Sexuality in Medieval Europe Doing

Unto Others Ruth Mazo Karras

Katherine E Pierpont
Visit to download the full and correct content document:
https://ebookmeta.com/product/sexuality-in-medieval-europe-doing-unto-others-ruth-
mazo-karras-katherine-e-pierpont/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...

Sexuality in Medieval Europe: Doing Unto Others, Fourth

Edition Ruth Mazo Karras

https://ebookmeta.com/product/sexuality-in-medieval-europe-doing-
unto-others-fourth-edition-ruth-mazo-karras/

Unmarriages Women Men and Sexual Unions in the Middle

Ages The Middle Ages Series Ruth Mazo Karras

https://ebookmeta.com/product/unmarriages-women-men-and-sexual-
unions-in-the-middle-ages-the-middle-ages-series-ruth-mazo-
karras/

Doing business in Europe 3rd Edition Johan Lindeque

https://ebookmeta.com/product/doing-business-in-europe-3rd-
edition-johan-lindeque/

Medieval Europe Wickham Chris

https://ebookmeta.com/product/medieval-europe-wickham-chris/
National Identity and Europe in Times of Crisis Doing
and Undoing Europe 1st Edition Christian Karner

https://ebookmeta.com/product/national-identity-and-europe-in-
times-of-crisis-doing-and-undoing-europe-1st-edition-christian-
karner/

Female Sexuality in the Early Medieval Islamic World

Gender and Sex in Arabic Literature Early and Medieval
Islamic World 1st Edition Myrne

https://ebookmeta.com/product/female-sexuality-in-the-early-
medieval-islamic-world-gender-and-sex-in-arabic-literature-early-
and-medieval-islamic-world-1st-edition-myrne/

The Unspeakable Gender and Sexuality in Medieval

Literature 1000 1400 1st Edition Victoria Blud

https://ebookmeta.com/product/the-unspeakable-gender-and-
sexuality-in-medieval-literature-1000-1400-1st-edition-victoria-
blud/

Caves and Ritual in Medieval Europe AD 500 1500 Knut

Andreas Bergsvik

https://ebookmeta.com/product/caves-and-ritual-in-medieval-
europe-ad-500-1500-knut-andreas-bergsvik/

Authorship Worldview and Identity in Medieval Europe

1st Edition Christian Raffensperger Editor

https://ebookmeta.com/product/authorship-worldview-and-identity-
in-medieval-europe-1st-edition-christian-raffensperger-editor/
Sexuality in Medieval Europe

Now in its fourth edition, Sexuality in Medieval Europe provides a

lively account of a society whose attitudes toward sexuality both
were ancestral to, and differed from, contemporary ones.
The volume is structured not by types of sexual interactions or
deviance, but to reflect the difference in gendered experiences when
sex is seen as an act one person does to another. Sexual activity,
within and outside of marriage, as well as sexual inactivity, had
different meanings based on gender, social status, religious
affiliation, and more. This book considers these iterations of
medieval sexuality in its effort to show there was no single medieval
attitude toward sexuality. With an emphasis on Christian Western
Europe over the entire course of the Middle Ages, it also includes
comparative material on neighboring cultures at the time. Alongside
being reworked for further clarity and readability, the fourth edition
offers substantial new material on trans scholarship and
methodological attempts to recoup a trans past; changes in the
treatment of sex work and its terminology; and new material on
Byzantine and Muslim culture.
Sexuality in Medieval Europe is an essential resource for all those
who study medieval history, medieval culture, and the history of
sexuality in Europe.

Ruth Mazo Karras is Lecky Professor of History at Trinity College

Dublin. Her many works on medieval Europe include Thou Art the
Man: The Masculinity of David in the Christian and Jewish Middle
Ages and Unmarriages: Women, Men, and Sexual Unions in the
Middle Ages.
Katherine E. Pierpont is a PhD candidate at the University of
Minnesota working on medieval sex work, who has published both in
scholarly and public-facing venues.
Sexuality in Medieval Europe
Doing Unto Others

4th Edition

Ruth Mazo Karras and Katherine E. Pierpont

Designed cover image: Couples embracing the moralized meaning of Eve’s
temptation by the serpent. Moralized Bible, Österreichische Nationalbibliothek,
Codex Vindobonensis 2554, fol. 2, detail © Austrian National
Library/Interfoto/Alamy Stock Photo

Fourth edition published 2023

by Routledge
4 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN

and by Routledge
605 Third Avenue, New York, NY 10158

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2023 Ruth Mazo Karras and Katherine E. Pierpont

The right of Ruth Mazo Karras and Katherine E. Pierpont to be identified as

authors of this work has been asserted in accordance with sections 77 and 78 of
the Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or utilised
in any form or by any electronic, mechanical, or other means, now known or
hereafter invented, including photocopying and recording, or in any information
storage or retrieval system, without permission in writing from the publishers.

Trademark notice: Product or corporate names may be trademarks or registered

trademarks, and are used only for identification and explanation without intent to
infringe.

First edition published by Routledge 2005

Third edition published by Routledge 2017

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data

Names: Karras, Ruth Mazo, 1957– author. | Pierpont, Katherine E., author.
Title: Sexuality in Medieval Europe : doing unto others / Ruth Mazo Karras and
Katherine E. Pierpont.
Description: Fourth edition. | New York, NY : Routledge, 2023. | Revised edition of
Sexuality in Medieval Europe, 2017. | Includes bibliographical references and
index.
Identifiers: LCCN 2022047821 (print) | LCCN 2022047822 (ebook) | ISBN
9780367647278 (paperback) | ISBN 9780367647285 (hardback) | ISBN
9781003125945 (ebook)
Subjects: LCSH: Sex customs—History—To 1500. | Europe—Social conditions—To
1492. | Social history—Medieval, 500–1500.
Classification: LCC HQ14 .K37 2023 (print) | LCC HQ14 (ebook) | DDC 392.6—
dc23/eng/20221003
LC record available at https://lccn.loc.gov/2022047821
LC ebook record available at https://lccn.loc.gov/2022047822

ISBN: 978-0-367-64728-5 (hbk)

ISBN: 978-0-367-64727-8 (pbk)
ISBN: 978-1-003-12594-5 (ebk)

DOI: 10.4324/9781003125945

Typeset in Sabon
by codeMantra
For Verity, Edward, and Caroline
For John and Dianne Pierpont
Contents

List of figures
Acknowledgments
Publishers’ acknowledgments

1 Sex and the Middle Ages

2 The sexuality of chastity

3 Sex and marriage

4 Women outside of marriage

5 Men outside of marriage

Afterword: medieval and modern sexuality

Further reading
Index
Figures

1.1 Vulva carried by phalluses

1.2 Detail from the Bayeux Tapestry – eleventh century
1.3 Detail from a replica of the Bayeux Tapestry
2.1 Eve
2.2 Radegund prays next to her husband’s bed
2.3 Wound in Christ’s side
2.4 Torture of St. Agatha
2.5 Mary feeds St. Bernard from her breast
3.1 Examination for impotence
3.2 Wife immersing, husband waiting in bed
3.3 Lohengrin and Elsa
4.1 Bathsheba bathes while King David spies on her from a
window, from a late-fifteenth-century Book of Hours
4.2 Punishment of adulterers
4.3 A sex worker drives away a destitute man
4.4 The Seduction of Youth
4.5 Couples embracing, the moralized meaning of Eve’s
temptation by the serpent
5.1 Dante, Inferno, punishment of Brunetto Latini
5.2 Boy saved from burning by the Virgin Mary
5.3 Embrace of David and Jonathan from the thirteenth-century
Somme le Roi, illustrating the virtue of friendship
5.4 Jupiter and Ganymede
Acknowledgments

The idea for this book originally came from Victoria Peters of
Routledge. The colleagues and nonacademic readers who read the
first edition – Joan Cadden, Anna Clark, Christopher Karras, Matthew
Kuefler, Jacqueline Murray, John Van Engen, Nicola Wilson – may still
see some of their comments reflected here. Published reviews of the
earlier editions, as well as comments from colleagues and students
who read the book, were helpful in revision. For the fourth edition
specifically, Kent Weber was an invaluable sounding board for all
edits, big and small. Research assistance on the first edition was
provided by Ellen Arnold and Kathryn Kelsey Staples. Jesse Izzo
helped with research for the third edition, and Sigrun Borgen Wik on
the fourth edition.
We owe a huge intellectual debt to a group of scholars too large
to list here, but whose names and works appear in the notes and
the Further Reading section.
Publishers’ acknowledgments

The publishers are grateful to the following for their permission to

reproduce copyright material: Albertina, Vienna; Bibliothèque
municipal, Agen; Bibliothèque Nationale de France; The British
Library Board; Heidelberg University Library; Houghton Library,
Harvard; Médiathèque François-Mitterrand, Poitiers; The
Metropolitan Museum of Art, New York; Musée de la Tapisserie de
Bayeux; Museu de Mallorca; Osterreichische Nationalbibliothek;
Painton Cowen; Reading Museum; Staats-und-Universitätsbibliothek,
Hamburg; Van Beuningen Collection, Rotterdam; and Walters Art
Museum.
1 Sex and the Middle Ages

