This book provides an account of the University of Manchester's struggle to meet the government's demands for the rapid expansion of higher education in the 1950s and the 1960s. It looks at the University's ambitious building programme: the controversial attempts to reform its constitution and improve its communications amid demands for greater democracy in the workplace, the struggle to retain its old pre-eminence in a competitive world where new ‘green field’ universities were rivalling older civic institutions. The book tells the story, not just from the point of view of administrators and academics, but also from those of students and support staff (such as secretaries, technicians and engineers). It not only uses official records, but also student newspapers, political pamphlets and reminiscences collected through interviews.
Applications for dispensation
Marriage: an alliance based on feelings and reason
Today, the choice of a marriage partner may primarily be based on the feelings that the presumptive spouses have for each other. But from a historical perspective, marriage has been closely connected to both political and economic agreements, on a social as well as on an individual level. 1 Marriage not only connected two individuals; their respective families were also united through new bonds of loyalty and friendship. In this context it has been pointed out that marriage has been the foremost form for building alliances throughout history. 2 The structural regulation of property and property transfer has had a great influence on the marriage system, because it has indirectly determined which alliances were advantageous in different situations. When choosing a marriage partner, individuals – regardless of their positions in society – have assessed their own and their families’ future opportunities for supporting themselves in various ways. It was often the case that this decision was not made by the individual in question but by his or her family. According to American historian Stephanie Coontz, the importance of the economic and strategic decisions before a marriage was so commonly accepted that individuals did not expect their personal feelings to play any part in deciding on a marriage partner. 3
However, research has shown that the view of the ideal marriage changed during the latter part of the eighteenth century. This transformation apparently occurred at slightly different times in the entire Western world, including North America. From the late eighteenth century onwards, love and personal desires were given a different weight in the marriage market. 4 According to German sociologist Niklas Luhmann, the codes for intimacy changed during this period. Previously, love had rested on ideals such as social hierarchy and solidarity within the family. Love between spouses had been seen as something of a social duty, but now it came to be understood more as a shared emotional partnership. 5
According to the above line of reasoning, the ideal marriage was, until the late eighteenth century, primarily a practical transaction between families, while after this time love was seen as the very basis for an ideal marriage. This does not imply a denial of the fact that people fell in love with each other before the breakthrough of the ‘love match’ ideal, only that expectations for the marital relationship changed. 6 Nor did it mean that emotions and personal taste were of no importance in earlier periods. On the contrary, several historians have pointed out that the feelings of presumptive spouses were considered long before the cultural change described above. Similarly, economic circumstances continued to play a role in later matrimonial transactions as well. Not least in wealthier social groups did the future maintenance of the couple continue to be a decisive factor in many marital alliances throughout the nineteenth century. 7 In other words, we are talking about a gradual shift of conjugal ideals from the practical to the emotional.
British historian Catherine Frances emphasises that young people of marriageable age and their families have always had a joint interest in the success of any matrimonial union, from an economic as well as an emotional perspective. Both factors were important, and no one stood to gain from alliances that lacked either ingredient for future happiness. 8 It is thus reasonable to assume that economic factors interacted with personal taste when a marriage partner was to be chosen, both before and after the emergence of the new romantic ideal.
Investigations conducted on the basis of the potential of marriages for forming alliances often describe two different strategies for optimising the economic and social position of a person's own family. One has to do with marrying of young people to individuals outside one's own family in order to increase one's network of loyal allies. The other strategy focuses on preserving property and capital within one's own group through strategic marriages within the family. 9 The latter strategy has often been linked to social groups with major property holdings; for instance, the nobility or, during later periods, the emerging middle classes. Within anthropology, such marriage patterns are referred to as ‘exogamous’ and ‘endogamous’, respectively, and they have often been seen as relevant to how incest prohibitions have developed in different cultures. 10
The fact that the nobility allowed itself to be governed by economic incentives when arranging marriages for the next generation may not seem surprising, considering the extent of their economic assets, but similar arrangements could also be found in lower social circles, as may be demonstrated by an example from the Strängnäs Cathedral Chapter. In 1680, Johan Persson applied for a dispensation to marry his second cousin on his mother's side of the family. The argument used in favour of the acceptance of the application was expressly that the couple wanted to marry ‘for the sake of a freehold that both of them were due to inherit’. This confirms that economic and practical circumstances functioned as incentives for marriage alliances among the lower social orders as well. 11
The prohibitions are challenged
As we have seen, the possibility of applying an endogamous marriage strategy was severely limited by the extended interpretation of the incest provisions by the Catholic Church throughout the Middle Ages. Even marriages between comparatively distant relatives were quite simply forbidden. However, after the Reformation the rules began to be questioned by the group that possessed the greatest assets in Sweden – the nobility.
During the sixteenth and seventeenth centuries the prohibition against cousin marriages was fiercely criticised by the Swedish aristocracy, and it is likely that it was economic interests that motivated their engagement with this issue, in spite of the debate being conducted on theological grounds. 12 Nevertheless, resistance was strong among legal scholars, which is why the debate continued. On 1 March 1678, the Swedish king decided that marriages between cousins should be completely forbidden. A mere two years later, however, the decision was repealed, and instead an opportunity for any person to apply for dispensation to marry a cousin was formally introduced. 13 From 1680 onward, it was thus permitted to apply for dispensation for cousin marriages. In other words, the pressures exerted and the opposition to the prohibition resulted in some relaxation of the regulatory framework. 14 But this did not mean that the national debate on cousin marriages fell silent. The priesthood in particular continued to argue against such alliances. According to the reasoning of the clergy, God's meaning may be ambiguously worded; but the relationships were nevertheless clearly unsound, and for this reason it was recommended that the prohibition should be retained, if for no other reason than as a precaution. 15
In spite of the resistance of the clergy, cultural acceptance of cousin marriages appears to have been significant at the beginning of the period investigated, both within and outside of noble circles. In the parliamentary records of the clergy from 1723, Bishop David Lund claimed that if the prohibition against cousin marriages was removed, ‘herds’ of ‘common men’ would attempt such marriages. 16 In other words, Lund describes cousin marriages as particularly popular among the peasantry, and there are examples from the dispensations that support his view. 17
Keeping in mind the debate engendered by cousin marriages, it is interesting to note that the relationship between a man and his niece did not elicit as strong a reaction in the social debate. Neither prohibition was explicitly mentioned in the biblical text, but unlike the prohibition against cousin marriages, the prohibition against marriages between uncles and nieces was not at all questioned to the same extent. Nor have I found any applications for dispensation regarding such marriages from the first half of the eighteenth century. This prohibition hence appears to have been accepted in spite of the impossibility of justifying it from a religious point of view.
Since the beginning of the Reformation, it was only the Crown that had the power to accept or reject an application for marriage; but the habit of primarily turning to the Church in such matters continued until the beginning of the nineteenth century. During the early eighteenth century, the numbers were comparatively modest: a handful of cases per year and instance. 18 The procedure entailed certain costs, which made it easier for individuals with means to complete the application procedure. 19
In these cases, the cathedral chapter functioned mainly as an information point. They could often – but not always – answer the question of whether a relationship was permitted or not, but they did not have the authority to approve an application if the relationship was included in the prohibited degrees. In order to legalise the relationship, it was necessary to have a royal dispensation. Sometimes the cathedral chapter acted as a mediator by drawing up an application to the Crown, but applicants were also at liberty to have a document written and despatched in some other manner.
Between 1710 and 1734, seventy-six applications for dispensation were received by the Skara Cathedral Chapter. Out of these, eight were cases that involved biological cousins, whereas twice as many concerned various cousins through affinity (wife's cousin, cousin's widow, two cousins, wife's cousin's widow). See Table 4.
|Relationship||Closeness||Relationship, a man and (his)…||1710–34|
|Diagonally (2+3)||parent's cousin||8|
|first cousin once removed||10|
|Affinity||Diagonally (1+2)||wife's niece/wife's niece's daughter||6|
|≥ Second degree||wife's cousin||7|
|wife's brother's widow,|
|wife's former husband's sister||6|
|wife's cousin's widow||2|
|wife's nephew's stepdaughter||1|
|wife's nephew's widow||1|
|wife's uncle's widow||1|
|uncle's widow's daughter||1|
|aunt's husband's widow||3|
|grandmother's brother's widow||1|
|a woman and her uncle's widow||1|
Source: SD, series AI.
Note: Including half-family and mirror relationships (maternal/paternal relatives).
Virtuous or depraved love
As is clear from Table 4, the different cousin relationships by consanguinity or affinity (cousin, wife's cousin, cousin's widow, two cousins) were among the most commonly occurring grounds for applications with respect to separate categories at this time. The authorities’ assessment of these applications was comparatively free of conflict. The applications did not cause any discussions among the members of the cathedral chapter, and the results were the same irrespective of whether a case dealt with consanguinity or affinity relationships, full or half relations. Requests were routinely sent on to the Crown, and almost without exception returned with a favourable answer. 20
The applications often presented the relationship in brief terms, whereupon the question about marriage was posed. 21 In isolated cases it is clear that there were warm feelings between the applicants. The two cousins Nils Arvidsson and Ingeborg Bengtsdotter, for example, wanted to form ‘a Christian marriage union’ with each other because they had ‘taken a heartfelt liking to each other’ and wanted to ‘love each other with a decent and virtuous love’. 22 But it was unusual to talk about personal feelings and mutual love in this manner. This fact does not exclude the possibility that other couples applying were indeed in love, but the absence of descriptions of love in the application documents testifies to the fact that these arguments were not considered important or legitimate when an application for dispensation was to be justified. By contrast, it was often pointed out that the relationship was a virtuous one. The applicants’ good name and virtue were also sometimes certified by a clergyman or a vicar in a separate testimonial. 23 In addition, the importance of virtue was confirmed in the decisions of the authority. In a royal decision from 1730, it was noted that the couple ‘have formed their marriage union in propriety and virtue, so we will also give our gracious approval to its consummation’. 24 In other words, the moral status of the relationship was a more important factor in the assessment than any feelings the applicants may have had. Because similar moral values were reproduced both in the application documents and in the decisions, these norms appear to have had strong support throughout society.
This agrees well with the research that places the cultural breakthrough of the love match in the late eighteenth century. At the beginning of the eighteenth century, emotions and personal inclinations were not considered convincing arguments for pushing through a request for dispensation. It is true that love between spouses was defined as a positive quality because it contributed to a good marriage, which in its turn promoted a stable society; but love could also be dangerous. The early modern concept of love has been described as dichotomous, both favourable and unfavourable. The dividing line was drawn between marital and extramarital love. 25 As was pointed out above, virtuous love promoted harmony between the spouses, which led to individual happiness, a well-functioning household, and social stability. Conversely, extramarital love risked leading individuals astray, causing them to make short-sighted choices which might ultimately lead to misfortune and penury for the individual and to encumbrances for society (for instance, through illegitimate children who were not provided for). By taking legal measures against extramarital sexuality, the institution of marriage was protected, and through it the entire social order.
For this reason, virtue became more important than personal expressions of sentiment in the assessment of applications for dispensation. It was virtue that defined the relationship as legitimate while a lack of virtue consequently posed a problem. While cousins in virtuous – meaning chaste – relationships were routinely given permission to marry, couples that had offended against the norms of morality found it more difficult to follow through on their marriage plans.
For almost ten years, Cavalry Captain Johan Kempe repeatedly applied for permission for his daughter to marry her cousin, by whom she had had a child. 26 Bengt Månsson and his cousin Margareta Andersdotter applied to the Skara Cathedral Chapter for permission to ‘enter into marriage after having had illicit intercourse with each other’, but because the couple had ‘not commenced their intended marriage in decent and virtuous love but in dissoluteness’, the consistory did not wish to forward their application to the Crown. 27 Jon Jonsson from Råttekullan also asked the Skara Cathedral Chapter for help in forwarding an application for marriage to the Crown in order to marry his cousin. The couple had had sexual relations for several years, but applied for dispensation only after she became pregnant. Jon's otherwise good conduct and name were certified in separate testimonials by the local clergyman and by other parishioners, but the cathedral chapter refused to help him. 28
In these cases, the behaviour of the couples was apparently governed by older popular ideas on how a marriage could be entered into. In the middle of the seventeenth century, it was the promise of marriage together with the sexual act that legalised the relationship. The sexual act confirmed the marriage and made it legally binding. When a man and a woman agreed to marry in future, they could have sex with each other without violating the informal norms. 29 Their relationship was not necessarily considered blameworthy, although their sexual relations preceded the official marriage ceremony, as long as they were prepared to finalise the marriage vows later. However, this custom went against the ideas of the Church on how marriages should be entered into, ideas which emphasised that the official marriage ceremony established the validity of the marriage. Around the turn of the century in 1700, both these ideas coexisted in Sweden, but in time there was a shift away from the popular norms. 30
The family relationship between the couples in the cases described does not seem to have been perceived as a major obstacle on the part of the applicants. Some even claimed to believe that the prohibition had been rescinded. The two cousins Sven Johansson and Johanna Persdotter were another couple who applied for permission to marry only after having had a child together. In their defence, they claimed that they had been deceived by a rumour according to which the requirement for dispensation for cousin marriages had been removed. 31
The authorities knew about these parallel values in the peasant population and worried that the possibility of dispensation would be misused in order to legalise illegal relationships. In August 1729, the Bishop of Skara wrote to the king and said that the regulations were used to make ‘general adaptations after the fact’ in the diocese. 32 People simply initiated sexual relationships and applied for permission to marry only after the woman had become pregnant. In order to put a stop to such loose behaviour among the peasantry, several letters patent were published during the early eighteenth century where it was established that only couples who felt ‘virtuous love’ for each other could expect to have their applications for marriage approved. If the relationship had been begun ‘in depravity’, they could instead expect to be tried in the local court and fined in accordance with the applicable law. 33 The letters patent were proclaimed to the people in connection with the weekly sermon.
It is obvious that virtue was an important criterion that at least in theory had to be fulfilled in order for an application for marriage to be approved. Illicit love could never be rendered acceptable by marrying after the fact. However, the real world worked differently. In reality, several couples had their applications approved in spite of their having violated the norms of morality. Among others, Sven Johansson and Johanna Persdotter as well as Jon Jonsson from Råttekullan, all mentioned above, were able to obtain official permission to marry. 34 In a similar manner, Anders Persson was allowed to marry his deceased wife's cousin although they had had sexual intercourse. 35 Another case tells the story of the physician Petter Blekander, who had a sexual relationship with his cousin, Helen Hultman. When she became pregnant, they married without having acquired a royal dispensation for the marriage. The official application was only sent in a month after the wedding but was rejected. The couple continued to live as ‘husband and wife’ and had another child together. When the cathedral chapter in Skara found out about the situation a year later, they commenced an investigation of the case. Four years later, the final outcome was that the couple was after all given formal permission to continue their hitherto illegal marriage. 36
In all these cases, a directly contradictory message was conveyed from the highest decision-making instance in the country. At a formal level, it was proclaimed that no one who had offended against the norms of morality would be granted dispensation for marriage after the fact. At the same time, marriage applications from several couples who were cousins, and who had violated the norms in precisely this manner, were, in practice, approved. However, both the normative ideal and the contradictory practical procedure aimed to promote and defend the institution of marriage. In this context, the family relationship was felt to be less significant than the unchaste behaviour.
