Recorded among the early sixteenth-century decisions of the Royal Council of Naples is the case of Cassandra, a woman otherwise unknown to history, who had been brought up on charges of adultery.Footnote 1 The male malefactor in the proceedings was Bartholomaeus de Corrado, identified only by his profession as barber (barbitonsor). The case had been initiated through an accusation by Cassandra's husband, but now the Court had arrived at an impasse because he had since decided to reconcile with his wife and no longer wished to pursue the matter legally. What animated the Council's discussion — and what was presumably the reason why this case was singled out among hundreds of others for publication in an edited volume of its decisions — was the question of whether the Council could now proceed ex officio in default of an accuser. As one of the Council members reasoned, did not Christ himself say to the adulteress a stone's throw away from her punishment: “Woman, where are thine accusers? No one has condemned thee; neither, then, shall I.”Footnote 2 Other members of the Council, however, argued to continue the prosecution of the case, despite the husband's change of heart. Citing a number of precedents from both Roman and canon law, they reasoned that adultery was by definition a public crime (crimen publicum) because it carried with it the death penalty, and therefore it demanded ex officio prosecution. In the case of an adulterer this penalty was actual death (mors naturalis). In the case of an adulteress, even though she would not be executed, her sentence would be a kind of civil death (mors civilis), because following a round of corporal punishment she would be forced into a monastery and removed from the world, a punishment Council members labeled monastic detrusion (detrusio in monasterium).Footnote 3
Despite these arguments, the Council remained hesitant about establishing a precedent whereby the judicial machinery of the kingdom would be forced into action against the sexual transgressions of its subjects in the absence of claims of injury by family members or spouses. They ultimately did settle on a way forward, however, and proceeded with the judgment and sentencing of Cassandra without setting a precedent that would bind them to pursue adultery charges ex officio in the future. Having been caught in the house where the adultery was committed, and having confessed to it in court, Cassandra had made her crime notorious (notorium), and therefore it behooved the Council to render judgment for the sake of public order. Cassandra was indeed beaten and handed over for monastic confinement (though she later successfully appealed for a transfer to a hospitale incurabilium). To the relief of the compiler of the case, Tommasso Grammatico, the beating had been administered minime, assuaging his worries that a severe application of corporal punishment would discourage any respectable convent from receiving her.Footnote 4
The Neapolitan Kingdom was not the only place in the early sixteenth century where monastic detrusion was being newly applied as a penalty for wives convicted of adultery.Footnote 5 As Sara McDougall has recently demonstrated, the punishment was also being revived contemporaneously by French royal courts, which represented a shift in the enforcement practices of the prior century — at least in northern France — that instead tended to prioritize prosecution of adulterous husbands, and with only an amercement.Footnote 6 In the case of France, the family and gender relations became a battlefield for the assertion of French royal justice over local jurisdictions and the formidable competing apparatus of ecclesiastical courts.
The focus of the present study is not on the particular reasons why early modern courts turned to a form of punishment that ultimately went back to the Roman emperor Justinian but rather on the vectors of transmission through which the precedents for its application regained currency.Footnote 7 In some ways we are confronted with another chapter in the history of the ius commune — the shared body of texts drawn from Roman, canon, and feudal law, as well as the common jurisprudential methodology studied in law schools and applied in courts throughout Europe from the thirteenth century well into the Reformation period.Footnote 8 In the specific case of detrusion, however, there is a crucial part of the story that unfolds in the thirteenth century that deserves particular scrutiny, where we find canonists grappling with the propriety of more coercivce forms of punishment in the ecclesiastical forum, as well as the use of institutions like the monastery as a site for disciplining the laity. The arguments that arose in the thirteenth century over detrusion would largely set the parameters for future debates of the practice.
This study originated as a textual problem related to the first official collection of canon law prescribed for exclusive use within the Catholic Church in 1234: the Decretals of Gregory IX, also known as the Liber extra.Footnote 9 The Decretals was the culmination of a shift that had begun during the Gregorian Reform whereby the Roman Curia now claimed the central role in directing (and in many ways creating) the institutional life of the Church, not only serving as the Church's highest adjudicative and legislative authority but also defining the corpus of legally acceptable precedents as they were now embodied in this canonical collection. In addition to culling material from the so-called Quinque compilationes antiquae, the five canon law collections assembled between 1190 and 1226 that, along with Gratian's Decretum, formed the foundation of the university curriculum in canon law, the compiler of the Decretals, the Dominican St. Raymond of Penyafort (1175–1275), inserted material from Gregory IX himself.Footnote 10 Raymond's principal source for this material was Gregory's papal registers.Footnote 11 This affords historians the opportunity to compare the often highly edited Decretals version of the Gregorian capitula with the original, thus enabling judgments about the legislative intent of the pontiff both for his own contributions and for the collection as a whole. As it turns out, one of Gregory's letters, X 3.32.19 Gaudemus, which recommended placing into convents women left by their husbands over adultery, came to occupy the center of legal debates over the practice of detrusion in the thirteenth century. An examination of the enregistered original and its historical context shows that it was meant as a pastoral provision, intended to provide women with few other opportunities the chance to partake in religious life.Footnote 12 Yet in the hands of canon law jurists, whose commentary was a crucial component for the interpretation and implementation of the law, Gaudemus came to be a coercive prescription for detrusion as the appropriate ecclesiastical sentence for adultery, not a voluntary, penitential measure. What caused this disjuncture between original intent and later interpretation?
In seeking to understand the origins of this shift, the present study uncovers a largely unexamined debate among thirteenth-century canon law jurists over the practice of detrusion as a penalty for adultery. The origins of the debate are familiar enough. Along with a myriad other penalties and procedures, detrusion for adultery was one of the many legal innovations made by the emperor Justinian following the promulgation of the Corpus iuris civilis that the twelfth-century Glossators sought to integrate within their revived system of Roman law. Although there is textual evidence suggesting that it drew some extra scrutiny, in the main the Glossators were little concerned with the penalty itself and rather with the implications it had for marital property or how it might alter the judicial procedures used in an adultery case. It was initially these procedural questions — such as the respective rights of men and women to bring an adultery charge, the permissibility of representation by an advocate (procurator), or whether spouses could be liable for calumny according to the law of retribution (poena talionis) if they failed to prove the charge — that first drew the attention of canonists like Huguccio of Pisa to the detrusion penalty. Although there were many regional variations, adultery had generally been met by the Church with some form of public penance or, for particularly egregious cases, excommunication. There came a turning point around two decades prior to the promulgation of the Liber extra when some canonists began treating detrusion — for reasons that remain obscure — as an appropriate sentence for adultery not just in secular courts but also in the ecclesiastical forum. Gregory IX's Gaudemus was thus received into a tradition that had recently developed a punitive reading of monastic life for women convicted of adultery. It was so recent, in fact, that it was not undisputed, and for the remainder of the century canonists went back and forth arguing about the appropriate use of detrusion by the Church, along with the status of those subject to it. In the process, the original, pastoral purpose of Gaudemus was largely forgotten, but the resultant debate provides a fascinating window onto the emergent use of punitive incarceration, which by the end of the century would receive formal legal recognition through Pope Boniface VIII's Quamvis, published in the Liber sextus (VI 5.9.3).