DOI: 10.4324/9781003125945-1

The combination of “medieval Europe” and “sexuality” conjures up one of

several images in most people’s minds. One is a vision of total repression.
A church controlled by celibate men defines all sexual acts and thoughts
as impure and sinful. Even marital sex for the purpose of reproduction is
barely tolerable; it becomes a sin if the participants enjoy it. Sexuality
threatens human salvation: it is a nearly irresistible force, and the devil is
always at the ready to use sexual temptation to drag humankind to
destruction and damnation.
Plenty of medieval texts support this vision of negative and repressive
medieval attitudes toward sexuality. We can look, for example, at the
Desert Fathers tradition. In the late antique period (fourth to fifth
centuries), there were several collections of the sayings and deeds of
monks who lived in individual cells (eremitic monasticism) or in groups
(cenobitic monasticism) in the Egyptian desert. These texts were
translated into Latin and then into the various European vernaculars, and
became quite popular. The tales include stories of heroic penance for
sexual thoughts. In one story, the devil sends a woman to tempt a monk.
She claims to be lost and asks to stay in his cell because she is afraid of
wild beasts. As a thirteenth-century French poetic version tells it:

The monk soon had great desire of her … and he knew well that it
was the devil who caused him so much anguish…. And when he
burned with the most passion he said, “Those who do such things go
into torment. This will test whether you can suffer the eternal fire
where you must go.” And he extended his finger and put it in the
flame…. But the finger did not feel the heat, because he was so filled
with fleshly fire. Thus one after the other he held his fingers in the
fire, so that they were all burned by daybreak.1
When we reflect on the pervasiveness and popularity of stories like this,
we cannot help but think of medieval Europe as a culture with a very
negative attitude to sex. Sexual desire had to be combated even at the
cost of great personal hardship; it was a pollutant and a threat to the
soul. This book treats the whole period of the Middle Ages in western
Europe – roughly 500–1500 CE – and attitudes of course changed over
this time period, but, as the 1000-year popularity of this particular story
indicates, some understandings of the role of sex in human affairs were
very persistent.
Opposite this strict and sin-wracked image stands an earthier one.
Lusty priests seduce the women who confess to them; noblemen keep
mistresses; monks and nuns engage in secret liaisons; peasants couple
behind hedgerows. This view dismisses the church and its repressive
teachings as full of hypocrisy and generally ignored by medieval people,
who went about their daily business with a zest that disappeared later in
a more puritan age.
Medieval texts support this lustful, playful version as well. The stories
of Chaucer, Boccaccio, or the French fabliaux (humorous rhymed stories)
are good examples. In one story of a wife deceiving her husband with a
young lover:

She, acting as guide,

ushered her paramour inside
and got him underneath the quilt,
and right away he went to tilt
in the tourney prescribed by Love.
Less than a nut’s all he thought of
playing at any other game,
and, as for her, she felt the same.2

In stories like this, both men and women find joy in sexual intercourse.
Sin is not an issue, nor is reproduction. This story is not subversive,
underground literature, nor is it hardcore pornography. Scholars argue
about whether the audience for fabliaux like this one, and similar
literature, was nobility or townspeople, but these stories were read and
enjoyed openly by both men and women, no doubt including many
members of the church hierarchy.
 The third image of medieval sexual attitudes and practices is much
darker, born out of a twenty-first-century awareness of sexual violence
against women, gay men, transgender adults, children, and anyone who
is vulnerable. This image appears most prominently in neomedieval
cultural artifacts like the Game of Thrones television series, in which not
only sexual assault but also sadism appears to be endemic.3 It is true that
in the Middle Ages women who traveled without men’s protection, like
Margery Kempe, could fear sexual assault; that Christians could envision
sexualized torments inflicted by pagans, who could cut off women’s
breasts to get them to renounce Christianity; that for girls to be married
as soon as they hit menarche was, if not routine, at least not surprising;
and that for clerics to molest boys under their educational regime was not
uncommon.4 And yet the pagans in medieval texts torture Christians
because they want them to stop being Christian, not because they get
pleasure from it; men who rape in medieval texts generally do so because
they want to have sex, not because they want to dominate, unlike in
modern depictions of the medieval period (although as we will see, these
two things were in some ways not entirely separable in a world that
thought of sex and penetration as being largely synonymous). It is the
difference between the medieval text in which the pilgrim Dante observes
sinners tortured by demons, and a videogame: in the game, Dante is a
crusader who inflicts sexualized torment not found in the poet Dante’s
work.5 Despite this, before proceeding, it is worth issuing an overarching
trigger warning. All the chapters in this book deal with various types of
violence, sexual, and otherwise, and the nature of the book, as well as
certain aspects of medieval sexuality, makes it impossible to separate out
these conversations from the larger landscape of sexuality. Even if the
reader avoids subheadings that signal discussions of violence, engaging
with the medieval world means occasionally engaging with its darker side.
All of the above views of medieval sexuality are based on modern
readings; yet, they all have some truth to them. It is more complicated
than just attitudes changing over time, although they did; it is also the
case that many different attitudes coexisted within a single culture.
Medieval Europe, of course, was not a “single culture”; Latin Christendom
can be seen as one, in many ways, with some regional variation, but
there were also Muslim polities in Iberia and in Sicily, as well as Jews
under Christian and Muslim rule throughout. Sexuality in the medieval
Islamic world is also subject to the same sorts of cultural stereotypes as in
Christian Europe, and perhaps even more so: the harem as a place for
elite men to indulge themselves entirely, the sexual exploitation of male
and female slaves, and the seventy-two houris who are the heavenly
reward of the martyr are part of Western cultural vocabulary.6 Here too
there is some support in the medieval texts: the frame tale that begins
the One Thousand and One Nights in its oldest existing version involves
the infidelity of a queen and her slave girls with African slaves in the
palace:

The private gate of his brother’s palace opened, and there emerged,
strutting like a dark-eyed deer, the lady, his brother’s wife, with
twenty slave girls, ten white and ten black…. they sat down, took off
their clothes, and suddenly there were ten slave girls and ten black
slaves dressed in the same clothes as the girls. Then the ten black
slaves mounted the ten girls, while the lady called “Mas’ud, Mas’ud!”
and a black slave jumped from the tree to the ground, rushed to her,
and, raising her legs, went between her thighs and made love to her.
Mas’ud topped the lady, while the ten slaves topped the ten girls, and
they carried on till noon.7

