without full legal consequences. The latter was for both practical and legal purposes equivalent to concubinage, and that is the term we shall use to describe it.13

Concubinage, in the sense of a long-term and more or less permanent relationship between a man and woman of unequal social status, was common in early Germanic societies. These unions were not necessarily sexually exclusive; married men commonly maintained one or more concubines in addition to their wives. The concubines were usually servant or slave girls, and the children of these unions could claim no share in their father's estate.14

Concubinage, like marriage, required no formal agreement or ceremony for its initiation, nor did Germanic law follow Roman law in resting the legal status of the relationship on the intentions of the parties. The notion of marital affection was unknown to Germanic law and played no role in defining marriage. What was essential to both marriage and concubinage in Germanic law was consummation, an element that Romans had largely ignored as irrelevant to the legality of a marital union. Sexual intercourse was essential to Germanic marriage, however, and no marital union was binding without it. Marriage in Germanic law consisted simply of sexual intercourse accompanied by an intention to live together permanently and to have children. The intention to form a permanent union was what distinguished marriage from concubinage.15

Germanic marriage operated with relatively few rules and restrictions. The most common prohibitions concerned marriages with close relatives by blood or marriage. Couples who married within the forbidden degrees of kinship were liable to have their marriages dissolved and their children declared illegitimate; in addition they might be fined heavily. 16 Although as late. as the early sixth century some Germanic kings managed to transgress the incest rules with impunity, by the end of that century even royalty could no longer do so. Polygyny likewise became subject to legal restrictions in the aftermath of mass conversions to Christianity among the Germans and by the late sixth century was becoming uncommon.17

Germanic law often regarded the first year of marriage as a trial period, at the end of which the union might be terminated unless a child was conceived during that time. If the bride became pregnant, the marriage was deemed permanent, and divorce became slightly more difficult.18 In general, divorce was fairly easy for a man and quite difficult for a woman to initiate. The Burgundian woman who attempted to divorce her husband was to be smothered in mire, but the Burgundian man who wished to divorce his wife could do so on any of three grounds: adultery, sorcery, or tomb-violation. If he chose, however, he could also divorce his wife without citing reasons, but in this case he was required to pay her a sum equal to her marriage price and was also subject to a fine.19 Visigothic women, by contrast, could repudiate their husbands for sodomy or for having forced the wife to have sexual relations with another man.20 The provisions of the other codes varied, but all of them gave considerable latitude to the man seeking divorce, while severely limiting the right ofwomen to initiate these actions.21

Early Germanic law treated bastard children by and large not much differently from legitimate offspring. Later, probably under the influence of Church authorities who were anxious to discourage irregular unions, the status of bastard children deteriorated markedly. The most notable exception to the general rule occurred in Lombard law, which remained extraordinarily mild in this respect. The Franks in the Merovingian period also tended to be relatively generous toward illegitimate and natural children and occasionally even permitted them to succeed to royal titles in preference to legitimate offspring.22

Fornication between unmarried persons was recognized as an offense in several Germanic codes and was normally punished by fines, sometimes fairly heavy ones.23 The Lombard laws even penalized sexual relations between a free man and a female slave, although the penalty was diminished if the slave was of Roman stock.24 Male slaves who had sexual relations with free women, conversely, were severely punished. The Bavarian laws prescribed death for this offense.25

Adultery in early Germanic society was an exclusively female crime, although a few codes also penalized men for adultery under some circumstances.26 Adultery was far more serious than fornication, since the adulteress cast doubt upon the legitimacy of her husband's descendants as well as offending his honor and pride. The husband who discovered his wife in the act of committing adultery had the right to kill both parties without legal penalty. The Visigoths, whose law on sexual matters generally echoed the Lex Julia de adulteriis, in this case went well beyond their Roman model and accorded the ius mariti to the woman's father and brothers as well. 27 Sexual relations with a betrothed woman might also be treated as adultery; in Lombard law this was true even if the espoused woman was a slave or bondswoman. 28 Sexual relations with a nun constituted adultery, presumably on the theory that a consecrated virgin was the bride of Christ; the brunt of punishment for this kind of adultery fell upon the man.29

Visigothic law provided that slaves who could furnish evidence about an adulterous liaison should be tortured in order to extract the information from them. An owner might not set his slave free in order to prevent him from testifying in an adultery case. 30 On the other hand it was a risky business to bring unfounded adultery charges against a woman; under Lombard law the accuser who was unable to prove his case lost all rights over the woman whom he falsely accused. 31 At the same time, the Lombards also penalized either men or women who condoned their spouses' adultery and failed to prosecute it.32 The adulterer usually faced a heavy fine. In some jurisdictions and under certain circumstances he stood to lose all or a major part of his property.33

Rape, as distinguished from elopement (Raubehe), carried a variety of penalties, commonly a sizeable fine and sometimes whipping or other physical punishment in addition.34 Rape of a free woman by an unfree man merited the death penalty under Salic law, which added, however, that if the woman went with her abductor voluntarily she lost her own freedom.35 Visigothic law prescribed the death penalty for rape, but also provided that if the victim subsequently sought her ravisher's hand in marriage, and ifher parents consented, he might escape alive.36

Germanic law codes had little to say about prostitution, except for the Visigothic code, which treated it in detail. The Visigoths prescribed that a free woman convicted of harlotry was to receive three hundred lashes; she could then be released, on condition that she never return to prostitution. If caught a second time, she received a further three hundred lashes and was to be given to some poor man, on condition that he never permit her to walk the streets again. Parents who prostituted a child received one hundred lashes. The master of a servant girl who failed to supervise her behavior and thus allowed her to become a prostitute might get fifty lashes; ifhe knowingly prostituted her and took any part of her earnings, however, he was subject to three hundred strokes.

Prostitution seems to have flourished among the Germanic settlers in the West, although most of the available harlots were probably foreign girls taken as booty in military expeditions-many of them Slavs or Finns.37 Since prostitutes were women whose origins and way of life cast them outside of the social networks of German society, it was considered a grievous injury to accuse a freeborn German woman of whoredom, and such an accusation was punishable by a large fine.38

Sexual Behavior and the Christian Church in the Germanic Kingdoms

During the decades immediately following their initial settlement in the western territories of the old Roman Empire, Germanic kings and their subjects gradually accepted baptism and became, nominally at least, Latin Catholics.39 From the late fifth century, then, increasing numbers ofGermanic settlers came under the discipline of the Church in sexual matters. But the Germans were loath to -discard their traditional customs, especially with respect to sex, marriage, and domestic relations. An uneasy tension resulted, punctuated by sharp clashes between the old traditions of Germanic society and the Church's demands for conformity to Christian concepts of sexual morality.