Although scholarly interest in the varieties of medieval incarceration goes back several decades, there has recently been more attention to the specific use of the monastery as a site of confinement for the laity.Footnote 13 Guy Geltner, in a survey of detrusion focused mainly on the period prior to the thirteenth century, has brought together a wealth of prescriptive evidence recommending the penalty for a whole range of lay offenses, suggesting the practice was more widespread than the rare mentions in narrative sources would lead one to believe.Footnote 14 In recognition that the medieval monastery as a site for lay punishment and penance belies the notion that rehabilitative incarceration is a post-Enlightenment development, an entire volume was recently devoted to exploring the variety of social, institutional, and intellectual currents that intersect in this phenomenon.Footnote 15 Yet there has been little discussion of the specific application of detrusion for adultery and what it might reveal about the larger practice of lay monastic confinement as well as the growth of punitive incarceration in the high-medieval period. Part of this has to do with a subject matter that theoretically occurs at the intersection but more often falls within the interstices between the canon law treatment of marriage, religious life, and criminal penalties.Footnote 16 There are also formidable source issues involved. The limited court records documenting marriage litigation in the thirteenth century give no direct proof that detrusion was sought as punishment for adultery.Footnote 17 When it comes to the canonistic debate itself, the majority of the commentary literature from the thirteenth century remains unedited, and the early modern editions of important canonists like Hostiensis and Bernard of Parma have obscured an evolving position on detrusion evident in earlier recensions of their glosses.Footnote 18 A major component of this study will thus be an excursus into the manuscript tradition of the commentary literature on thirteenth-century decretal collections, both as necessary precursor to the presentation of their arguments and as demonstration of how the multiple recensions of these works may be profitably exploited to reconstruct the legal debates of the period.
The Detrusion Legislation of Emperor Justinian
In the years following the promulgation of the Corpus Iuris Civilis, Justinian enacted a series of laws prescribing monastic detrusion as a criminal sentence for both clerical and lay offenders, laws that were later collected in the Novellae, the volume of his supplementary legislation to the Corpus.Footnote 19 When applied to the clergy, it was used to punish a variety of moral infractions as well as the misuse and abuse of ecclesiastical office. For the laity, however, detrusion was invoked exclusively for acts that broke the marriage bond. It was applied to either husband or wife (or both) for initiating an unlawful divorce (Nov. 117.13; 127.4; 134.11), but, for adultery, the penalty was reserved for the woman alone (134.10; 134.12).Footnote 20 Since the precise wording of Nov. 134.10 and the provisions it inspired will become a subject of later discussion among medieval jurists, it is worthwhile to reproduce the text here:
Adulteram vero mulierem competentibus vulneribus subactam in monasterio mitti. Et si quidem intra biennium recipere eam vir suus voluerit, potestatem ei damus hoc facere et copulari ei, nullum periculum ex hoc metuens, nullatenus propter ea quae in medio tempore facta sunt nuptias laedi. Si vero praedictum tempus transierit, aut vir prius quam recipiat mulierem moriatur, tondi eam et monachicum habitum accipere, et habitare in ipso monasterio in omni propriae vitae tempore.
[We order], however, that an adulterous woman, after undergoing the appropriate corporal punishment, be sent to a monastery. And if within two years her husband should wish to take her back, we give him leave to do so and reunite with her without fearing any negative consequences as a result, nor fearing that the marriage may have been damaged by anything he did in the interim. But if the allotted time passes, or the husband should die before he is able to take back his wife, let her be shorn of her hair and receive the monastic habit, and dwell in that monastery for the entirety of her natural life.
Nov. 134.10 ends by specifying how the woman's dowry and property should be divided up between the monastery and her surviving family. In the same novella (134.12), Justinian also ordered lifelong detrusion for a woman who ended up marrying the man with whom she had committed adultery. While seemingly draconian to modern eyes, the Justinianic provision was actually conceived as an amelioration of previous penalties, a fact that medieval commentators on the law hardly ever failed to note.Footnote 21 Adultery had been a public crime in Roman law since Augustus's Lex Iulia de adulteriis et de stupro, which compelled the father and/or husband of an adulterous woman to bring a charge against her (following a mandatory divorce) and permitted any Roman citizen to institute proceedings if the family failed to do so.Footnote 22 It is generally assumed that emperor Constantine I subsequently made adultery a capital offense, though the older penalties of exile and/or loss of citizenship prescribed by the Lex Iulia continued as penal options after his reign.Footnote 23 While Justinian ultimately retained capital punishment for male adulterers, by summoning the penitential discipline of the monastery as an adjunct to criminal enforcement, he introduced “the unprecedented concept of corrective imprisonment” into the Western legal tradition.Footnote 24
The impact of Justinian's detrusion legislation in the Western provinces was limited to Italy, but, as it was mediated through the Roman bishops, it would leave a footprint in canon law. This had important consequences for later discussions of detrusion among medieval canonists because it provided canonical precedents once the Justinianic legislation came back into circulation. Answering a request from one of his subdeacons for advice on an adultery case, Pope Pelagius I (556–61) directed that the female malefactor — if her husband refused to accept her back — should be relocated to a place where she would not be permitted to “misbehave” (locum in quo ei non liceat male vivere).Footnote 25 Pelagius's formulation borrows directly from Justinian's language, including the proviso that the husband who chooses to receive back his adulteress wife should do so only if he perceives no danger (periculum) of a similar occurrence in the future. Given these echoes, it is safe to assume that his final circumlocution about the proposed residence for the woman refers to a monastic environment. De Benedicto, as later canonists referred to Pelagius's letter, would eventually make its way to Gratian's Decretum (C. 32 q. 1 c. 5), and would be one of the primary proof texts used to justify detrusion in the late-twelfth and thirteenth centuries.
