random notes: 04/16/14

busy reading all about crime and punishment (i.e. the death penalty) in medieval england, so you don’t have to! (^_^) in the meantime, until i post about that, here are some random notes:

the law codes of ine king of wessex (688-726) are some of the earliest anglo-saxon law codes still surviving. they were issued ca. 694. ine took his christianity seriously and demanded that [pg. 27]:

“[A]ll children were to be baptised within 30 days of their birth, failing which their guardians had to pay a fine of 30 shillings. If a child died before baptism its guardian lost all he possessed….”

so there are some strong incentives for the populace to convert to christianity or remain christian once they’d done so.
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æthelstan, king of the anglo-saxons and then the first king of the north english (924-939), also passed a bunch of laws including [pg. 32]:

“[T]he first social legislation in England, providing for the relief of the poor. If a king’s reeve failed to provide, from the rents of the royal demesne, for the poor in the manner prescribed he had to find 30 shillings to be distributed among the poor under the bishop’s supervision.”

nice of him! (^_^)
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some examples of concerns about consanguinity issues in the late anglo-saxon period [pg. 226]:

“General concern about marriage and sexual relations within the kin is expressed throughout our period, for example, in the late ninth century in letters from Pope John VIII to Burgred, king of the Mercians, and to Æthelred, archbishop of Canterbury, and another from Fulk, archbishop of Reims, to King Alfred. In the 950s, according to the ‘Anglo-Saxon Chronicle’, ‘Archbishop Oda separated King Eadwig and Ælfgifu because they were too closely related’. They may have shared a great-great-grandfather, King Æthelwulf of Wessex….”

so there you go.
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and in anglo-norman england [pgs. 435-437]:

“As in the Anglo-Saxon period, a central issue was consanguinity. In the second half of the eleventh century and particularly under the influence of the reformer Peter Damian, the method of counting the prohibited degrees was established in its most extensive form. Instead of counting to see if there was a common ancestor within four generations, the counting was taken a further three generations back, to the seventh. This had the effect of extending the range of prohibited marriage partners to sixth cousins.[12] In England, the prohibition ‘to the seventh degree’ was decreed at ecclesiastical councils at London in 1074 x 1075, and at Westminster in 1102 and 1125: ‘between those related by blood or relatives by affinity [i.e. by marriage], up to the seventh generation, we prohibit marriages to be contracted. If indeed anyone shall have been thus joined together, let them be separated’. Reformers also emphasised other non-blood relationships, especially spiritual kinship. The potential for conflict with lay practice must have increased significantly, as it has been suggested that whilst the layity did not commonly contract marriages within four degrees, they did within five or six.[15]

“[12] It has been suggested that blood relationships alone might mean that the bride or groom had over 2,500 cousins of their own generation whom they were prohibited to marry; J.-L. Flandrin, Families in Former Times, trans. R. Southern (Cambridge, 1979), 24.

“[15] E.g. Green, Aristocracy, 348-9.”

2,500 cousins that you couldn’t marry. awkward that.
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interestingly (at least to me!), from late anglo-saxon england [pg. 242 – link added by me]:

“A further important tie was that of spiritual kinship, created particularly at baptism, but also at the catechumenate and confirmation. It seems that in England, unlike the Continent, there was only one sponsor, of the same sex as the person undergoing the ceremony. This is one reason for the relatively limited emphasis in England on the need for the group of godparents and their godchild to avoid sexual relations or marriage within the group.[114]

“[114] J.H. Lynch, Christianizing Kinship: Ritual Sponsorship in Anglo-Saxon England. 1998.”

huh! who knew?
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and, finally, just to remind everyone how barbaric the barbarians were [pg. 186]:

“The laws of Æthelstan mention drowning or throwing from a cliff for free women, stoning for male slaves, burning for female slaves:

“‘In the case of a male slave, sixty and twenty slaves shall go and stone him. And if any of them fails three times to hit him, he shall himself be scourged three times. When a slave guilty of theft has been put to death, each of those slaves shall give three pennies to his lord. In the case of a female slave who commits an act of theft anywhere except against her master or mistress, sixty and twenty female slaves shall go and bring three logs each and burn that one slave; and they shall pay as many pennies as males slaves would have to pay, or suffer scourging as has been stated above with references to male slaves.’

“However, the literary and archaeology evidence just cited suggests that hanging and beheading were the most common methods.”

=/

(note: comments do not require an email. æthelstan – earliest surviving portrait of an english king.)

cousin marriage in 13th-15th century england

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

(note: comments do not require an email. invicta!)