The wife and the ten slaves, who the text makes clear are the king’s
concubines, are put to death (the story does not say what happened to
the male slaves), and the monarch’s conclusion that there is no such thing
as a chaste woman leads to his regime of sleeping with a different woman
each night and putting her to death in the morning, a regime broken only
by Shahrazad’s successful storytelling. Even in the Middle Ages, this story
was set in the remote past and in a distant country (India), so it hardly
describes actual practice. There is a great deal of other Arabic writing
about erotic love which indicates that the discourse is far from unitary –
indeed, within the Thousand Nights and a Night (commonly known as the
Arabian Nights), sex is depicted in many different ways. But the grains of
truth in the modern stereotypes are clear: relative freedom for (at least
elite) men that emerges from texts across the Islamicate world is
accompanied by a cultural concern for female chastity, so that here too a
frankness about sex is combined with a stringency reinforced by religion.
Where enslaved women were also available, men had more extramarital
opportunities, but free women fewer.
 Yes, these images are contradictory, even within Christian culture. So
are many of the views on sexuality found in contemporary culture. If you
think about the sexual attitudes of people you know, you will find not only
that different people have different views but even that a single individual
may hold many different views, depending on circumstances. People learn
and understand culture at many different levels. Sex is a particularly
complicated issue because it involves questions of religious morality,
public order, gender relations, and representational cultures, as well as
the individual psyche. It should not be a surprise that a complicated issue
generates a complex web of attitudes. This book, then, will not search for
the medieval view of sexuality, but rather for the multiplicity of views that
describes the medieval experience.
The stereotypical images of medieval sexuality are heavily gendered. It
is fair to say that the first, repressive attitude, associated with the
medieval church, carried over into the secular culture more commonly
with regard to women’s sexuality, seen as active but sinful; the second,
earthy attitude, associated with lay culture, carried over into the
ecclesiastical realm more commonly with regard to men’s, seen as active
but celebrated; and the third involves women mainly as passive victims.
Women’s behavior was sinful, polluting, or simply irrelevant; men’s was
obeying the dictates of nature. Again, the concept of a double standard is
familiar to any modern reader, and we will encounter this double standard
again and again throughout this book. Some scholars have critiqued the
very notion of a female sexuality in the Middle Ages, suggesting that this
is a modern way of looking at things and solidifies categories that were
actually more fluid at the time; but if we talk about “sexuality” as gender
neutral, we risk taking the masculine bent of so many of our sources for
the universal.8 Our argument throughout this book goes beyond saying
that the same act was seen differently for men and for women. In many
cases, medieval people did not see what the two partners did in sexual
intercourse as the same act at all.
Medieval people, for the most part, understood sex acts as something
that someone did to someone else, in particular the act of penetration.
The subtitle of this book, Doing Unto Others, reflects this idea. The most
common verbs used for sexual intercourse today – “to have sex” and “to
make love” – are intransitive. They are actions that two people do
together and not actions that one person does to another: a person
(ideally) has sex with another person as a mutual act. Part of this is the
modern acceptance of sex as an act that takes a variety of forms –
vaginal, oral, anal, etc. – rather than just intercourse or penetration, often
coded specifically as vaginal penetration. But it is also about the modern
perception of sex, including penetration, as a mutual act, even when
partners think of themselves in terms of “tops” and “bottoms,” somewhat
analogous to the medieval idea of “active” and “passive” participants.
Even “to fuck,” which began as a term implying one person penetrating
another, has come to be used intransitively, or interchangeably of men
and women: “they fucked” or “she fucked him” are perfectly
comprehensible descriptions of vaginal sex.
Medieval terminology was different. The subject of the French verb
foutre, for example, in modern French can be a man, a woman, or a
couple, but the older meaning was “to penetrate” and the subject was
always a man. The same was usually true of the English swiven, which,
according to the Middle English Dictionary, could mean “to have sexual
intercourse” or more specifically “to have sexual intercourse with (a
woman).” There are many more examples of the second, transitive
meaning, and in all the man is the subject and the woman the object.9
The Latin concubere has an original meaning of “to lie with” and might
seem gender neutral but in fact is most often used with a masculine
subject. For example, a 1395 document records the interrogation of a
person it refers to as a man who was caught selling sex to another man,
while dressed as a woman. The summary of the sex worker’s testimony
reported that a certain priest “lay with him [concubuit] as with a woman,”
but that he himself “lay [concubuit] as a man with many nuns.”10 In the
first example, the priest is the subject of concubuit and the person selling
sex is the object, because the priest is enacting the masculine role of
penetration and the other is playing the feminine role of being penetrated.
In the second example, the sex worker is lying with (penetrating) nuns,
making him the masculine subject. A medieval English text sums up these
subject/object roles by explaining that the sinfulness of lust was on both
parties, “the man that doth and the woman that suffreth.”11
These linguistic forms reflected a general way of thinking about sex in
the Middle Ages. Indeed, the relation between the active and passive in
grammar and the active and passive in sexual intercourse was not lost on
medieval people. In the twelfth century, Alain of Lille wrote a poem
entitled “The Plaint of Nature,” in which he drew an analogy between
grammar and men who pervert nature by playing a passive role in
intercourse. The poem went on to have a wide manuscript distribution.
“The active sex shudders in disgrace as it sees itself degenerate into the
passive sex. A man turned woman blackens the fair name of his sex…. He
is subject and predicate; one and the same term is given a double
application.” Personified Nature herself says that “the human race, fallen
from its high estate, adopts a highly irregular (grammatical) change
[metaplasmus] when it inverts the rules of Venus by introducing
barbarisms in its arrangement of genders.”12 The role of nature and the
natural in medieval understandings of sexuality will be discussed later in
this chapter; for now, the important point is that medieval people in
general understood the active and the passive role in sex to be two very
different things.
The roles of “active” and “passive” partner did not necessarily have
anything to do with who was pursued and who was pursuer, or who
enjoyed sex more. Many medieval writers thought women were more
lustful than men. Their supposed passivity didn’t mean that they did not
initiate the sexual relationship, nor did it mean that they were expected to
lie still on their backs. It meant that they were the receptive partners;
they were penetrated. Similarly, the distinction between “active” and
“passive” in male–male intercourse referred to the penetrator and
penetrated. (This distinction sometimes breaks down in discussions of
fellatio, but as noted in Chapter 5 such discussions were rare in the
Middle Ages.) But women’s “passivity” as it was understood in medieval
grammatical and medical theory does not mean that they were not
considered and expected to be in control. Indeed, badges of cheap metal
that people wore on their clothing in the later Middle Ages, many of which
show disembodied vulvas and penises, never show either organ being
handled by a man, but frequently show penises being ridden, handled,
and even roasted by women and may be related to women’s control of
the sex act – not in terms of desire, but in terms of reproduction (Figure
1.1).13
 Figure 1.1 Vulva carried by phalluses. Lead-tin badge from
Bruges, 1375–1435. Van Beuningen Collection, Rotterdam, 0967.

Since sexual intercourse was seen as something that one person did to
another, the two partners were not understood to be doing the same
thing or having the same experience. Mutuality was not important in the
medieval conceptualization of sex. Since our evidence most often deals
with two partners of different sexes, it follows that medieval people
understood men’s and women’s experiences of sex acts as quite different.
Where the partners were of the same sex, medieval people did not always
know how to understand them. Medieval texts reveal, for example, a good
deal of confusion about the moral status of erotic acts between women,
which often were not considered sex unless one of the women penetrated
the other with a dildo.
 The fact that men and women were seen as experiencing sex
differently dictates in part the organization of this book. Although modern
scholars have recognized that the experience of rape in the Middle Ages
was different for the perpetrator and the victim, traditionally they have
seen other sex acts (fornication, adultery, sex work, same-sex
relationships) as a single type of act, roughly the same in social and moral
terms for both partners, and even the best recent scholarship focuses on
a typology of behaviors not initially broken down by gender.14 Because the
acts were not really the same for both partners, this book is organized not
by the type of sex act but by the gender and marital status of the
individuals who committed the act (or who did not commit it, in the case
of the chapter on chastity).
Organizing the book with separate chapters on men and women may
not seem particularly controversial, but it is worth making explicit the
underlying assumptions. Some scholars have argued that medieval
understandings of sex and gender were not binary. Some say that for
medieval scientists who followed Aristotle, for example, there was only
one sex, the male, and females were defective males.15 Others argue that
because sexual reproduction was so common an expectation for men and
women in medieval society, those who chose celibacy and renounced
reproduction became not men or women, but a third gender.16 Still others
argue that medieval gender was fluid, that people could occupy a variety
of gender positions depending on the situation.17
There is truth to all these arguments, but nevertheless, the binary
opposition between men and women was extraordinarily strong in
medieval society. Although theorists might write that females were
defective males, their defects were significant enough that no one
seriously considered them the same as males; they were in a quite
different category. The category was lower in the hierarchy, and the
category difference was very real both to scientists and to other medieval
people. Similarly, those who did not reproduce might be considered in
some ways “not real men” or “not real women,” but no medieval person
would have any problem identifying nuns as women and monks as men.
The question this raises is: what does it mean to say something like
“women who transgressed the expectations for their gender became not-
women”? If it means that medieval people could no longer perceive that
they were women, or that medieval people somehow accepted them as
men and allowed them to live as such, it would be underestimating
medieval people in the first instance and perhaps giving them too much
credit in the second. We would be on firmer ground if instead we
postulated that they would still be identified as women, but ones who
moved outside normative gender roles in a way that was meaningful for
both the person transgressing and those around them. There could be
real social and moral implications of such behavior, and there was also
surely personal meaning for the understanding of self, though we cannot
necessarily access that personal meaning.
Gender non-conformity did exist in the Middle Ages, and people
understood that individuals could behave in ways that could be seen as
more masculine or more feminine, but that does not mean non-conformity
was embraced. Gender non-conforming people were considered deviant in
the Middle Ages. Indeed, sometimes such deviants would even be
considered hyper-feminine or hyper-masculine, deviating from
expectations by taking to an extreme the qualities that others of their
gender kept under control. The dichotomy between masculine and
feminine remained entrenched in society, even if that dichotomy proved
insufficient for many individuals who we might call queer, trans, or
genderqueer (as will be discussed later in this chapter).