At the turn of the seventh century we also find Pope Gregory I (590–604) using monastic confinement in an almost programmatic fashion for cases falling under both his episcopal and his expanded civil jurisdiction, as Julia Hillner has shown in a study of his correspondence.Footnote 26 Amidst this record there is no instance of Gregory ever having delivered a detrusion sentence for a laywoman convicted of adultery. There is, however, an unusual case where he ordered openended penitential monastic confinement for an unmarried male offender who had committed fornication (stuprum) with a young woman — if he refused to take her as his wife. Although this letter would also wend its way through the canonical tradition into the Liber extra (X 5.19.1), it curiously never played a large role in canonistic discussions of detrusion, perhaps because it dealt with non-clerical male fornication rather than female adultery, or perhaps because the use of the monastery in this case was more as a temporary holding cell and did not involve any change in status of the subject.Footnote 27
Transmission of the Detrusion Legislation in the Glossators
As they did with the other Justianianic material in the Novellae, the twelfth-century Glossators incorporated the detrusion legislation into their reading of the Codex's provisions on adultery.Footnote 28 The process of incorporation is revealing insofar as it shows an evolving interest in the issue along with a recognition that certain aspects of it might not be compatible with canon law as currently practiced. Roman-law jurists were mainly concerned with the property consequences of detrusion, but in the thirteenth century — when detrusion came under scrutiny from canon lawyers as well — they also began to debate the monastic status of the woman and ultimately denied her any formal recognition as a nun.
There were two vectors for the transmission of the detrusion provision in the twelfth century.Footnote 29 One was through the Authenticum, a collection of the full text of the majority of the Novellae in Latin translation.Footnote 30 Commentaries on the Authenticum did not emerge until the late twelfth century, however. Even then the collection remained less well attended than the traditional books of the Corpus iuris civilis, perhaps because they did not offer as ready a framework for the systematic treatment of a single subject owing to each Novella usually treating a variety of disparate issues. The second and ultimately more common allegation of the detrusion provision was as one of the authenticae (not to be confused with Authenticum) inserted as an addendum to the relevant title in the Codex.Footnote 31 There were, in fact, five authenticae added to the title on adultery (Cod 9.9),Footnote 32 two of which dealt directly with the detrusion penalty (Sed hodie and Sive novo iure).Footnote 33 This shows a marked interest in Justinian's contributions to marriage law, given that there were less than 250 authenticae in total that were copied into the margins of pre-Accursian Codex manuscripts.Footnote 34
The earliest reference to the detrusion provision among the Glossators was by the author of the Summa Trecensis (generally assumed now to have been the jurist Rogerius), considered the first Summa devoted to the Codex (ca. 1150).Footnote 35 At the end of his discussion of Cod. 9.9, the author tersely notes — using words that seem to be a hybrid of both detrusion authenticae — that the punishment for women adulterers has been altered to bodily castigation and monastic confinement, with a two-year timeframe given to husbands to take them back.Footnote 36 When a later author revised the work a couple of decades later, he was apparently not satisfied with the brevity of this notice and so reproduced the Sed hodie authentica in full.
Despite Rogerius's having integrated the Justinianic additions to the Roman Law on adultery, civil law commentators were initially circumspect about these changes, when they even chose to mention them. Though his brief statements on the subject of adultery indicate he was familiar with some of the Justinianic additions, Richard of Pisa (fl. 1160s), author of a Provençal commentary on the Codex that relied on Rogerius, made no mention of the detrusion provision and refrained from giving a more thorough treatment of divorce, since it was now, according to him, the province of canon law.Footnote 37 Unlike Richard, William of Cabriano (fl. 1150s–60s) was able to integrate Justinian's detrusion penalty into the discussion of adultery in his Casus Codicis, though perhaps a less than thorough familiarity is betrayed by his miscitation of the text in the Authenticum. Yet William was obviously uncomfortable with the full implications of the provision and noted that the law's forcible monasticization of women after two years was contrary to canon law.Footnote 38
As the twelfth century rolled on into the thirteenth, jurists became more willing to uphold the detrusion penalty without noting any discordance with the canonical tradition. The discussion in Azo of Bologna's Summa Codicis (ca. 1210), for example, which betrays a familiarity with, if not a direct reliance on, that of William of Cabriano, simply dropped William's editorial comment that the woman's forced monasticization would be a violation of canon law.Footnote 39 Azo was of the opinion that the main beneficiary of the detrusion provision was actually the husband. It gave him up to two years to decide whether he wished to reconcile with his wife, whereas pre-Justinianic law did not even offer reconciliation as an option, and compelled that he make an accusation or be charged as a panderer.Footnote 40 To the extent that the penalty provoked scrutiny, it arose from a concern over the integrity of the marital property. Johannes Bassianus seems to have been the first to notice how the detrusion penalty wreaked havoc with the way the marital property should normally have been apportioned if the divorce were due to a woman's transgressions. One would expect, according to Johannes, at least the dowry to go to the husband, yet the language of the full Authenticum not only divided the wife's property between the children and the monastery itself but also kept in place the prenuptial agreements (pacta dotalia) that gave the woman the right to specify control over the dowry if she were to predecease her husband.Footnote 41 The fact that the prenuptial agreement persisted even after the woman was placed in the monastery indicated to Johannes that she was not a religious nor ever would take formal religious vows. The denial of full monastic status to the women subject to the detrusion penalty, which would also become a flashpoint of debate among the canonists, became the consensus position of Roman-law jurists when Accursius entered Johannes's position into the Ordinary Gloss on the Codex.Footnote 42
Detrusion for Adultery in the Canonical Tradition through 1234
At some point in the last quarter of the twelfth century, canonists began to include the Justinianic provision in their discussions of adultery. The initial use of it was quite narrow, however. Canonists were fond of contrasting the mansuetudo of the canones with the rigor of the leges when it came to marriage law. Not only were the punishments more humane in the ecclesiastical forum, there was — at least in theory — equality with respect to gender in terms of who could bring an action as well as the consequences attendant upon conviction, resulting in an informal maxim often cited among canonists that uxor et maritus non ad imparia iudicantur.Footnote 43 The Justinianic changes to marriage law could thus be summoned to demonstrate how even Roman law had moved away from its earlier draconian stances on such things as the death penalty for adultery or a concern only with the misbehavior of the woman within marriage.