FAMILY STRUCTURE

The differences between German practice and Church discipline were particularly acute with respect to marriage and family issues. The clash grew sharper, moreover, between the sixth and the ninth centuries as a result of the emergence of a new kind of household structure and, consequently, a new definition of the family in western Europe. In the generation of Pope Gregory the Great (590-604) and St. Isidore of Seville (ca. 560-636) West European households still retained the characteristic features of Mediterranean antiquity. The households of the rich differed in structure from those of the poor, and the family, in the sense of a coresidential unit consisting of a couple and their direct descendants, had not yet emerged. By the generation of Charlemagne (771-814), this had changed. The family had come to mean a coresidential, primary descent group, and Carolingian administrators, when they set out to record the characteristics of a population for tax assessments or other reasons, commonly did so in terms of family units. Moreover, rich families and poor families no longer differed enormously from one another in membership, although they often differed in size and of course in resources. But by the year 800 or thereabouts, the Western family had taken the shape that has characterized it ever since that time.

The family was greater than the sum of its members; its continuing existence, prosperity, and prerogatives transcended the interests of any generational segment within it. The sexual foibles of each member reflected upon the whole family, and marriage was a matter of family policy, not of individual choice.

By Charlemagne's time, moreover, European families were beginning to identify with the paternal lineage, rather than with both maternal and paternal lines. Also striking in the new family paradigm was the dawning consciousness of emotional bonding among family members as a central feature. In David Herlihy's phrase, the emerging family was marked by its symmetry (centered on the nuclear unit), its structure (identification with paternal lineage) aNd its sentiment (emotional bonding within the family).40

MARRIAGE

The altered structure of the family probably bred additional tensions between the Germanic approach to marriage and the Church's concept. Germanic folklaw treated marriage as a union that was contracted, sealed, and symbolized by sexual relations between the parties and dissoluble at will, at least for the man. Church leaders, in contrast, adopted the position that marriage created a lifelong bond between man and wife, contracted by their consent and that of their families.41 Germanic custom and Christian teaching saw the role of marital sex quite differently. As noted earlier, the Germans considered sexual relations essential to the definition of marriage, whereas Christian teachers, under the influence of patristic authorities, distrusted sex: they saw it as unclean, and incompatible with their ascetic values.42

Catholic writers in the eighth and ninth centuries were acutely aware of these conflicts about the role of sex in marriage, and some of them sought to harmonize Germanic tradition with Christian teaching. Archbishop Hincmar of Reims (845-882) made the most ambitious effort to do this. In a letter concerning a French marriage case about 860, Hincmar propounded a theory of marriage hitherto unknown in canon law, namely that an unconsummated marriage was incomplete and hence not fully binding:

"A true coupling in legitimate marriage between free persons of equal status occurs when a free woman, properly dowered, is joined to a free man with paternal consent in a public wedding [followed by] sexual intercourse".43

This formulation seems to have been original with Hincmar, although in framing it he borrowed phrases from earlier authorities, notably Pope St. Leo I and St. Augustine. But the writers whose words he appropriated and stitched together to suit his purposes would have been astonished at what he did with them, for Hincmar's coital theory of marriage was a novel attempt to give sexual consummation a central role in the formation of Christian marriage. He retained the Roman concept that marriage was made by consent. But although necessary, consent by itself was not sufficient, according to Hincmar. Marriage by consent alone, he held, was not permanently binding. Marriage in a full and complete sense began only when the parties united physically in an act of sexual intercourse. Perhaps reflecting this new reading of the nature of marriage, about the time Hincmar was writing it began to become common practice for nuptial ceremonies to take place at dusk, at the time of day his contemporaries considered especially propitious for intercourse and procreation.44

Hincmar's coital theory of marriage possessed some juristic virtues: it enumerated a set of conditions for marriage that were, in large part, susceptible of verification by witnesses or by inference from circumstantial evidence. These features made it possible to resolve questionable cases by reference to actions, rather than impressions about intentions. The coital theory also harmonized Roman and Christian concepts of marriage with traditional Germanic practice. But Hincmar could not disguise the tension betweeen Christian and Germanic traditions inherent in his definition of marriage, tensions that flowed from conflicting views about the values and purposes central to marriage.

This conflict in value systems emerged openly in the rivalries between Germanic folklaw courts and prelates who sought to invoke theological principles in dealing with marital problems. Prior to the tenth century, the Church lacked jurisdiction over marriage in any technical sense. Ecclesiastical authorities could and did make judgments about marriages, of course, but the Church had not yet developed a juristic routine for dealing with matrimonial disputes. Few ecclesiastical writers in the eighth and ninth centuries entertained any illusion that the Church possessed an exclusive right to cognizance of marriage litigation. The Church's efforts to enforce compliance with its standards of Christian marriage were more hortatory than juridical.

Only during the tenth and eleventh centuries did Church officials seriously begin to assert exclusive jurisdiction over marriage. 45 Prior to that time, the Western Church limited its intervention in marriage cases essentially to reviewing the legitimacy of particular unions, especially those of prominent persons, whose irregular marriages could create public scandal. Churchmen employed various kinds of pressure to persuade couples to separate and imposed sanctions in order to insure conformity with the Church's marriage rules. Those who resisted could be excommunicated until they showed their readiness to obey and to do penance.46 But all of this fell considerably short of full-fledged matrimonial jurisdiction.

In the years between 600 and 900 the church failed to secure clear-cut control of matrimonial matters, but ecclesiastical authorities continued to elaborate their opinions about sexual ethics. In retrospect it is clear that Christian spokesmen were in the process of formulating a theology of sex and marriage. Naturally enough the positions of individual writers varied according to each author's degree of sophistication, the circumstances in which he wrote, and the penetration of Christian viewpoints into his community.

