THE MEDIEVAL BACKGROUND
The further back in time we go, the more fragmentary the record becomes. Most of it has been lost, and what survives is often sparse
and abbreviated, so that we can gain only intermittent glimpses of the law in action. Yet its general thrust is clear: the principle that illicit sex was a public crime was asserted with increasing vigour from the early middle ages onwards.
Indeed, since the dawn of history every civilization had prescribed severe laws against at least some kinds of sexual immorality. The oldest surviving legal codes (c. 2100-1700 bce), drawn up by the kings of Babylon, made adultery punishable by death, and most other near eastern and classical cultures also treated it as a serious offence: this was the view taken by the Assyrians, the ancient Egyptians, the Jews, the Greeks, and, to some extent, the Romans. The main concern of such laws was usually to uphold the honour and property rights of fathers, husbands, and higher-status groups. The same outlook underpinned the justice of the Germanic tribes that settled across western Europe and the British Isles in the final years of the Roman Empire: the Franks, the Goths, the Saxons, the Jutes, and others. Thus the earliest English law codes, which date from this time, evoke a society where women were bought and sold, and lived constantly under the guardianship of men. Even in cases of consensual sex, its system of justice was mainly concerned with the compensation one man should pay to another for unlawful copulation with his female chattel. The laws of Ethelbert (c. 602), the Anglo-Saxon king of Kent, stipulate the different fines payable ‘if a man takes a widow who does not belong to him’; for lying with servants or slave women of different classes; and for adultery with the wife of another freeman – in which case, as well as a heavy fine, the offender was ‘to obtain another wife with his own money, and bring her to the other’s home’. However, illicit sex was also, increasingly, abhorred for its own sake, and liable to harsh personal punishment. The code of Alfred the Great (c. 893) made it lawful for any man to kill another if he found him ‘with his wedded wife, within closed doors or under the same blanket, or with his legitimate daughter or his legitimate sister, or with his mother’. That of King Cnut (c. 1020-23) forbade married men even from fornicating with their own slaves, and ordered that adulteresses should be publicly disgraced, lose their goods, and have their ears and noses cut off.1
This severity matched the attitude of the Christian church, and its growing status within European society during the early middle ages.
Though Jesus is not recorded as having said much on the subject, he evidently did not condone adultery or promiscuity, and the later leaders of his religion developed increasingly restrictive doctrines of sexual morality. In doing so, they drew upon many earlier teachings, so that the outcome was, as one scholar puts it, ‘a complex assemblage of pagan and Jewish purity regulations, linked with primitive beliefs about the relationship between sex and the holy, joined to Stoic teachings about sexual ethics, and bound together by a patchwork of [new] doctrinal theories’. The Stoics, one of the most influential strands of Graeco-Roman philosophy, had generally distrusted sex as a low and dangerously corrupting pleasure. The same suspicion of sex as brutish and defiling ran through the Hebrew scriptures. Though the Old Testament lauded marriage as a socially and religiously indispensable institution, and sometimes (notably in the Song of Songs) celebrates marital eroticism, its overriding message was that sexual relations were unclean. Even between a husband and wife, sex was to be strictly limited in its timing, place, and purpose (only for procreation, not for pleasure), and had always to be followed by ritual purification, to wash away the dirtiness of the deed. The horror of pollution was evoked even more strongly by other forms of sex. God’s instructions on this score were detailed and unequivocal. ‘Thou shalt not commit adultery’ was the seventh of his Ten Commandments, and every adulterer and adulteress, he had ordered, ‘shall surely be put to death’. The same fate was to be imposed upon anyone guilty of incest or bestiality, as upon men who had sex with each other: all such people defiled themselves and the community. If the daughter of a priest were to fornicate, she should be burned alive. If a man lay with a menstruating woman, ‘both of them shall be cut off from among their people’. If any man should lie with a betrothed maid, God’s will was that ‘ye shall bring them both out unto the gate of that city, and ye shall stone them with stones that they die’ – ‘so thou shalt put away evil from among you’.2
Christian teachings incorporated this basic outlook and went further still. Jewish law had been fairly tolerant of fornication between unmarried men and women, of men using Gentile prostitutes, and of concubines – indeed, as the Bible recorded, the ancient Hebrews had often had multiple wives. In its earliest centuries, Christianity too seems to have tolerated concubinage. More generally, however, the leaders of the new religion interpreted God’s commands as forbidding any sex at all outside marriage: that way lay hell-fire and damnation. Many of them were so repelled by sexual relations that they saw even marriage as a less pure and desirable state than complete celibacy. Already in Christianity’s earliest surviving texts this message is spelled out by St Paul, the dominant figure of the early church. ‘It is good for a man not to touch a woman’, he explained to the Christian community at Corinth around the middle of the first century, for even within marriage, sex seduced one’s mind and body away from its highest purpose of communing with God. Paul himself was pure, single, and abstinent, and that was the holiest state. ‘I would that all men were even as I myself,’ he wrote, and maids and widows too: ‘it is good for them if they abide even as I. But if they cannot contain [their lusts], let them marry: for it is better to marry than to burn’ (I Corinthians 7.140; see Romans 1 for his condemnation of same-sex relations). In other words, marriage was but a regrettable indulgence to those who were too weak to bridle their bodily urges.