The first canonical citation of the detrusion provision seems to have been made by Huguccio of Pisa (d. 1210) in his Summa on the Decretum.Footnote 44 Ironically, Huguccio initially summons the provision as support for the one text in the canonical tradition that it directly influenced, Pope Pelagius's De Benedicto (C.32 q.1 c.5).Footnote 45 Without giving any specific information as to its provenance, Huguccio cites it to argue that Pelagius's order of monastic confinement for the adulteress has precedent in Roman law, thus proving the larger point he is trying to make in his commentary, that husbands cannot be forced to take back their adulterous wives.Footnote 46 Huguccio would again summon the provision in his commentary a few capitula later but simply as an aside that capital punishment for adultery had been superseded even within Roman law.Footnote 47 Both these references show that Huguccio was not particularly interested in the provision other than as an illustration of what canon law already taught. Its marginal nature is also evident from how he does not even give the source of the text other than its being from the Authenticum.Footnote 48
Despite his limited concern with the secular punishment of adultery, Huguccio did display a marked interest in procedural questions about marriage litigation. At the root of his concern was a polemic against Gratian's teaching on whether there was an equal right of accusation for both husbands and wives in adultery. Gratian had used the special privileges accorded to husbands in adultery accusations, the so-called ius mariti, as an example of exceptions to the normal requirement that accusers could incur the penalty of calumny (according to the poena talionis) if they failed to prove the charges and thus suffer the punishment the accused would have undergone if convicted of the crime.Footnote 49 Huguccio was deeply read in the Roman-law Glossators' discussions of the subject, and so his first tack was to complicate the issue.
After Huguccio it became standard for canonists to identify detrusion as the penalty prescribed for adultery within Roman law, as per Justinian's modifications. Bernard of Pavia, whose Compilatio prima made the decretal collection into a central component of the university canon law curriculum, included the provision in his discussion of the title on adultery and fornication in his own commentary on 1Comp. As it had for Huguccio, the provision gave Bernard the opportunity to distinguish the canonical and legal penalties for adultery. Although he provided more specific locating information than Huguccio had, Bernard's unusual allegation of the text at Nov. 134.12 betrays a continued lack of familiarity with the provision.Footnote 50
Canonists began to take a greater interest in the detrusion provision during the pontificate of Innocent III. It is unclear whether this reflected simply the growing sophistication of canonical jurisprudence, which now confidently engaged questions arising from the conflict of laws, or whether it corresponded to some genuine rethinking of the penalties applied to adultery, perhaps resulting from the enhanced jurisdiction claimed by the Church in marital affairs since the twelfth century. The occasion for this interest had to do with whether marriage litigation should adopt elements of criminal procedure if during the case criminal charges were alleged by one of the parties. Under normal civil procedure, which marriage litigation in Church courts followed, parties could conduct the suit through an advocate (procurator). But what if in the middle of the proceedings one of the spouses suddenly charged the other with criminal wrongdoing, say, adultery or murder? Would that not obligate the suit now to be conducted in person with the accuser also binding himself through the oath of calumny to suffer retribution (poena talionis) should he fail to prove the accusation, as was standard for any criminal case? The decretists had already been arguing the issue for some time, but the papacy continued to field questions from bishops asking for guidance, and their answers often created more confusion.Footnote 51 Where the detrusion provision fit into all of this was in creating the very strange hypothetical of a man, desirous of leaving his wife to enter into religious life, falsely accusing her of adultery, and when the accusation was proved calumnious he would suffer the penalty of becoming a monk! Since the deployment of the detrusion provision in this instance would have important consequences for its later interpretation, it is worthwhile to spend some time examining the canonists' debate over what might at first glance just seem like academic hairsplitting.
Stuffed within a grab bag of clarifications directed by Innocent III to a set of legal inquiries from the bishop of Brescia was a guideline for the use of advocates in adultery cases that would become the definitive statement within thirteenth-century decretal law.Footnote 52 The bishop apparently thought that both Roman and canon law forbade the use of advocates when husbands brought formal adultery charges against their wives, though he had decided to check with the pope to be certain. Innocent conceded that normal criminal procedures had to obtain — that is, the accuser must be present in court and bind himself through inscription to the poena talionis — when an adultery charge was brought before a secular judge.Footnote 53 Before an ecclesiastical judge, however, when the legal judgment sought was separation, the poena talionis could not be in effect, lest the accusing husband engineer some sort of heads-I-win-tails-you-lose situation. Adultery cases constituted a kind of hybrid category between civil and criminal (quasi mixta inter civilem et criminalem), and therefore elements of criminal procedure were still appropriate, such as the drawing up of a formal accusation in writing (inscriptio). As such, it was safer, according to Innocent, for the parties to be present at court rather than litigate through advocates, though, if necessity demanded, a charge could be filed through an advocate. This final recommendation is the reason why this text was placed by canon law compilers in the title on advocates (De procuratoribus) rather than in one related to marriage or adultery.
Even though Innocent did not specify the penalty associated with an adultery conviction in a secular court, the commentators on the text immediately associated it with detrusion now that Justinian's reforms had become generally known through their recovery by the Roman-law Glossators and the decretists. The earliest commentators on the text at 3Comp 1.22.2 Tuae, like Laurentius Hispanus and the anonymous compiler of the gloss apparatus known as Servus appellatur, simply equated the secular penalty for adultery with detrusion without further comment, though notably they were the first to begin citing the text according to its form as one of the authenticae inserted into the Codex with the Sed hodie incipit.Footnote 54 In Vincentius Hispanus's commentary we see the growing complexity of the detrusion question. When commenting on the poena talionis, Vincentius brought up the fact that there existed disagreements among the legistae [Roman-law Glossators] as to whether the husband would now be subject to calumny in the wake of the Justinianic modifications to marriage law.Footnote 55 Vincentius ultimately sides with those who felt that calumny was now the law and asserts that Innocent himself was taking that side in the decretal, thus correcting previous Roman law and canonical assertions that men had a special right of accusation. Anticipating what a credulous reader would ask as an immediate follow-up to this assertion, Vincentius spells out quite clearly in his concluding remark to the gloss that a husband failing to prove his accusation would not only break up the marriage and lose the marriage gift (donatio propter nuptias), he would also be forced to enter a monastery since this is what the wife would have suffered (quia hoc pateretur mulier).
Up until now all of this could be dismissed as a debate over the penal structure of a theoretical legal system since by this point the Church had successfully claimed the right to hear marriage cases in ecclesiastical courts. Things suddenly got confused, however, with the appearance of Johannes Teutonicus's apparatus on 3Comp, which would have a wide impact due to his reprisal of these remarks in the commentary on some related texts in his Ordinary Gloss to the Decretum.