Balancing between the legal and the illegal
Even though the cousin relationships dominated as separate categories among all the applications for dispensation, they were in the minority when considering the total number of applications that reached the cathedral chapter. According to Table 4 on p. 52, 54 out of 76 cases were applications from people in other family relationships. The second largest category (18) of the applications was from people who were related in the second and third consanguinity degrees (parent's cousin, cousin's daughter). These degrees fell outside the boundary of the prohibitions, and the applications were in most cases approved immediately or with some hesitation. 37 Diagonal affinity relationships (wife's niece) caused greater problems, as did affinity relationships in the second collateral degree (wife's cousin, wife's brother's widow). These relationship categories were comparatively common, which proves that marriage alliances of this kind were accepted by portions of the peasant population. 38 Leaseholder Jöns Andersson was one of these. He was eager to marry his wife's brother's widow, Ingeborg Andersdotter. Jöns asked his local vicar for help. The vicar wrote to the consistory in Linköping, which in its turn referred the matter to the king. It becomes clear that the leaseholder had ‘urgently’ asked permission for this marriage; and although both the vicar and the consistory tried to prevent it because of the ‘close family relationship’, it had not been possible to ‘dissuade’ the couple from their plans, since they were ‘unwilling to give up this application for marriage’. 39 The couple's persistence paid off, and they had their application approved by the Crown. 40
Judging from the number of applications for dispensation, relationships in the diagonal affinity degree and in the second collateral affinity degree were almost as frequent as cousin relationships and were thus equally acceptable to the general public. The attitude of the authorities was more sceptical, though, as was illustrated by the above example. Several applications were met with uncertainty or direct hostility, and in certain cases the cathedral chapter acted in direct opposition to the legislation.
Applications from a man and his wife's niece could be rejected with a simple observation that such marriages could not be allowed. 41 When Lars Olofsson asked to marry his deceased wife's brother's daughter by the latter's concubine, the consistory pointed out that God's law did not differentiate between affinity and consanguinity relationships and rejected the application. 42 In some applications it was emphasised that the woman was only the child of the man's wife's half-sibling, but after having noted that full and half relations were considered to be the same, the consistory rejected these cases as well. 43 Nor was an application for dispensation approved from a man and his wife's nephew's widow. 44 In one case the cathedral chapter ventured to forward an application for marriage between a man and his deceased wife's sibling's granddaughter to the Crown, but the answer was definite: the relationship was ‘quite prohibited’ and the question ‘inappropriate’. 45 The attitude to these relationship categories was thus generally unfavourable on the part of the authorities. At the same time, an application from a sibling's stepdaughter and a step-parent's sister would be approved, kinship ties that in theory are exactly as close as those mentioned above. 46 The status of these kinship categories thus seems to have been vague and uncertain.
When there was a biological family relationship, there was no doubt that relationships up to and including the second degree (cousin) were forbidden, even though this prohibition was not mentioned in the Bible. Because consanguinity and affinity relationships, according to the rhetoric of the time, should be equated, all affinity relationships in the second degree should also be forbidden; but in this case there was great disagreement and uncertainty, at least when the kinship tie in question was collateral. In March 1727, the incest prohibition between a man and his wife's cousin was rescinded by the Crown on the grounds that such applications for dispensation were very common and that they were usually not rejected. 47 Because the kinship between a man and his wife's brother's widow was equally close, the royal ordinance should have applied to this relationship category as well. 48
However, opinions as to whether these relationships should in fact be allowed were divided among the authorities in the country. As late as 1700, both the hundred court and the court of appeal had sentenced a man and his wife's brother's widow to death for having committed single adultery. The death sentence was reversed by the Crown, which declared that the family relationship of the couple could not form the basis for the death penalty, but it is noteworthy that both the hundred court and the court of appeal were prepared to sentence the couple to death. 49 In 1720, the status of this relationship was debated within the clerical estate in a parliament where it was stipulated after a general discussion that marriages between a man and his wife's brother's widow should not be permitted. 50 The leaseholder Jöns Andersson, who applied for marriage three years after the prohibition had been rescinded, also encountered fierce resistance from the Linköping Cathedral Chapter before his application was forwarded to and approved by the Crown. In general, priests and lawyers thus seem to have been unfavourably disposed towards marriages in the second affinity degree.
But in two other cases where the family relationships of applicants were similar, the Skara Cathedral Chapter chose to approve the application without obtaining the Crown's official permission. The first case had to do with a man and his deceased wife's former husband's sister. According to the records, this couple were not ‘so closely related by marriage that the match’ could be prevented. 51 The second case had to do with a man who wanted to marry his deceased wife's half-brother's concubine. The approval was justified simply by noting that the application was considered ‘reasonable’. 52
According to the ideas of the time, a family relationship was formed as a consequence of the sexual act, and no differentiation was made as to whether the people were full or half relatives. Indeed, this was specifically emphasised in other cases, as we have seen. It follows that both of these relationships should have been defined as incestuous in the second collateral affinity degree, just like the relationship to a wife's brother's widow. But the cathedral chapter denied permission to marry a wife's brother's widow while permitting a marriage between a man and his wife's half-brother's concubine and his wife's former husband's sister, even though all these cases were examples of the same degree of kinship. How should one understand this lack of logic and consistency on the part of the members of the cathedral chapter?
Because the various relationships were not expressly defined in exact degrees, it is possible that the deviations were not entirely deliberate. Common relationship categories, such as wife's niece or wife's brother's widow, were well known and assessed in accordance with previous procedures; but the relationship between, for instance, a man and his wife's former husband's widow was less common and perhaps not directly associated with the earlier relationship. In addition, it is likely that the decision-makers in these situations subconsciously allowed themselves to be affected by their own subjective values regarding the definition of a family relationship.
There are many indications that the basic values of the educated elite differed from the formal rules in two particulars. First, some lawyers opposed the practice of completely equating full relatives with half-relatives. 53 Second, several lawyers are on record as thinking that crimes of incest in combination with adultery should be rated as worse than crimes of incest alone. A proposal for legislation from 1696 suggested that the death penalty in the first collateral affinity degree should be replaced by a fine for a deceased wife's sister and two sisters. In these cases neither of the parties was married and the offence was therefore less serious, according to a majority of the trusted lawyers who had been given the task of drawing up the proposal for legislation. 54 However, this proposed legislation never became legally valid, and it was firmly rejected in a royal regulation from 1699. Instead, this regulation emphasised that anyone who committed adultery or fornication in the first affinity degree should be sentenced to death. 55 The material thus shows that there was an informal norm among the educated elite that was in opposition to the formal rules, both when it came to full relatives versus half-relatives and when the crime of incest was combined with adultery. It is likely that the assessments made by the members of the cathedral chapter were affected by these informal values when the applications dealt with relatively infrequent relationship categories, such as, for instance, wife's half-brother's concubine, since the verdicts diverged from the routines.
On other occasions, the members of the cathedral chapter consciously used their positions to affect the outcome of individual cases in direct opposition to the boundaries drawn up in law. They did this by trying to prevent marriages between people whose family relationship did not pose a legal obstacle. Nils Jönsson wanted to marry his deceased aunt's husband's widow, Elin Persdotter, and turned to his local vicar, who forwarded his request to the cathedral chapter. The cathedral chapter called on the vicar to dissuade the couple from their plans, although the family relationship did not pose any formal obstacle to marriage. Two months later, Nils appeared before the members of the cathedral chapter in order to repeat his request in person, but he was denied permission to go through with the marriage on this occasion as well. An additional week later, Nils appeared before the same consistory again, this time together with his intended bride Elin; together, they pleaded for formal permission to marry. Again, the cathedral chapter attempted to dissuade them from their intended marriage, partly because of the difference in age between them (not specified), partly because of their family relationship. But Nils and Elin did not back down; and as their family relationship was not prohibited ‘either in the word of God or in secular law’, the cathedral chapter finally reluctantly agreed to the marriage. 56
According to the cathedral chapter's own words, there was thus no formal prohibition against Nils and Elin's marriage. In spite of this, the couple had to put up quite a fight in order to have their wish granted, as their relationship was evidently considered inappropriate by the priesthood. Two other couples in the same relationship category had their marriage plans questioned in a similar manner by the cathedral chapter. 57 Another man was dissuaded from marrying his stepmother's aunt, although this family relationship was not formally forbidden either. The cathedral chapter commented that ‘such a marriage neither can nor should be allowed’. Five years later a new request was submitted, probably from the same couple, but the cathedral chapter did not grant the request this time either. It was noted that the relationship was not prohibited in the law of God, but ‘those who are so closely related, and want to marry, should be dissuaded from it’. 58 In this case, the aversion of the orthodox Church against marriages between related individuals was of such magnitude that it reached beyond both the words in the Bible and the letter of the law.
In 1703, a royal ordinance was published that forbade marriages between individuals related in direct linear affinity degrees (stepfather's widow, stepmother's stepmother). 59 The express aim of the prohibitions was to protect and promote respect between the generations. It is likely that the cathedral chapter opposed the above-mentioned relationships for similar reasons, and that they used their authority to influence applicants. But since the authorities did not have support for their opinion in the formal legislation, they had to give in when the applicants stood their ground.
If a relationship fell within the boundaries of the prohibitions, however, it did not matter how insistent and stubborn the applicants were. Anders Nilsson from Vilske Hundred in the county of Halland actively questioned the formulation of the prohibitions when he wanted to marry his deceased wife's stepdaughter. The local vicar refused to marry them. Anders then turned to the consistory in Gothenburg, but they too denied him permission to marry, whereupon Anders wrote directly to the king. With the ‘utmost humility’, he begged to be allowed to marry Ingeborg, because according to his assessment their family relationship could not be considered either a ‘consanguinity or an affinity relationship’. Nor did he believe filial deference to be a factor to consider in their case. The request was denied. A few months later Anders repeated his request, but his application was not approved this time either. 60
Anders's actions constituted an active challenge to the formulation of the prohibitions, and the assessment of the authorities raises some questions. Anders was denied marriage to his wife's stepdaughter, while other people were permitted to marry their sibling's stepdaughter (p. 58). The family relationship in the first case should be considered somewhat more distant, because here there were two marriages between the parties while in the second case there was only one. Nevertheless, it was the second relationship that was approved.
During this period, the common denominator for the relationships of which the Skara Cathedral Chapter did not approve is not completely clear from the dispensation material; but on the basis of knowledge regarding the reasoning of more recent times and the legal practice of the same period, my guess is that the respective position in the family of the people concerned played a decisive role for the assessment in each of the examples mentioned. For instance, the position in the family can explain why Anders was denied the marriage he desired. He wanted to marry his wife's stepdaughter. The stepdaughter's position was thus within the same household as himself, in the same family. In cases where a man wanted to marry his sister's or brother's stepdaughter, the woman came from a different household, another family. Historian David Herlihy has argued that the aim of the formulation of incest prohibitions was, among other things, to avoid marriages between individuals living within one and the same household, and that may explain the assessment of this case. 61 Whether the daughter actually lived in Anders's household was not investigated, though. The fact that Anders did not consider filial deference to be endangered can be interpreted as an indication that the couple were of the same age, but their respective ages were not explicitly stated. Individual circumstances concerning the type of accommodation or the relationship between the applicants’ ages did not engender documented discussions or debates among the decision-makers, which indicates that these circumstances were not considered important for the outcome.
I will return later to the significance of the position in the family for the assessment of different incestuous relationships. Here, I will confine myself to noting that those prohibitions that were challenged usually involved the second consanguinity and affinity degrees (cousin, wife's cousin, wife's brother's widow) and the diagonal affinity degree (wife's niece). These relationships thus appear to have been accepted to a similar degree among the general public. On the part of the authorities, cousin relationships were treated routinely, and dispensations were handed out by rote on condition that the relationship in question was virtuous. If the couple had violated the norms of morality, the procedure was more difficult and more drawn-out; nevertheless, it frequently ended on a positive note.
Affinity relationships, collateral as well as diagonal ones, were dealt with in more ambiguous ways. Wife's cousin, wife's brother's widow, and wife's niece were defined as prohibited, while other relationships with the same degree of kinship were approved. Those whose task it was to defend and maintain the formal norms thus deviated from these norms in their assessments by approving some relationships that should have been included in the prohibitions (for instance, sister's stepdaughter, wife's half-brother's concubine). At the same time, the cathedral chapter used its authority in order to prevent marriages between people whose family relationships did not pose a formal obstacle (stepmother's aunt). In 1727, the prohibition against marriages in the second collateral affinity degree (wife's cousin, wife's brother's widow) was abolished, which confirms that the assessment of these relationship categories changed at this time.
Additional uncertain definitions
As was clear from the previous section, the actions of the cathedral chapter indicate that there was general uncertainty as to whether certain relationship categories should be defined as legal or illegal. The same uncertainties are revealed by the kinds of cases that were submitted in the first place. Some applications were private initiatives from couples who wanted to marry, but it was more common for the communication to occur via the couple's local vicar. For this reason, it is especially interesting to note that the proportion of applications for non-prohibited relationships was as high as 40% (30 out of 76). 62 Not even theologically schooled vicars knew where to draw the line between permitted and prohibited family relationships. They had to consult a higher instance. Some relationships also caused consternation among the members of the cathedral chapter and had to be sent on to the king for clarification. 63
The uncertainty regarding the definition of the status of relationships which is reflected in the applications for dispensation recurs in the judgement-book material. Here, two boundaries had to be defined: the boundary between legal and illegal family relationships, and the boundary between relationships that had to be punished by death and relationships that could be atoned for by a fine. Strictly speaking, only criminal cases where the defendants risked capital punishment should be referred to the court of appeal from the lower courts. This notwithstanding, a little over 20% of the incest cases in the Göta Court of Appeal between 1694 and 1716 concerned cases where the family relationship was not so close that the defendants risked capital punishment if they were convicted. These cases should never have been sent to the court of appeal in the first place; they ought to have been dealt with by the hundred court, the cathedral chapter, or the Crown, depending on the relationship category concerned. The fact that these cases exist reveals that the hundred-court judges were unsure of how to apply the legislation. In fact, the most common question from a lower court to the court of appeal during the seventeenth century concerned the prohibited degrees. 64 In their turn, the courts of appeal were in some cases also forced to consult the king before making a decision. 65
In an attempt to introduce order among the concepts, official letters were sent from the Crown to all cathedral chapters and courts of appeal on a number of occasions. These letters announced the outcomes of different applications, based on the relationship concerned in each case. Usually a brief justification for the decision was added, presumably to create an increased uniformity of assessment for similar requests. 66
All this reflects considerable uncertainty and confusion regarding the drawing of boundaries between legal and illegal matrimonial unions, both among lawyers and theologians. Keeping this in mind, it is not strange that the peasantry also made mistakes from time to time. In 1715, shoemaker Bengt Mattsson began a sexual relationship, under promise of marriage, with the widow Sissa Matsdotter. But when Sissa became pregnant and Bengt went to the clergyman to ask for the banns to be published, it transpired that their relationship was prohibited. The reason was that Bengt had made Sissa's stepdaughter, Hanna, pregnant on an earlier occasion. Bengt and Sissa themselves claimed that they had not realised that his previous relationship to Hanna posed an obstacle to their marriage plans, and a request for a dispensation for their marriage was sent to the Crown. The request was rejected, however, and the couple were sentenced to flogging and birching, respectively, for their crime. 67
Farmer Per Nilsson also found out about the prohibition only when he went to the clergyman to have the banns published for himself and his daughter-in-law's niece, who was now pregnant. 68 Similarly, Anders Andersson began a sexual relationship with his uncle's concubine, Elin Andersdotter. When she became pregnant he wanted to marry her, because ‘in his simplicity, he could imagine nothing other than that he for this would have due leave and free permission’. 69 Another man first had sex with a woman, for which he was made to pay both ‘spiritually and secularly’. Next, he made the same woman's niece (concubine's niece) pregnant and wanted to marry her. The niece was well aware of his previous relationship, but neither of them could have imagined that the earlier fornication could pose an obstacle to their plans. 70 The innkeeper and widow Brita Persdotter began a relationship with her deceased husband's half-brother's son (half-uncle's widow). Both claimed that they had acted in the ‘hope and intention’ of ‘forming a marriage union’ with each other. They had not understood that their family relationship was an obstacle to their desires. 71 Bengta Ingierdsdotter was even promised by her vicar that she could marry her deceased husband's half-sister's son (half-aunt's husband's widow). When a child was on its way and the couple wanted a formal blessing, they were nevertheless stopped outside the church door and were prosecuted in the local court instead. 72 Even so, it is unclear whether all these relationships were in fact included in the prohibitions because they were dealt with in dissimilar ways by the authorities. 73
In all the cases outlined above, the couples had already begun a sexual relationship with the intention of marrying in due course, but instead ended up before a court accused of incest. The couples claimed that they had been completely unaware of the prohibitions, and through their actions (the sexual act in combination with the intention to legalise the relationship by marrying after the fact) they challenged the boundaries drawn by the authorities between legitimate and illegitimate relationships. The family relationships between these people (affinity relationships in the diagonal or second degree) were the same as the relationships between couples that usually applied for dispensation for marriage. These relationship categories were thus not considered offensive or inappropriate by the general public.