In the centuries that followed, the leading authorities of the church (most of whom were themselves celibate men) developed further this essentially negative view of sex. The ascetic ideal of abstinence, particularly for the clergy but also for lay men and women, was ever more strongly stressed; whilst a huge body of teaching grew up in support of the notion that bodily desire was inherently shameful and sinful. The most powerful exponent of this view was St Augustine (354-430), bishop of the town of Hippo on the north African coast: probably no other person has had a more profound and lasting impact on western Christian attitudes towards sexuality. In his youth this would have seemed unlikely. Whilst building a career as a clever young academic, in north Africa and then in Italy, he lived for many years with his unmarried lover and their illegitimate son, and was far more attracted to Manichaeism than to mainstream Christianity. Even when, as he famously recalled in his Confessions, he had begun to see the error of his ways, his prayer to God had been ‘grant me chastity and self-control – but please not yet’: for he was still full of ‘lust which I was more anxious to satisfy than to snuff out’. Yet, as in the case of countless later critics of sensuality, it was precisely his experience of the force of human passion that led him, once converted and dedicated to a celibate life, to inveigh so vehemently against its foul, debilitating temptations. Ultimately, Augustine came to see lust as the most dangerous of all human drives. Like many other medieval theologians, he argued that it was a direct consequence of the Fall – sexual feelings were not a good at all but a punishment inflicted by God upon Adam and Eve and their descendants, an indelible marker of their sinful, corrupted state. After all, lust had an unparalleled power to overwhelm reason and human will: when aroused, men and women could not even control the stirrings of their own genitals. Worse still, no one could ever be sure of having conquered it for good, irrespective of their most strenuous efforts. In old age, almost forty years after becoming celibate, having dedicated his life to the mortification of desire, Augustine summed up his own experience in a letter to another bishop, Atticus of Constantinople. To restrain ‘this concupiscence of the flesh’, he complained, was a life-long battle for everyone, whether virgin, married, or widowed:
For it intrudes where it is not needed and tempts the hearts of faithful and holy people with its untimely and even wicked desire. Even if we do not give in to these restless impulses of it by any sign of consent but rather fight against them, we would nonetheless, out of a holier desire, want them not to exist in us at all, if that were possible.
But it was not possible. As long as humankind remained in its fallen state, sexual procreation itself passed on the evil from generation to generation: ‘the guilt of this sin is contracted by birth’. Even in marriage, men and women had to be constantly on their guard against sinning through immoderate, unchaste, or unprocreative sex. For every Christian, throughout their life, sexual discipline was a fundamental, inescapable necessity.3
These were the doctrines that the church sought to instil in its followers everywhere that the new religion spread. In England, the earliest surviving handbooks for the Anglo-Saxon clergy (dating from the seventh to the eleventh century) describe in graphic detail the many different sexual sins, solitary, heterosexual, and homosexual, that lay – people and priests might commit, and the penalties for each of them – months or years of fasting, flogging, divorce, loss of clerical office.4 The propagation of Christian moral standards had an increasingly noticeable effect on lay attitudes. Under pressure from the clergy, the aristocratic custom of taking concubines gradually declined, and the church’s definition of monogamy slowly gained ground.5
The high middle ages saw a considerable acceleration in the theory and practice of sexual discipline. Between the eleventh and the thirteenth centuries, the western church greatly expanded its power in this sphere, in line with its growing social and intellectual dominance. Across Europe, ecclesiastical laws relating to sex and marriage were elaborated, standardized, and tightened up, for clergy and laypeople, kings and peasants alike. This was, for example, the point at which the leaders of the church began a concerted and increasingly successful campaign to enforce celibacy on all priests and to banish clerical marriage. The establishment of the church’s own permanent courts from about 1100 onwards likewise transformed the punishment of sexual offences amongst the population at large. From being primarily a matter of private confession and ad hoc jurisdiction, it now became the concern of an increasingly powerful system of public inquisition. Finally, the rise of towns and cities led to the addition of new civic penalties against adultery, fornication, and prostitution, alongside the older structures of royal, manorial, and ecclesiastical justice.6