According to Johannes, the detrusion penalty is by definition ecclesiastical and therefore can be applied in church courts.Footnote 56 How Johannes arrived at this position is unclear, but it appears to be original to him given the lack of precedent in prior commentaries we have seen on the text. That Johannes did not simply misstate himself is shown by his reiteration of the remarks in his commentary on Gratian. Johannes brings up 3Comp 1.22.2 Tuae in a discussion of the alleged inequality between men and women in adultery accusations, the same place where Huguccio had spilled so much ink in disagreement with Gratian.Footnote 57 In the middle of asserting, as Vincentius had done, that Innocent had upheld the use of the poena talionis in secular adultery cases, Johannes suddenly breaks into an exasperated rebuke of the pope for not understanding how adultery cases are handled: “I am, however, astonished why Innocent should say that inscription is necessary when before a secular judge because these days the secular punishment [for adultery] has been commuted into an ecclesiastical one according to the Sed hodie authentica.”Footnote 58
Johannes's meaning is somewhat obscure. His terminology in reference to the detrusion penalty as a poena canonica (3Comp) or ecclesiastica (Decretum) would suggest he thought of this punishment as reserved for church courts, as it would be odd to speak of a secular court applying an ecclesiastical penalty. If we widen the lens, though, to include not just the penalty itself but the procedures by which it was administered, he still clearly envisions a scenario where the detrusion penalty is being applied in a secular court. There seems no other way to make sense of his extended discussion of whether the poena talionis applied in these cases, given that he categorically ruled out the poena talionis for adultery accusations in the ecclesiastical forum.Footnote 59 Indeed, a good portion of Johannes's commentary on adultery accusations in both his Decretum and his 3Comp glosses concerns the mechanics of the poena talionis. Even if his discussion is largely theoretical — assuming he imagines the detrusion penalty as an issue now for ecclesiastical courts — his comments about forced monasticization reveal an interesting shift in canonists' thinking about the monastery as a site for lay punishment. In addition to the standard argument against the poena talionis in adultery cases — that it could be used as a loophole for men seeking to circumvent their wives' permission to enter monastic life — Johannes also brings up as a potential objection that the monastic vocation, like consent to marriage, has to be voluntary to be valid.Footnote 60 Johannes dismisses this concern, however, by citing a number of precedents from the Decretum where forced monasticization is used as punishment (though he neglects to mention that these cases involved persons of clerical status).Footnote 61
Whether intentionally or not, Johannes Teutonicus's commentary introduced into the canonical tradition the idea that detrusion was an appropriate punishment for women convicted of adultery — not just in the past, within that model of all legal systems, Justinianic Roman law, but in the present and before an ecclesiastical judge. It would not be too long before this shift in the tradition would become evident. What was needed to catalyze the shift, however, was a more direct pronouncement recommending the detrusion penalty and not simply the inferences in a set of marginal glosses dealing with legal procedures. This catalyst would be provided — and it should be added, unwittingly — by Pope Gregory IX and Raymond of Penyafort through the inclusion of X 3.32.19 Gaudemus in the Liber extra.
The Origins of X 3.32.19 Gaudemus
X 3.32.19 Gaudemus was derived from Gregory's June 1227 letter to Rudolph, a canon of the church of St. Moritz in Hildesheim who had been the chaplain of cardinal bishop of Porto and S. Rufina, Conrad of Urach, during the latter's legatine mission in Germany to reform the German church and preach a new crusade (1224–27).Footnote 62 Contemporaneous with his service under Conrad, Rudolph was building a pastoral ministry to prostitutes. He provided those whom he had persuaded to leave their profession with dowries and assistance in finding husbands and set up a community where those who sought a more formal conversion could make a profession of vows and take up residence.Footnote 63 Gaudemus gave Rudolph additional powers to provide pastoral oversight and to make the religious community — now a convent — a kind of center of evangelization for women in similarly difficult circumstances.Footnote 64 The section of the letter that would ultimately appear in the Liber extra comes towards the end, where Gregory is discussing Rudolph's related efforts to rehabilitate women who had committed adultery but whose husbands were reluctant to take them back. Once their husbands had definitively rejected resuming cohabitation, Gregory advised Rudolph to relocate such women to his convent for converted prostitutes where they would live out the rest of their lives in penance.
Raymond took this local, ad hoc penitential provision and made it into a general recommendation that women convicted of adultery should be placed in convents:
Original Letter from Papal Register
Auvray 110; Reg. 14, fol. 17r–v: an. 1, no. 110
Gaudemus in Domino. … Mulieres vero, que relicto maritali thoro, lapsu carnis ceciderunt, si mariti earum a te diligenter commoniti, eas ad frugem melioris vite conversas noluerint recipere, propter Deum in claustris ipsis cum praedictis conversis mulieribus studeas collocare, ut perpetuam penitentiam ibi agant.
Gaudemus in Domino. … But those women, who, having abandoned the marriage bed, have fallen away due to the sinfulness of the flesh — if their husbands, after having been repeatedly exhorted by you, should still not wish to take them back even after they have turned to a better way of life — you should, for the sake of God, endeavor to place them in those convents with the aforementioned converted women, so that there they may perform perpetual penance.
X 3.32.19 Gaudemus
ER, vol. 2, coll. 1271–72
Gaudemus in Domino (et infra) Mulieres vero, que relicto maritali thoro, lapsu carnis ceciderunt, si mariti earum a te diligenter commoniti, eas ad frugem melioris vite conversas noluerint recipere, propter Deum in claustris cum religiosis mulieribus studeas collocare, ut perpetuam penitentiam ibi agant.
Gaudemus in Domino (et infra). But those women, who, having abandoned the marriage bed, have fallen away due to the sinfulness of the flesh — if their husbands, after having been repeatedly exhorted by you, should still not wish to take them back even after they have turned to a better way of life — you should, for the sake of God, endeavor to place them in convents with religious women, so that there they may perform perpetual penance.
While it is not unusual to find a decretal incorporated into the Liber extra shorn of its case history and narrative elements, something that applies as equally to Gregory IX's own decretals as to those of his predecessors, here the removal is so complete as to leave intact only the dispositive statement of law.Footnote 65 Other than the partes decisae — the term canonists applied to the sections of the text left out by Raymond — the substantive transformation of the letter was achieved through the smallest of edits: the elimination of the demonstrative adjective ipsis and the substitution of religiosis for praedictis conversis. The remaining text is thereby disassociated from Rudolph of Hildesheim's convent for reformed prostitutes and expanded to include, presumably, any female religious community as an appropriate site for perpetual penitential residence.