A few ecclesiastical writers in the sixth, seventh, and early eighth centuries were fairly positive in their valuation of marriage and marital love and even of the role of sex in marriage. St. John Damascene (ca. 675-749), a Byzantine theologian, was the most eloquent advocate during this period of the beneficent values of marriage and marital sexuality.

"Let every man enjoy his wife [he wrote at one point]. Nor should he blush, but let him go in and settle down in bed, day and night. Let them make love, keeping one another as man and wife, exclaiming: "Do not deny one another, save perhaps by mutual consent." [1 Cor.7:5] Do you abstain from sexual relations? You don't wish to sleep with your husband? Then he to whom you deny your bounty will go out and do evil and his wickedness will be due to your abstinence."47

Fragmentary evidence from saints' lives, donations, wills, and burial inscriptions, suggests that many couples in the early Middle Ages valued marital love, including sexual love, as highly as Damascene. Loving sentiments embellished funerary monuments, husbands and wives were buried together, and some at least affirmed explicitly the tie between their sexual love and spiritual love. 48

But sentiments such as those of Damascene were rare among the clerical intelligentsia, either in the East or West. St. Isidore of Seville expressed a more typical attitude when he repeated ideas that he found in Jerome and Augustine: sex for pleasure was wrong, even for married couples, Isidore warned; procreative sex, however, was a good use of an evil thing, and hence married couples should confine their sexual relations to the minimum required for procreation.49 Isidore likewise voiced the Stoic view, earlier adopted and approved by Jerome, that excessive marital intercourse, beyond the needs of procreation, was sinful, although Isidore considered this only a minor sin, and compared it to eating more than required for sustenance.50 Gregory the Great also sympathized with these ideas, but he was inclined to rate the moral danger more seriously than Isidore did. Although sexual intercourse, save for procreation, might be a minor sin in itself, Gregory worried that it could lead to graver, more serious kinds of sexual misconduct from which married couples could remain immune only if they renounced sexual relations altogether.51 Better, he thought, for couples to agree not to consummate their marriages at all and thus to avoid the temptations that sexual experience might generate. Several early medieval saints' lives picture couples who did in fact choose to live in unions that were both loving and nonsexual.52 Those unable to make this sweeping sacrifice were at least advised to abstain from sexual relations for two or three days following their marriage and, in addition, to refrain from sexual activities at regular periods during each year of their married lives.53

Gregory of Tours (538-595) related an incident from his own experience that testifies eloquently to the way in which unsophisticated men and women might interpret ecclesiastical warnings about the spiritual dangers of marital sex. Gregory described a married woman who went to visit her widowed mother, who had become a nun. After talking with her mother, the younger woman decided to remain in the convent and sent her husband a message: "Go back and rear our children, for I shall not return to you. One who is joined in marriage will not see the Kingdom of Heaven." This message may have been doctrinally incorrect Gregory certainly believed it was wrong-but the incident reflects conclusions that people could easily have drawn from ecclesiastical teachings about marital sex.54

Another Frankish bishop, Jonas of Orleans (ca. 780-843), the first Christian writer to devote a whole treatise expressly to the life of the Christian layman, firmly condemned those who sought pleasure in marital sex. Marriage is morally good, Jonas argued, but only when it is ordered toward procreation. Couples who have sex just because it feels good commit a wrong and must atone for it by penance.55 Some people, Jonas continued, contend that because God created the genitalia therefore sex is natural, and God approves of it. Not so, according to Jonas. Sex for pleasure is an abuse of God's creation. The reproductive organs are precisely that and nothing else. Sex is allowed only to married couples, only at prescribed times and places, and only for reproduction.56 Married men who believe that they can pleasure themselves and their wives whenever and however they wish are wrong. Such "immoderate" marital sex is a serious sin.57

Jonas also appealed to the values of a warrior society to support limitation of sexual activity. Sex, he maintained, is not only fraught with moral danger, but it is also physically debilitating. Excessive indulgence in sex robs a man of his health, vigor, and equilibrium; it makes him nervous and soft. Thus Jonas argued that sexual restraint, even total abstinence, was a source of power and energy, a positive asset for the soldierly life as well as a moral virtue.58

Theological writers in the period between 600 and goo were in the process of elaborating, slowly and haltingly, a sacramental theology. But none of the authorities of the age was prepared to see in marital activities any visible signs of operative sacramental grace. Tainted by lust and carnal desire, marriage did not seem to them a channel for the infusion of divine favor.59

Marriage was thus only a relative good: it served to prevent worse evils, such as fornication, but it had few positive virtues of its own, and those were offset by indulgence in sex. Consummated marriage fell far short of the ideal of virginity; married folk could only try to reduce their sexual activity to the minimum. That marriage was best in which the sexual element was least.60 But to condemn marriage entirely was doctrinally unacceptable, and Church councils continued to insist that those who held marriage unchristian were guilty of heresy.61

One facet of marriage law that drew special attention from ecclesiastical authorities in this age involved the so-called impediments to marriage. Early medieval canon law had not articulated clearly its doctrine concerning obstacles to marriage. The Church now attempted to define its marriage rules more precisely. While it would be anachronistic during this period to call marriages that contravened the rules invalid, persons who infringed the regulations certainly came under considerable pressure to make amends for their action. Couples whose unions failed to meet the criteria that the Church established were strongly advised to separate.62

A growing number of these rules concerned marriages between persons related to one another through blood ties or linked together as in-laws or baptismal sponsors. The ostensible purpose of these regulations was to prevent incest, but the rules that came into currency during the seventh and eighth centuries forbade marriages where the relationship between the parties was so remote that incest seems unlikely to have been the central issue.

A group of texts attributed to Pope Gregory the Great were particularly important in defining the new criteria for consanguinity and affinity. These texts, often called the Responsa Gregorii, were known (at least in part) as early as the time of St. Boniface (680-755), and some of them probably predated his period. 63 One of the responsa enunciated the rule that marriages between blood kin within seven degrees of relationship were illegal and required married persons so related to separate. The seven-degree rule gradually became accepted during this period as the canonical norm on these matters, and as early as the tenth century it was beginning to dictate the marital strategies of the nobility in France.64

Both the dubious Responsa Gregorii and genuine Merovingian legislation, moreover, banned sexual intercourse, either in marriage or outside of it, between a married person and any of the blood kin of his or her spouse. Intercourse with the spouse's kin created a legal affinity punishable by lifelong penance, which effectively ended the sexual relationship between the married partners. Secular authorities also decreed that the property of those who offended in this way should be seized.65

To complicate matters further, an impediment to marriage was established between godparents and those for whom they stood as baptismal sponsors. In addition sponsorship established a tie of coparenthood between the godparent and all of the adult members of the godchild's family; the tie also carried with it matrimonial prohibitions. A similar relationship of cogodparenthood was created between the sponsors themselves and made marriage between them and any members of the other sponsor's family illegal. Even unwitting incest might be punishable. The Council of Verberie (753 ~ 756) provided that if a man slept with a woman whom his brother later married, the brother must repudiate his wife upon learning of her prior relationship, and in reparation he must do seven years of penance, at the end of which he might marry someone else.

