if anybody out there says to you – “but people everywhere in the past were always marrying their cousins!” – tell them i said no. no, no, no, emphatically no! (in a friendly, non-threatening tone, of course. (^_^) )

here, from sam worby’s Law and Kinship in Thirteenth-Century England [pgs. 92-103 – links added by me]:

“Canon law kinship rules can be seen in court records in three main ways: as a ground for ‘divorce’; a defence against an action to enforce a marriage, usually in litigation between parties; or as a matter of disciplinary action in an office case (where the canon law courts were exercising their quasi-criminal jurisdiction)….

Overall, cases involving canon law kinship did not form a large part of the business of the canon law courts in England. In York [in yorkshire in the north of england], for example, marriage made up 38 per cent of the business of the court between 1301 and 1499. Most of this was instance cases rather than ‘criminal enforcement’. Most of the marriage actions were to enforce a putative marriage and only 14 per cent were actions to dissolve. Pre-contract was the most common ground for matrimonial litigation in the fourteenth and fifteenth centuries (overall 46 per cent of matrimonial cases), and denial was a common response. Other grounds used to defend against marriages were force and/or non age at 13 per cent, then consanguinity and affinity [i.e. relatedness to your in-laws] at 12 per cent (a total of 9 cases) in the fourteenth century. While kinship was not a large proportion of the business of these courts it did occur more frequently than grounds such as crime, impotence and vow (i.e. a vow to stay celibate). In the fifteenth century there were slightly fewer actions where the grounds of consanguinity and or affinity were raised than in the fourteenth.

because the rates of consanguineous marriages declined? no idea.

“Overall kinship was raised in 16 out of 178 cases. In Ely [in cambridgeshire in east anglia], between 1374 and 1381, cases involving kinship were more common, perhaps because of the higher proportion of *ex officio* cases in the business of this court. Kinship was raised as a defence on ground for divorce proportionately more frequently (in 15 claims of incest). In Ely kinship was a more common defence than force and non age, but was still significantly less common overall than allegations of precontract. There is reason to believe that the Ely court was active in relation to kinship as the Ely office cases tended to be brought at the start or in the early public phase of a relationship. While neither set of figures show kinship to have been a major part of business, they both show that it was still a relatively usual part.”

was consanguineous marriage more frequent in ely which is in east anglia (where the puritans were from)? no idea. (also on ely.)

“The canon law on kinship was variously ignored, followed and manipulated (these being alternatives in different times and place, for both the courts and the people subject to them). Donahue has shown, for example, how one new judge of Canterbury diocesan court, Richard de Clyve, on visitation in 1292, fresh from the schools, began by prosecuting every case in relation to kinship, but faced some resistance as is shown variously by witnesses growing less certain and by a letter pleading mercy on behalf of a woman sentenced to whipping…”

sentenced to whipping for being in a consanguineous marriage?! talk about enforcement!

“…from a mutually acquainted royal clerk. He finished his circuit on a more flexible note and began to base his decisions on the degree of local scandal that the cases inspired. He also exhibited doubts about the application of the rules which held that affinity arose from mere sexual relationships. Thus the courts could take an accomodating attitude to the rules about kinship, and sometimes finesse (or ignore) stict application of the rules. Richard de Clyve’s experience also confirms that people were aware of the rules, made an effot to follow them (to a degree) and could be scandalised in certain circumstances by their breach. An example of such scandal is the deathbed warning of a father against his son’s marriage. Though the kinship was distant, in the fourth degree, the father allegedly said ‘they will never flourish or live together in good fortune because of the consanguinity between them’. There were also cases where people ‘hotly resisted’ marriages that were within the forbidden degrees: one woman even said she would prefer to die rather than marry her kinsman. Rhetoric or not, such a declaration in a court case would have been dramatic, and would not have been plausible were the rules not accepted….

The evidence from York and Ely shows how far down the social scale obedience to the kinship rules of the canon law reached. Some of the cases were brought by or against relatively humble people but the ‘middling’ sort were not uncommon in these courts which suggests that some attempt was being made to apply the canon law kinship across the classes….

There are also several cases that show people seeking dispensations, again suggesting that the system could operate effectively. In *Wistow c Cowper*, a York case of 1491, a papal dispensation (for spiritual affinity) overcame the attempted defence. However, in several cases a papal dispensation was held to be, or appeared to be, insufficient. In the remarkable *Hiliard c Hiliard*, a York case of 1370, the couple had been previously cited for a consanguineous relationship, but the sentence had been deferred to allow them to obtain a papal dispensation. A priest had attempted this and failed. He testified that in the papal court he was told ‘that he could not get such a dispensation for a hundred pounds’. Since the relationship was in the fourth degree of consanguinity this statement is unlikely to be true….

Divorce cases on grounds of kinship were not the norm. Despite the occasional outlandish case, such as *Ask c Ask and Conyers* where a son alleged that his parents had divorced collusively on grounds of spiritual fraternity to deprive him of his interitance, the case evidence reveals a very different world from that where Maitland had proposed that almost any marriage could be dissolved on grounds of kinship. Clearly, consanguinity and affinity could be used or discovered to escape from marriages, but the records suggest that they were not often used to escape from current marriages; instead they were more common as a defence in marriage enforcement cases. In fact, the court records seem to show that the underlying system that was meant to prevent incestuous or harmful (i.e. non-dispensable) marriages operated with some level of success. It may be that a genuine sense that ‘incestuous’ marriages were wrong prevented kinship from being used as a casual route to escape marriage. There is evidence that shows that incestuous marriages were a matter of bad conscience. For example, both Donahue and Sheehan consider that John de Lile of Chatteris resisted cohabiting with his ‘wife’, Katherine, in the late 1370s, once affinity was discovered between them. Some effort was made to observe the rules: people would not have paid for a dispensation or for a priest to travel and gain a dispensation if there were no need and no social pressure to conform. It may also have been that kinship sufficient to dissolve or defend against a marriage was difficult to prove to a level that satisfied canon law rules of evidence. Whatever the reason for the comparatively small role of kinship in litigation, it seems clear that the canon law kinship system operated in practice and that some people obeyed it and were (publicly at least) scandalised when it was disobeyed….

“In a sample of sixty-two instance from York, Ely, Lincoln [in the east midlands], Wisbech [also in cambridgeshire, east anglia] and Canterbury [in kent in the southeast] that raised kinship in some manner, by far the

worby - types of kinship alleged in the canon law sample

greater majority raised objections on grounds of affinity: thirty-three affinity and sixteen consanguinity (see table 1)…. The disparity is interesting, however, as it suggests that people were either more likely to obey the consanguinity rules than the affinity rules, or that people were more likely to falsely allege an affinial relationship. There is some evidence for the second suggestion arising from the number of cases (at least twenty-three) based on affinity through illicit intercourse, a less public relationship than a marriage or betrothal. Yet the pattern was sustained in office cases where it can be supposed that there were fewer opportunities for collusion (thirteen out of eighteen cases alleging affinity of any type). Therefore it is likely that a combination of both factors was at work. It is enough to not that consanguineous relationships seem to have been more scandalous than relationships with affines.

it’s interesting that there were no cases related to consanguinity or “other incest” at all in fourteenth century canterbury which is all the way in the south of england in kent, just across the channel from northern france. kent had one of the earliest secular laws against cousin marriage in england that i have come across, the law of wihtred from the 690s, while at the same time it experienced a late adoption of manorialism, if at all (probably not so much in the east where the “men of kent” come from!). so, not the full package of outbreeding tricks for kent, but a very early start to cousin marriage bans.

previously: more on medieval england and france

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