By the later middle ages, extra-marital sex had come to be continually policed by a dense network of jurisdictions. Sexual and marital cases dominated the business of the English church courts: already in the later thirteenth century, they account for between 60 and 90 per cent of all litigation for which records survive, and most later fifteenth – and early sixteenth-century evidence reveals the same overwhelming focus on combating adultery, fornication, and prostitution. The penalties imposed varied by time and place. In fourteenth-century Rochester, men and women were sometimes sent on pilgrimages to atone for their sins, ordered to give alms to the poor, or allowed to commute their sentence into a fine. The most common penance was to be beaten, publicly and repeatedly, around the parish church and the market-place, as the entire community looked on.7 The same crimes were also punished by town courts. In Coventry in 1439, the magistrates ordered that William Powlet, a cap-maker, should be publicly
paraded through town in an open cart together with his lover, ‘in example of punishment of sin’, and that henceforth all fornicators should be treated in the same way. In London, Bristol, and Gloucester, they constructed a special public ‘cage’ in the main market-place, in which to imprison and display prostitutes, adulterers, and lecherous priests; elsewhere, cucking-stools were used to punish whores. From at least the late fourteenth century, special campaigns against sexual offenders were a regular occurrence in London, on top of the more routine policing of unchastity. There also became established elaborate rituals of civic punishment for convicted whores, bawds, and adulterers. Serious offenders were taken on a long public procession through the city, dressed in symbolically degrading clothes and accompanied by the raucous clanging of pans and basins. Sometimes they would also be whipped, put in the pillory, have their hair shaved off, or be banished from the city.8
The frequency with which these punishments were imposed throughout the later middle ages points to the persistence of sex outside marriage. Both in medieval literature and in daily life, illicit love and mercenary sex were often discussed in a more matter-of-fact way, implying that they might not always be culpable. Many people believed that fornication was not a serious offence, reported a twelfth- century bishop of Exeter; and though in 1287 the idea that it was wholly blameless was formally classified as a heresy, it persisted. It was especially accepted that young people fell in love, and that they might sometimes fool around. As the leaders of the early Tudor church were to complain in the 1540s, ‘among many, it is counted no sin at all, but rather a pastime, a dalliance, and but a touch of youth: not rebuked, but winked at: not punished, but laughed at’.9
There were also obvious limits and inconsistencies in official attitudes to sexual discipline. 1 0 Unmarried cohabitation, both amongst both the clergy and the laity, was commonplace until the high middle ages, and endured right up to the Reformation. The criminalization of fornication was further complicated by the church’s own law of marriage, which was codified in the twelfth century (and not altered in England until the Marriage Act of 1753). All that it required for an unbreakable wedlock was that a marriageable man and woman exchanged vows in words of the present tense (and if they did so in words of the future tense, a single act of intercourse would create a legal union). In theory the legitimation of sex therefore required only the consent of the couple themselves, without the need for any priest, witnesses, or ceremony. In practice the church tried, with increasing success, to discourage and penalize all forms of quick, irregular, and clandestine marriage: already by the later middle ages the norm was a wedding that was advertised publicly, long in advance, and solemnized by a priest in the parish church, in front of the local community.11 Yet the idea never completely died out that, ultimately, it was for a couple themselves to decide whether or not they were married in the sight of God (as we shall see in Chapter 2). Finally, public prostitution was tolerated, and in the later middle ages increasingly sanctioned, as a necessary evil. Given that in practice it was impossible to restrain the lusts of unmarried laymen and clerics, so the argument ran, it was better to allow brothels than to provoke seduction, rape, adultery, and worse. As a popular medieval analogy had it, ‘remove the sewer, and you will fill the palace with a stench. . . take away whores from the world, and you will fill it with sodomy’.12
All the same, the main trend over time was towards ever-tighter control and punishment of non-marital sex, by secular and ecclesiastical authorities alike. It is also evident that, over the course of the middle ages, the gap between Christian precepts and popular attitudes had steadily narrowed. Though people might quibble about the limits of sexual discipline, or resent its imposition on them personally, its effects were ubiquitous, and its necessity was taken for granted.