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In search of an arrangement

For many years historical research has shed light on a special wisdom: that shown in every context of Western society by men, by families and especially by women, for scenting out and identifying the turn of events and contradictions even in complex juridical systems, in order to slip in and orientate to their own advantage norms, procedures and magistrates who are distant from the minute conflicts of daily life in appearance only.

It has thus been demonstrated, at least for the whole of the modern era, that it was not at all a matter of opposition between judiciary mechanisms univocally aimed at repression and individuals rendered powerless by their ignorance of the laws: rather, a dynamic and fertile relationship existed in which women, first and foremost, moved with ease, capable of mobilizing the social and institutional figures most useful to them I order to achieve their purposes.

“Hosea and Gomer”, a miniature from the Bible of Manerius (c. 1185-1195)

The context in which such creative wisdom can be seen most clearly is that of marriage, for long centuries governed exclusively by Canon Law. The canons which made up the Corpus iuris canonici were enriched and profoundly modified over the course of time, but without changing in any way any of the characteristics of Christian marriage. The first such characteristic is the fact that marriage is not a simple event in the life of individuals, directly derived from their first meeting and mutual attraction, but rather a process that has different stages and is capable of involving people far beyond the protagonists and their families. The second is the fundamental role played by sexuality in the entire process – and not only at its conclusion. The third characteristic is the public dimension of each of its stages.

Before the Council of Trent, the establishment of a marriage was guaranteed exclusively by the exchange of consent between the partners. At that time rituals differing from region to region marked the various moments of its completion: for example the exchange of rings or transferral to the conjugal home. Everything, however, was based on the betrothal, that is, on the exchange of a promise to marry, which gave rise to the serious obligation of carrying the betrothal to its conclusion and which could be transformed into a perfect marriage only through carnal union.

It was the Council of Trent, in the second half of the 16th century, which imposed a break with the previous tradition: the Tridentine canons established that the couple’s consent must be exchanged before the parish priest and witnesses, reserving to the Church exclusivity in the celebration of marriages and the monopoly of ecclesiastical jurisdiction over marriage. Nevertheless, the Council made no explicit pronouncement on the validity and role of the promise, thereby leaving a long road on which in subsequent centuries many women were to tread, in search of a matrimonial arrangement.

Marc Chagall, “The Bride with Two Faces” (1927)

If indeed it was inevitable for women to think in terms of their familial position, marriage represented the transition from their first natural condition, that of being a daughter, to the social and juridical condition of being a wife. This was an objective which affected not only the material sphere of financial maintenance – an unattainable privilege for working-class wives – but also women’s perception of themselves and of their place in social relations: in order to obtain this objective many women decided to risk staking the resource available to them all: their sexuality.

Thus, after regular meetings and courtship, the promises exchanged at betrothal continued to constitute the decisive turning point, simply by starting the preparation of the documents necessary for the celebration of marriage, and betrothal might be followed by sexual relations and even a pregnancy, without scandal provided that it was immediately regularized by matrimony.

However, something might go wrong, and the course towards marriage become tortuous and conflictual. Profound gender differences could emerge in the perception of the reciprocal commitment: the man might have insisted on a demand for sexual encounters while the woman might have understood such insistence as a proof or guarantee of the validity of the promise made at betrothal; he might have continued to feel free to have second thoughts – ready, if anything, to accuse her of excessive availability – and she might have given herself, perhaps aware of forcing an abstract idea or an agreement merely aired, making prudent use of a resource, her sexuality, which could serve as a guarantee that the outcome would be marriage.

It was at this point that Canon Law, the judicial mechanisms and the ecclesiastical hierarchies came on to the scene as supporting actors with decisive powers. Aut nubat, aut dotet, aut ad triremes thundered the norm that all interventions in matrimonial conflicts: a betrothed man who had persuaded the girl into carnal union would be compelled either to marry her or to provide her with a dowry, otherwise he would be sentenced to imprisonment.

Fernando Botero, “The Arnolfini Wedding”

The two sexes appear to be represented in a direct and univocal manner in ecclesiastical policy: male seducers who exploit female trust and weakness, ingenuous women who give themselves passively, trusting that outcome of copulation will be marriage.