The study of sexuality

Before turning to medieval sexuality specifically, we need to digress and
discuss the concept of “sexuality.” Like most other general concepts, it can
be used to mean a number of different things, and it is important to
specify what it means in a given context. Some scholars argue it is
anachronistic even to talk about sexuality with regard to medieval Europe,
but this is not the case. It may not be a concept medieval people had –
there is no word in any of the medieval languages that translates precisely
as “sexuality” – but nor is there any word that translates precisely as
“political culture” or “affective piety” or “patriarchal family” or a host of
other terms we have no problem using to describe the Middle Ages.
The way people understood particular sex acts is not the same thing as
the way they understood sexuality as a field of human experience. The
term “sexuality,” as scholars use it, refers to the whole realm of human
erotic experience. As Anna Clark puts it, sexuality is “the desires,
relationships, acts, and identities concerned with sexual behavior. Desires,
relationships, acts, and identities do not automatically flow from one to
another; they must be considered separately, and they are often
constructed separately.”18
In other words, sexuality is the universe of meanings that people place
on sex acts, rather than the acts themselves. Therefore, as a field of
study, the history of sexuality is different from the history of sex, which
has to do with who did what with (or to) whom. Some authors prefer to
use “history of sexualities” in the plural to emphasize difference: sexuality
is not just one thing, dissident sexualities must be included in any history.
But “history of sexuality” is not the same thing as “history of sexualities.”
Just as one may speak of different chemistries but “chemistry” can still be
used to describe the field as a whole, the study of sexuality comprises the
study of different sexualities and also the meanings of sex for people who
did not identify themselves with particular sexualities as we now
understand them. “A sexuality” is a way of being or a form of desire that
is more fundamental to the individual than a preference: “sexual identity”
and “sexual orientation” are related (modern) terms used to express this.
In the contemporary world, heterosexuality and homosexuality would be
the most prominent sexualities, but there are also bisexuality,
pansexuality, asexuality, and so forth. A “history of sexualities” would be
one that traced the antecedents of those and other categories. But a
“history of sexuality” is a more comprehensive term. It is in this sense
that we can speak of “male sexuality” and “female sexuality”: there is no
one form of desire that can be attributed to all men, or to all women, but
it is possible to speak of the universe of meanings of acts attributed to
women or to men.
The terms “sex,” “gender,” and “sexuality” (as both scholarly discourse
and casual conversation today use them, and as they are used here) have
distinct meanings. “Sex” refers to the physical characteristics of male and
female bodies: genes, hormones, genitalia, and so forth. “Gender” refers
to masculinity and femininity, patterns of behavior, and identity. In a
doctor’s office, you might see a diagram depicting male or female
genitalia; this is sex. At a restaurant, you might see an image of a stick
figure in a dress on the women’s bathroom door and a stick figure in
trousers (or, really, not-a-dress) on the men’s room door. This is a
reductive and at times problematic, but nevertheless recognizable,
rendering of gender. “Sexuality” refers to orientation or desire.19 Thus, a
person today assigned male sex at birth might have a female gender
identity and a bisexual orientation. Despite these clear distinctions, even
today these entities are often conflated, and, in the Middle Ages, they
were seen as even more entangled. If someone deviated from the
expected models of sexual behavior, people did not assume that the
variation was a matter of biology or gender identity or sexual desire; the
three worked together. Whereas we might say that an individual has a
female body, a feminine identity or behavior, and a sexual desire for
women, medieval people would have assumed that the desire for women
came from a masculine body and, in itself, constituted masculine behavior.
Even chastity, an important form of sexuality in the Middle Ages, as will be
seen in Chapter 2, had important implications for gender and gender non-
conformity. For them, sexuality overlapped significantly with sex and
gender; therefore, this book will have much to say about what we
moderns call sex and gender in the Middle Ages as well as about
sexuality.
The media and popular discourse today frame the discussion about
different sexualities around the question of whether they are inborn
(“hardwired”) or a matter of choice or lifestyle. Scholarly discussion has
focused on a somewhat different question: are sexualities essential (that
is, do they have a reality on their own and exist across cultures?) or are
they socially constructed (are they created by the meanings given by
different cultures to sex acts)? The general consensus today is that
sexuality is socially constructed.20 It is not written in the body but created
by society. A person might perform the same acts in a variety of cultures,
but they would not express the same sexuality in all those cultures
because the acts would have different meanings and are understood
differently. As the classicist David Halperin puts it: “Sexuality … does not
properly refer to some aspect or attribute of bodies. Unlike sex, sexuality
is a cultural production: it represents the appropriation of the human body
and of its physiological capacities by an ideological discourse. Sexuality is
not a somatic fact; it is a cultural effect.”21 While some might argue that
sex, too, is a cultural production, we can certainly agree with Halperin
that sexuality is very much so.
The difference between the “essentialist” and “social constructionist”
positions is demonstrated by attitudes toward sex acts with individuals
under the age of eighteen. In contemporary Western society, this would
be viewed as sexual abuse of a child. Medieval people would find that
idea absurd. There was a concept of “age of consent,” but it applied only
to permanent vows, such as marriage or entrance into a religious order.
Girls could be married at twelve, boys at fourteen, but someone who had
sex with them when they were below this age did not come in for more
opprobrium than for non-marital sex with an adult. In fact, for a man to
have sex with a boy could be considered more normal than to have sex
with an adult man. Thus, the act of having sex with someone under
eighteen might be the same in the two time periods, but it had very
different implications for the identity of the actor. An essentialist would
argue that a pederast is a pederast wherever and whenever you find him;
the social constructionist position, that the sexual and social identity of a
man who has sex with underage boys (or girls) depends on the culture in
which he lives, is much more useful in understanding sexuality within the
context of the wider society.
This idea that sexuality is a function of culture and society is especially
important given the modern tendency to define sexual relationships as
heterosexual or homosexual based on the sex of the individuals involved.
As scholars have become more interested in studying marginalized groups
from the past, questions have arisen about how we use modern terms to
talk about past people, and not all societies use “what is the gender of
the people to whom you are attracted?” as a criterion. “Homosexuality,” as
an identity or mode of defining sexual orientation, is not a thing that one
can find in all cultures. Scholars of the ancient Greek and Roman world
argue that people at that time classified sexual behaviors or identities not
by the gender of the participants but by the sexual role each plays; thus,
a man who penetrates others is simply playing the appropriate male role,
he is not a “homosexual” merely because those he penetrates are also
male. Some scholars deny there was any concept of the “homosexual” at
all before the second half of the nineteenth century, when the term was
coined and when sexuality became part of the study of abnormal
psychology. Others find that particular sexual identities in other cultures
resemble that of the modern “homosexual.” But most would agree that to
label anyone in the past who had sex with someone of the same sex as “a
homosexual” would be to impose a modern category, not because men
did not have sex with other men in the past, but because the sexual roles
were more important in these cultures than the genitalia of the people
involved. The same argument also applies to other categories of sexual
behavior: asexuality, bisexuality, sex work, or any other. Heterosexuality
may seem somewhat simpler. It may seem at first glance that, whether or
not a certain minority of people in the Middle Ages should be called
“homosexual,” the majority certainly were “heterosexual.” In thinking
about heterosexuality, however, it is especially important to keep in mind
the question of whether behaviors and attitudes add up to an identity.
Heterosexuality tends to be an unmarked category: most people assume
it is normal and thus often do not notice that it is socially constructed in
the same way homosexuality is.22 But heterosexuality, just as
homosexuality, depends on a construction of sexuality that defines
orientation based on the sex of the desired partner and, therefore, is
equally as anachronistic. Again, the acts may be the same, but each
society determines the meaning of those acts and whether they create
identities. It may be the case that most medieval men had sex only with
women and most medieval women had sex only with men, but it would
be wrong to attribute to them a consciousness of a heterosexual
orientation unless we find evidence for it. In fact, for the most part we do
not. Medieval people did not draw the line between gay and straight, but
between reproductive and non-reproductive sex. Same-sex activity was
not reproductive, but much opposite-sex activity was not reproductive
either, and was not excused by the fact that it was what we would call
“heterosexual.”
Perhaps it would be wrong to call marriage the norm for medieval
people, since many ecclesiastical writers saw marital sex as a necessary
evil, but it was certainly the expectation for most. That does not mean
that sexual desire that resulted in reproduction was a good thing, or even
the default condition against which other desires were set; it was
“concupiscence,” the result of Eve’s and Adam’s disobedience. As Karma
Lochrie writes:

Procreation and chastity more than heterosexuality are the reigning

norms of medieval theological culture, and this makes a tremendous
difference. Sodomy as a subcategory of lechery, although it is set
apart as an abomination, is more or less on a continuum with other
“heterosexual” vices in which desire waxes inordinate and gender
roles morph.23

The point of view that social constructionists call “essentialism” would

argue that while every culture is different, certain fundamental realities
remain the same: there are those with homosexual, heterosexual, and
various other orientations. The popular lists of “famous gays in history”
are essentialist in conception. Essentialism is implicit in the contemporary
search for genetic markers or biological corollaries of a predisposition to
homosexuality. It is also congenial to activists who believe society will be
more tolerant if it understands homosexuality as something inborn, not
chosen. But the social construction of sexuality does not imply that
individuals choose their own identities – it is the way the broader culture
gives meaning to sex through medical, legal, or religious systems that
creates sexual identities for them, and these identities are very real.
This book works from the assumption that we must look at how
medieval people thought about sexuality, rather than impose our own
categories on them. Some people, however, would go much further and
say that not only the particular categories familiar to us but also the very
notion of a sexual orientation or a sexuality are creations of bourgeois
capitalism. This point of view has its roots in the insights of the French
philosopher Michel Foucault in his important work The History of
Sexuality. According to this argument, only in nineteenth-century Europe
and North America did people come to view their sexual desires as part of
what constituted them as individuals. People in other societies may have
had innate desire for a particular type of partner, role, or act, but these
did not define them as a type of person. As Foucault wrote:

As defined by the ancient civil or canonical codes, sodomy was a

category of forbidden acts; their perpetrator was nothing more than
the juridical subject of them. The nineteenth-century homosexual
became a personage, a past, a case history, and a childhood, in
addition to being a type of life, a life form, and a morphology, with an
indiscreet anatomy and possibly a mysterious physiology….
Homosexuality appeared as one of the forms of sexuality when it was
transposed from the practice of sodomy onto a kind of interior
androgyny, a hermaphrodism of the soul. The sodomite had been a
temporary aberration; the homosexual was now a species.24

A classification of persons based on sexual behavior was a categorization

of convenience in earlier eras, but not psychically deep. In this
formulation, people were not defined by a specific identity tied to who
they chose as a sexual partner, even though individuals might recognize
and act on desires for a specific type of sexual partner. (Some influential
interpreters argue that saying there was no sexuality before capitalism is
a distorted reading of Foucault’s views. When Foucault drew his famous
acts/identities dichotomy, he was not really saying “earlier there were only
acts, in the modern era identities developed,” he was speaking of types of
discourses or ways of talking about sex. Earlier we have legal enactments
that mention only acts; later we have medical and psychological analyses
that discuss identities.)
This book rejects the a priori argument that sexuality is not a relevant
concept for the Middle Ages. As we shall see in Chapter 2, the identities of
medieval people were fundamentally shaped by their sexual status – not
based on the sex of individuals they were attracted to, but whether they
were chaste or sexually active. This distinction created a dividing line
between two very different kinds of people in medieval society. When it
comes to other sexual categories, we have to look at the medieval
evidence and decide what kind of sexual categories medieval people used
to think with, if they did at all. To dismiss out of hand the possibility that
they could have had a concept of sexuality is just as reductive as
automatically assuming that their concept of sexuality was the same as
ours.
Recently scholars have used the concept of “queer” to describe a
variety of sexual and gender transgressions. This is not the place for a
detailed discussion of “queer theory” in the various humanistic disciplines,
especially literature, but it is worth saying a few things about the way it is
applied to the Middle Ages. In one sense to be “queer” is simply to
challenge norms; thus, the term can be associated with homosexuality in
the contemporary era, but it can also be used by people who want to
claim for themselves an identity that does not map onto the homosexual–
heterosexual binary. Anyone who is outside of cultural expectations can
be labeled as “queer”: thus, Tison Pugh suggests that Harry Bailly, the
host in Chaucer’s Canterbury Tales, is “queer” because his domestic
masculinity is impugned by his wife’s dominance and shrewishness.25 But
“queer” can also signify a new way of looking at medieval texts, rejecting
contemporary heteronormativity; approaching a medieval text without
assuming that the people and actions depicted in it are heterosexual can
open up a new set of interpretive possibilities. This work seeks to
“unsettle the heterosexual paradigms of scholarship.”26 In this second
sense, “queer” is a commentary not just on how the Middle Ages can be
seen as queer, but how scholars need to adopt a queer lens to unsettle
their own cultural assumptions. It can also include attention to
transgression of gender identity since, as many scholars argue and as this
book will further discuss, medieval sexual identity is very much about
gender identity. To read in this way has become the verb “to queer.”
Queering the Middle Ages does not mean arguing that particular historical
figures or literary characters were homosexual, or even that they had
same-sex desires, but rather displacing the entire homo/hetero binary.
William Burgwinkle suggests that the fact that any non-reproductive
sexual behavior could be labeled “sodomy” means that all readers can
identify with “sodomites.” There is no homosexual and heterosexual; all
are together in a sort of “queer utopia” in which “all readers get to play at
being marginal and subversive.”27 M.W. Bychowski argues that intersex
studies, which focuses on the experiences of those whose biological sex is
not easily defined as male or female, and queer studies allow us to see
how “non-binary bodies disoriented the universality and centrality of
binary gender” for medieval people, just as non-binary bodies continue to
disorient us today.28 In Bychowski’s formulation, this disorientation is a
productive and important process that helps us better understand the
past and the present. Of course, being marginal and subversive may not
have been as exciting in the Middle Ages as it may seem today; gender
non-conformity was often punished more than valorized, and the fact that
all kinds of behavior were deemed sodomy may have harmed the
practitioners of that behavior more than it universalized sodomy.
Queering a text can also involve a reinterpretation on a very basic and
concrete level: when the object of love in a poem is masculine, scholars
long assumed that the speaker is a woman, or vice versa, but this
assumption may not have been the same that medieval readers would
have brought to it. The Old English poem commonly known as “The Wife’s
Lament” is one example. Scholars disagree on the basis of grammar, word
choice, and historical plausibility as to whether the speaker who mourns
an absent male lover is in fact a woman or a man.29 Queering a text also
involves examining the way the text itself constructs sexuality, rather than
how it describes or depicts a sexuality that exists outside the text. In this
sense, it is essentially a literary technique, but historians need to
understand the nature of literary and other texts in order to use them as
historical sources. Queer theory reminds us once again that texts are not
faithful representations of concepts that have a prior independent
existence outside the texts. But queer theory is not only relevant to texts.
Many archaeologists did not question gender norms, assuming that graves
Another random document with
no related content on Scribd:
framed the Fifth Article, and on the “conventions” of the American
citizens, which made that Article, led them to provide, in their Fifth
Article, the constitutional mode in which state governments could
exercise their existing limited abilities to make federal and
declaratory Articles, like all the Articles of 1781 and like the first
seventeen Amendments, and also to provide therein the
constitutional mode in which the “conventions” of the American
citizens could exercise their exclusive ability to make national
Articles, like the First Article and the supposed new Eighteenth
Amendment.
Having fixed this clearly in our mind, we now proceed to examine
the nature of the remaining Amendments that were made, prior to
1917.
The Eleventh Amendment gave no power of any kind to anyone. It
simply declared that the Court of the American nation could not have
jurisdiction of law suits against one of the states “by citizens of
another state, or by citizens or subjects of any foreign state.” We
commend, however, to the modern “constitutional thinkers,” whose
Tory concept we shall meet later, this early American recognition of
the fact that, in America, we are “citizens.” It will be noticed that this
Eleventh Amendment, declared by the President to have become
part of the Constitution on January 8, 1798, speaks of the “citizens”
or “subjects” of any foreign state but speaks only of “citizens” in
America.
The Twelfth Amendment likewise has naught to do with power of
governments over human liberty. It deals solely with the manner in
which the Chief Executive of America shall be chosen.
The Thirteenth, Fourteenth and Fifteenth Amendments are the
famous so called Slavery Amendments. Even the modern
“constitutional thinker” of 1917 and 1920, no matter how Tory his
concept, will hardly dare to claim that these Amendments give
government power to interfere with the rights which the Creator gave
to the human being.
On the most casual examination of the language of these
Amendments, no one can fail to be impressed with the one
 pervading purpose found in them all, lying at the foundation of
each, and without which none of them would have been even
suggested; we mean the freedom of the slave race, the
security and firm establishment of that freedom, and the
protection of the newly-made freeman and citizen from the
oppressions of those who had formerly exercised unlimited
dominion over him. (Slaughter House cases, Supreme Court,
16 Wall. 36 at p. 71.)
Of these Amendments, in the Civil Rights Cases, 109 U. S. 3, the
Supreme Court again said that “they abolished slavery, and
established universal freedom.”
When, therefore, in the year 1920, we shall hear these
Amendments, which establish universal freedom, cited as Articles of
exactly the same nature as a supposed new Article, directly
interfering with the freedom of the American citizen on a matter not
enumerated in the First Article, we shall be rather surprised. But we
shall be more than surprised, when we hear the reason of the
modern “constitutional thinker” why both Articles are within the power
of the state governments, who are his clients, to put into our
Constitution. Not knowing that our Constitution is a federal as well as
a national Constitution, not knowing that his government clients
always had the ability to make federal Articles and never had and
have not now the ability to make Articles which interfere with human
freedom, we shall find him stating, as axiomatic, that the slavery
Amendments, which establish universal freedom, and the supposed
Article of 1917, which interferes with freedom of the individual, are
identical, for the reason that both affect the individual and his rights
and liberties. On the remarkable nature of this identity, that one
secures and the other interferes with individual liberty and, therefore,
both affect individual liberty, we shall find that he bases the Tory
concept that state governments can do as they please with all
liberties of the American citizens. While his theory will serve only to
amuse us, we commend, to his reading, this extract from a better
American lawyer:—“The legislature may not confer powers by law
inconsistent with the rights, safety, and liberties of the people,
because no consent to do this can be implied, but they may pass
limitations in favor of the essential rights of the people.” (Woods
appeal, 75 Pa. 59.)
The Sixteenth Amendment simply removes, from one of the great
powers granted to Congress by the citizens of America in their First
Article, a federal limitation upon its exercise, a limitation entirely for