Other Gregorian (or pseudo-Gregorian) texts prohibited marriage to nuns or to infidels, which was also forbidden by genuine patristic texts.66

Church authorities insisted also in this period that marriage must be public. A letter doubtfully attributed to Pope Hormisdas (513-553) prohibited secret marriages and demanded that Christians celebrate their nuptials in public and receive the blessing ofa priest, a practice already well established in the Byzantine Church by the seventh century.67 Similar provisions appeared in the canons of some eighth-century councils in the West. These canons failed to solve the problem, however, and despite efforts to repress it, clandestine marriage remained common.68

Many Church leaders continued to oppose remarriage of widows and widowers. The Second Council of Braga (572) not only penalized men who indulged in second marriages by excluding them from holy orders, but also prescribed that all those who married more than once should do penance for their lascivious conduct.69 Ecclesiastical authorities wrestled in addition with the problem of the vanishing husband who disappeared during battle or on a foreign journey. Pope Leo I allowed women whose husbands had been missing for a long time to remarry on the presumption that the vanished husband must have died. Should he reappear, however, the wife must abandon her second husband to rejoin her original mate.70

The Council of Verberie dealt with other complications of marital separation: if a man was summoned to distant parts by his lord, and his wife refused to accompany him, she could remain at home, but she must also remain single for the rest of her days. Her husband, however, after doing penance, might be permitted to remarry.71

Clearly these provisions were not based upon a consistent doctrine of indissolubility. They demonstrate that the early medieval Church was prepared to adapt its policies to meet difficult situations. The Church's spokesmen sometimes acknowledged that it was exceedingly difficult, if not altogether impossible, to prevent people, especially young people, from engaging in sexual activity. Authorities, therefore, tried to adjust their policies to take into account the facts of experience.72 For example, the Council of Worms in 868 decreed that married men who were doing canonical penance for their sins should not separate from their wives and that unmarried persons who found it impossible to practice continence should be allowed to marry, even while they were doing penance.73

Notes

l See generally J. M. Wallace-Hadrill, The Barbarian West, 400-1000 (London: Hutchinsons University Library, 1952); Ferdinand Lot, The End of the Ancient World and the Beginning of the Middle Ages, trans. Philip and Mariette Leon (New York: Alfred A. Knopf, 1931); J. B. Bury, The Invasion of Europe by the Barbarians (London: Macmillan, 1928); Robert Latouche, Les grandes invasions et la crise d'occident au Ve siecle (Aubier: Montaigne, 1946); Lucien Musset, Les invasions: Les vagues germaniques (Paris: Presses universitaires de France, 1965); Felix Dahn, Die Volkerwanderung: germanisch-romanische Fruhgeschichte (Berlin: Safari, 1960); E. A. Thompson, The Early Germans (Oxford: Clarendon Press, 1965); Pierre Courcelle, Histoire litteraire des grandes invasions germaniques (Paris: Hachette, 1948); and Francis Owen, The Germanic People: Their Origin, Expansion, and Culture (New York: Bookman Associates, 1960).

2 D. A. Bullough, "Early Medieval Social Groupings: The Terminology of Kinship," Past and Present 45 (1969) 3- 18.

3 The most convenient and accessible editions of the Germanic codes are those in the Monumenta Germaniae Historica, Legum sectio, Leges nationum germanicarum, 5 vols. (Hannover: A. Hahn [imprint varies], 1835-1962; cited hereafter as MGH, LL nat. germ.). Recent editions of many of the codes, with German translations, can be found in the series Germanenrechte: Texte und ilbersetzungen, (Weimar, Gottingen: Akademie fUr deutsches Recht, 1934- ; 13 vols. to date). Four important codes are readily available in good English translations: The Burgundian Code, trans. Katherine Fischer Drew (Philadelphia: University of Pennsylvania Press, 1949; repro 1972); The Lombard Laws, trans. Katherine Fischer Drew (Philadelphia: University of Pennsylvania Press, 1973); and The Laws of the Alamans and Bavarians, trans. Theodore John Rivers (Philadelphia: University of Pennsylvania Press, 1977). Earlier and less easily accessible translations of Germanic legal sources include The Visigothic Code, trans. S. P. Scott (Boston: Boston Book Co., 1910) and The Laws of the Earliest English Kings, trans. F. S. Attenborough (Cambridge: At the University Press, 1922). For texts of the Germanic manuals of Roman law see Fontes iuris romani antejustiniani, edt Salvatore Riccobono et al.,3 vols. (Florence: G. Barbera, 1940-43) 2: 655-750. See also Georges Chevrier and Georges Pieri, La loi romain des Burgondes, in IRMAe 1.2.b.aa.8 (Milan: A. Giuffre, 1969); Jean Gaudemet, Le Breviaire d'Alaric et les Epitome, IRMAe, vol. 1.2.b.aa. (Milan: A. Giuffre, 1965), and Giulio Vismara, Edictum Theoderici, IRMAe, vol.1.2.b.aa.a (Milan: A. Giuffre, 1967). On early Germanic law in general see also Hermann Conrad, Deutsche Rechtsgeschichte: ein Lehrbuch (Karlsruhe: C.F. Miiller, 1954),vol. 1, Frilhzeit und Mittelalter; Rudolf Hiibner, A History of Germanic Private Law, trans. Francis L. Philbrick, Continental Legal History Series, vol. 4 (Boston: Little Brown and Co., 1918); Rudolf Buchner, Die Rechtsquellen (Weimar: H. B6hlaus Nachfolger, 1953), which is a supplemental volume of Wilhelm Wattenbach and Wilhelm Levison, Deutschlands Geschichtsquellen im Mittelalter, Vorzeit und Karolinger (Weimar: H. B6hlaus Nachfolger, 1952- ; in progress). For a brief and lucid sketch of domestic relations law in the Germanic codes see Katherine Fischer Drew, "The Law of the Family in the Germanic Kingdoms," Studies in Medieval Culture 11 (1977) 17-26.