A similar uncertainty regarding the boundaries of the prohibitions appears to have been more or less general in Europe. 74 The confusion surrounding the drawing of boundaries was thus widespread around the turn of the century in 1700 and may be seen as a consequence of the imprecise formulations in the Bible. The lack of clarity gave rise to countless reinterpretations and discussions among learned men. Because the authorities could not agree on a common solid foundation on the basis of which the boundaries of incest prohibitions should be drawn, they could not convey a uniform norm to the lower orders either. The uncertainty clearly shows that there were no firm rules for how certain relationship categories should be assessed, which provided scope for the assessments being influenced by other social values. In Sweden, virtue consequently became decisive for certain dispensation cases.
5 Flogging in the town square was a public event.
In spite of the repeated negotiations and discussions among lawyers and theologians regarding the formulation of incest prohibitions during the second half of the seventeenth century, no concrete changes to the law had been made in Sweden at the turn of the century in 1700. The incest prohibitions were defined and punished according to the appendix of 1608 as the primary policy document with the addition of certain letters patent, resolutions, and ordinances. 75 Together, these documents created formal legal standards that equated consanguinity with affinity relationships. See Table 5.
|Relationship||Closeness||Relationship, a man and (his) …||Punishment|
|Consanguinity||First lineal degree||mother, daughter||death|
|Second lineal degree||grandmother, granddaughter||death|
|First collateral degree||sister, half-sister||death|
|Second collateral degree||cousin||fine|
|Affinity||First lineal degree||mother-in-law, daughter-in-law, stepmother, stepdaughter||death|
|Second lineal degree||wife's grandmother, wife's granddaughter||death|
|First collateral degree||wife's sister, brother's wife, two sisters||death|
|Diagonally||uncle's wife, wife's niece||death|
|Second degree||wife's stepdaughter, wife's brother's widow||fine|
Table 5 thus shows the official legal standards that lawyers had to work with. These were also the penalties to which the members of the courts of appeal actively referred when they dealt with various incest cases. The applicable punishment for the relationship categories niece, wife's niece and wife's sister – the assessment of which, judging by the varying nature of the legal proposals, had been a cause of disagreement among lawyers – was fixed in the practical work of the courts, at least insofar as it was one and the same punishment that was referred to in the courtroom. How the law was applied in practice will be discussed later.
The legal position of women and men charged with crimes of incest was comparatively equal. 76 In cases where the death penalty was imposed, both women and men were executed by beheading and buried outside consecrated grounds. A regular funeral with all the appurtenant rituals – the ringing of church bells, the delivery of a sermon, handfuls of earth dropped on the coffin – was a token of respect both for the dead person and for his or her family. Denying the convicted criminal this final mark of respect was thus an active part of the punishment, and that part might be differentiated further still. Some people were buried quietly in a distant corner of the churchyard, others outside the consecrated grounds and still others, in the worst-case scenario, at the place of execution by the provost or the knacker. The more serious the crime, the further away from the churchyard would a person be buried. 77 In cases where the crime was perceived to be particularly reprehensible, a woman's body would be burned and a man's body broken on the wheel after the execution. Being broken on the wheel (stegling) meant that the body was dismembered and displayed in public – for the purpose of degrading the offender's body and providing a deterrent for the community. 78
6 The women wore ‘whipping bodices’ that left their backs bare when they were birched.
In the rare cases where the accused were reprieved from the death penalty, they were sentenced to corporal punishment. 79 A woman was then birched outside the door of the local courthouse while a man was sentenced to either flogging or running the gauntlet. Corporal punishments were also rated according to how serious the crime in question was perceived to be. A woman was sentenced to a maximum of thirty pairs of birch rods and the man to forty pairs of switches or nine gauntlets. 80
With respect to crimes in the more distant degrees, men and women were fined the same amount, i.e., eighty thalers in silver. In addition to this, a fine for adultery or fornication was added which, in the case of a married individual, would double the sum of the fine. 81 These sums were very high – the yearly salary for a farmhand was around ten thalers in silver. 82 If the convicted person could not afford to pay, he or she was forced to undergo corporal punishment in the form of birching, running the gauntlet, or flogging. 83 Furthermore, everyone had to undergo an ecclesiastical punishment in addition to the secular one. They were sentenced to so-called public penance and absolution (uppenbar kyrkoplikt och avlösning). The public penance was a punishment involving public shaming where the criminal had to sit on a special stool in church during the sermon. After having confessed his or her crime before the entire congregation, the person in question was given absolution and could then be reintegrated into the Christian community. Originally the aim of public penance was forgiveness and reintegration after the commission of a crime, but it increasingly came to function as a distinct public-shaming punishment. 84 During the nineteenth century, public penance was replaced by more private variants where the guilty person was allowed to confess in the vestry before the church council or privately before the local clergyman. 85
The court: a flexible practice
In the sixteenth century, the Swedish Reformer Olaus Petri drew up ethical guidelines for the judgeship. During the ensuing centuries, Swedish lawyers employed these judge's rules as guiding principles in parallel with the statute book. According to the judge's rules, no law could replace the judge's ability to apply discernment and personal good judgement. There were always individual cases that did not fit the legal text, and it was the task of the judge to decide whether the law was reasonable in each individual case. In parallel with the official regulatory framework, judges were thus also expected to make assessments of individual cases. They were to take account of ‘old customs’, or what they believed to be ‘right and proper’. To a certain extent, judges were thus allowed to rule according to their own conscience. The right to deviate from the letter of the law was primarily reserved for the court of appeal – not the hundred court – and it came with certain limitations. Among other things, a judge was not permitted to reprieve a defendant from the death penalty without the king's approval when the guilt of the defendant was considered proven, although the system no doubt provided scope for a certain arbitrariness. 86
Previous research has shown that several of the brutal capital punishments handed out on the hundred-court level for, among other things, sexual crimes and theft were routinely reduced to corporal punishment or fines by the court of appeal. In such cases, the legislation and the practical application were far apart. In addition, Swedish research has shown that the courts of appeal often used their ability to affect the outcome of the case in a direction that favoured the defendants; this contributed to a general humanisation of the application of punishments. However, the exception to this more lenient practice were crimes that were considered to have been committed against God's law, including crimes of incest. 87
This conclusion is confirmed by my study with one exception. An incestuous relationship in the diagonal affinity degree (wife's niece, uncle's widow) should in theory lead to capital punishment; but in practice earlier precedents were invoked, whereupon the defendant in question had his or her sentence reduced to corporal punishment as a matter of course, unless there were particularly aggravating circumstances. 88 In these cases a more lenient practice was thus routinely applied, similar to that of the treatment of more common sexual crimes. In all other incest cases where the legislation prescribed the death penalty, the judgement was upheld in 70–75% of the cases, which far exceeds other categories of crimes. 89 Crimes of incest in close family relationships were thus equated with capital offences such as treason, murder, and bestiality, rather than with adultery or fornication, which negatively affected the chances of having the sentence reduced.
Sweden stood out with regard to severity in comparison to other Protestant countries. In German-speaking areas, certain consanguinity relationships were punished by death, while people who had violated an affinity prohibition were only sentenced to corporal punishment or banishment. In Holland, defendants were rarely sentenced to death at all unless the crime of incest was aggravated by other crimes, such as infanticide or rape. 90 In Sweden's neighbouring countries, Denmark and Norway, only vertical consanguinity and affinity relationships were punished by death; but according to Jónsson's research this was a more lenient practice that had been introduced during the late seventeenth century. Danish historian Tyge Krogh also provides examples of the somewhat more lenient case law in Denmark around the turn of the century in 1700. However, before 1683, harsher punishments for crimes of incest seem to have been applied in Norway, Denmark, and Iceland. In other words, all the Nordic countries practised a very severe sentencing policy with respect to incest during most of the seventeenth century. Towards the end of that century, the legal situation in Denmark and Norway, and somewhat later also in Iceland, was mitigated, whereas Swedish courts continued to sentence incest criminals in accordance with the strict wording of the Bible. Krogh points out that theology lost authority in Denmark in comparison to other branches of scholarship after the introduction of royal absolutism in 1660, which might explain the more lenient practice established in that kingdom. Henceforth, the vague punishments in the Bible were interpreted less strictly by Danish lawyers and theologians; consequently, incest criminals were more often sentenced to hard labour or banishment rather than death. 91
In spite of Swedish courts standing out with respect to strictness, there was a tendency on the part of the courts to acquit rather than convict in uncertain cases according to the motto the more severe the crime, the more unambiguous the evidence must be. 92 The courts of appeal actively looked for mitigating circumstances that could justify a milder sentence, especially when there was a risk of capital punishment. If there was incontrovertible evidence of a crime that should lead to death, the court could not unilaterally reduce the sentence. They had to refer the case to the king or the Council of the State (riksrådet). In such official letters, the court of appeal summarised what they felt to be mitigating circumstances; but here they did not act entirely consistently. Mitigating circumstances that were emphasised in one case might be completely ignored in another, depending on which outcome the members of the court of appeal believed to be reasonable. The circumstances were thus actively put to use in order to strengthen the members’ own assessment of the case. 93 Regardless of whether the petition for mercy from the court of appeal actually led to a reprieve, the material thus reveals the assessment made by the associate judges in individual cases.
7 The Göta Court of Appeal was established in 1634 in Jönköping. Its jurisdiction included the southern parts of the Swedish mainland (Götaland and Värmland and, after 1658, also Skåne, Blekinge, and Halland).
The statistics of the crime
The relationship categories
During the seventeenth century, the number of sexual crimes tried in Swedish courts increased significantly. In research, this change is usually explained by assertions to the effect that legal control was stricter – not that there was an actual increase in the number of illicit sexual relations. 94 But how great a proportion of these crimes were incest cases?
Historians Jan Sundin and Rudolf Thunander have studied Swedish crime statistics on the hundred-court level and the court-of-appeal level, respectively. According to their calculations, crimes of incest made up approximately 30% of the sexual crimes that reached the court of appeal from the second half of the seventeenth century. 95 In actual numbers, this corresponded to around six cases per year with respect to the Göta Court of Appeal. Crimes of incest were thus not particularly common, but even so they occurred more frequently than, for instance, murder. 96 Between 1694 and 1716, just over 130 incest cases were tried at the Göta Court of Appeal. Table 6 shows the relationship categories involved in these criminal cases.
|Family relationship||Closeness||Relationship, a man and (his) …||Number of cases|
|Consanguinity||First, second lineal degree||daughter, granddaughter||2|
|First collateral degree||sister||4|
|Second collateral degree||cousin||4|
|Diagonally (2+3)||cousin's daughter||1|
|Sum total, consanguinity||18|
|Affinity||First/second lineal degree||mother-in-law||1|
|a mother and her daughter/stepdaughter||2|
|father and son with the same woman||3|
|First collateral degree||wife's sister||25|
|brother with the same woman||3|
|a woman and her niece||1|
|≥ Second degree||wife's cousin||1|
|wife's father's cousin||1|
|wife's brother's widow/concubine||2|
|Sum total, affinity||115|
Source: GHA, series BIIA. The material for 1715 is missing. Two cases occur twice because the same case includes two different relationships.
Out of all these incest cases, a clear majority, around 85%, were affinity relationships or sexual relationships among non-biological relatives. 97 In 107 cases, around 80%, the case ended in a conviction. 98 Three relationship categories were significantly more common than others. From the most common to the least, these cases concerned a man who had had sexual relations with his wife's sister (twenty-five cases), his wife's niece (twenty-two cases), and his stepdaughter (twenty-one cases). In fourth place came a man who had had sexual contact with two sisters (eleven cases).
The death penalty comprised all relationship categories in the first collateral or lineal degree and in the diagonal degree, regardless of whether the family relationship was consanguineal or affinal; but, as was pointed out above, in practice the sentences of couples in the diagonal affinity degree (wife's niece, uncle's widow) were routinely reduced. 99 Even so, the risk of being sentenced to death for those accused of crimes of incest in other relationship categories was quite apparent, since the sentence was upheld in around 70% of the cases. On the basis of a calculation of percentages, it is clear that there was a somewhat greater chance for women to escape capital punishment than for men. 100
Accusation and confession
In the vast majority of cases – in particular when the family relationship was comparatively distant – the crime of incest was revealed only when a woman became pregnant. This pattern recurs in all criminal cases regarding extramarital sexuality during the same period, but it is especially apparent with respect to crimes of incest in the first lineal and collateral affinity degrees (e.g., stepdaughter, daughter-in-law, mother and daughter, wife's sister). 101
Several of the women who were summoned to the local court because of a revealing pregnancy initially blamed the paternity on a man who was not in fact the father – often a man who was no longer in the neighbourhood and therefore could not be summoned and questioned by the court. Catharina Olufsdotter and Bärta Andersdotter both identified boatswains as the fathers of their children. 102 The widow Karin Jönsdotter claimed to have been ‘bedded’ by an army private, while Margaretha Hansdotter said that the father of her child was ‘a man travelling on the highway’. 103 Maria Nilsdotter claimed that she had been together with a ‘strange man with a black coat, a cane, and his own hair’. 104 The interrogations were, however, extremely detailed. The woman was questioned about the man's name and appearance and whence he came, and then careful investigations were conducted in order to find him, even when he was said to be elsewhere. The woman's position was often made more difficult by rumours that pointed to one of her relatives as the father of the child. After exhaustive interrogations and investigations, most people eventually confessed to their crimes. 105
According to the Roman-canon law of evidence, the legal principle that was applied, it was necessary to have either a confession from the accused or the testimony of two witnesses that confirmed the crime if a conviction was to be attained. 106 However, in practice almost all cases were settled by way of a confession. It was uncommon for a person to be convicted in spite of pleading not guilty, and this was even more unlikely if the defendant risked being sentenced to death. Sentencing a person to death without a confession and absolution would be the same as sending this person to eternal damnation. The more serious the offence, the stronger evidence was required, and an aggravated capital offence ‘should be based on obvious reasons and evidence and a free and unenforced confession’. 107
Consequently, accusations alone were not enough to convict a person, and besides, an initial confession could be recanted at a later stage. This led to prosecuted individuals being acquitted owing to a lack of evidence if they stuck to their denials. 108 In spite of this, most people confessed their crimes and endured their punishments. Confessions were also common in connection with other sexual crimes, and it has been pointed out that the possibility of reintegration into society may have been a reason for the confession. 109 But after the crime of incest, a prosecuted individual could rarely hope to be forgiven and reintegrated into society. It is conceivable that the confession reflected a desire on the sinner's part to atone for the crime and thus save his or her soul and be a part of God's community in Heaven. Jonas Liliequist, who has studied the crime of bestiality in Sweden, argues that the motivation for those who themselves reported their crimes was often a guilty conscience. Such confessions often concerned an undiscovered sin that had been committed in an individual's youth and over time increasingly weighed on his conscience, leading finally to self-incrimination. In these cases, those who had committed bestiality wanted to atone for their sins by enduring a secular punishment. Few asked for mercy. 110
In my material, such self-incrimination is rare. 111 The confessions that were made were often a long time in coming, judging from expressions according to which the person in question had ‘eventually confessed’ or ‘finally confessed after several exhortations’. 112 If there was aggravating circumstantial evidence but no confession, the accused was repeatedly urged to ‘confess the truth’ by both the clergy and the judges. Interrogations were lengthy and detailed. The man and the woman were questioned separately, whereupon their stories were compared. Any discrepancies in their statements were questioned. Sometimes the prosecuted individuals were confronted with the lie that the other person had already confessed to the crime and that the accused person might just as well confess too. 113 Torture was not allowed, but occasionally the accused were put in ‘harsh’ (svårt) or ‘hard’ (hårt) prison, which could mean that they were flogged, that handcuffs were screwed too tight, or that they were hung up against cold stone walls for long periods of time. 114 Although most prosecutions began with the suspects violently denying the charges, they almost always ended with confessions. 115 It is impossible to determine for certain whether this was because of physical hardships or psychological pressures, but it is clear that the religiosity of the population made it easier to enforce the strict legislation. 116
Once criminal cases ended up in the court of appeal, the issue of culpability had usually already been resolved. The prosecuted persons had ‘voluntarily admitted their grievous sin’, they ‘repented their crime’, and now they ‘tearfully’ pleaded for ‘mercy from the most esteemed authority’. In other words, the confession was directly followed by a passionate appeal for mercy. It is likely that an element of interaction played a decisive role for the conduct of the accused in court. In several cases, those who were guilty of committing crimes of incest had lived in secret with their sin for a long time. They had gone to church on Sundays and listened to the admonitions of the clergyman without being manifestly tormented by pangs of conscience or feelings of guilt, but when they ended up in court everything changed. The interrogation confirmed the immoral aspect of the relationship, the official condemnation of the act became obvious, and it is possible that a prosecuted person's own experience of the crime changed in consequence.