Did Gregory intend that these women could enter a religious order and make a full profession of vows, as opposed to just residing there in perpetual, penitential confinement? The placement of Gaudemus in the title on the religious profession of spouses (X 3.32 De conversione coniugatorum) suggests that he did think of it as a pastoral provision, providing women who would otherwise have little opportunity or resources to join a religious community. If Gaudemus were meant instead as a coercive or punitive measure, one would expect to find it in the title on adultery (X 5.16) or perhaps in that on penance (X 5.38). Unfortunately, however, counterfactuals do not provide evidence of legislative intent, especially for the type of case-law system that the Liber extra operated as, where decretals could be used to establish precedents in areas of the law loosely or wholly unrelated to their original context.Footnote 66 To the extent that we can peer inside Raymond's head to divine his intent when he put together the Liber extra, we are reliant upon his other canonical works, which include a general Summa de iure canonico, a Summa de matrimonio, and a Summa de paenitentia.Footnote 67 While all three were compiled prior to 1234, Raymond's penitential Summa was revised almost immediately after the Liber extra was promulgated and thus reflects the changes and updated interpretations that were introduced through Gregory's collection. There is a single citation of Gaudemus in the Summa de paenitentia that occurs in the title on vows but in an entirely new section that was added as part of Raymond's post-1234 revisions using language that essentially mirrors the text of the decretal. Raymond's text is framed as an affirmative answer to the question of whether women like those referred to in Gaudemus — that is, women who have committed adultery whose husbands refuse to take them back — can enter religion (religionem intrare), the usual formula for taking monastic vows.Footnote 68 It is clear, therefore, that when he was shaping the original Gaudemus decretal into what would be placed at X 3.32.19, Raymond — and by extension Gregory — imagined this as a pastoral and penitential prescription to enable the category of women covered by Gaudemus to gain admittance to monastic life.
The (Mis)Interpretation of X 3.32.19 Gaudemus
The earliest commentary on Gaudemus, executed by Guillelmus Naso, supports the pastoral/penitential reading of the text evident in Raymond of Penyafort's own work.Footnote 69 Naso asked whether these women might be able to remarry after the death of their husbands. According to his brief reply, they are not supposed to since Gaudemus prescribed perpetual penance for their transgression. If by chance they did contract a second marriage, it would remain valid provided, however, that they had not already made a religious profession or taken vows in the convent where they had been placed.Footnote 70 That Naso saw a second marriage as a distinct, albeit unlawful, possibility demonstrates that he distinguished between the penitential aspects of Gaudemus — that the women were supposed to live out their lives performing penance — and the allowance that they could join a religious community. The latter was open to them as a particularly suitable means of fulfilling their obligation to repent, but it was not required.
Very soon, though, the interpretation of Gaudemus shifted in a punitive direction, which occurred when canonists began to associate Gaudemus with Justinian's detrusion provision. At first this association was implicit, as can be observed in Vincentius Hispanus's Apparatus to the Liber extra.Footnote 71 Vincentius's concerns for Gaudemus are narrow, focusing exclusively on what happens to the marital goods and making sure that there is some distribution of property to the convent where these women end up lest they become a burden to the institution.Footnote 72 Although he never cites Sed hodie directly, all of his Roman law allegations are pulled from sections of the Novellae where Justinian dealt with the practicalities and implementation of the detrusion provision.Footnote 73 Moreover, in his updated commentary on Innocent III's Tuae, now X 1.38.5, in addition to transferring over all the glosses from his 3Comp commentary, he also incorporated those of Johannes Teutonicus that prescribed detrusion as an appropriate penalty for an ecclesiastical court and that censured Innocent for misunderstanding adultery procedure.Footnote 74 Building off of Vincentius, in his Apparatus to the Liber extra, Gottfried of Trani made the link with Justinian's detrusion penalty explicit in the Gaudemus commentary, not only citing Sed hodie directly but also interpreting the framing of Gaudemus to be that of an ecclesiastical sentence.Footnote 75 Echoing the spirit, if not the letter, of Johannes's comments on Tuae, Gottfried also broadens the scope of discussion of Gaudemus by arguing that the forced monasticization implied by the text is in line with canonical precedent and that the women are to become full members of the religious community.Footnote 76 Whether Gottfried was the first to broach the subject or whether he was responding to a debate already in progress, the monastic status of the women of Gaudemus would soon become fiercely contested among commentators.
The punitive reading of Gaudemus was fixed within the tradition through the work of Bernard of Parma, whose commentary would become the Ordinary Gloss to the Liber extra. With Bernard we are in the fortunate position of being able to track the evolution of his thinking, owing to the multiple recensions of his gloss.Footnote 77 In the case of Gaudemus, his thinking evolved significantly in response to other commentators on the text, as can be shown by a collation of the first and final recensions of his commentary (the italicized portions represent material not contained in the first recension of the work):
in claustris: Et ita mulier de adulterio condemnata, vel publice deprehensa, detruditur in monasterium ad agendam perpetuam poenitentiam, si eam emendatam vir recipere noluerit, tamen infra biennium potest eam recipere si vult. Si vero noluerit eam recipere, vel si prius moriatur quam eam recipiat, tunc tondeatur, et habitum monachalem recipiat ibi perpetuo moratura, ut expresse habetur in Auth. ut nulli iudic. li. ha. lo. ser. § Si quando vero adulterii crimen, coll. 9 [Auth. 127.10], unde sumpta fuit haec decretalis, et C. de adul. authen. Sed hodie [auth. post Cod. 9.9.29]; et cum rebus suis, ne sit onerosa monasteria, ut in Auth. illa, sed hodie continetur. Non propter hoc erit monacha, nisi amplius processum fuerit. Et sic quandoque propter culpam suam aliquis compellitur intrare monasterium, 50. dist. Si ille [D. 50 c. 58]; et 16. q. 6 De lapsis [C. 16 q. 6 c. 4]; 27. q. 1 Si quis rapuerit [C. 27 q. 1 c. 28]. Et idem videtur dicere decret. 32. q. 1 D e Benedicto [C. 32 q. 1 c. 5]; et 2. q. 1 In primis, vers. princ. [C. 2 q. 1 c. 7]; et 34. dist. Fraternitatis, in fi. [D. 34 c. 7]. Olim vero alia poena puniebantur adulterae, quia lapidabantur convictae de adulterio secundum legem Mosaicum, 33. q. 5 Haec imago [C. 33 q. 5 c. 13–14]; et C. de adulte. Castitati [Cod. 9.9.9], ubi legitimis poenis subiicitur. Sed haec poena non imponitur cum non agitur criminaliter, supra, de procurat. T uae [X 1.38.5].Footnote 78
Not only does Bernard connect Gaudemus with the detrusion legislation — citing both the Novellae and the Sed hodie authentica derived from it — he claims that Gregory actually pulled the text of the letter directly from Justinian. This association was further strengthened in Bernard's commentary on Tuae, where he alleged Gaudemus alongside Sed hodie as mandating detrusion.Footnote 79 Bernard's focus in the first recension is twofold: first, on whether the conditions for detrusion have been met, that is, that the husbands no longer want their wives back after the specified two-year period (or have died in the interim); and, second, that forced monasticization has plenty of canonical precedents.Footnote 80 When he revised the commentary, Bernard made three substantive additions. The first, echoing a conventional point that was rooted in the original Justinianic legislation and that had been made by Vincentius and Gottfried, as well as later canonists, was that the monastery should claim a portion of the woman's property lest she be a burden to the institution. Secondly, there is the qualification of the woman's monastic status. Following an initial insertion about their being shorn of their hair and receiving the monastic habit — which on both substantive and grammatical grounds was almost certainly part of the first recension — Bernard clarifies that these women will not be considered nuns without further formal procedures (nisi amplius processum fuerit).Footnote 81 The final substantive addition specifies that the detrusion penalty only obtains when the case follows criminal procedures (agitur criminaliter). As will now be shown, Bernard was compelled to revise his commentary owing to the debates over detrusion that had emerged in the commentary tradition after his first recension.