4 Ronald Syme, Tacitus, 2 vols. (Oxford: Clarendon Press, 1958) 1: 126-28; Clarence W. Mendell, Tacitus: The Man and His Work (New Haven: Yale University Press, 1957), p.216.

5 Tacitus, Germania 19, edt Rodney Potter Robinson, Philological Monographs, no. 5 (Middletown, CT: American Philological Association, 1935), pp. 295-96.

6 Tacitus, Germania 18, ed. Robinson, pp. 294-95.

7 John F. Benton, "Clio and Venus: An Historical View of Medieval Love," in F.X.Newluan, ed., The Meaning ofCourtly Love (Albany, NY: State University of New York Press, 1968), p. 20; Suzanne F. Wemple, Women in Frankish Society: Marriage and the Cloister, 500 to 900 (Philadelphia: University of Pennsylvania Press, 1981), pp. 13, 35-36; David E. Engdahl, "English Marriage Conflicts Law before the Time of Bracton," American Journal o!Comparative Law 15 (lg67) 109.

8 Heinrich Brunner, "Die uneheliche Vaterschaft in den altern gerluanischen Rechten," in his Abhandlungen zur Rechtsgeschichte, ed. Karl Rauch (Weimar: Balaus, 1931; repro Leipzig: Zentralantiquariat der DDR, 1965) 2: 165; Wemple, Women in Frankish Society, pp. 38-40. The Visigothic laws alone among the Germanic codes forbade polygyny: Leges Visigothorum 3.4.9, in MGH, LL 1: 150-51.

9 Rudolf Kastler, "Raub-, Kauf- und Friedelehe bei den Germanen," ZRG, Germanistische Abteilung [hereafter GA] 63 (1943) 95-98; Brunner, "Die frankish-romanische Dos," in Abhandlungen zur Rechtsgeschichte 2: 91; Christian Gellinek, "Marriage by Consent in Literary Sources of Medieval Germany," Studia Gratiana 12 (1967) 559; Wemple, Women in Frankish Society, pp. 12, 35; Baumann, Zivilrechtliche Bedeutung, p. 17; Burge, Comparative Law, pp. 10-11. Bride purchase was also common in Polish and other non-Germanic folklaw during the early middle ages; Marian Zurowski, "Einfliisse des kanonischen Rechts auf das urspriiungliche polnische Eherecht," Oesterreichisches Archiv fur Kirchenrecht 25 (1974) 354; Sir Henry Maine, Lectures on the Early History of Institutions, 7th ed. (Port Washington, NY: Kennikat Press, 1960), P·59·

10 Kostler, "Raub-, Kauf-, und F~iedelehe," pp. 93-95; Simon Kalifa, "Singularites matrimoniales chez les anciens Germains: Ie rapt et Ie droit de la femme a disposer d'elle-meme," Revue historique de droit franrais et etranger (hereafter RHDF), 4th ser., 48 (1970) 207-08,214-15.

11 Pactus legis Salicae 13.12-13, 15. 2-3, ed. Karl August Eckhardt, in MGH, LL nat. germ. 4/1: 63, 70; Lex Ribuaria 38(34).1-3, ed. Franz Beyerle and Rudolf Buchner, in MGH, LL nat. germ. 3/2: 90-91; Leges Langobardorum, Rothair 186-87, ed. Alfred Boretius, in MGH, LL 4: 44-45; Leges Burgundionum 12.1-2, ed. Ludwig Rudolf von Salis, in MGH, LL nat. germ. 2/1: 51; Lex Baiwariorum 8.7, 16, ed. Ernst Heymann, in MGH, LL 5/2:356-57, 360; Leges Alamannorum 50.1-2, 51, 53.1-2, ed. Karl Lehmann, rev. by Karl August Eckhardt, in MGH, LL nat. germ. 5/1: Ill. Raubehe reappeared during the Viking invasions in the tenth century and persisted in Normandy for generations; Robert Bresnier, "Le mariage en Normandie des origines au XIIIe siecle," Normannia 7 (1934) 89-91.

12 Kostler, "Raub-, Kauf-, und Friedelehe," pp. 128-29; Volker Stiickradt, Rechtswirkungen eheiihnlicher Verhiiltnisse (Cologne: privately printed, 1964), p. 14; Lowenstein, Bekiimpfung des Konkubinates, pp. 14-15; Wemple, Women in Frankish Society, pp. 12-13. By way of exception, however, Friedelehe in Burgundian law was accompanied by transfer of Munt to the husband; Leg. Burg. 100, in MGH, LL nat. germ.1/2: 113; and cf. Leg. Visig. 3.4.2, 7-8, in MGH, LL nat. germ. 1: 147-48, 150.

13 Baumann, Zivilrechtliche Bedeutung, p. 17; Joseph Freisen, Geschichte des kanonischen Eherechts his zum Verfall der Glossenliteratur, 2d ed. (Paderborn: F. Schoningh, 1893; repro Aalen: Scientia, 1963), p. 53.

14 Leg. Langohard., Rothair 222 and Liutprand 104-106, in MGH, LL 4: 54, 150-51; Lowenstein, Bekiimpfung des Konkubinates, pp. 13-15; Jo Ann McNamara and Suzanne F. Wemple, "Marriage and Divorce in the Frankish Kingdom," in Stuard, Women in Medieval Society, p. 105; Hermann, Stellung unehelicher Kinder, p. 51; Freisen, Geschichte, pp. 55-56; Heinrich Finke, Die Frau im Mittelalter (Munich: Jos. Kosel, 1913), p. 52.