Ingemar Olsson had had a sexual relationship with his stepdaughter for several years. For a long time he had lived with the knowledge of his sin without its being made public and without his being tormented by any apparent feelings of remorse. At the final confession in the local court, Olsson, ‘after repeated and serious exhortations, tearfully confessed and begged God to have mercy upon him and people to support him’. 117 He had thus refused to acknowledge his guilt to himself and to God until the matter became public knowledge and his crime could be reflected in the reactions of the people around him. A similar reaction can be seen in several of the people who were prosecuted for crimes of incest. At trial they broke down and the tears came.
It stands to reason that one also has to consider the impending secular punishment, which was surely the cause of great fear for anyone who ran the risk of being beheaded. Ingemar's pleas were directed both to God and to his fellow human beings, which indicates that he feared both the secular and the spiritual punishment. Nevertheless, the many confessions indicate that the prosecuted individuals accepted the official evaluation of the nature of the crime. If they had had sincere objections to the sinfulness of their acts – if they themselves did not believe that they had violated God's commandments and that they now risked the salvation of their souls – they would have been able to deny their actions to the very end and would probably have been acquitted. The common plea for mercy reveals that even if the prosecuted individuals admitted the criminality of their acts, they did not feel that these acts were unforgivable. To the very end they hoped for mercy and forgiveness, which was rare but not completely impossible if there were strongly mitigating circumstances.
Mitigating and aggravating circumstances
With respect to relationship categories in the more distant family degrees, ignorance was, as we have seen, used as an excuse for a criminal act both by the peasantry and by the authorities. Ignorance was thus a legitimate argument for completely acquitting someone of criminal liability or for reducing a sentence. This ignorance could manifest itself in various ways. On the one hand, the person in question could be unaware of the prohibition in itself. On the other hand, a person could unknowingly commit incest because they did not know of their partner's previous sexual contacts – for instance, when a man had sexual relations with two sisters on different occasions without being married to either of them and without their being aware of each other's activities. In connection with similar ‘triangle cases’, where all the parties were unmarried, it was always made clear whether there had been prior knowledge of the other relationship. If the answer was no, the ignorant party was completely acquitted of the accusation. 118 Feeblemindedness, in the sense of mental deficiency, could also, as an obvious consequence, be invoked as a mitigating circumstance by the accused or by their relatives. 119 Closely related to ignorance as an excuse, youthful folly could also be used as a defence for committing a sin. This line of reasoning was based on the idea that a young person had not always reached a complete understanding of right and wrong and of the message of Christianity, and for that reason the people around them could overlook their behaviour. 120
Another common strategy was to emphasise the fact that the ill deed had been an isolated mistake or that it had happened while under the influence of alcohol. This defence becomes logical if we consider the ideas surrounding self-discipline and self-control, qualities that were regarded as being among the human virtues. Indeed, self-control was felt to constitute the decisive difference between humans and animals. 121 It was sinful to give in to physical appetites, to gorge on food, and to live out one's carnal desires. 122 Losing one's self-control was on the whole considered a failure, but it could be forgiven if it only happened on an isolated occasion or if a person had been strongly provoked. 123 If, in addition, a person had been intoxicated on this occasion, he or she was not thought to have been in full possession of his or her senses, which diminished the issue of responsibility even further. This was expressed in forthright terms in one case. The couple in question allegedly committed the crime of incest when ‘in their cups’, when they ‘during the distillation of spirituous liquor […] had surfeited themselves to such a degree, that they then did not know what they did’. 124
Similarly, a single crime could in exceptional cases be forgiven with the justification that the person in question had been overpowered by desire that suddenly flared up. Both men's and women's sexuality were basically seen as positive. Sexuality was a gift from God so that men and women could experience joy in and lust for each other. 125 But the sexual drive was acknowledged and accepted only within marriage. 126 Passion and lust outside of the marriage bed was seen as a negative force which had to be controlled and repressed in order not to lead an individual into ruin and misery. 127 Repeating a crime of incest after having had the chance to stop and think was thus a severely aggravating circumstance. Both the local court and the court of appeal took into account whether the evil deed had only been committed once or on several occasions, which shows how important they felt this piece of information to be. 128 Both men and women could thus gain the sympathy of the court by emphasising that sexual congress had only happened a single time.
In legal proceedings, the conduct and reputation of the accused were considered as well. It was noted whether the prosecuted individual had illegitimate children, or whether he or she had been convicted of sexual relations outside marriage on previous occasions. In this context, it was also an advantage if the prosecuted person had explicit support from the people around him or her. It was fairly common for a married party to beg for his or her spouse's life, but other relatives or ‘the rest of the peasantry’ might also make statements about the behaviour and reputation of the accused.
If a woman claimed that the sexual act had happened against her will, her sentence could be reduced to a fine or corporal punishment. The man was usually older than the woman, and according to the ideas of the time he was the active party who seduced her. 129 When the woman claimed to have been ‘lured’, ‘enticed’, ‘forced’, or ‘persuaded’ by the man, this was thus in line with ideas surrounding male and female behaviour. To be sure, popular culture and theological discourse contained a parallel notion about the woman as a dangerous enchantress who could attract men to her; 130 but in a court context the woman's role was presumed to have been passive, and the question of whether she had acted provocatively or inappropriately was not asked: 131 it was the image of the initiating male that prevailed. In cases where the woman was the older party, there are no arguments concerning seduction or enticement of the younger male. 132
Both the debate and the actual legislation show that it did not matter whether a person was married or unmarried when the crime was committed. If someone violated the forbidden degrees this was seen as a crime against God's law, irrespective of whether there was an aggrieved wife/husband or not. But when actual criminal cases were tried, it was repeatedly indicated whether the crime was ‘aggravated’ by adultery or not. Sometimes individual judges recommended a reduction of the death penalty with reference to the crime having been committed after the spouse had died. 133 The marital state of the prosecuted individuals was thus used as a rhetorical manoeuvre by judges in order to influence the assessment in either direction in individual cases, but in practice this does not appear to have had any effect on the outcome. 134
It was not entirely uncommon for a suspect who risked the death penalty to abscond before the trial began. It was mostly men who absconded, but in a few cases women did as well. 135 The court viewed absconding as a severely aggravating circumstance. It was felt that the criminal was not only confessing his or her crime by absconding, but also rebelling against justice and indirectly defying the authority of the court. However, it was difficult to stay away for a long period of time. Wherever the fugitive went, he or she risked people reacting and becoming suspicious. One solution could be to join the army, where it may be supposed that fewer questions were asked. But several fugitives returned sooner or later, and then the court was waiting for them. 136
Although theoretical penal consequences had been established for different crimes, there was nonetheless scope for interpretation and negotiation in the practical administration of justice. In the interactions among suspects, the local community, and the authorities, the actors involved continually used informal norms in order to strengthen their arguments. In trial proceedings, several circumstances were invoked, and accepted, as mitigating circumstances. These norms were thus reproduced on a general level by both the authorities and the peasantry: from below by stating these circumstances as excuses for having committed the crime, and from above by explicitly mentioning them as reasons for a potential reduction of the punishment. Ignorance, intoxication, an isolated mistake, and coercion are a few examples of such excuses. However, none of these circumstances was guaranteed to result in a reprieve or a reduction of the punishment. The members of the court always made an assessment regarding credibility in each individual case; then, depending on their assessment, they could emphasise or ignore mitigating as well as aggravating factors.
It might be added that the relevant religious notions functioned as an obvious and unchallenged basis for the prohibitions. It was formally stated that the act was forbidden according to God's law in Leviticus, and the prosecuted individuals were called upon to ‘confess the truth’ so that their souls would escape eternal damnation. 137 Other than this, however, religious arguments did not play a prominent role in the judicial process. For example, discovered crimes never led to pronounced apprehensions that God's collective punishment was at hand, or that the purpose of the punishment was to prevent such divine retribution. The religious motive was thus there as an incontrovertible point of departure for the prosecution, but in other respects religion was not used as an active argument during the proceedings.
Violence and exploitation
The question of whether the sexual act had been voluntary or not was never asked. The crime of incest was primarily connected with the act, not the intent. The act signified a violation of God's law and could in theory only be atoned for by the sinner being punished by death. By participating in the act, a person was guilty of the crime – regardless of whether the involvement in the sexual act had been voluntary or coerced. However, Lindstedt Cronberg, who has studied incest between parents and children in Sweden, shows that even if the court assumed that both parties were guilty of the crime of incest, there was scope for reducing the punishment when a young girl had been forced by her father or stepfather to commit the act. 138 How common were these abusive relationships in reality? And how was the issue of guilt assessed in these cases, compared to cases that did not contain elements of violence, threat, or obvious pressure?
My definition of violent or coercive relationships is comparatively broad in this context. I include all cases where the woman was considerably younger or where she, according to her own statement or other testimony, had been seduced or coerced by the man. Cases where the woman is said to have been feebleminded, or where there are indications that she had been paid for sexual services with money or goods, have also been categorised as coercive relationships. This is of course a very uncertain categorisation in respect of which all numbers should be taken with a large grain of salt. It is likely that many casual relationships occurred between men and, in particular, unmarried women where the women's freedom of choice might be questioned even when there were no pronounced elements of violence or coercion. In addition, as Jarzebowski has pointed out, it is likely that the very meaning of sexual violence has changed over time, as has the definition of voluntary and involuntary relationships, which complicates the picture further. 139 But the interesting thing is not how we would have defined a relationship, but how the relationship was perceived at the time. If there are no traces of coercion in the court records, even though violence and coercion were seen as mitigating circumstances, we have to assume that neither the accused, nor the local community, nor the judging authorities perceived the relationship as a coercive one.
Earlier Swedish research shows that when the crime involved fornication (when both parties were unmarried and unrelated to each other), the relationships mostly appear to have been voluntary and reciprocal. In these cases, the woman was rarely in a formal position of dependency vis-à-vis the man; and to judge from comments in the judgement books, she had often been as interested in the relationship as he. If they were discovered, the women in particular risked the loss of their honour. The motive for nevertheless committing the act may, aside from sexual desire, be explained by a wish for marriage. Sexual congress can thus be seen as a conscious strategy for attaining the sought-after title of wife. 140 When, on the other hand, the crime involved adultery (i.e., when one or both parties were married), the woman repeatedly described how the man had ‘long pursued her’ until she had finally given in. 141 In the latter case, it thus seems as though the man was the active initiator of the sexual relationship. However, this does not necessarily mean that there was actual coercion or violence, and for a researcher it is difficult to determine whether the woman acted voluntarily, or whether she was forced to participate in the sexual act, exclusively on the basis of court records. The woman had nothing to gain from accusing the man of exploitation in this context. In her study of rape cases in Sweden between 1600 and 1800, Karin Hassan Jansson has drawn the conclusion that it was difficult for a woman to have a man convicted of rape during the early modern period. Ideally, she would have to prove her active resistance in the form of torn clothes and serious physical injury in order to have the slightest chance of having the man convicted. And even when these requirements were fulfilled, it was practically always ‘unknown assailants’ who were convicted, not the women's employers. 142 In those cases where the woman did not succeed in convincing the court that she had been forced to participate in the act, her testimony was taken as a confession of fornication or adultery, for which crime both parties were punished but in respect of which social stigmatisation had a more unfavourable impact on the woman. For this reason one may imagine that many women who were the victims of sexual violence chose not to talk about the incident unless they became pregnant. 143 In line with this reasoning I believe, as do several other researchers, that there is probably a large number of unreported cases of violence and exploitation in connection with sexual criminal cases in the reporting in the judgement books. 144
When the crimes concerned sexual relationships between closely related people, the situation is different, though. If a regular rape was considered proven, the legislation prescribed the death penalty for the man. By instead defining the crime as a case of fornication or adultery, both the man and the woman were sentenced to a fine or, alternatively, to corporal punishment. In so doing, the court could avoid handing out a death sentence by dismissing the credibility of the woman's testimony. But if a man violated a close relative, the question of whether the act had been committed by force or not was immaterial: the punishment was death in either case. For the woman, though, the definition of the crime was crucial. If she had been forced to participate in the act, this could justify a reprieve for her.
The manner of defining the crime thus determined the final judgement that could be handed out. If there was no family relationship between the man and the woman, a death sentence (for the man) was avoided by dismissing the woman's claim of violence and coercion. But if, on the other hand, there was a family relationship between the parties, a death sentence (for the woman) could only be avoided if her story was accepted as true. Here the assessment of the members of the court may have been influenced by a desire to apply lenient case law. Previous research supports the assumption that this was a prioritised norm according to which the court of appeal acted in its everyday activities. 145
This does not mean that the members of the court of appeal chose to ignore persuasive evidence, or that they avoided pronouncing death sentences at any cost. Instead, I see their actions as a subconscious interpretation of the chain of events that might affect the outcome in uncertain cases. Their interpretation was probably affected by several parallel and partly overlapping ideas surrounding, for instance, legal justice and general judicial ethics, but also by their own religious and gendered preconceptions. When a rape case where there was no family relationship between the perpetrator and the victim was defined as adultery or fornication, male patriarchy, women's subordination, and the basic hierarchical construction of society were indirectly defended while the lenient case law could still be maintained. In cases where the man and the woman were related, three of the first-mentioned norms came into conflict with the last-mentioned one. It was impossible to defend the superiority of the man in the social hierarchy and practise lenient case law at the same time. I believe that the family relationship thus acquired an active significance for the assessment of incest cases where the woman claimed to have been exploited by the man.
In cases where the court found it credible that the woman had been coerced or enticed into participating in the sexual act, she was reprieved from the death penalty but was forced to suffer corporal punishment in the form of birching. She was rarely completely acquitted, because she had in fact participated in an act that was forbidden by God. 146 In spite of this, violence and coercion were among her strongest arguments for obtaining any kind of reprieve from the death penalty. Hence there was a strong incentive for a woman to relate any abuse in cases where such circumstances actually existed. In the majority of incest cases from the period around the turn of the century in 1700, the woman's punishment was reduced not only in obvious rape cases but also when she claimed after the fact that she had been ‘enticed’, ‘lured’, or ‘deceived’ into committing the act.