the benefit of the states which are political entities.
In the “conventions” we have just left, the First Article grant of
power to the new government to impose direct taxation was the
object of incessant attack. No prerogative of government is more
cherished by any government than its ability to exact financial tribute
from human beings by means of taxation. Under the old federation of
states, although the federal government needed money, it was
without any power of taxation. All it could do was to ask the various
state governments to supply it with the money. Article VII of the
“Articles of Confederation” provided that the expenses of the federal
government “shall be defrayed out of a common treasury, which shall
be supplied by the several states, in proportion to the value of all
land, within each state, granted to or surveyed for any person, as
such land, and the buildings and improvements thereon, shall be
estimated, according to such mode as the United States in Congress
assembled shall, from time to time, direct and appoint. The taxes for
paying that proportion shall be laid and levied by the authority and
direction of the legislatures of the several states, etc.”
Section 8 of the First Article of the proposed new Constitution read
that “The Congress shall have power to lay and collect taxes, duties,
etc.” At Philadelphia, in 1787, a tremendous fight was made against
the proposal of this grant by the citizens of America to their
government. Many delegates at Philadelphia, who had the financial
welfare of their particular state government at heart, contended that,
if the new government were given the power of direct taxation of the
people, the new government would leave the people with no money
to be collected by the state governments for their own purposes. The
nationalists at Philadelphia, however, knew that a national
government without power of direct taxation over its own citizens
would be a helpless government. Therefore, they insisted that the
proposed grant of this power remain in the First Article. As a
concession to the opposition made on behalf of the state
governments, there was added to the proposed First Article a purely
federal limitation on the exercise of the national power of direct
taxation. This federal limitation, on behalf of the states and their
governments, read: “No capitation, or other direct, tax shall be laid,
unless in proportion to the census or enumeration hereinbefore
directed to be taken.”
In the conventions of the citizens of America, the friends of the
respective state governments made every effort to defeat the First
Article grant of national power to impose direct taxation upon the
citizens of America.
In the Virginia convention, from Randolph and from Henry, arguing
respectively for and against the grant, we get our certain knowledge
that the apportionment limitation on the exercise of the granted
power was a purely federal limitation aimed entirely to secure to the
respective state governments the just amount of the moneys which
could be collected by taxation from the Americans living in the
respective states.
Randolph argued: “The difficulty of justly apportioning the taxes
among the states, under the present system, has been complained
of; the rule of apportionment being the value of all lands and
improvements within the states. The inequality between the rich
lands of the James River and the barrens of Massachusetts has
been thought to militate against Virginia. If taxes could be laid
according to the real value, no inconvenience could follow; but, from
a variety of reasons, this value was very difficult to be ascertained;
and an error in the estimation must necessarily have been
oppressive to a part of the community. But, in this new Constitution,
there is a more just and equitable rule fixed—a limitation beyond
which they cannot go. Representatives and taxes go hand in hand;
according to the one will the other be regulated.... At present, before
the population is actually numbered, the number of representatives
is 65. Of this number, Virginia has a right to send ten; consequently
she will have to pay ten parts out of sixty-five parts of any sum that
may be necessary to be raised by Congress. This, sir, is the line.”
(Randolph, 3 Ell. Deb. 121.)
 As to the granted power of direct taxation, Henry argued: “We all
agree that it is the most important part of the body politic. If the
power of raising money be necessary for the general government, it
is no less so for the states.... The general government being
paramount to the state legislatures, if the sheriff is to collect for both
—his right hand for Congress, his left for the state—his right hand
being paramount over the left, his collections will go to Congress.
We shall have the rest. Deficiencies in collections will always operate
against the states.... Congress will have an unlimited, unbounded
command over the soul of this Commonwealth. After satisfying their
uncontrolled demands, what can be left for the states? Not a
sufficiency even to defray the expense of their internal
administration. They must therefore glide imperceptibly and
gradually out of existence.” (Henry, 3 Ell. Deb. 148 et seq.)
The Sixteenth Amendment merely removed, in one respect, this
federal limitation upon the exercise of the national power of direct
taxation granted by the First Article. The Amendment read: “The
Congress shall have power to lay and collect taxes on incomes, from
whatever source derived, without apportionment among the several
states, and without regard to any census or enumeration.” This
Amendment, being nothing but a change in the federal aspect of the
Constitution, being a change in the protection given to each state as
a political entity, was an Amendment which the state legislatures,
each acting as attorney in fact for its own respective state, were
entirely competent to make.
The Seventeenth Amendment has no relation to human freedom.
It merely provided that the state governments should no longer elect
the august Senators in the American Congress, some of whom we
shall meet later herein.
This last Amendment, prior to 1917, provided that those Senators
should be thereafter elected in our states by ourselves, the American
people. Curiously enough, it is from the Senate in which they sit that
came the proposal which caused the trouble which is obliging us to
educate ourselves to find our “when” and “how” between 1907 and
1917 we became “subjects” instead of keeping our status as citizens
of America.
 Early in our education (p. 26) we were informed that our public
statesmen and constitutional thinkers brought to the year 1917 the
false “knowledge” that legislatures in America, if enough combined,
had the omnipotence over individual freedom, which the early
Americans denied to the British Parliament. Their false “knowledge”
was undoubtedly caused by their failure to appreciate, if they knew
or remembered, that America is a national union of men while there
is also a subordinate and federal union of states. Ignoring this simple
fact, they also ignored the important fact that the Constitution is both
national and federal and contains Articles of both kinds. Blind to both
important facts, they acquired their false “knowledge” from the fact
that the “legislatures,” to whom they ascribed omnipotence over
individual freedom, had made the first seventeen Amendments.
The fallacy of their deduction is mathematically demonstrable.
A constitutional Article which gives to government any power to
interfere with individual human freedom is the constitution of
government of men. That is why the First Article was the constitution
of the government of the nation of men. And, in turn, that is why the
legal necessity of having it made by the men themselves, in their
“conventions,” was “felt and acknowledged by all” Americans.
If one doubts that the First Article was the constitution of the
government of men, test the truth of the statement in this way. First,
assume that the “conventions” made no Article save the First. Then
ask yourself if the whole American people would not have
constituted their government with its great enumerated powers to
interfere with their individual liberty. In the second place, make
exactly the opposite assumption. Assume that the “conventions”
made all the Articles from the Second to the Seventh, both inclusive,
but did not make the First Article. Then ask yourself whether the
whole American people would have constituted any government with
a single power to interfere with their individual freedom.
Let us now apply exactly the same test to each of the first
seventeen Amendments and then to the supposed Eighteenth
Amendment.
 Take any one of the first seventeen Amendments and assume that
anything new which it put into the Constitution was the entire
Constitution. Then ask yourself whether, if the Constitution consisted
solely of the new matter in the Amendment, there would be any
government of the whole American people with a single power to
interfere with their individual human liberty. Take all the seventeen
Amendments and assume that any change all of them made was the
entire Constitution. Then ask yourself whether, if any new matter in
the seventeen Amendments composed the entire Constitution, would
there be any government of the whole American people with a single
power to interfere with their individual human liberty.
Now make the same assumption about the supposed Eighteenth
Amendment. Assume that it is the entire Constitution and that there
are no other Articles. Immediately it is seen that, if the Eighteenth
Amendment were the entire Constitution, there would be a
government of the whole American people with an enumerated
power to interfere with their individual human liberty.
Now we see the fallacy of the false “knowledge” which our
statesmen and constitutional thinkers brought to the year 1917. Now
we know the marvelous foresight of Hamilton when he stated his
conviction that Amendments would relate to “the organization of the
government, not to the mass of its powers.” None of the seventeen
Amendments did relate “to the mass of its powers” to interfere with
individual human liberty. That is why state legislatures, representing
the federal members of the union of states, could make the federal
or declaratory seventeen Amendments. The fact that those
“legislatures” in 1787 could make Articles of that kind, as they had
made them in 1781, did not deceive the Americans at Philadelphia
into a false “knowledge” that those “legislatures” could make the First
Article with its enumerated powers to interfere with the individual
freedom of the members of the nation of men. The fact that the same
“legislatures,” still representing the members of the subordinate
union of states, still could make declaratory or federal Articles, and
had made seventeen Articles of that kind, not one of which
constituted new government power to interfere with individual liberty,
should not have misled the statesmen and constitutional thinkers of
our generation.
But it did.
 CHAPTER XV
THE EXILED TORY ABOUT TO RETURN