15 Willibald Plochl, Das Eherecht des Magisters Gratianus, Wiener Staats- und Rechtswissenschaftliche Studien, vol. 24 (Leipzig and Vienna: F. Deuticke, 1935), p. 50; Burge, Comparative Law, p. 12. The laws of the Alamans and the Bavarians, however, recognized love of another person as a legitimate reason for terminating a betrothal; Leg. Alamann. 52(53), in MGH, LL nat. germ. 5/1: 110-11; Lex Baiwar. 8.15, in MGH, LL nat. germ. 5/2:359-60; Raymund Kottje, "Ehe und EheversHindnis in den vorgratianischen Bussbiichem," in Love and Marriage in the Twelfth Century, p. 37.

16 Pact. leg. Sal. 13.11, in MGH, LL nat. germ. 4/1:62-63; Leg. Visig. 4.1.1-7, in MGH, LL nat. germ. 1: 171-73; Codex Euriciani 2, in MGH, LL 1:28; Wemple, Women in Frankish Society, p. 36; P.D. King, Law and Society in the Visigothic Kingdom, Cambridge Studies in Medieval Life and Thought, 3d ser., vol. 5 (Cambridge: At the University Press, 1972), p. 233; and see generally John H. Fowler, "The Development of Incest Regulations in the Early Middle Ages: Family, Nurturance, and Aggression in the Making of the Medieval West" (Ph. D. diss., Rice University, 1981).

17 Pact. leg. Sal. 13.12-13, in MGH, LL nat. germ. 1: 63; Leg. Visig. 3.4.9, in MGH, LL nat. germ. 1: 150-51; Lex Rib. 39(35).1, in MGH, LL nat. germ. 3/2:91.

18 Heinrich Brunner, "Die Geburt eines lebenden Kindes und das eheliche Vermogensrecht," in his Abhandlungen zur Rechtsgeschichte 2: 116-64; Wemple, Women in Frankish Society, p. 94.

19 Leg. Burg. 34, in MGH, LL nat. germ. 2/1: 68.

20 Leg. Visig. 3. 6.2, in MGH, LL nat. germ. 1: 167-69.

21 Leg. Langobard., Grimwald 6, in MGH, LL 4: 94; McNamara and Wemple, "Marriage and Divorce," pp. 98- 100.

22 Leg. Langobard., Rothair 154-62,225, and Liutprand 32.3, 105.2, in MGH, LL 4:35-37, 55-56, 123, 150-51; Brunner, "Uneheliche Vaterschaft," pp. 165-97; Hermann, Stellung unehelicher Kinder, p. 50; Chevailler, "Observations sur Ie droit de bc1tardise," pp. 380-84; Baumann, Zivilrechtliche Bedeutung, p. 18.

23 Lex Rib. 39(35).2-3, in MeR, LLnat. germ. 3/2:91-92; Leg. Langobard., Rothair 189, in MeR, LL 4:45; Leg. Burg. 33, in MeR, LL nat. germ. 2/1 :67; Leg. Baiwar. 8.8, in MeR, LL 5/2:357; Lex Sal. 36.1-4, in MeR, LL nat. germ. 4/2:74.

24 Leg. Langobard., Rothair 194, in MeR, LL 4: 47; Lex Salica 100 Titel-Text 36.1, ed. Karl August Eckhard, (Weimar: Hermann B6hlaus Nachfolger, 1953), p. 148; cf. Lex Rib. 61.17, in MeH, LL 312: 113.

25 Leg. Baiwar. 8,9, in MeR. LL 5/2 :357-58.

26 Leg. Visig. 3.4. 2, in MeR, LL nat. germ. 1:147-48; Leg. Langobard., Rothair 179, 196, in MeR, LL 4: 42,47-48; Lex Salica (100 title text) 15.1, ed. Eckhard, p. 130.

27 Tacitus, Germania 19, ed. Robinson, pp. 295-96; Leg. Langobard., Liutprand 110.7, 140.2, in MeR, LL 4: 152, 169-7°; Leg. Burg. 36, in MeR, LL nat. germ. 2/1: 69; Wemple, Women in Frankish Society, p. II.

28 Leg. Langobard., Rothair 212-13, in MeR, LL 4: 51- 52; Leg. Visig. 3.4. 1, 4, 5, in MeR, LL nat. germ. 1: 147, 149.

29 Leg. Langobard., Liutprand 76.7, 95.12, in MeH, LL 4: 138, 146; Leg. Baiwar. 1.11, in MeR, LL 5/2: 283-84.

30 Leg. Visig. 3.4.10-11, in MeH, LL nat. germ. 1: 151.

31 Leg. Langobard., Rothair 196, in MeR, LL 4: 47-48.

32 Leg. Langobard., Liutprand 130, in MGR, LL 4: 162-63.

33 Leg. Burgund. 44. 1, in MGR, LL nat. germ. 2/1: 74; Leg. Visig. 3.4.12, in MGR, LL nat. germ. 1: 151-52.

34 Pact. leg. Sal. 13.14, 15.1-2, in MGR, LL nat. germ. 4/1:63, 70; Lex Rib. 38(34).1-3, in MGR, LLnat. germ. 3/2:9°-91; Leg. Langobard., Rothair205-207, in MGR, LL 4:50-51.

35 Lex Salica (100 title text) 14.6-7, ed. Eckhard, p. 128.

36 Leg. Visig. 3.3.2, 7 and 3.4.14, in MGR, LL nat. germ. 1: 14°-42; Pierre Lemercier, "Dne curiosite judiciaire au moyen age: la grace par mariage subsequent," RRDF,4th ser., 33 (1955) 464-74.

37 Leg. Visig. 3.4.17, in MGR, LL nat. germ. 1:157; King, Law and Society in the Visigothic Kingdom, pp. 118, 202, 241; Gustav lung, Die Geschlechtsmoral des deutschen Weibes im Mittelalter: eine Kulturhistorische Studie (Leipzig: Ethnologischer Verlag, n.d.), p. 217.