In 1701, Sven Ersson (forty years old) and his niece Anna Olofsdotter (fifteen) were accused of incest. Both ‘freely’ confessed their crimes and should, according to the law, have been sentenced to death. But Anna's father, Sven's brother Olof, ‘tearfully’ begged for his daughter's life before the hundred court, with the justification that she was very young and that Sven had ‘lured and enticed’ her to commit this ‘grievous sin’. According to the father, the guilt was entirely Sven's. First, he was ‘an old farmhand’; second, he had previously been convicted of fornication; and third, he had lived and worked as a farmhand on Olof's farm for ten years. Being forty, Sven could not blame his acts on youthful folly. His conduct and honour were not only sullied by his previous misdeeds, but also by his actions towards his brother and master. By seducing Olof's daughter, he had violated his master's trust. This crime appears to have been revealed only when the daughter became pregnant. There are no indications that Sven used physical violence or threats in order to persuade Anna to be together with him sexually. The court records only describe that he had lured and enticed her to come to him. He had quite simply seduced her in a way that, judging from the studies of Jansson and other researchers, would never have led to a conviction for rape if Sven and Anna had not been related. By emphasising Anna's youth and foolishness in parallel with Sven's shortcomings, all guilt was foisted onto him. Anna escaped with a birching, while he had to pay with his life. 147
A seventeen-year-old girl, whose name was also Anna Olofsdotter, ended up in court in 1704 when it was revealed that she was pregnant. At first, she claimed that a farmhand was the father; but after lengthy interrogations she finally confessed that it was her brother-in-law who had ‘enticed’ her into having sexual relations with him on two occasions during the previous summer. Her sister and her parents begged for her life, and her sentence was reduced to being birched outside the door of the local courthouse on two occasions with fourteen days between them. 148
Similarly, a thirty-two-year-old woman ended up in court in Lister Hundred in 1704 when it became obvious that she was expecting a child. This woman also initially identified a farmhand as the father, but later ‘tearfully’ confessed that it was her sister's husband who was the father of the child. The sexual relations were to have taken place ‘once only, when they were both in their cups’. Her brother-in-law escaped before the trial. The woman's sentence was reduced to a birching with the justification that the crime had occurred a) once only, b) in the absence of the wife, and c) while intoxicated, and because the man who was just as guilty, or even more so, had absconded and thus escaped punishment. 149 Twenty-year-old Britta Andersdotter was also sentenced to a birching after claiming that her brother-in-law had lured her into drinking so much that she was severely intoxicated on one occasion, after which he abused her sexually and made her pregnant. 150
None of the above-mentioned cases contain any description of physical violence, threats, or obvious situations of dependency. Not even Anna, who was very young, can be said to have been in her uncle's power, since he was a mere farmhand in the household where her father was the master. All the crimes were discovered several months after the sexual act in connection with the discovery that the woman was pregnant, and it was thus only after the fact that the women defended their actions with having been lured or enticed into committing the acts.
In cases where a woman was considered to have been forced or lured into participating in the sexual act, she often had the support of both the court and her family. The violence or abuse ended up as the focal point while the family relationship was toned down. At the same time, I believe it was precisely the family relationship that made it possible to focus on the abuse in these cases. By accepting the woman's description of the relations as having been forced, the judges could justify her reprieve. In opposition to what was the case when there was no family relationship between the parties, the judges were thus able to avoid a death sentence by believing the woman's words. Jansson, too, notes that in rape cases that were also incest cases, women often managed to persuade the court that their version of events was the true one. 151
In another study, historian Eva Bergenlöv compares Swedish rape cases from the turn of the century in 1700. In one case she finds it ‘noteworthy’ that a man was convicted of rape although the victimised woman had not reported the crime immediately. According to the court records, the man had confessed his crime orally on a previous occasion before two credible witnesses; Bergenlöv assumes that this was the decisive circumstance for the outcome of the case. The man in question is said to be the woman's stepfather, but because the family relationship was mentioned without being emphasised in the records, Bergenlöv dismisses its significance for the outcome of the case. 152 Conversely, I believe that the family relationship was probably the decisive circumstance in the assessment of this case.
It should, however, be emphasised that the court did not in any way lightly or routinely pardon women on such grounds. In some cases, the woman's position was improved by the man's absconding before court proceedings began, because this was considered indicative of his guilt. If one party was not present in court, the chances of escaping the severest punishment of the law increased for the party who did show up. The crime was then blamed on the party who was not present. Because (usually) the man had escaped secular punishment through absconding or death, it was considered wrong to let the woman alone answer for the crime. 153 When both parties were present, the woman's credibility might be questioned by the man's defence.
Anna Eriksdotter (twenty-four years old) worked as a servant for her uncle, Holsten Bengtsson (sixty-four). When Anna became pregnant, both confessed that they had had sexual relations on one occasion. But their accounts differed with respect to the circumstances of the crime. He claimed that she had taken the initiative by coming to him in bed, whereas Anna was prepared to ‘swear on oath’ that it was Holsten who had come to her and demanded sex when he was drunk. 154 Following both their confessions, the court of appeal found no reason to amend the death sentence handed out by the hundred court. The case was never referred to the Crown, and both Anna and Holsten were executed. 155 Anna was much younger than her uncle. She lived in his house and was dependent on him for her upkeep. In addition, she was prepared to swear that the crime had happened on his initiative; but this was not enough for her life to be spared.
This case shows that it was after all quite difficult to be reprieved from the sentence of capital punishment when the crime involved incest. It also underlines the fact that the court always assumed that both parties were equally guilty. Although most of those reprieves which were actually granted were given to women who claimed that they had been forced or lured into committing the act, this was never an active line of questioning that was initiated by the court. It was quite simply assumed that both had been willing participants in the act. Incest was thus not primarily associated with violence or situations of coercion. One reason for this may be that incestuous relationships based on coercion or exploitation were actually in a clear minority at this time.
On the basis of court records written around the turn of the century in 1700, it may be established that relationships between full biological relatives were the only relationship category where coercion and exploitation appear to have dominated. In five out of eight such cases, these circumstances were mentioned, but at the same time these relationship categories were clearly in a minority. As for the affinity categories, the percentage of criminal cases where aspects of violence or coercion were mentioned was at most around 30% in specific relationships, the average figure being just under 20%. See Table 7.
|First lineal degree||daughter||1|
|First collateral degree||sister||2||2|
|First lineal degree||stepmother||2|
|First collateral degree||wife's sister||12||5||1|
|two sisters, two brothers with the same woman||5*|
Source: GHA, series BIIA. A selection of categories where the defendants risked capital punishment. These numbers also include half-relatives.
* There are in fact seven cases in this category. In two cases the woman claimed that she was not aware of the man's previous relationship to her sister. The woman thus seemingly voluntarily participated in the sexual act, but could not, by reason of ignorance, take a position with respect to the kinship crime. For this reason, these cases have been removed from the statistics.
It is true that there may have been coercion or exploitation even in some other relationships that have been categorised as ‘unknown’, but the incentive of the woman to portray a relationship as coerced – whether this was the case or not – should have been great in relationship categories where there was a risk of capital punishment. She had everything to gain and nothing to lose by blaming the man. Thus, the likelihood increases that the category ‘enticed/forced’ contains relationships where the woman voluntarily participated in the sexual act only to blame the man after the fact. 156
Swedish circumstances were thus similar to the situation in the Netherlands, because Dutch lawyers also tended to pardon women who claimed that they had been forced to participate in the sexual act. 157 In German-speaking areas, however, it was more difficult for women to gain a hearing for stories involving threats and violence. Ulinka Rublack describes a culture where women were forced to endure sexual demands from their relatives and where no harm was felt to have been done as long as they did not become pregnant. According to Rublack's material, the woman was often economically dependent on the man, which resulted in her having problems defending herself from sexual pressures. Ideas regarding rape at this time assumed that the crime was committed in the forest or out in the fields by an unknown assailant, which made lawyers less than responsive to other scenarios or versions of events. To a large extent, women were therefore judged in the same way as men. 158 This difference might be explained by the fact that fewer relationships risked the death penalty in the German-speaking areas; consequently, the incentive to believe the woman diminished in accordance with the above line of reasoning.
In conclusion, a clear majority of all Swedish crimes of incest from the turn of the century around 1700 onwards appear to have been voluntary relationships between two adult individuals who were related through marriage (affinity relationships). In legal contexts it was assumed that both parties had participated voluntarily in the act, and only when the woman or her relatives claimed that she had been forced or lured into committing the sexual act was an assessment made as to whether this might be the case. If the woman managed to convince the court that she had been deceived or lured by the man into committing the act, her punishment was often reduced to birching. She was rarely completely acquitted, though, because she had – albeit involuntarily – participated in an act forbidden by God.
8 A peasant couple from the eighteenth century.
Love and passion
As the preceding section showed, the large majority of incestuous relationships reported to the Göta Court of Appeal around the turn of the century in 1700 were affinity relationships, or relationships between non-biological relatives. Most of these relationships appear to have been based on mutual voluntary participation. In spite of this, very few cases include references to the personal feelings of the couples involved. Descriptions of love and infatuation are thus conspicuous by their absence in the court records, which shows that love, lust, and longing were not considered legitimate excuses for violating incest prohibitions. But this does not mean that ideas surrounding love and sexuality were not important in these contexts. On the contrary, I believe that such ideas had a decisive significance for how individual incest cases were decided. In order to illustrate the ways in which this happened, I will analyse two incest cases where a man had a sexual relationship with his wife's sister. Both cases ended in the conviction of the accused with the death penalty as a consequence, but in the end a royal pardon was obtained for one of the couples. The interesting question here is why one of the couples were pardoned but not the other, although the family relationships were the same.
The first case concerns twenty-year-old Lars in Spånbacken. According to the court records, he had ended up on the floor in the straw together with his wife's unmarried sister, Britta Andersdotter (twenty-six years old), late in the evening after the festivities of the Christmas holiday. Lars was drunk on this occasion and the two of them had sexual intercourse, whereupon Britta became pregnant. Later, before the hundred court, they confessed their crime and humbly pleaded for mercy. During the interrogations they admitted that they knew that the family relationship aggravated the criminal act, and that they had hence committed a very grave sin. Lars's wife (who was thus Britta's sister) begged for mercy on behalf of her husband and said that she would gladly have him back if he could be reprieved from the death sentence. 159
The second case concerns a forty-year-old gardener by the name of Abraham Andersson. After a sudden illness, Abraham's wife had died and left him alone with four small children. Shortly thereafter the unmarried sister of the dead wife, Catharina Olofsdotter, who was around thirty years old, began helping Abraham with the household chores and the care of the children. The following year Catharina gave birth to an illegitimate child, whereupon she was summoned to the local court for questioning. When asked about the father of her child, she said that it was a boatswain whose ship had left harbour several months earlier. But the members of the hundred court did not believe her, as the time when the ship sailed did not quite correspond to the duration of a normal pregnancy. The interrogation continued for another few hours, and eventually Catharina started crying. She went up to the hundred-court judge, who was in charge of the proceedings, and whispered a confession in his ear that it was actually her brother-in-law, Abraham, who was the father of the child. After Catharina had confessed, she displayed ‘particular remorse for the sin and begged that her life might be spared by the esteemed authority’, and she expressed pity for her little child, who now risked becoming an orphan. Abraham was brought in for questioning, and after a certain hesitation he too confessed to their crime. It was also revealed that it was Abraham who had encouraged Catharina to ascribe the paternity to the boatswain.
Abraham and Catharina had a certain amount of support from the local community. The people assembled for the trial attested that neither Catharina nor Abraham was known for dissolute living; and the county sheriff Lars Bjälke, who was Abraham's neighbour, confirmed that Catharina had not been seen around Abraham's cottage before his wife died and that after the wife's death she had only been there to look after his little children. 160
When Catharina gave birth to her child, she had been assisted by three women who also appear to have tried to protect the couple as far as possible. During the early modern period, it was the explicit duty of such birth assistants or midwives to ask unmarried women in labour who the father of their child was – preferably while the woman was racked by the most severe pain. Pronouncements made during labour had high credibility and could be equated with a deathbed confession. 161
For this reason, the three birth assistants were questioned during Catharina's trial. At an early stage of the trial, before Catharina had confessed her guilt, the birth assistants unanimously claimed that it was true that Abraham had shown great concern for Catharina in connection with the delivery, but that the only father of the child who had been mentioned was the boatswain. Later, when both Catharina and Abraham had confessed to the crime, the same birth assistants were summoned again. Once more, the hundred court asked them if they really had not suspected that Abraham might be the father of Catharina's baby. The women then admitted that they had had their suspicions about Abraham's involvement, because he had been so very anxious while Catharina was giving birth. Catharina's delivery had been unusually difficult and protracted. On one occasion during the two-day-long delivery process, Abraham had a forcibly opened a bolted door and made his way in to Catharina, though the birth assistants had attempted to expel him from the cottage. He could not be prevailed upon to leave her but had sat at her side, holding her hand and apologising for having been ‘too close’ to her. 162
Once the crime had been confessed, the members of the court turned directly to Catharina and asked how in the world she had allowed herself to become involved in such a grievous sin. She answered that she had tried to resist Abraham when he pursued her, but that she had finally given in when she, ‘so help me God, began to love him’. Abraham confessed that he had initiated the relationship, but firmly claimed that ‘sinful as it was, it happened from a blinding love for Catharina’. 163
These two criminal cases have several things in common. Both concerned a relationship between a man and his wife's sister. They were relatively close in time and space (1692 in Västergötland and 1712 in Östergötland, respectively). In both cases small children were involved, and the accused showed great remorse and humility before the court. In neither case is there any indication that the relationship was based on any form of violence or coercion, and in both cases a person from the local community had spoken up in favour of the accused. Both couples were considered guilty of the sexual act and were sentenced to death, but on recommendation from the Court of Appeal one of the couples was later pardoned by the king. What was it in the chains of events that differed in such a crucial manner that one couple was allowed to live but not the other? From a modern perspective, the answer to the question is not obvious; but on the basis of the cultural values of the time, the dissimilar outcomes may be explained.
Abraham and Catharina were both unmarried, whereas the crime of Lars and Britta was aggravated by the fact that Lars's wife was alive when the crime was committed. It followed from this that the couple were guilty of both adultery and incest. According to the law, the civil status of the offenders was not supposed to affect the assessment of the crime of incest; but the members of the court often cited as a mitigating circumstance that a criminal was unmarried, which suggests that this factor did affect the court's reasoning after all. Even so, it was Lars and Britta who were pardoned by the Crown after a petition for mercy from the Court of Appeal. The petition summarised the criminal charge and adduced the mitigating circumstances as perceived by the members of the Court. It was pointed out that Lars was very young, that the crime had occurred when he was drunk, that his wife begged for clemency on behalf of her husband, that the accused had been in ‘harsh’ prison for a long time, and that the crime had only happened on a single occasion. In my view, this final fact constitutes the decisive difference between the two cases. 164 Abraham and Catharina were both uncommitted, they had a good reputation in the local community, and there were neighbours who spoke up for them; but they had been involved in a longer relationship. In spite of their knowledge of the prohibition, they had committed the crime again and again. That they appear to have been in love was not perceived as a mitigating circumstance.
During the early modern period both women and men were thought to have an active sexuality; and although marriages were often based on practical agreements, love and tenderness between spouses were regarded as praiseworthy and desirable. Indeed, they were considered to be among the marital duties. Previous research shows that this favourable discourse about love had the support of both the authorities and the peasantry during the seventeenth century. In contradistinction, the purpose of the love relationship was not primarily the happiness of individuals, but the promotion of marriage in itself. 165 Because marriage as an institution was considered to be one of the cornerstones of a stable society, conjugal love almost became a civic duty. First and foremost, it was supposed to promote marriage and consequently the good of society. 166 In other words, not only sexuality was channelled into marriage, but also all the tender feelings that men and women could have for one another.