We have now educated ourselves accurately to know, at the

beginning of 1917, what was our own relation to all governments and
what was the relation of those governments to one another. With
certainty, we know that those relations, at the beginning of 1917,
were exactly what they had been at the close of 1790. It is amazingly
important that we never forget that particular knowledge, when
reading the story of what has happened since the beginning of 1917.
With certainty, through our education we know that, at both times,
the following was our own relation to all governments and the
relation of each of them to the others.
No individual in America was a “subject” of any government or
governments. Each individual was a “citizen” of the nation which is
America. The citizens of America, as such citizens, had given to their
only government its enumerated powers to interfere with their
individual freedom. Those American citizens had given these
enumerated powers by direct grant from themselves, in the only
manner, in which they can act effectively on such a subject, by
assembling in their “conventions.” Those American citizens had
made it the imperative law of America that no new power of that kind
(to interfere with their freedom) could be created except by the new
exercise of their own ability in the same manner.
The very essence of the wisdom and efficiency of the manner of
the first exercise was that the exercise was by “conventions” of
themselves, chosen by themselves, after specific grants had been
proposed to them to be made by them. These “conventions,” chosen
from among themselves for the one purpose of saying “Yes” or “No”
to the proposed grants, had made those grants in the only way in
which the American people “can act safely, effectively and wisely” in
the making of such grants. In their Fifth Article, made in the first
“convention” exercise, they had mentioned the very “convention”
method in which they were then assembled to make their First Article
grants. Thus, they made that method constitutional for future
exercise of their own exclusive power to make grants of that kind.
Thus they had secured their liberty against any attempt by
government to interfere with their individual freedom, as American
citizens, except in the matters named in the enumerated powers of
the First Article. In this way, they had secured their liberty, in their
capacity of American citizens, against any attempt by other
governments than their only government at Washington, even in the
matters enumerated in the First Article.
Nearly every individual in America was also a citizen of a state. In
each state, its citizens had vested the legislative government of the
state with limited powers to interfere with the individual freedom of
those within the jurisdiction of that state. The limitations upon the
power of each state government to interfere with those within its own
jurisdiction were, firstly, limitations imposed by the citizens of
America in their Constitution upon the power of each state to govern
itself; secondly, the limitations imposed by the citizens of each state
in their own constitution; and, thirdly, the limitations imposed by the
traditional American principle that no government, without limit, can
do what it will with the individual freedom of its citizens. In each
state, subject to those limitations, its own citizens were exclusively
competent to determine the exact quantum of ability which its own
legislative government should have to interfere with the individual
human freedom of those within its jurisdiction. No government or
governments outside each state could interfere with the individual
freedom of its citizens, as such citizens, in any matter. No outside
government at all, except Congress, could interfere with their
freedom, as human beings, in any matter. The legislative
governments of the other states, either singly or collectively, on no
matter, could either exercise themselves or give to any government a
single power to interfere with the human beings in each particular
state. The one American government, at Washington, could only
interfere with those human beings on the matters enumerated in the
First Article. No new ability in that government so to interfere with
them could be granted except by direct grant from the citizens of
America assembled in their “conventions.” The Fifth Article had been
the command of the citizens of America that only a “Yes” from three
fourths of those “conventions” of themselves should be valid to add a
new power over themselves to those enumerated in their First
Article.
From 1776 to 1917 it had been the obeyed fundamental law in
America that no government could acquire, from another
government or from other governments, any power to interfere with
the individual freedom of the human beings within its jurisdiction.
The human beings in each state were members or citizens of the
nation which is America. They were also, in each state, the members
or citizens of the nation which is that state. The states were also
members of their own federation, whose federal government had
been continued by the citizens of America. In its personnel, that
federal government was identical with the national government of
those citizens of America. In the Fifth Article, the citizens of America
had recognized and mentioned the existing ability of the states, as
political entities, to make constitutional Articles of a federal nature.
For that reason, the Fifth Article had been the command of the
citizens of America that, when the states exercised their limited
ability, a “Yes” from the legislatures of three fourths of the states
should be effective to make a federal Article.
In the matter of interference with individual human freedom, so far
as experience tells the story, there had continued from 1776 to 1917
the knowledge of the legal fact, made basic American law by the
Statute of ’76, that no government could get any national power
except by direct grant from its own citizens, and that no government
could exercise any national power over any but those in its own
jurisdiction and then only by direct grant of that power from its own
citizens.
We know that this was the wonderful system of constitutional
government under which Americans had lived from 1790 to 1917.
We know that the Americans, who were our predecessors in 1787,
had prescribed that system as best calculated to protect their human
liberty and our own from outside aggression and from usurpation of
power by their governments and our own. Educated with them, from
the day when they were all subjects of a legislative government, we
know much of their struggle to rid themselves forever of the status of
“subject” and to become free men. In that education, however, we
have dwelt but little so far upon one phase of that struggle. At this
point, it is essential that we educate ourselves briefly but accurately
on that one phase.
Whenever government exists, even government limited to those
powers thought by its citizens necessary to secure human liberty, the
weakness of human nature makes it certain that the exercise of
granted powers will not always be for the common benefit of the
citizens who grant them. When the government is the State and
human beings are its “subjects,” that weakness is usually more
apparent. As a result, in every country the rich and powerful largely
secure the actual control of government. That they may entrench
themselves in its control and the exercise of even its lawful powers,
they lavish favors on a class actually large in number but
comparatively constituting a small minority of the people of the
country. For this class, it is of material advantage that government
should be the State and command the people as its “subjects.”
When a man is born or educated as a member of this minority, it is
beyond the experience of the human race that his mental attitude
should not regard the relation of “subject” to ruler as the proper
relation of human being to government.
In those earlier days, in whose experience we have just been
educated, the human beings in America, who had that mental
attitude, were distinguished from the Americans by the name
“Tories.” Throughout this book it is that mental attitude which we
characterize as “Tory.” It is those who display that mental attitude
whom we call “Tories.”
At the time of our Revolution it is a historical fact that about one
third of our population was Tory in its mental attitude. Many of the
Tories, quite possibly most of them, were actuated by a sincere and
deep conviction that it was better for every one that human beings
should be subjects. That conviction had been the basis of nearly all
science of government for centuries. It is really a remarkable fact
that our history should show, from their recorded statements and
writings, so many men in 1787 accurately grasping the fallacy of that
historical doctrine that men were made for kings or governments.
In our education, we now grasp accurately that the Americans,
who ended forever the status of “subject” in America, in their
Revolution, had not only to contend with their former omnipotent
government but also with one third of their own population, the
Tories. When that Revolution had succeeded, when the Statute of
’76 had actually been made the basic law of America, many Tories,
in the natural course of events, became citizens of the particular
state, now a free republic, in which they lived. When the Convention
of 1787 assembled at Philadelphia, when the respective
“conventions” in each state later assembled, many delegates were
men with a known leaning to the Tory mental attitude. It is not to be
understood that, by reason of this fact, their loyalty to the new
institutions of their country was not sincere. One of the great liberties
secured by those new institutions was the right of the human being
to think and talk as he pleased as to what is the mode of government
best designed to secure the happiness of men. As a matter of fact,
when those “conventions” assembled, many of our most prominent
Americans of the Revolution had begun sincerely to doubt whether
the American people had yet learned enough to profit most by their
legal ability now to dictate to all their governments how much power
each government should have. It is the record of impartial history
that the people’s distribution of all surrendered power of a national
kind, the grant to the new government and reservation to the old
state governments, was dictated by two opposite factors. The wise
and able leaders, whether their mental attitude was American or
Tory, knew that the general government must get a grant of much
power of that kind, if it were successfully to promote the welfare of
the American people. On the other hand, they knew with certainty
that such grants must be specified and enumerated and limited, or
the American people would make no grant at all. It was, as it still is,
the basic law of America that grants of that kind could only be
obtained directly from the people themselves. The American mental
attitude, that citizens and not governments shall define the extent of
government power to interfere with individual freedom, was the
controlling factor when the Constitution made its great distribution of
all surrendered powers.
If we go back to the “conventions” of those who established the
system, we find a striking fact. In those “conventions” there were
many men whose personal opinion always had been and still was in
full accord with the Tory concept of what ought to be the relation of
government to human being. But these men, with that Tory concept
of what government ought to be, were just as keenly aware as were
those with the American concept, that the Tory concept had forever
disappeared from American law. Whenever any suggestion was
based upon the Tory concept, these very men were among the
quickest to perceive and the most strenuous to insist that the
suggestion could not be met because the American concept had
displaced the Tory concept forever in America. If our modern
leaders, who have the same Tory concept of what government ought
to be, had evinced the same perception and the same insistence, the
story of the last five years would be a different story. Because these
leaders have had no knowledge of what America is, we average
Americans must now come straight from the “conventions” in which
the Americans established the Constitution to secure individual
freedom and we must educate ourselves in the story of the last five
years in which our governments and our leaders have calmly
assumed that citizens are subjects.
 CHAPTER XVI
THE TORY “EIGHTEENTH AMENDMENT”