Of course everyone knew that things were often not like this. Already in the 18th century bishops and cardinals had complained of “the abuses of women” and the excessive “facility of women for letting themselves be seduced in the hope of obtaining a dowry or achieving marriage”, providing far more articulate images than the stereotypes of male prevarication and female modesty. But the Church’s policy did not change, nor did the use that both the clergy and the faithful made of the law and of its loopholes. The favor matrimonii was the spirit that alighted on every intervention by the ecclesiastical institutions: the priority – especially once the carnal union was accepted – was to conclude, and as far as possible to accelerate the date of the marriage. Thus, if the pressures of relatives were not sufficient to convince recalcitrant seducers, women and their families had recourse to the ecclesiastical tribunals, the magistratures entrusted with monitoring matrimonial disputes and sexual behaviour in general. The ancient authorities, never definitively outdated, were appealed to: those which, from the Middle Ages, attributed to the sexual relationship which followed betrothal a founding value of the conjugal bond, and which made evasion of the commitment thereby acquired a crime to be pursued not with a civil lawsuit but with penal proceedings.

So it was that another of the characteristics of the formation of Tridentine matrimony came back into play, namely publicity, this time not of marriage but of the sexual union. Before the judges the accounts of deflowered young women or the testimony of the parents, who were stricter and more concerned with re-establishing the family honour, could not suffice. For here were girls who had let themselves be taken in dark corners of the town so that they could inform the acquaintances they met on their way home of what had happened and girls seduced in temporarily empty dwellings who wished to show their neighbours with the signs on their shifts of their loss of virginity The files kept in the archives of the ecclesiastical tribunals are full of stories which show how the spreading of news of their act of copulation was a specific aim of girls determined first and foremost to gather together proofs and depositions that would be useful to them before the judges. Moreover such publicity did not stir up scandal: in the mental horizons of both the clergy and the faithful, sex after betrothal continued if not to be approved at least to be accepted, since it was consummated not for pleasure or through indifference to Catholic morality but in order to attain at last the “fine mesh of marriage”.

Recourse to the tribunal thus paved the judicial way to marriage. And since the absence of scandal made no exemplary punishment necessary, patient and delicate negotiations could begin whose negotiators – the parish priest at the first stage and later the judges – played a crucial role as mechanisms of pacification and arbitration. They convoked, questioned and persuaded, showing an infinite capacity for acceptance and mediation. Victims of a deception or its instigators, innocent and complicit, women asked the judges for reparation and tolerance and obtained protection, compensation, and reintegration into a shaky respectability.

But times change and the end of the Pope’s temporal power brought with it the disappearance of ecclesiastical tribunals and the definitive confirmation of the validity of civil law on matrimonial affairs; it made room for and gave authority to other institutions – the state, political parties, ideologies – which proposed to assert and to spread a sexual morality that was different and far removed from the Catholic one.

Pressed by new competitors, the Church chose to respond by tightening up her precepts, reducing the space for negotiation, elaborating a model of female virtue which exalted virginity and purity and asking women to defend a wholly physical maidenhood even at the cost of their lives, as did Maria Goretti. Canon 1017 of the new Codex iuris canonici promulgated in 1917 established explicitly that the promise of marriage does not give the right to claim the consummation of the betrothal. Moreover its more rigorous interpreters maintained that in no case was an admonitory intervention licit – of the confessor in the internal forum or of ecclesiastical institutions in the external forum – in order to urge people to the celebration of marriage. It was not only the most convinced recognition of individual responsibility but also competition with the new institutions in the defence of the Church’s primacy over sexual and family morality.

It was not for this reason that chastity began to regulate relations between the betrothed couple. However, negotiation between them on the carnal union became completely private, taking place in secrecy, and involved a concrete threat of a now irredeemable disgrace: in the face of the wholly male blackmail on the “proof of love”, women were henceforth to be compromised and to be on the losing side – and, especially, to be far more alone.

Margherita Pelaja

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