Carnal relations and church courts in Tudor Ireland

By Henry A. Jefferies

According to one historian, Gaelic Ireland in the sixteenth century was ‘a society in which sexual expression was uninhibited’, but that strange assertion was based on absolutely no evidence whatsoever. Indeed, it is contradicted by a basic fact of human biology: uninhibited sexual expression before modern contraceptives became available could have resulted in pregnancy, and no woman could risk such a life-changing event without some consideration of its implications for herself and her baby. In fact, all societies regulate sexual expression. In contemporary societies the state is responsible for such regulation. In medieval and early modern Europe sexual expression was regulated by church courts.

Above: The Armagh act book (1518–22) pre- serves records of church court cases pro- cessed by the consistory court in Armagh inter Anglicos—the archdiocese’s three southern rural deaneries. There were separ- ate church courts in the rural deaneries of Orior and Tullyhogue in Armagh inter Hibernicos. (Tomás Ó Brogáin)

CHURCH COURTS
Church courts claimed jurisdiction over all matters to do with sexual expression, though allegations of rape were the preserve of the civil courts under English common law. The fortuitous preservation of an act book from the consistory and metropolitan court of the diocese of Armagh dating from 1518 to 1522 facilitates a study of how one Irish church court regulated sexual relationships in the reign of Henry VIII. The structures and operation of that church court were considered in some detail in a paper published in 1993. Suffice it here to summarise the main facts: the bulk of the litigation brought before Armagh’s consistory court originated in the county of Louth, the most northerly shire of the English Pale; the court operated within the aegis of English common law; its most senior personnel were almost invariably graduates of English universities; and the composition of the business of the court was very similar to that of church courts in other parts of the Tudor dominions. On the other hand, most of the people in County Louth were Gaelic Irish, as reflected in the fact that 60% of the women named in the act book had Irish surnames.

The great bulk of the litigation processed by the church court was comprised of instance suits promoted on the initiative of private individuals, in the ecclesiastical equivalent of civil lawsuits. Women, inevitably, featured in all 27 of the marriage suits recorded in the act book. They also featured in nineteen of the 24 defamation suits. However, women featured in only three of the seventeen suits about testaments, in one of the eighteen disputes about ecclesiastical revenues and in one of the nine perjury suits. Women instigated the vast majority of the marriage and defamation suits. They came to the church court to defend their interests in key areas of their lives—their sexual relationships and their sexual reputations.

Above: Medieval miniature of a judge and a church court in session. Church courts regulated sexual expression, and much else besides, across medieval and early modern Europe. (British Library)

GETTING MARRIED
The Armagh act book shows that most married couples, or allegedly married couples, lived in the same or a neighbouring parish before they wed. We don’t know the average age at which couples married in the sixteenth century, but the median age of the witnesses they cited before the Armagh court was between 23 and 30 years of age, and that is probably a good indication of the likely age of the couples themselves. Parents were usually involved in the making of marriages because a viable marriage normally required the transfer of resources from parents to their children. A man needed a reasonable amount of land or some other regular source of income in order to assume the responsibilities of a husband and father. His prospective wife was expected to bring resources of her own to the marriage, usually in the form of a dowry. Without sufficient parental support, there must have been many potential couples who never married because they could not afford to do so.

Men often had to delay getting married until their father died in order to inherit a sufficient source of income to support a family. Women could marry at a younger age because parents often set aside more modest sums of money and/or other assets for a dowry before the father died, although parents sometimes withheld the dowry if they disapproved of their daughter’s choice of husband. The Armagh act book has a case wherein a woman’s husband sued her parents for not handing over her dowry. There is also a record in the act book of a young man named John McCann who married one Anisia FitzJohn against his father’s wishes. When his father threatened him, McCann retorted that even if his father chopped his head off he would not deny Anisia as his wife. The young man was subsequently found in a barn, however, and his wife had to sue to have the marriage validated by the church court, possibly because McCann eventually realised that the marriage was simply not viable without his father’s provision of assets to underpin it. The key fact is that marriages lacking parental support were best avoided.
To form a legitimate marriage, both the man and the woman had to consent freely to the union. They could marry in the present tense by declaring in front of witnesses that ‘I take you as my wife’/‘I take you as my husband’. In County Louth the exchange of vows was often accompanied by handfasting. Alternatively, they could declare their intention to marry at a future date and become legally married once they consummated their union. They need not marry in a church. The Armagh act book shows that couples often got married in the groom’s house, with the bride escorted there by relatives or friends of the groom.

Above: A husband (under the bed) being cuckolded by a clergyman, as depicted in Buch der Beispiele der alten Weisen (1475) [Book of examples of the ancient sages]. Church courts were often inefficient in dealing with fornicating priests. The Armagh act book has records of cases of cuckolded husbands taking church law into their own hands! (Universitätsbibliothek Heidelberg)

VALIDATING MARRIAGES
In the Armagh act book, as in act books from across Catholic Christendom, one of the most common reasons why women sued in the church court was to have their marriage validated in the face of their alleged husband’s denial that they were married. Nine such cases are recorded in the Armagh act book, which is a relatively small number in a series of records spanning a four-year period. The preponderance of female plaintiffs in such suits probably reflects the greater economic importance of marriage to women than to men at the time. Interestingly, there are no references to children in the records of marriage litigation in the Armagh act book. It seems clear that marriages without children were a lot more vulnerable than those with.