In sharp contrast to conjugal love there was extramarital passion, which was perceived as a potentially dangerous instinct or disease that had to be controlled at any cost. Passionate love was considered unreliable and fickle. However favourable the effects of love within marriage might be, love's possible consequences outside the matrimonial union were dangerous in equal measure. In this context theologians emphasised original sin, which all people carried within them and which made them vulnerable to temptations of various kinds. Emotions and passions were perceived as weak points in the human defence against worldly temptations. 167 Historians have described the early modern period as a battlefield between good and evil, between God and the Devil. People were tempted by social prestige, physical pleasure, or spiritual satisfaction. But according to the prevailing, religiously influenced normative interpretation, these were illusions created by the Devil in order to lead people astray, away from God. Yielding to temptation would, according to early-modern rhetoric, only lead to a brief and false happiness. For this reason, it was thought to be of the utmost importance that people learned to govern their passions and firmly resist temptations. 168 To a certain degree, youthful indiscretions could be overlooked; but as people grew older and amassed greater life experience, they were expected to be able to control and assume responsibility for their actions.
On the basis of these ideas, prevalent at the time, the differing judgements become easier to understand. True, Lars and Britta had failed to control their desires. They had been carried away by their feelings, a failure partly explained by their youthful folly, partly by Lars's intoxication. The arguments presented in court were based on the idea that they could not be held completely responsible for their actions under the circumstances. At the same time, the support of Lars's wife implied that they were, at bottom, proper and devout individuals. The couple was sentenced to harsh corporal punishments: Lars had to run nine gauntlets, and Britta was severely birched at the door of the local courthouse; but at least they were allowed to live. 169
For Abraham and Catharina there were no mitigating circumstances. Over a period of several months, they had repeated their crime again and again. They had had an opportunity to come to their senses, but had again fallen for the temptation of having ‘carnal knowledge’ of each other. In addition, they were forty and thirty years old, respectively, and were consequently held fully accountable for their actions. It did not matter that they behaved humbly and devoutly in all other respects – their relationship was a violation of God's laws and could not be excused or pardoned by a secular court.
Even though Abraham and Catharina pleaded with the authorities for mercy, they at the same time admitted their guilt and the justness of punishment for their actions. Both claimed to ‘cheerfully wish to suffer their well-earned punishment’, and they did not invoke any mitigating circumstances. The warm feelings they had for each other were only made clear as an answer to an explicit question by the hundred court. Catharina said that she had allowed herself to be tempted into committing the act when she, against her will, had begun to love Abraham; and as was stated above, Abraham explained his behaviour by referring to a ‘blinding love’ for Catharina. In both cases these were explanations of their behaviour, not excuses that they thought might lead to a reduction of their punishment.
The account of Catharina's final confession that is recorded in the judgement book is very interesting. Before the confession was made public, only Catharina, Abraham, and God (as far as we know) had any knowledge of the sin. As long as the crime was kept secret from the people around them, their feelings of guilt or shame were not so great that they were unable to keep them in check. Once the pregnancy was a fact, they attempted to use a lie to avoid suffering the consequences of their actions. But Catharina's claim that the boatswain was the father of her child was not believed by the members of the court, who continued to apply pressure on her. The hundred-court judge asked her to swear on the Bible, while he at the same time reminded her of the ‘torments of her soul’, the ‘agony’, and the secular and Christian punishments she might endure if she chose not to speak the truth. If she confessed the crime instead and showed due remorse, she could still save her soul. For ‘over two hours’ the hundred-court judge ‘belaboured’ Catharina in this way, whereupon she finally burst into tears and whispered her confession. She did not wish to speak it aloud and tried to keep it secret from the people around her for as long as possible. Catharina's reaction indicates that she expected condemnation. Regardless of whether she responded to the actual reaction of the people around her or to the reaction she expected would come, her behaviour reveals that she acknowledged the act as immoral and sinful.
It is striking how absent allusions to the emotions are in court records of this period, even though most incest cases appear to have been voluntary relationships. Not even in the few cases where the accused had lived together for years and had several children together were tender feelings mentioned. Personal feelings were quite simply not offered as an explanation or excuse on the part of the accused. 170
Similar patterns are presented by other researchers with respect to crimes of adultery and fornication, where the argumentation was rarely made in terms of infatuation or attraction. Rather, infidelity was regarded as folly. 171 This confirms that the censorious attitude as regards extramarital infatuation was a powerful social norm that both the authorities and the peasantry supported, at least on the surface. The same norm was reproduced in the court proceedings by all the parties involved, by the members of the court as well as by the accused and by the witnesses.
A sexual relationship that had been repeated more than once could not be defended. On the contrary, it was as seen as an aggravating circumstance that the parties, in spite of having had the opportunity to come to their senses and reflect on their behaviour, had nevertheless repeated their crime. The then-current view of extramarital sexuality was of indirect importance to the assessment of these cases. Since extramarital love was perceived in such unfavourable terms, infatuation and love did not serve as a legitimate excuse for extramarital sexuality. The associations between unrestrained passionate behaviour and the Devil's influence over weak and sinful people may thus have contributed to the convictions. By repeating their crime, Abraham and Catharina had given in to the temptations of the Devil. The eternal life of the soul was in peril and could only be a saved by confessing and atoning for the crime – in other words, by the implementation of the death sentence. On 3 March 1713, Abraham's and Catharina's death sentences were upheld by the Göta Court of Appeal without referral to the king. As the sentence was carried out, five children were orphaned. 172
Historians such as Claudia Jarzebowski and Michel Mitterauer have shown that family and kinship are not static concepts but that they have changed radically over time, a circumstance that has also been crucial for the ways in which incest prohibitions have been formulated and practised. 173 Kinship and the formation of families are seen here as socially constructed, changeable, and negotiable. In accordance with this line of argument, it becomes reasonable to ask what importance various kinship categories had for negotiations surrounding the formulation and limitation of incest prohibitions in early modern Sweden.
Consanguinity and affinity
Comparisons of incest cases bring out certain patterns in the assessments of the court of appeal that can be linked to the family relationships of the prosecuted individuals. Above all, it becomes obvious that consanguinity relationships, especially in the first degree, were perceived as more offensive than affinity relationships although the law equated them. In practice, a distinction was thus made between biological and non-biological relationships.
The judgement-book material contains one single case where a man had assaulted his biological daughter. This was obviously perceived as a grosser crime than when a stepfather had taken advantage of his stepdaughter. In the latter cases, the crime was usually described as ‘incest’ (blodskam), ‘aggravated incest’ (svår blodskam), or ‘outrage’ (missgärning) in the court records. When the family relationship was biological, however, completely different turns of phrase were used. Here we find strong language such as ‘the wicked deed’ (den ogudaktiga gärningen), ‘the sodomitic sin’ (den sodomitiska synden), and ‘the shameful, highly indecent and abominable act’ (den skamliga och mycket oanständiga samt vederstyggliga handlingen). 174 Because of the biological family relationship, the relationship was perceived as not only illegal but as downright unnatural. The attitude to crimes of incest in the closest consanguinity degrees can be likened to the attitude to bestiality crimes, which were described in similarly condemnatory terms. 175
German historian Ulinka Rublack has also noted that the crime of incest was equated with bestiality, and that both crimes were perceived as unnatural and brutish. 176 While Rublack does not distinguish between different relationship categories, only the closest consanguinity relationships were regarded in this manner in the Swedish material. Other crimes of incest might certainly be defined as morally or religiously reprehensible, but they were nevertheless accepted as human acts. In the case involving a father and his daughter, the members of the court of appeal showed great compassion for the victimised girl. She was completely acquitted of the incest accusation with the justification that she had been coerced. Maria – that was the girl's name – was sent to the local clergyman for comfort and support. It was also recommended that she should move to relatives who lived elsewhere in order to escape the ‘offence’ that the act had caused in her home village, so that she might ‘by virtue of an honourable reputation enjoy a measure of happiness and prosperity in the future’. 177 True, stepdaughters who had been subjected to similar abuse by their stepfathers were in most cases reprieved from the death penalty; but they were nevertheless birched at the doors of the local courthouse as ‘well-deserved chastisement’, and nobody seems to have reflected on whether these girls might be in need of comfort or protection from gossip. 178 The crime to which the biological daughter had been exposed was perceived as being so heinous that her role as an innocent and helpless victim was not questioned, whereas the stepdaughters were to a certain extent considered to be accessories to the crime. In this extreme case, the biological family relationship thus led to a complete acquittal.
Conversely, the outcome tended to be stricter punishments for all parties involved if the case had to do with biological relationships rather than non-biological ones. Two pairs of siblings were convicted of incest. In the first case, both were sentenced to death although the sister was described as feebleminded – a mitigating circumstance that usually led to a reprieve. But the records stated that the woman was able to do her work and say her prayers, and for this reason she was considered accountable for her crime. 179 In the second case, the female party was eighteen years old and in her brother's employ and household. He had taken the initiative, luring and coercing her, and when the crime was discovered he had absconded. Despite her youth and her brother's ill conduct, she was sentenced to death without compassion. 180
Anna Eriksdotter (previously mentioned on pp. 95–6) was accused of incest with her biological uncle. She was considerably younger than her uncle, and according to her testimony he was responsible for the crime. Their sexual congress was said to have occurred on one occasion only and on his initiative when he was drunk. These were circumstances that usually entailed a reprieve for the woman, but Anna's death sentence was upheld without the case going to the highest instance. It is possible that the decision was affected by the fact that she was his biological niece. 181
‘Half-relative’ status was occasionally invoked as a mitigating circumstance, but in practice this circumstance did not have any great effect on the court decisions. 182 A pair of half-siblings had grown up completely separately and only met when she was twenty-six and he was eighteen. The relationship appears to have been voluntary, and both were sentenced to death. 183 A man (forty-six years old) and his half-niece (forty-two years old) confessed that they had had sexual intercourse but claimed that they had not understood the severity of the crime. Both were sentenced to death. 184 Per Persson and his half-niece met the same fate after ‘tearfully and freely confessing the sin and most humbly begging for a possible reprieve’. 185
The material thus shows that the court of appeal, without using the family relationship as an active argument in their judicial decisions, tended to treat consanguinity cases more harshly and with less tolerance than affinity cases. Mitigating circumstances were less apt to entail a reprieve than was the case when the family relationship was not biological. Even though biological and non-biological relationships were completely equal according to the letter of the law, my survey thus shows that the members of the court of appeal considered consanguinity relationships to be more serious crimes than affinity relationships.
Lineal and horizontal affinity relationships
In affinity cases, a distinction was made depending on whether the family relationships were collateral or lineal. Relationships in the direct lineal degree, up or down (stepmother, stepdaughter, mother-in-law, daughter-in-law), made it most difficult to obtain clemency from the court. With respect to stepfather/stepdaughter relationships, the woman might have her sentence reduced to corporal punishment if she had been ‘enticed’ or ‘coerced’, 186 but no man was given a reprieve, and the court of appeal did not refer any case to the Crown where the relationship appeared to have been voluntary. 187
A modern reader may spontaneously associate a relationship between a stepfather and his stepdaughter with abuse and exploitation, but in the interpretation of material from earlier periods one must be careful not to draw such quick conclusions. Since marriages came about because of economic or practical considerations to a greater extent than today, it was relatively common for a certain age difference to exist between husband and wife – especially in the second marriage – and the man was not always the older spouse. An older widow often remarried a younger man, which could result in his being closer in age to the widow's children. 188
Around the turn of the century in 1700, the ages of the accused were not systematically stated in the Swedish material, which makes it harder to assess the nature of the relationships. Giöthar Olsson and his stepdaughter Sara Hindrichsdotter exemplify a relationship that I have considered to be mutual. It transpires that Giöthar wanted to marry Sara, who was the daughter of the house, seven years earlier. For various reasons that are not mentioned in the judgement book, but were attested to by several of the people present, he had nevertheless been forced to marry Sara's mother ‘against his will’. The mother testified that the marriage had not worked out the way it should have done. The information that Giöthar had really wanted to marry Sara is important, because it indicates that Sara was of marriageable age when Giöthar married her mother. In other words, he did not function as an actual father figure to her during her childhood and adolescence. Giöthar absconded before the beginning of the trial, but Sara was sentenced to death. In accordance with common practice, however, the enforcement of the punishment was delayed until after she had given birth to the child she was expecting. 189
Two other seemingly voluntary lineal affinity relationships concerned a stepmother/stepson. In both cases, the accused were sentenced to death without the case being referred to the Crown. 190 The same sentence was pronounced regarding Knut Larsson and his daughter-in-law Kirstin Andersdotter. 191 In the above cases, which concerned seemingly voluntary relationships between lineally related couples, there were thus no attempts to obtain a reprieve for the accused.
Collateral affinity relationships (wife's sister, brother's widow, two sisters), on the other hand, were somewhat differently assessed. Here, too, the court of appeal considered whether there had been any potential coercion or enticement of a young woman. But the court also called for a reduced punishment in some cases when the relationship was described as voluntary. The associate judges in these cases emphasised the mitigating circumstances and referred the cases to the Crown. Seven out of eleven cases referred for potential reprieves dealt with seemingly mutual relationships between a man and his wife's sister. 192 The same pattern occurred with respect to other collateral relationships (brother's widow, two sisters). 193 In the highest instance only a minority were reprieved, but the assessment of the associate judges definitely diverged from the official norm.
Taken altogether, there were six cases where both parties were given a reprieve even though they were considered guilty. None of these relationships included a blood relationship, and most of them were collateral relationships. In two of these cases, uncertainty arose as to whether incest had actually been committed, because the accused men denied that the initial relationship had occurred. 194 The court appears to have been of two minds and chose to mitigate the sentences. In one case the accused couple claimed that they had been ignorant of the prohibition, a statement whose credibility was supported by the crime having been discovered when the man went to the local clergyman to ask to have the banns published. 195 There were only three cases where both the man and the woman were acquitted despite engaging in fully proven incestuous relations, all pertaining to brother-in-law/sister-in-law relationships. 196
It is thus clear that lineal relationship categories were treated more harshly than horizontal ones. With few exceptions, only voluntary collateral affinity relationships could occasion an application for mercy. Other than that, it was primarily relationships that included elements of violence or a suspected exploitation of the woman that led to a case being referred to the highest instance. This does not in any way mean that it was easy for a brother- or sister-in-law to have the punishment prescribed by law mitigated in the court of appeal. For this to happen, it was necessary for multiple mitigating circumstances to be present, such as the transgression only having taken place on a single occasion, preferably under the influence of alcohol; in addition, it was very helpful if people from the community of the accused put in a good word for them. But if conditions such as these were fulfilled, it was thus possible for both the accused to be reprieved.
Family position prioritised over age relationship
The fact that age was not stated systematically is interesting in and of itself. Occasionally, information concerning age is mentioned in passing, but in a majority of cases it is never made clear how old the prosecuted individuals were. 197 The absence of information about age in judgement books and cathedral-chapter records has also been remarked on by other researchers. 198 When information about age was provided, the individual in question was usually very young or very old. In these cases, information about age was primarily used in weighing the issue of guilt. In the case between Anna Olofsdotter and her uncle, her youth (fifteen years) was emphasised in comparison to his older maturity (forty years). 199 She was described as young and foolish whereas he, as a fully grown man, was held accountable for his actions. Similarly, the age of Lars in Spånbacka (twenty years) was emphasised as a mitigating circumstance when the court of appeal wanted to justify a reprieve. Conversely, Anna Eriksdotter, who had had sexual relations with her forty-years-older uncle on one occasion, could not be excused on the basis of youthful indiscretion. She was twenty-four years old while he was sixty-four. 200 Judging from this and other similar cases, a person was defined as young up until they were twenty years old. 201 Though teenage marriages existed, it was more common for men and women to marry when they were around twenty-five years old, at least among the general population. That fact is likely to have contributed to a twenty-year-old being considered young and foolish. 202
While the family position was always stated very carefully, information about age was thus omitted unless youthful foolishness was specifically invoked as a mitigating circumstance. I interpret this as meaning that age was not considered relevant information for the assessment of the crime, as long as both parties were deemed to be old enough to be held accountable for their actions. Consequently, the family position acquires greater importance for the judicial decisions than the respective ages of the parties.