38 Lex Sal. 49.4, in MGR, LL 4/2: 88; Pact. leg. Sal. 30.3, in MGR, LL nat. germ. 1: 118-19. 

39 Most of the Germanic invaders were still pagans at the time of their migration into the Western Empire, but a substantial minority-notably the Ostrogoths, Burgundians, and Visigoths-had adopted Arianism prior to the invasions. Tensions between Germanic Arian rulers and their Catholic subjects in Italy and Spain caused problems in those regions for generations following the invasions. Ultimately, however, the Arians capitulated and abandoned their heterodox tradition. The conversion of pagan Germanic settlers to Catholic Christianity was often quicker and less painful than the conversion of Arian groups. The Salian Franks embraced Christianity during the reign of Clovis (481-511) and his conquest of Burgundy in the early sixth century speeded the process of religious assimilation there as well. The conversion of Britain commenced even before the arrival of St. Augustine of Canterbury in Kent in 597; by the time of the Synod of Whitby (664) the process was far advanced. See H. St. L. B. Moss, The Birth of the Middle Ages, 395-814 (London: Oxford University Press, 1935; repro 1963), pp.63-64, 73-78; Gustav Schniirer, Church and Culture in the Middle Ages, vol. 1: 350-814, trans. George G. Undereiner (Paterson, NJ: St. Anthony Guild Press, 1956), pp. 193-418; Gerhart B. Ladner, "The Impact of Christianity," in The Transformation ofthe Roman World, ed. Lynn White, Jr. (Berkeley and Los Angeles: University of California Press, 1966), pp. 55-91; Margaret Deansley, A History of Early Medieval Europe; 476 to 911, Methuen's History of Medieval and Early Modern Europe, vol. 1 (London: Methuen, 1956), pp. 59-60, 97-98, 103-108.

40 Herlihy, Medieval Households, pp. 56-59, 61-62, 78, as well as "The Making of the Medieval Family: Symmetry, Structure, and Sentiment," Journal ofFamily History 8 (1983) 116-30; Georges Duby, Medieval Marriage: Two Modelsfrom Twelfth-Century France, trans. by Elborg Forster, Johns Hopkins Symposia in Comparative History, 11 (Baltimore: Johns Hopkins University Press, 1978), p. 3; Janles C. Holt, "Feudal Society and the Family in Early Medieval England: I. The Revolution of 1066," Transactions of the Royal Historical Society, 5th ser., 34 (1982) 199-200; Katherine Fischer Drew, "The Law of the Family in the Germanic Kingdoms," Studies in Medieval Culture 11 (1977) 17. Paul Veyne, "La famille et l'amour sous Ie haut empire romain," Annales e.s.c. 33 (1978) 35, contends that the nuclear family had become the basic unit of social structure in pagan Rome and would push the basic change back to some time prior to the end of the second century. He promises documentation to support his position in a forthcoming book.

41 McNamara and Wemple, "Marriage and Divorce," p. 96; Paul Hinschius, "Das Ehescheidungsrecht nach den angelsachsischen und frankischen Bussordnungen," Zeitschrift fur deutsches Recht 20 (1861) 67; Wemple, Women in Frankish Society, p. 89.

42 Kosnik et al., Human Sexuality, p. 39; BerhIlard Schimmelpfennig, "Ex fornicatione nati: Studies on the Position of Priests' Sons from the Twelfth to the Fourteenth Centuries," Studies in Medieval and Renaissance History 2 (1980) 5; Pierre Payer, "Early Medieval Regulations Concerning Marital Sexual Relations," JMH 6 (1980) 370-71.

43 Hincmar of Reims, Epistolae 22, in PL 126: 137-38: "Quibus sententiis evidenter ostendit, quia tunc est vera legitimi coniugii copula, quando inter ingenuos, et inter aequales fit, et paterno arbitrio viro mulier juncta, legitima dotata, et publicis nuptiis honestata, sexuum commistione coniungitur." Hincmar reiterated this formulation in his treatise De divortio Lotharii et Tetbergae, interr. 4, in PL 125: 648- 49. See also Gaudemet, "Indissolubilite et consommation," p. 34; Wemple, Women in Frankish Society, p. 83. On Hincmar's career see Jean Oevisse, Hincmar, archeveque de Reims, 845-882, 3 vols., Travaux d'histoire ethico-politique, no. 29 (Geneva: Oroz, 1975-76).

44 Gaudemet, "Indissolubilite et consommation du mariage: L'apport d'Hincmar de Reims," ROC 30 (1980) 35-36; Sara Acuna, "La forma del matrimonio hasta el decreto 'Ne temere'/' Ius canonicum 13 (1973) 149-50; Philippe Aries, "Le mariage indissoluble," in Sexualites occidentales, p. 125.

45 Pierre Daudet, Les origines carolingiennes de la competence exclusive de reglise en France et en Germanie en matiere de juridiction matrimoniale (Paris: Sirey, 1933); McNamara and Wemple, "Marriage and Divorce," pp. 106-107; Wemple, Women in Frankish Society, p. 75; Fransen, "Rupture," p. 609. 

46 Gerard Fransen, "Rupture," in Il matritnonio nella societa altomedievale 2: 608; Payer, "Early Medieval Regulations," pp. 354-55; J. M. Turlan, "Recherches sur Ie mariage dans la pratique coutumiere XIIe-XVIe siecles," RHDF, 4th ser., 35 (1957) 480.

47 John Damascene, De sacris parallelis, in PG 96: 258; see also Damascene's disciple, Theodore Abucara, Dogma de una uxore, in PG 97: 1555; Boswell, CSTAH, p. 159.

48 Philippe Aries, "L'amour dans Ie mariage," in Sexualites occidentales, p. 120; Leclercq, Monks on Marriage, pp. 49-50; Wemple, Wornen in Frankish Society, pp. 57, 103.

49 Isidore of Seville, Sententiae 2.40. 13, in PL 83: 645; De ecclesiasticis officiis 2.20.9-10, in PL 83: 812; Payer, "Early Medieval Regulations," p. 353.

50 Isidore of Seville, De ordine creaturarum 14. 11, in PL 83: 949.

51 Gregory I, Moralia in lob 13.21 (12.18), ed. Marc Adriaen, in CCL 143A:597-98; Miiller, Lehre des hZ. Augustinus, p. 34; Flandrin, "Vie sexuelle," p. 103

52 Leclercq, Monks on Marriage, p. 43, cites several examples.

53 Rerard ofTours, Capitula 89, in PL 121 :770; Payer, "Early Medieval Regulations," p. 355, and Sex and the Penitentials: The Development of A Sexual Code, 550-1150 (Toronto: University ofToronto Press, 1984), pp. 23-28; P. Saintyves, "Les trois nuits de Tobie ou la continence durant la premiere ou les premieres nuits du mariage," Revue anthropologique 44 (1944) 266-96.