In the closing month of 1917, the American people had been for
eight months participants in the World War. In that winter, under the
direction of their only government, exercising its war power, they
were marshalling all that they had to win that war and to win it
quickly. The mind of the people themselves was concentrated on
that one purpose. The response of the average American citizen to
the call of his government, the assembling of millions of average
American citizens as soldiers for that war, the outpouring of their
money by other millions, should have made it impossible that the
government servant of those American citizens should have entirely
forgotten and ignored the knowledge of the “conventions” of 1787,
that the American is a citizen and not a subject. Even if their
personal experience had made them members of the class which
naturally have the Tory mental attitude, the spirit of 1917 should have
awakened our legislators from their wrong Tory concept of our
American basic law. If plain words were needed to teach them that
basic law, only ten years earlier the Supreme Court had stated that
law in words which even a child can understand.
The powers the people have given to the general
government are named in the Constitution, and all not there
named ... are reserved to the people and can be exercised
only by them, or upon further grant from them. (Justice
Brewer, in the Supreme Court, 1907, Turner v. Williams, 194
U. S. 279.)
Yet the statesmen of America, when its citizens were offering their
lives and their all, chose that December of 1917 to propose that
legislative governments, which have never been the governments of
the American citizen, should exercise one of those reserved powers
of “the people” and should give to the legislative government of the
American citizens future ability to exercise that same power,
although American citizens had expressly reserved the power to
themselves exclusively.
In December, 1917, as in January, 1790, the American Congress
was the only legislative government of the American people.
All powers of a national character which are not delegated
to the national government by the Constitution are reserved to
the people of the United States. (Justice Brewer, in the
Supreme Court, Kansas v. Colorado, 206 U. S. 46 at p. 90.)
Outside of that legislature, American citizens have no legislative
government.
Its powers are limited in number, but not in degree. Within
the scope of its powers, as enumerated and defined, it is
supreme and above the states; but beyond, it has no
existence. (Justice Waite, in the Supreme Court, United
States v. Cruikshank, 92 U. S. 542.)
In the Senate, on April 4, 1917, Senator Sheppard of Texas had
introduced a Resolution, known as Senate Joint Resolution 17. The
Resolution itself, apart from the proposed new constitutional Article
which the senator suggested that legislative governments should
make, read as follows: “Resolved by the Senate and House of
Representatives of the United States of America in Congress
assembled (two thirds of each House concurring therein), That the
following amendment to the Constitution be, and hereby is, proposed
to the States, to become valid as a part of the Constitution when
ratified by the legislatures of the several States as provided by the
Constitution:”
The proposed new national Article, which this 1917 Resolution
suggested should be made by legislative governments, originally and
in April, 1917, read as follows:
“Article—.
“Section 1. The manufacture, sale, or transportation of
intoxicating liquors within, the importation thereof into, and the
exportation thereof from the United States and all territory
 subject to the jurisdiction thereof for beverage purposes are
hereby prohibited,
“Section 2. The Congress shall have power to enforce this
article by appropriate legislation, and nothing in this article
shall deprive the several States of their power to enact and
enforce laws prohibiting the traffic in intoxicating liquors.”
By reason of our education in the actual constitution of our only
American government and our respective state governments, we
grasp immediately the startling nature of the suggestion that the
state governments make that Section 1 and that Section 2. We first
dwell with amazement upon the proposed Section 1 and its
proposed makers.
It is a general and direct command to all human beings anywhere
in America, directly interfering with their individual freedom, on a
matter not enumerated in the First Article. Since we denied
omnipotence to Parliament, no legislature or legislatures had ever
dared to make any general command to the American people,
except the American Congress and it only since 1789 and on
matters enumerated in the First Article. From 1776 to 1789, no
legislature or legislatures had any power whatever to make a general
command to Americans on any subject whatever. When Americans,
in answer to the Philadelphia 1787 proposal, made themselves a
nation and constituted its government, they gave to that government
enumerated powers to make general commands on some subjects.
All other power to make general commands of that kind they
withheld from every government and reserved exclusively to
themselves, as they had denied every power of that kind to every
government in the world by their Statute of ’76. For which very clear
reasons, it had been continually repeated in the Supreme Court for a
century that only one government in the world could make a general
command to the citizens of America, and that the Congress itself
could not make any such command on any subject not enumerated
in the First Article.
The Congress proposal of the Eighteenth Amendment was its own
recognition of the truth that the sole government of American citizens
had no power to command them on that subject. It is probable that
nothing ever originated in Congress more remarkable than this
proposal that, because Congress itself was without the power to
make the command, Congress should ask inferior governments of
other citizens to make a command to the American citizens. If it were
possible that this could be done, there would be no American citizen.
While no public leader or renowned lawyer has known this simple
fact, the story of five years has shown how difficult it is to educate
the average citizen away from the “American” mental attitude of
1776. In 1922, our Chief Executive commented on the fact that the
disobedience of American citizens to the command made by the
state governments had become a public scandal. From 1765 on,
similar disobedience of Americans to commands made by
government without authority from Americans was a public scandal
to Tories in America and in the British Parliament.
There can be no mistake about the Tory mental attitude of the
supposed American government which asked the governments of
state citizens to make the 1918 command to the American citizens,
interfering with their individual liberty on a matter outside the First
Article. The request was a frank avowal of the Tory concept that the
people are “subjects” and that government can constitute new
government of men “in all matters whatsoever.” Even in choosing the
time for the proposal and the command, there was sincere and
flattering imitation of a Tory precedent of Revolutionary days. When
Americans of New York were away from their homes and at the
battlefields of the Revolution, it was a Tory who stirred up the House
of the Six Nations to make a home attack upon what was cherished
by those Americans. And it cannot be ignored that it was in 1918,
when millions of Americans were away from their homes either
fighting or prepared to fight for human liberty, the Houses of forty-five
distinct nations were stirred up to make a home attack upon what
those Americans cherished, their individual freedom. And the
analogy does not end with this fact. Whenever the Tory concept of
the relation of government to “subject” has prevailed, government
has never recognized any obligation of government to obey law
made by government. In the years which followed 1918, this was
strikingly exemplified by the sole American government which had
asked the governments of state citizens to make a command to the
citizens of America. The command, in simple English, forbade that
certain things be done in “the United States and all territory subject
to the jurisdiction thereof.” The American government insisted that its
citizens must obey the command. But the American government
itself frankly added that, on its own ships which flew the American
flag, it would not pay the slightest attention to the command. And not
until this frank Tory attitude had been given unenviable notoriety did
the American government ask the remarkable information from its
Attorney General whether ships, owned by the American
government and flying the American flag, constituted “territory
subject to the jurisdiction” of America. Then, while the chief
champion of the new Article before the Court of 1920 and his
associate government officials waited for the information from their
associate Attorney General, the American government continued to
act on the claimed assumption that its ships were not “territory
subject to the jurisdiction” of America. Facts speak for themselves. It
seems impossible to question the consistent Tory attitude of the
American government in every matter relating to the supposed
Eighteenth Amendment.
Let us now consider the second section of this amazing new
Article, as such second section was originally suggested by the
Senator from Texas.
In its then form it was the suggestion that, after or simultaneously
with the state government exercise of an imaginary power to
command the American citizens, those same state governments
should vest in the only government of American citizens a future
ability to make commands on the same subject, a subject not
enumerated in the First Article. The Statute of ’76, the reasoning and
the decision at Philadelphia in 1787 that its First Article could only be
made by the “conventions,” the clear and explicit statements in the
Supreme Court (from Marshall to Brewer in 1907) that no valid grant
of national power could ever be made except by the “conventions,”
the prescription in the Fifth Article of the constitutional mode in which
a “Yes” from three fourths of those conventions would validly make
grants of such power—all these things meant nothing whatever to
the Senator from Texas or his colleagues in Congress, to the
legislators in the various states, to government officials or to the
“constitutional” lawyers who have discussed the Eighteenth
Amendment. None of them realized the clear fact that, if government
could get new power over human beings from government, the
Americans, through whose education we have lived, had wholly
failed to achieve their one purpose, security of human freedom from
any interference by government except under some power of
interference directly granted by themselves to that government.
Many of the colleagues of the Senator from Texas questioned the
wisdom of asking the grant on that subject. We know not one,
however, who questioned the ability of the proposed donors to make
the grant. We know not one who questioned as a fact that a
fractional part of our state governments have the very omnipotence
over the individual people of all America, which those earlier
Americans denied to the British Parliament. Among our
“constitutional” lawyers, there were many who were engaged to
combat in court the validity of the new Article. They questioned its
validity on the ground that it took from the states, which are mere
political entities, part of the power which each state had not
surrendered. In this, they ignored the legal fact, settled by
innumerable decisions, that the people of America, not the states,
made the Constitution and all its grants of national power. They
questioned its validity on the ground that the power (to make
constitutional Articles) “granted” (?) in the Fifth Article did not include
the power to make fundamental changes in the Constitution. In this,
they wholly ignored the certain fact that no such power is granted in
the Fifth Article but that two distinct powers, then existing, one
limited and the other unlimited, are mentioned and not granted in the
Fifth Article, and a mode of procedure for the future exercise of each
is prescribed. In all their challenges to the validity of the new Article,
however, we know not one who ever knew or mentioned the only
and the invincible challenge to that validity, that new power to
interfere with the individual freedom of the American citizen could
only be obtained constitutionally by direct action of the American
people themselves, assembled in the “conventions” of the Fifth
Article. It meant nothing to them that the Fifth Article prescribed that