For the church courts the validation of a marriage depended crucially upon the presence of witnesses to the free exchange of wedding vows. It was not until 1563 that the Catholic Church decreed that marriages had to be contracted before a priest in order to be valid. Before then private or clandestine weddings were entirely valid, but they could be vulnerable to challenge if there were no witnesses. In one case the only witness to an alleged marriage was the alleged wife’s own mother. It is not clear why women contracted clandestine marriages in view of their vulnerability. Perhaps it was simply because they were a lot cheaper to contract than public weddings in which significant numbers of relations, friends and neighbours had to be entertained.

Above: Church courts in England some- times employed ‘professional’ women, as depicted here in this detail from Gratian’s Decretum, to help determine suits for annul- ment on the basis of male impotence. (Walters Art Museum, Baltimore, USA)

ANNULMENTS
Four women are recorded in the act book as having sought to have their marriages annulled on the basis that their husbands were impotent and they desired to have children. Though the grounds for annulment were perfectly valid under canon law, proving the case was challenging. The normal procedure was to ensure first of all that the couple were properly married in the eyes of the Church. They were then directed to attempt sexual intercourse before a number of witnesses over a number of nights. The witnesses would subsequently report what transpired to the court. One man who admitted to being impotent because of a spell cast by his wife still had to attempt intercourse in front of witnesses to prove his alleged inability. In another suit, Armagh’s church court employed a panel of nine men to investigate the allegedly impotent man’s penis. In that instance the man in question was found to have been both sufficient in size and potency, but the act book does not detail the nature of the investigation. Some contemporary church courts in England employed ‘professional’ women to see whether they could arouse a response from allegedly impotent men!

MARITAL VIOLENCE
Two of the Armagh act book records concern domestic violence. In one suit the violent husband was obliged to submit a financial bond as a guarantee of his future good behaviour. In the other suit a woman who was repeatedly assaulted by her psychotic husband and left with broken ribs was granted a legal separation from him but was not allowed to remarry.

SEXUAL SINS
Church courts did not have the power to investigate sins; they simply responded to cases brought before them. In England allegations of sexual sin could be brought to the courts by the local archdeacon, by parish priests or by churchwardens. Such cases are conspicuously absent from the Armagh act book. That may be because such cases were processed by other church courts, but that is far from certain. The most grievous case of sexual sin recorded in the Armagh book is that of a man accused of having had sexual intercourse with his mother-in-law, which was considered to be incest under canon law. It looks as though it was his wife who brought the case to the court. Interestingly, the man himself was punished severely by the court for his sin but no penance was recorded for his sinful mother-in-law—no sign there of the supposed ‘double standard’.

There are several records of men and women admitting to irregular sexual unions without fear of punishment by the court. In fact, the threshold of evidence required was so high that anything short of a confession or of a couple being caught in flagrante delicto would not suffice for a conviction. In the case of Robert White, a merchant of Drogheda, he brought witnesses to the church court who testified that they saw his wife repeatedly entering and leaving a house with a priest named Peter Bowdin. Yet the court took no action because the witnesses could not provide testimony as to what the priest and White’s wife actually did while they were inside the house. Frustrated by the inaction of the church court, White and some friends assaulted Bowdin and abused him as ‘a fornicating priest’. Another priest, Robert McLoughlin of Rathdrummin parish, was also assaulted by a number of men after the church court failed to act against him in a case brought by a parishioner, probably his brother, who told the court that he could prove that the priest had sexual intercourse with his wife. Assaults on priests were common in England too at that time because of frustration with church courts’ handling of clerical incontinence.

SEXUAL SLANDERS
The single most common cause of defamation suits brought by women to the church court in County Louth, as in England, was that they were allegedly slandered by being called ‘a whore’, almost always by another woman. Oftentimes the suit was intended to silence someone from exposing sexual impropriety. At other times the term ‘whore’ was bandied about by women in contention with one another. For example, when Margaret Netervele called Margaret Duff the ‘whore of a priest’, the latter responded by calling Netervele ‘a common whore to priests, friars and to all other men besides’. Men were more likely to have their honesty impugned. The court generally encouraged the two parties to settle their differences out of court—once the anger subsided—as often happened.

CONCLUSION
The fact that women were the chief instigators of marriage litigation and suits concerning sexual reputations in the Armagh act book shows that they saw the church court as a useful forum in which to defend their interests. The court in County Louth was convened twice a month, and fees for marriage litigation were often waived to make it accessible to even the poorest women. Significantly, female plaintiffs were almost invariably successful in their suits against men. Nonetheless, no court could guarantee that every couple to come before it in conflict would afterwards live ‘happily ever after’.

Henry A. Jefferies is a Research Associate in History at Ulster University.