Some canonists challenged the premise on which Bernard had based his equation of Gaudemus with Justinian's detrusion provision. Innocent IV appears to have been the first one to question whether detrusion was actually an appropriate sentence for an ecclesiastical judge to render in a case of adultery.Footnote 82 Innocent does not rule out its imposition in Church courts but suggests it should only be for someone over whom the Church exercises coercive jurisdiction (quae sit de foro et iurisdictione ecclesiastico), and, by “someone,” he means, rather remarkably, both men and women.Footnote 83 If the person is normally subject to a secular lord, then the Church can either delegate the case to a secular judge to try criminally or simply restrict the proceedings to pursuing a normal sentence of separation.
An even stronger objection to Bernard came from Petrus Sampson, a French canonist who composed his Summa decretalium sometime in the late 1240s or early 1250s.Footnote 84 Petrus argued that Bernard was simply wrong in claiming that Gaudemus had been drawn from Justinian's legislation.Footnote 85 Detrusion was by definition a coercive penalty. While it certainly could be applied in a secular court, the language of Gaudemus — specifically the use of collocare rather than intrudere — meant that we were dealing with a voluntary choice rather than a coercive one. The Justinianic legislation and Gaudemus thus dealt with two different situations. This focus on the language of the statute ironically permitted Petrus to return to the original intent of Raymond and Gregory. Not surprisingly, given that he was Petrus's student, Bernardus de Montemirato (alias Abbas Antiquus) articulated in the early 1260s essentially the same linguistic critique in his own commentary on Gaudemus.Footnote 86 In a short gloss to the decretal (not linked to any lemma), Bernardus dismisses the Ordinary Gloss's classification of detrusion as an ecclesiastical penalty rather than a secular one. The use of studeas (as in studeas collocare) makes clear for Bernardus that the woman's placement in the monastery is a recommendation rather than a command.Footnote 87
Like Petrus Sampson and Bernardus de Montemirato, the canonist Hostiensis — whose Lectura was probably the most influential thirteenth-century commentary on the Decretals outside of the Ordinary Gloss — thought the detrusion penalty to be an unprecedented punishment for ecclesiastical jurisdiction over adultery.Footnote 88 Unlike these two, however, he took Gaudemus as establishing a new penalty at the disposal of ecclesiastical judges. Ironically, this assertion stemmed from the recognition he shared with Petrus and Bernardus that Gaudemus had not been drawn from the Justinianic legislation — rather, it was newly promulgated canon law (ius canonicum de novo promulgatum). What is fascinating about Hostiensis's claim is that it was clearly something he had thought about deeply during the many years he spent composing and revising his Lectura. It appears as a one-off statement in the last gloss to Gaudemus in the first recension.Footnote 89 In the final version, completed the year of his death (1271), he added language to another gloss on the text that reaffirmed and fleshed out his contention that this was a new penalty and moreover one that could be imposed only by the Church.Footnote 90
As he was revising his commentary, Bernard decided to address the contention over the proper forum for the detrusion penalty by adding a concluding sentence to his gloss. The additional language advised that detrusion could only be applied when the court operated under criminal procedure (see above for gloss s.v. in claustris). This rather brief addendum does not shed much light on the range of differing opinions he had at his disposal, and it still leaves open the fundamental question of whether it was even appropriate for an ecclesiastical judge to deliver the penalty.Footnote 91 It seems probable, however, that he ended up somewhere close to Innocent IV's position, with the penalty reserved only for when the ecclesiastical judge possessed some sort of criminal jurisdiction. This line of interpretation was still current late into the thirteenth century judging by the Decretals commentary of the Paduan canonist Boatinus.Footnote 92 Like Innocent, Boatinus advised that detrusion could be employed by an ecclesiastical judge but only one in possession of dual jurisdiction (utrimque gladium habens).Footnote 93 As Boatinus's commentary was conceived as ancillary to the Ordinary Gloss, one would imagine him articulating a clearer disagreement if he thought his stance on detrusion departed significantly from Bernard's.
A debate also arose over the monastic status of the women subject to the detrusion penalty. Even after the interpretation of Gaudemus shifted in a more punitive direction once the connection to the Justinianic legislation had been made, canonists still thought of these women as entitled to full monastic status. This is the clear implication of Bernard's comments that they are to be shorn of their hair and receive the monastic habit (tondeatur et habitum monachalem recipiat), remarks that, for grammatical reasons, as suggested above, should be treated as part of the first recension of his gloss. Yet when Bernard revised his commentary he felt compelled to add that these women would not be considered members of the religious community without a further, formal process. Their admission as nuns was no longer automatic.