54 Gregory of Tours, Historia Francorum 9.33, ed. Wilhelm Arndt, in MGR, Scriptores rerum Merovingicarum 1: 387.

55 Jonas of Orleans, De institutione laicali 2.1, 6, in PL 106: 167-70, 179-82.

56 Jonas of Orleans, De inst. laicali 2.9, in PL 106: 184-85.

57 Jonas of Orleans, De inst. laicali 2.3, in PL 106: 172-74. 139

58 Pierre Toubert, "La theorie du mariage chez les moralistes carolingiens," in 11 matrimonio nella societa altomedievale 1 : 254. The belief in the debilitating effects of sexual activity, especially for men, was a heritage from ancient medical lore.

59 Toubert, "Theorie du inariage," pp. 269-7°.

6O Isidore of Seville, Sententiae 2.4°.13-14, in PL 83: 645; Miiller, Lehre des hI. Augustinus, p. 35.

61 1 Council of Braga (561) c. 11, in Vives, Concilios Visigoticos, p. 68.

62 Fransen,"Rupture," p. 607; David E. Engdahl, "Full Faith and Credit in Merrie Olde England: New Insight for Marriage Conflicts Law from the Thirteenth Century," Valparaiso University Law Review 5 (1970 ) 3·

63 Lambertus Machielsen, "Les spurii de S. Gregoire Ie Grand en matiere matrimoniale dans les collections canoniques jusqu'au Decret de Gratien," Sacris erudiri 14 (1963) 267-69; Paul Meyvert, "Les 'Responsiones' de S. Gregoire Ie Grand aS. Augustin de Cantorbery," Revue d'histoire ecclesiastique 54 (1959) 879-94, and "Bede's Text of the Libellus responsionum of Gregory the Great to Augustine of Canterbury," in Peter Clemoes and Kathleen Hughes, ed., England Before the Conquest: Studies in Primary Sources Presented to Dorothy Whitelock (Cambridge: At the University Press, 1971), pp. 15-33·

64 Hincmar of Reims, De divorlio, interr. 12, in PL 125: 706-707; Hinschius, DPI, p. 751; cf. JE 1978; Constance B. Bouchard, "Consanguinity and Noble Marriages in the Tenth and Eleventh Centuries," Speculum 56 (1981) 268-87; Herlihy, Medieval Households, pp. 61-62. On calculating degrees of relationship see Ernest Champeaux, "Jus sanguinis: trois façons de calculer Ie parente au moyen age," RHDF, 4th ser., 12 (1933) 241 -90 .

65 Hincmar, De divorlio, interr. 12, in PL 125: 706-707; Hinschius, DPI, p. 571; Council of Worms (868) c. 32, in Mansi 15:875; Rabanus Maurus, Epist. 29, in MGH, Epistolae 5: 446-47; Leg. Visig. 3.5.1, in MGH, LL 1: 159; Charlemagne, Capitularium missorum generale (802) c. 33, in MGR, Capitularia 1:97; McNamara and Wemple, "Marriage and Divorce in the Frankish Kingdom," pp. 99, 101; Wemple, Women in Frankish Society, p. 76; Lea, History ofAuricular Confession 2: 110

66 Capitulary ofVerberie (753-756) c. 18, in MGR, LL 1: 23; Theodor Gottlob, "Der Ehebruch und seine Rechtsfolgen in den vorgratianischen Quellen und bei Gratian Selbst," Studia Gratiana 2 (1954) 340-41; JE 1941; Machielsen, "Spurii," p. 267; on godparenthood and co-parenthood see generally Joseph R. Lynch, "Spiritual Kinship and Sexual Prohibitions in Early Medieval Europe," in Berkeley Proceedings, pp.27L-88, as well as Godparents and Kinship in Early Medieval Europe (Princeton:Princeton University Press, 1986), pp. 219-57. 

67 A. Montan, "AIle origini della disciplina matrimoniale canonica: contributi per la ricerca," Apollinaris 54 (1981) 178; Acuna, "Forma del matrimonio," p. 148; Jean Gaudemet, "Originalite et destin du mariage romain," in L'Europa e il diritto romano: Studi in onore di Paolo Koschaker, 2 vols. (Milan: A. Giuffre, 1954) 2: 541, repro in Gaudemet's Societes et mariage, p. 168; Antonio Marongiu, "La forma religiosa del matrimonio nel diritto bizantino, normanno, e svevo," Archivio storico per la Calabria e la Lucania 30 (1961) 3-10, reprinted with original pagination in his Byzantine, Norman, Swabian, and Later Institutions in Southern Italy (London: Variorum, 1972).

68 Council of Metz (755) C. 15, in Mansi 12: 583; Synod of Reisbach (799) C. 12, in Mansi 13: 1027; Justina Ruiz de Conde, EI amor y el matrimonio secreto en los libros de caballerias (Madrid: M. Aguilar, 1948), p. 6. For the problems that clandestine marriage gave rise to, see below, pp. 276-77.

69 2 Council of Braga C. 26, 80, as well as 2 Council of Seville (619) C. 4, in Vives, Concilios Visigoticos, pp. 94, 105, 165; cf. Leg. Visig. 3.6.1, in MGR, LL nat. germ. 1: 166-67.

70 JK 536; PL 54: 1135-37; MGR, LL 1: 23; Rinschius, DPI, p. 620.

71 Capitulary of Verberie (753) c. 9, in MGR, LL 1:23; Capitulary ofCompiegne (753) c. 9, in MGR, LL 1:28; Council of Tribur (895) c. 39, in MGR, Capitularia 2:235-36; Fransen, "Rupture," p. 625; Rinschius, "Ehescheidungsrecht," pp. 80-82.

72 Jean-Louis Flandrin, "Repression and Change in the Sexual Life of Young People in Medieval and Early Modern Times," Journal of Family History 2 (1977) 198; repro in Family and Sexuality in French History, ed. Robert Wheaton and Tamara K. Rareven (Philadelphia: University of Pennsylvania Press, 1980), p. 28.

73 Council of Worms (868) C. 30, in Mansi 15: 874-75; Gottlob, "Ehebruch," p. 342.

Written by James A. Brundage in "Law, Sex, and Christian Society in Medieval Europe", The University of Chicago Press, USA, 1990, excerpts pp. 124-143. Digitized, adapted and illustrated to be posted by Leopoldo Costa.