The importance of family position
The pattern of treating horizontal relationships more leniently than vertical ones can be recognised from the dispensational material. A relationship between a man and his aunt's husband's widow or his stepmother's aunt were not included in the prohibited degrees, but people in these relationships who applied for permission to marry were firmly advised against carrying out their plans by the members of the cathedral chapter. These relationships were thus not forbidden, but were still perceived as unsuitable by the members of the cathedral chapter.
In these cases, both the decisions of the court of appeal and those of the cathedral chapter may be connected to contemporary ideas about family position. People's relationships in society were ordered according to a strict hierarchy which was considered necessary for stability and balance to prevail. According to this social order, each individual had a duty to act in accordance with his or her position in society. The hierarchy was considered to be God-given. It was God's wish that the king should rule over his people like a stern but just father in the same way as the master of the house should rule his wife, his children, and his servants. A child should show respect for his or her parents, in the same way that the peasantry should show respect for those who wielded authority. The duties of individuals thus followed from their social and family positions, but also from their civil status, their sex, and their age. 203
Anna Hansen has studied the factors that predominated with regard to the position of an individual in different Swedish seventeenth-century contexts. For example, she shows that social position was more important than age and sex in the relationship between a young mistress and an older male farmhand. In the absence of the master, the mistress was, regardless of her age, responsible for any decisions that were made on the farm. In this situation, the woman's position as a mistress thus overshadowed her subordination as a woman. 204
Sometimes there were tensions between different status positions, however, for instance in connection with generational takeovers. When a younger couple took over the parents’/parents-in-law's farm, but the parents(-in-law) continued to live there in a more modest dwelling on the property, set apart for that purpose (a so-called undantag), uncertainty could arise around the power order within the household. The question was whether the position of master was superordinate to the position of parent. As a child, a man had to show his parents(-in-law) respect and obedience; but in his role as the master of the farm, he was entitled to demand respect and obedience from the entire household, including his own parents(-in-law). 205 In her analysis, Hansen concludes that ‘the respect for parents and older people took precedence before the authority that a person might have because of his or her sex or position within the household’, and that ‘age was a factor that had far greater influence than previous scholarship has observed’. 206
However, I would like to make a clearer distinction between age and family position. It is obvious that older people should be respected by younger people and that children should show deference to their parents. But what happened when the step-parent was younger than the child? What status position prevailed then?
Since there is no information about age in either the dispensation material or the judgement-book material, my opinion is that family position was more decisive for an individual's place within the family than his or her age. Sexual relations between people whose family positions crossed different generations were perceived as inappropriate because the individual's duties could become contradictory. For example, a man could not marry his stepmother because he then acquired different duties vis-à-vis the same person. A stepmother should be shown deferential respect and reverence by her stepson, whereas a wife should be dominated by her husband. The man's duties thus became incompatible and the relationship inconceivable. Family position was patently the decisive factor in this situation. Nobody asked what the age of the man or the woman was, either in the case of an application for dispensation or in connection with a crime of incest. Even though age was hardly a completely irrelevant factor in matrimonial issues in general, it appears secondary relative to family position in this context.
These ideas surrounding hierarchy and respect within the family probably affected both the associate judges of the court of appeal and the members of the cathedral chapter, because they tended to treat vertical family relationships with greater severity than horizontal ones. In addition, assessments of the cases may have been affected by whether it was the woman or the man who came from the older generation. A woman could dominate a man through her social position or her family position. After all, within a household a stepmother's authority over a stepson was recognised, and so was a mistress's authority over a farmhand. 207 But according to the prevailing gender ideas of the time, it was always the man who dominated the woman in a sexual relationship. 208 In other words, a sexual relationship between a man and, for instance, his wife's niece may have violated social hierarchies; but if a woman's family position was superior to a man's (uncle's widow, aunt's husband's widow), it contradicted both social and gender-related ideas. The social structure, order, and hierarchy were turned upside down. On the basis of these notions, it was logical for the members of the cathedral chapter to oppose applications for marriage between a man and his aunt's husband's widow and his stepmother's aunt, even though these particular relationships were not included among the prohibitions. 209 In both of these family relationships the woman's family position was superior to the man's, and even if this line of reasoning was not voiced openly, it is probable that these ideas were what affected the assessments of the members.
Consequently, it was family position that determined how a relationship was regarded when courts assessed family relationships, not the age relationship of the accused parties. The one time when age could be of interest in an assessment of the crime of incest was when either party was so young that youthful folly might justify a reprieve. From this, one may once more draw the conclusion that the application of the legislation was somewhat fluid, and that it was influenced by contemporary ideas surrounding age and family position.
9 The authorities were apprised of several crimes via gossip and curious neighbours, but people from the local community could also make an investigation more difficult by withholding information or providing refuge for a fugitive. The image shows Swedish folk costumes from different parts of the country. The use of folk costumes decreased in the nineteenth century when factory-made clothes became more common.
The local community
Scholars have emphasised that sexuality was monitored not only by the official representatives of the state but also, and perhaps even more so, by the curious local community. 210 Even so, popular support for the norms of morality was far from absolute. For example, we know that premarital relationships were largely accepted by the peasantry and by the authorities alike, as long as the couple in question legalised their relationship with an official marriage before any children were born. Research has also shown that the local community to some extent turned a blind eye to a youth culture characterised by sexuality. 211 In addition, the importance of social position for the assessment of sexual crimes has been emphasised in both Swedish and Norwegian research. Masters, who had a high social position in the local community, were less often convicted of the crimes of rape or adultery than socially lower-ranking individuals such as soldiers or farmhands. 212 Besides, research has shown that the actions of the general public were affected by whether the expected punishment was thought to fit the crime or not. 213
Many researchers argue that economic conditions form the main reason for the support for strict morality control which may after all be demonstrated among the general public. Extramarital contacts led to illegitimate children, who in their turn caused problems surrounding paternity issues, material support, inheritance, and ownership. 214 Illegitimate children were not only a problem for individuals and their families; they were also apt to entail increased pressure on public poor relief. In this way, illegitimate children became a common economic problem which afflicted society as a whole. That the economic perspective was important may be illustrated by the following incest case. A man who was accused of incest with his wife's subsequently deceased sister was given an opportunity to clear himself by way of an oath. He was requested to swear that he had not had illicit relations with the woman ‘40 weeks prior’ to her giving birth to a child. 215 Hence, he did not have to deny ever having had a sexual relationship with the woman – he only had to clear himself of being the father. In this case the court prioritised ascertaining who the father was rather than investigating whether an incestuous act had in fact been committed. The following section presents a detailed account of the local community's reaction to those incest crimes that were revealed in their midst.
Keeping quiet and turning a blind eye
In August 1711, a suspected case of incest between the married man Torsten Nilsson and the spinster Tova Jönsdotter came up for trial. A few years previously, Torsten had been convicted of single adultery with Tova's sister, Olu, and now he had also made Tova pregnant. Torsten and Tova's relationship was thus defined as incest in the first collateral affinity degree, which in the event of a conviction would be punished by death; but before the interrogations began, Torsten absconded. Because his first crime of adultery with Tova's sister had been made public at the local court, everyone in the local community should have known exactly how serious the crime was. But when, in his search for the criminal, the county sheriff asked Torsten's friends and relatives where he was, they claimed to be ‘entirely unfamiliar with and ignorant of his whereabouts’. At the same time, rumour had it that Torsten had been in the parish on a number of occasions. He allegedly stayed with two of his brothers and also visited his wife. According to the most recent rumour, however, he had crossed the county boundary into Blekinge. An epidemic was raging there, and that put a stop to further investigation. 216
In this case it is worth noting the timing of the events. The year was 1711. Sweden had been at war for a little over ten years, and it would be another ten years before there was peace in the country (the Great Northern War, 1700–21). The epidemic in Blekinge was the final great outbreak of the plague in Sweden (1710–13), and to make matters worse this part of the country had suffered crop failure a year or so earlier. 217
During the entire seventeenth century, ideas about a God who actively interfered in everyday life prevailed. He handed out rewards and punishments on the basis of how well people adhered to his commandments. Everybody had a duty to maintain God's order on earth. Anyone who did not punish or report a known crime risked being struck by God's punishment themselves. ‘A concealed sin was a shared sin’, as Liliequist writes, which in his material provided a strong incentive for witnesses to come forward and report the commission of any bestiality crimes. 218 In addition to personal punishment, God's displeasure could also affect people collectively. His wrath would then take the form of major catastrophes, such as war, crop failure, and disease. These national scourges were, according to the rhetoric of the authorities, above all a consequence of the ways of sinful people. 219 And still Torsten, that obvious sinner, appears to have had marked support from the people around him, both family and friends. People were aware of his movements through rumours; but when the county sheriff came to look for him, nobody knew where he was. Torsten does not appear in later judgement-book material, and his final destiny is unknown; but Tova's death sentence was upheld by the Göta Court of Appeal on 20 October of the same year. 220
The threat of divine retribution was thus not decisive with respect to how people chose to act. Neither the threat of personal nor of collective punishment prevented Torsten's friends from giving him their indirect support and protection. How can this curious fact be accounted for?
One possible explanation may be that the interpretation of Scripture made by the authorities did not always receive support from the peasantry when sinful ways were cited as the primary reason for God's wrath. The peasantry emphasised other reasons for God's displeasure, for instance that Sundays were not kept holy in the same way as before, or that ancient holidays and ceremonies had been abolished. 221 The reason for the actions of the peasantry may also be that different models of interpretation could be activated in different contexts in the early modern world of ideas. While misfortune and adversity were explained as divine punishment or divine warning on a general level, the misfortune of single individuals was instead defined as a divine trial. 222 Also, in concrete contexts (for instance in legal documents) secular explanatory models dominated. One and the same event could thus be interpreted in very different ways (punishment, warning, or test) on different occasions. 223
Both these explanatory models provide examples of people's capacity for stretching the boundaries of the prevailing religious order. When Torsten's acquaintances gave him their support in spite of their knowledge of his sinful behaviour, this does not mean that they acted in wilful opposition to this order. On the contrary, religion permeated Swedish society during this period – an opinion I share with other researchers. In spite of this, I wish to emphasise that people felt able to make independent interpretations and assessments within the religious framework and act accordingly.
In the case referred to above, Torsten was given passive support from the local community. Similar passive support can be discerned in other cases as well, especially when the issue was relationships that appear to have lasted for a fairly long period of time. The widow Estrid Jöransdotter and her deceased husband's stepson Lars Sörensson had been engaged for five years before she became pregnant and they attempted to make the union official, whereupon their relationship was exposed. Estrid was titled ‘innkeeper’, so she ought not to have been completely invisible in the local community. Nor is there anything to suggest that the engagement had been kept secret. Still, the couple was not reported to the authorities before the pregnancy exposed their relationship. 224 In another example, the boatswain Sven Stinner first had a relationship with Sissa Håkansdotter, which was made public at the local court. A few years after Sissa's death, Sven began a sexual relationship with her younger sister, Elin Håkansdotter. Sven and Elin had two children together before they ended up in court accused of incest. 225 Everybody in the local community must have been aware of Sven's previous relationship with Elin's sister, as well as of the nature of Sven's and Elin's relationship. Even so, it took several years before the court was made aware of this matter.
There are hence several examples of people in the local community choosing to turn a blind eye to a suspected prohibited relationship, unless the relationship was exposed by a pregnancy. But not even an unwanted pregnancy was certain to lead to a relationship's being reported to the authorities.
In 1707, Erik Johansson and his stepdaughter Brita Persdotter were tried on suspicion of having had sexual intercourse. Before the court they both persistently denied the accusation, and Brita instead identified Jöns Gustavsson as the father of the child she was expecting. Jöns admitted paternity and offered to marry her, whereupon Erik and Brita were acquitted of the accusation of incest and the case was dismissed. 226
One year later the same couple were taken to court again, accused of the same crime. According to the court records, they had ‘allowed some persons to observe’ that Erik was ‘not free of his stepdaughter’, and after careful interrogations they finally admitted that they had had ‘carnal knowledge’ of each other on three occasions. During the new interrogations it was also revealed that it was Erik who had persuaded Jöns to accept paternity when Brita had become pregnant, which he had agreed to do ‘with his parents’ knowledge and consent’. Father and stepdaughter were sentenced to death. Jöns, who had married Brita despite knowing about her illicit relations with her stepfather, was sentenced to prison for fourteen days on bread and water. His parents had to sit in the stocks for one and two Sundays respectively, and an additional three people were fined three silver coins each for their ‘disobedience and contumacy’. 227
It is obvious that several people were aware of the relationship of Erik and Brita, but initially no one reported them. Nor do Erik and Brita seem to have felt particularly threatened, since they had – according to the notes in the records – spoken of their crime in the presence of other people. The wording in the court records testifies to the indignation felt by the court at the insolent and disrespectful disobedience of people who had deliberately misled the court and withheld the truth. In consequence, the court demonstrated to whom power belonged by imposing public-shaming punishments and fines.
In another case, yet another prohibited relationship between a stepfather and his stepdaughter is described. When the daughter became pregnant the father is said to have persuaded another man to confess to being the father and marry the daughter. However, the relationship between stepfather and stepdaughter continued even after the daughter's marriage, which led to the crime being exposed a few years later. 228
Voluntarily taking on paternity in the way that was done in these cases must be regarded as a patent challenge to the prevailing norms of morality. In both cases a ‘nasty rumour’ was in circulation concerning the relationship of the respective couple, which did not prevent the false fathers from accepting paternity. The phenomenon of false fathers has also been discovered in connection with crimes of adultery. 229
My material contains several cases in which there are doubts as to who was a child's real father. Knut Larsson, Sven Stinner, and Pär Arvidsson all tried to acquit themselves from accusations of incest by claiming that they were not at all the fathers of children for whom they had previously accepted paternity. These arguments were partially successful: one of the men was acquitted, one had his sentence reduced to a fine, and only one was sentenced to death, although his crime was both incest and double adultery. 230 The assessments of the courts in these cases show that they accepted the possibility that the wrong father had been identified before. In two other cases the women had, on realising that they were pregnant, identified a relative as the father of their expected children before witnesses. When the hundred court summoned them to official interrogations, however, they recanted their confessions and instead named other men as being responsible for the pregnancies, whereupon they were acquitted. 231
It is of course impossible to say what is true in these cases; but all in all, they show that paternity was not always obvious – not even after the local court had publicly identified a person as the father. Because it was recognised that false fathers were a possibility, the argument could also be used in the defence of a single individual.
By comparing how many pregnancies were mentioned in the records of the courts of appeal in relation to the different relationship categories, it is possible to obtain additional information about the general attitude of the peasantry to different incestuous relationships. See Table 8.
|Family relationship||Closeness||Absolute numbers||Per cent|
|Average of all incest cases||83/105||79|
|Consanguinity||First lineal degree||0/1||0|
|First collateral degree||3/4||75|
|Affinity||First + second lineal degree||20/21||95|
|First collateral degree||25/28||89|
Source: GHA, series BIIA.
Note: Selected categories, including half-relatives.
The figures in Table 8 show how many pregnancies were mentioned in the records of the courts of appeal in relation to the respective relationship category. Even though the figures can only be considered approximate (pregnancies may have occurred without being specifically mentioned), it is possible to attempt a cautious interpretation.
On average, children and pregnancy are mentioned in 79% of all incest cases. In other words, the court was made aware of, on average, four out of five crimes of incest because they had been revealed by a pregnancy. Consequently, figures greater than the average suggest a lower tendency to report these crimes, whereas lower figures indicate a higher tendency to report. The two categories where the figures clearly exceed the average (89% and 95%, respectively) are both affinity relationships where the accused risked being sentenced to death (stepdaughter, wife's sister, two sisters). With respect to these relationship categories, the court appears to have been made aware of very few cases without a revealing pregnancy necessitating an investigation. There was thus a lower tendency to report these crimes, and the harsh punishment is likely to have acted as a deterrent. In Norway, infringements against the prohibited degrees almost completely disappear from the legal sources towards the end of the seventeenth century. Kari Telste explains this decrease as a probable discrepancy between penal practice and the norms of the common people. Crimes of incest were quite simply not reported to the sheriff because people thought the punishment too harsh in relation to the offence. 232
With respect to diagonal affinity relationships (wife's niece), where one might expect the sentence to be routinely reduced to a fine, the number of pregnancies is lower than average and the readiness to report the crime consequently higher. In my view, this supports the conclusion that the number of submitted reports was related to the harshness of the punishment. It was felt to be reasonable that a man and his wife's niece were sentenced to a fine when violating the norms of morality; but for a man and his wife's sister or a man and his stepdaughter to be sentenced to death for the identical crime did not have the same support in the local community.