More than anyone else, it was Innocent IV who forced this reevaluation of the monastic status of women subject to detrusion for adultery. The entirety of his commentary on Gaudemus (which consisted only of two short glosses) is devoted to this problem.Footnote 94 According to Innocent, women subject to detrusion do not enter into religious life in any formal sense nor do they take any vows. Rather, they are to be considered penitents.Footnote 95 At first glance there might seem to be a practical aspect behind Innocent's reclassification of these women. Since he was reading Gaudemus through the Justinianic legislation, which set a two-year interim period where a husband could still recall his wife, he would understandably not want to prejudice the rights of the husband to resume cohabitation, something that would not be possible if his wife made a formal profession of vows. This would actually be the pia interpretatio that later canonists, like Bernard of Parma, would apply to Innocent's remarks if they wanted to preserve a path for these women to make a religious profession. Yet Innocent himself never hints that there would be any change in their status from penitens, and his use of the future tense seems unequivocal (non tamen erit monacha). Thus, the effect of Innocent's reclassification is to assign them a permanent, liminal status — confined to the monastery in perpetuity but without the possibility of becoming full-fledged members of the community.
Hostiensis also had to reshape his commentary to account for Innocent's criticism. He had initially just followed Bernard's lead when discussing the women's monastic status, repeating what the Ordinary Gloss said about being shorn of their hair and taking vows after being refused by their husbands.Footnote 96 Their monastic status was, therefore, never in doubt. In the later recension of the Lectura, however, he added two new glosses to incorporate Innocent's comments verbatim and expressly assigned them to the man whom he typically just referred to as Dominus noster.Footnote 97 Even more than Bernard, Hostiensis sought to neutralize Innocent's restrictions by tying them to the larger framework of canon law regulating monastic life. Hostiensis revised one of his glosses to grant these women a kind of probational status for the first two years of their residence within the convent as they awaited the final decision of their husbands.Footnote 98 The problem, of course, was that the normal probationary period for all monastic orders had been standardized to one year by Gregory IX through a statute inserted into the Liber extra (X 3.31.23 Statuimus).Footnote 99 Hostiensis, therefore, took the case of detrusion to be one of the exceptions to this rule. Whereas Bernard had been moved by Innocent's objections to create a caesura between the initial detrusion and their later entry into religious life, which would then demand some additional, formal process to effect, Hostiensis linked these two things together, with the first two years of their residence now understood to serve as the required probationary period.
Conclusion
We have seen how, prior to 1234, canon law discussions of adultery prosecution had come to accept detrusion as an appropriate penalty in the ecclesiastical forum. In the process, they were also developing a discourse that identified the monastery as a site of penitential incarceration for the laity. Even though the provenance and Raymond of Penyafort's own interpretation of X 3.32.19 Gaudemus demonstrates its pastoral purpose, this became obscured once the letter was enmeshed within this punitive discourse. Debate would continue over the appropriate usage of the penalty in ecclesiastical courts, but, as the contention over the women's monastic status demonstrates, canonists for the most part seemed unwilling to grant them a full membership within the convent.
To conclude this study, we should ask to what degree these debates reflect more the theorizing of the classroom or instead an underlying reality of the actual and/or increased use of detrusion in marriage litigation.Footnote 100 Although records of marriage litigation in both ecclesiastical and secular courts are scant from the thirteenth century, those that survive (mostly in England) do not show any use of the detrusion penalty for adultery cases — when they even choose to record a verdict.Footnote 101 There is indirect evidence, however, that shows the detrusion penalty went beyond just the imaginings of the canon law magistri. Formularies of model libelli (the written petitions submitted by an accuser required to initiate a case) that were issued right around the time of the Liber extra show that the detrusion penalty had become one of the sentences an accuser could ask for, albeit in a secular court.Footnote 102 Yet, a few decades later, we find William Durantis including in his Speculum iudicale, which was designed as a guide to the actual practice of canon law for judges and advocates, a model libellus that allows for the application of the detrusion penalty secundum canones.Footnote 103 The only difference in application of the detrusion penalty in this case, according to Durantis, is that the woman sentenced will not be beaten and shorn of her hair prior to her confinement in the monastery ad perpetuam penitentiam peragendam.Footnote 104 As textual authority for this form of action, Durantis cites both X 1.38.5 Tuae and X 3.32.19 Gaudemus.
One of the notable features of the commentary literature post-1234 is that the debate over the poena talionis in detrusion cases — whether the husband (and sometimes the wife!) who fails in their accusation could themselves be forced into a monastery — remains a lively one, which would seem less likely if we were simply dealing with a legal hypothetical. Nor was the debate just a rehash of previous opinions but often contained genuinely fresh insights into the problem. Johannes Teutonicus had attempted to thread the needle on the poena talionis by claiming that, even if a husband failed in his accusation, that would not mean automatic relegation to a monastery because his wife would still have the final say just as he would still have the option for two years after her conviction to recall her from the monastery.Footnote 105 Petrus Sampson appears to have been the first commentator empathic enough to articulate what might seem the most obvious question for a modern reader: what kind of incentive would a wife have for keeping a husband who had falsely accused her of adultery? Since false accusations were a frequent occurence according to Petrus, a judge needed to take this into consideration when deciding how to treat calumny, and it was one of the reasons why there should be no poena talionis when adultery came before an ecclesiastcial court.Footnote 106 Boatinus was still hashing out the problems of calumny late in the thirteenth century when he offered up one of the more striking analogies for detrusion, one that shows, moreover, that Innocent IV's harshly punitive interpretation was still alive. Responding to the perennial worry that a husband who wanted to enter religious life would simply accuse his wife of adultery, Boatinus rejoined that it is one thing to join a monastery and another to be detruded into one, just as it is one thing to reside in a palace as master of the house and another to live in its dungeons.Footnote 107
Whether or not future studies are able to uncover more direct evidence for the use of the adultery detrusion penalty, the very existence of the canonistic debate speaks to the odd bifurcation that was occuring in the thirteenth century regarding how the monastery was conceived. At the very moment when the cloister wall was figuratively disappearing, whether in the form of the mendicant orders or through more informal associations like the Beguines and Beghards, the monastic cell was being reimagined as a veritable prison for the laity.Footnote 108 Adultery detrusion stands at one end of the spectrum, where the incarceration comes close to the complex of punitive and penitential functions we associate with modern penology. It could also be as casual as the kind of short-term thirty day stints we see in Venice, where the monasteries of San Zaccaria and San Lorenzo were used to confine female debtors.Footnote 109 Whether perpetuum or ad tempus, though, the role of the monastery as place of confinement would persist, as we saw at the beginning of the study, into the early modern period. The Neapolitan court officials assembled to deliver sentence on Cassandra were binding the accused with chains that had been forged in the twelfth and thirteenth centuries.