The readiness to report consanguinity relationships is higher than average, even though these crimes were punishable by death. This means that consanguinity relationships in the closest degrees (mother, daughter, niece) were probably regarded as more serious crimes than affinity relationships. Here, then, the actions of the peasantry are in line with the tendency that the authorities evinced through their judicial decisions. In other words, both groups perceived a biological relationship to be more offensive than a non-biological one even though these relationships were equated in the Bible, which formed the basis of the legislation.
Defending a criminal
Another way of determining the attitude of the general public to relationships within the prohibited degrees is to look at which criminals were supported by the people closest to them. In connection with proceedings at the local court, family and friends could support a criminal by testifying to his or her good reputation or by pleading for a merciful assessment and a reduction of the punishment.
For a family member to actively support a prosecuted criminal in this way was mentioned as a mitigating circumstance in some cases, but ignored in others. Sven Frendesson and his wife's sister could, for instance, not be spared simply ‘because the wife pleads for her husband’. 233 In another case, Anna Ambjörnsdotter was accused of incest with her sister's husband (who had absconded). The hundred court summed up the case with three aggravating circumstances and three mitigating ones, of which one described how Anna's sister ‘voiced an eloquent plea for her sister's life to be spared’. 234 The court of appeal did not comment on the mitigating circumstances at all, but repeated the aggravating ones and sentenced Anna to death. 235
As the numbers are uncertain, a quantitative comparison of the support given to the accused will not be completely reliable; but it is clear that support was particularly frequent when a man had had sexual relations with his wife's sister. 236 Usually this support came from the wife of the accused man. She would emphasise that the marriage had functioned well previously, and that the man had fulfilled his duties as a husband and father of a family. Now and then the wife would stress the family's dependence on the man as the provider. 237 Previous research has shown that this was a common argument with respect to crimes of adultery as well, and it has been pointed out that the economic consequences may have played a decisive part when it came to securing a wife's support. 238 Even though it was usually the wife who interceded for her husband or her sister, it sometimes happened that other relatives pleaded for their loved ones, or that ‘other members of the peasantry present at the local court’ expressed their views regarding the good conduct of the accused persons.
There are examples of support given by relatives or neighbours in all relationship categories, even when the relationship concerned full blood ties. Marit Bengtsdotter, who was thirty years old and lived in her sister's household, was frequently interrogated after having given birth to an illegitimate child. Finally she ‘tearfully’ admitted that her sister's son Måns, who was now abroad, was the child's father. Both her sister and Måns's wife rallied to her support in spite of the close blood relationship. They expressed sympathy for Marit's misfortune and emphasised her imperfect knowledge of Scripture. The proceedings dragged on, but eventually Marit was reprieved to a birching after two and a half years in prison. 239
Several seemingly voluntary relationships were given the support of the people around the culprits, regardless of their family relationships. This also pertained to relationship categories that crossed generational boundaries (e.g., stepfather/stepdaughter), although these may be said to have challenged the social order to a particularly high degree. 240 Married men were frequently supported by the people around them, even if they were guilty of both adultery and crimes of incest; conversely, unmarried men and women had fewer people around them who pleaded for them. Furthermore, there was a tendency for young people to receive more support from the people around them than did older people. Regardless of the family-relationship category, women who had been subjected to violence or coercion of some kind were often supported by the people around them, the blame in these cases being placed on the men. 241 In cases where there are no notes regarding violence and exploitation, the support was distributed relatively equally between men and women.
All in all, support seems to have been less affected by family position than by who had committed the crime, what social network the person in question belonged to, and whether or not participation in the relationship had been voluntary.
Actively challenging the legal standards
In a few cases, the official legal standards were actively questioned in connection with the proceedings at the local court. When Arvid Månsson (forty-six years old) and his half-sister's daughter Elin Andersdotter (forty-two years old) were convicted of incest in October 1712, they protested vociferously. They did admit to having had sexual relations, but they claimed not to have understood that their sin was so great that they risked being sentenced to death. They argued that the crime was no greater than when ‘unrelated folk’ committed it. In other words, they protested against the idea that their family relationship aggravated the crime. The couple felt that the punishment should adhere to the penalty scale for adultery, which in practice meant a fine. Arvid's wife (sixty years old) supported her husband. She begged for his life and claimed that she and their four children would not be able to support themselves if they lost him. 242
In another case Kirstin Olufsdotter, who had been guilty of incest with her sister's husband eight years before, claimed that at the time of the crime she had not realised that it was such a grave offence. 243 A similar argument was presented by Jon Larsson and his wife's half-sister Karin Jönsdotter when they were prosecuted for incest. They had not expected that their act could lead to a death sentence, because Karin was only the half-sister of Jon's wife. The couple was supported by their family and by the local farmers. 244
In all those cases, it was the penalty scale that these people opposed. They recognised that the sexual act was an offence, but they equated it with adultery rather than with a capital crime. On the basis of the judicial decisions in all incest cases from this period, their opinions appear to have been shared by at least some lawyers, because similar relationship categories (half-niece, wife's sister) led to a reprieve in exceptional cases. 245 But openly opposing the right of the authorities to judge was rarely productive. All the individuals in the above-mentioned cases were sentenced to death. 246
The court of appeal thus defended the right of its members to interpret the crimes according to their own views. In connection with internal discussions about legislation or when assessing individual crimes of incest, the lawyers might disagree; but publicly they put up a united front. This becomes especially clear in a case regarding a man and his wife's sister. Even though the crime of incest in this case had been confessed to and proven in full, the hundred court in their official letter to the court of appeal suggested that the prosecuted individuals should be reprieved from capital punishment and instead be sentenced to a fine or corporal punishment. As mitigating circumstances, the court stated that the couple, together with the man's wife/the woman's sister, humbly begged for mercy. Here the court of appeal reacted forcefully. Having pointed out that the case was aggravated by the fact that the couple had previously run away together, the court unhesitatingly condemned them to death. In addition, the court of appeal dispatched a stern reprimand to the hundred-court judge who had, in the higher court's opinion, seriously overstepped his authority. He had consciously opposed ‘God's and secular law’, ‘royal ordinances and official decrees’, as well as ‘ancient practice’ and ‘precedents’. The right to mitigate lay only with the Crown and the court of appeal, and the latter exhorted the high-court judge to refrain from ‘such presumptuous arbitrations’ in future. 247
In summary, the official legal standards encountered both direct and indirect challenges in connection with the exposure of crimes of incest. In the trial processes that followed and in the judgements of the accused, the authorities attempted to re-establish the official legal standards. For this reason, the trials may be described as negotiations concerning the prevailing legal standards between the authorities and the local community. There is no doubt that local control contributed to several crimes being brought to public knowledge, often in connection with the woman becoming pregnant. But although the norms of morality received a certain degree of support from the peasantry, and despite the prevalence of the idea of God's collective punishments, the analysis shows that there was scope for people to interpret relationships in dissimilar ways. Depending on the interpretations made, people from the local community could reinforce the official norms, for instance by reporting crimes; but they could also challenge the judicial system through various forms of resistance.
In preparation for the Civil Code of 1734
At the beginning of the eighteenth century, a comprehensive revision of Swedish legislation was undertaken, resulting in a new statute book in 1734. New laws are often made as a subsequent codification of the norms and values produced in society, and there is much to suggest that this was the case when the rules regarding the prohibited degrees were established in connection with the introduction of the new code. 248
On the basis of the dispensation material, relationships in the second affinity degree (wife's cousin, wife's brother's widow, wife's stepmother) seem to have balanced on the boundary between what was permitted and what was forbidden. These relationships were a cause for concern for the members of the cathedral chapter, which is indicated by the fact that the assessments of the applications were not quite consistent. In 1727, the prohibition against marriages in relationships in the second collateral affinity degree (wife's cousin) was abolished, which confirms that the status of these relationships had been renegotiated. 249 However, the prohibition against lineal affinity relationships in the second degree (wife's stepmother) remained. 250
The judgement-book material has shown that around the turn of the century in 1700, it was general practice to reduce the death penalty for diagonal affinity relationships (wife's niece). In addition, there was a tendency to reduce the punishment for horizontal affinity relationships (wife's sister, brother's widow) in exceptional cases, in particular when there were mitigating circumstances. Just before the drafting of the Civil Code of 1734, the penalty scale for precisely these relationships was the subject of animated debate. Draft bills of 1713 and 1723 had recommended the death penalty for all parties involved. 251 The minutes of the Law Commission of 1728 noted that all of the members agreed that the punishment for incest between a brother-in-law and a sister-in-law was too harsh, and that judges had sentenced such criminals to death ‘with trepidation’. 252 In 1729 and 1731, it was proposed that sexual intercourse with a wife's sister and a wife's niece should only lead to a fine, imprisonment, or corporal punishment. This was subsequently established in the Civil Code of 1734. 253 Before the Code was printed, there had been a heated discussion between the clerical estate, who forcefully recommended that the death penalty should be retained, and the other estates. The issue had eventually been settled by way of a vote. 254
Here all indications suggest that the new law was an adaptation to legal opinions among the general public. The death penalty was felt to be too severe in relation to the crime by both the peasantry and the lawyers, and an adjustment was thought to be necessary. After the Civil Code of 1734, crimes of incest between a man and his wife's sister were punished with forty pairs of rods for the man and thirty pairs of birch rods for the woman, or by one month in prison for each of them. Diagonal relationships were primarily punished by way of a fine. If the accused had no financial assets, the punishment could be replaced by one month's imprisonment on bread and water. The prison sentence should also be seen as a corporal punishment. One month on the meagre prison diet was quite simply what a healthy person was assumed to be capable of enduring without dying. 255 If neither party was married, the punishments were somewhat reduced. 256
The international debate regarding incest prohibitions was going on all the time. In the 1710s, there was a rancorous debate between Danish lawyer and historian Andreas Hojer and Norwegian dramatist and historian Ludvig Holberg about the regulation of the prohibited degrees. In a text from 1718, Hojer claimed that the incest prohibitions did not have the support of either the Bible or natural law. Instead, he regarded them as human inventions derived from the Jewish tradition. True, he shared the idea that the prohibitions prevented undesirable and licentious living, which benefited both society and single individuals and families; however, he maintained that the law was not based on divine justice – it was merely a part of civil legislation. To Hojer, the revulsion and shame that most people felt with respect to the prohibited relationships were a consequence of upbringing and habit. 257 Hojer's views were radical for his time and encountered fierce resistance.
In a written rejoinder published in 1719, Holberg argued that the incest prohibitions had both natural and religious foundations. Among other things, he claimed that relationships between closely related individuals were contrary to both natural law and common sense. 258 It was not only Holberg who reacted to Hojer's claim regarding the origin of incest provisions. The text caused a commotion among theologians both within and outside the borders of Denmark–Norway. Hojer himself dropped this contentious issue, but his contribution appears to have functioned as a germ for further discussions in Denmark. 259 These discussions, which became particularly lively in the 1730s, aimed at clarifying whether the incest prohibitions were actually based on so-called natural law, which maintained God's order, or if they were solely to be regarded as secular rules rooted in an older Jewish society. The answer to this question determined whether or not a secular king or court had the right to change the legislative framework. However, there was no question of changing the practical treatment of crimes of incest; and during the decades surrounding the turn of the century in 1700, it was considerably more customary for debaters to discuss where the limits should be drawn between what was permitted and what was forbidden than to question the very existence, or the origin, of the prohibitions. 260
Partial summary and overview, 1680–1750
Around the turn of the century in 1700, Swedish society was permeated by religious ideas. The incest prohibitions were described in Leviticus in the Bible which had, by way of its addition to the national law code in 1608, been made the norm for Swedish legislation. The crime of incest was primarily perceived as an offence against God's law, a crime which could not be atoned for in any other way than by death. Previous research has shown that the penal legislation was made more stringent in all Protestant countries in connection with the Reformation, but the Nordic countries stood out as especially severe when it came to punishing those who had committed crimes of incest. During the final decades of the seventeenth century, penal practice was mitigated somewhat in Denmark–Norway and in Iceland; but in Sweden judges continued to rule according to the letter of the Bible for some additional decades.
Although the regulatory frameworks were very strict, there was a certain scope for independent interpretation in individual cases, which points to the capacity of an agent to act within the framework of the structure. Both crimes of incest that were discovered and applications for dispensation challenged the official legal standards; and in the practical handling of these cases, a pattern of cultural values appears which came to influence people's attitudes regarding these matters.
In the Swedish material, it is above all ideas surrounding kinship and family relationships that have affected the assessments made in individual cases. The hierarchy within the family, and in particular the parent–child respect, was indirectly defended by horizontal relationships being treated more leniently than vertical ones. In the applications for dispensation as well as in the criminal-case material, the relationships were always defined on the basis of the family position held by the individuals in question – not on the basis of their ages. The age relationship between a man and a woman was very rarely stated, which suggests that this information was not thought to be an important factor when decisions were made in individual cases.
Views on love and passion also had consequences for how different incest cases were handled in practice. Although the majority of incest relationships appear to have been reciprocal in nature, they were rarely described in terms of love. This goes for both applications for dispensation and criminal cases. Love and tenderness were not thought to be legitimate arguments either when individuals wanted to circumvent the prohibitions and enter into marriage or when people wished to excuse a crime that had been committed. Love was perceived as a strong but potentially dangerous force which risked leading people astray unless subjected to control. The fact that extramarital love was encumbered with such unfavourable connotations lessened the chance of obtaining a reprieve and contributed indirectly to stricter assessments. The values mentioned above were not always actively articulated in the proceedings, but their effect stands out in the material.
The uncertainty that prevailed among Swedish theologians and lawyers with respect to drawing boundaries and creating reasonable penal consequences for crimes of incest had their equivalents on the European continent. The formulation of the Biblical prohibitions in relation to religious circumstances, ideas about natural law, and local customs were debated everywhere. 261
In Holland, crimes of incest were handled at the regional level because of the lack of uniform national legislation. In general, incest was considered a serious crime with harsh punishments; but as was the case in Sweden, Dutch courts tended to reduce the punishment for women who had been forced to participate in sexual acts. 262 Prussian laws were similar to the Nordic legislation, but differed in that prohibitions against relationships in the second collateral affinity degree (wife's sister, brother's widow) and diagonal affinity relationships (wife's aunt, wife's niece) were considered to be secular matters. People who violated these prohibitions were thus punished less harshly; they might even, after an application for dispensation, be allowed to marry. After 1740, the prohibition against marriages between a brother-in-law and a sister-in-law was abolished by Frederick II. 263 In Austria, only lineal consanguinity relationships were punished by death. 264 In France, incest in the closest degrees was also punished by death; but the application of the law varied significantly, depending on who had committed the crime. The higher the social rank, the lower the risk of being prosecuted – a circumstance that came in for criticism, for example in contemporaneous literature. Eventually, capital punishment was replaced by banishment. 265 The situation in England differed from that in other Protestant countries in that the handling of crimes of incest was the responsibility of ecclesiastical courts even after the Reformation. Consequently, the penalty scale was dominated by fines in the same way as it had been during the Roman Catholic era. 266
All this research shows that consanguinity relationships were regarded as more heinous than affinity relationships, even though they were placed on an equal footing in the religious texts that formed the basis for all contemporary legislation. It is also obvious that vertical relationships were more severely punished than horizontal ones.
10 For centuries, regular church attendance was an important feature in the lives of Swedes.