Testing out the Route

Confusion between myth and historical reality has long plagued medieval scholarship, and nothing illustrates this better than the question of the so-called droit de cuissage, which is the subject of Alain Boureau’s book. Known to the Anglophone world in its 19th-century Latin form as the jus primae noctis (a prudish rewriting of the French), the droit de cuissage stipulated the seigniorial lord’s right to deflower newly married brides on his domain.

The term conjoins juristic privilege and sexual abuse in its combination of ‘right’ (droit) and ‘thigh’ (cuisse). It first appears in the writings of the late medieval jurist Nicolas Boyer (1469-1532), who reported that ‘the Lords of Gascony had the right to place a bare leg across the newly-weds’ bed,’ a privilege more vividly described towards the end of the 16th century by another distinguished lawyer, René Choppin, who vented his outrage at the fact that the canons of the cathedral chapter of Lyon, ‘who were at the same time counts of Lyon had the patronal right to “place the thigh” [jus coxae locandae] on the bed ... of subjects, male and female, contracting marriage on the first day of the conjugal union’, though he goes on to indicate that the ‘obscene obligation’ was changed into the gift of a banquet on the wedding day. We have here all the ingredients for an enduring myth: power, sex and, inevitably, money, which enters the mix as indemnification for the actual exercise of the putative ‘right’.

Small wonder, then, that belief in the droit de cuissage has persisted despite an almost complete lack of evidence. The term retains a certain currency in France as a substitute for our ‘sexual harassment’, which was defined in the Revised French Penal Code in 1991 as harcèlement sexuel, but immediately dubbed droit de cuissage by the press.

Part of the confusion derives from linguistic ambiguities in what are perfectly authentic texts. The Coutumier bourguignon, for example, compiled and glossed in the late 14th century, claimed that it was a Burgundian ‘custom’ pertaining to serfs that ‘whenever a man marries in another jurisdiction and takes a wife in the place, if he takes her to lie the first night under his lord, he loses nothing, for he acquires the woman for the lord and brings her into his condition.’ This is the well-known right of formariage, by which a lord was compensated for the loss of future progeny on his estates when a male or female serf ‘married outside’ them. According to the Burgundian Customal, the dependant can avoid payment of the fine by leading his bride to gésir soubs le seigneur (‘to lie under the lord’), the clear medieval meaning of which is ‘within the confines of the lord’s territory’, thus allowing the lord to claim authority over the couple’s descendants, for which right he forgoes the traditional indemnification offered in formariage. Such potential for misunderstanding opened the way for ideologically motivated readings of the documentary evidence in later centuries. And it is the significance of such (mis)readings that Boureau sets out to trace here.

At issue, Boureau believes, is nothing less than ‘the true dimensions of the historiographical monster of feudalism’, for by testing ‘the reality of the droit de cuissage and constructing a historical map of claims for and objections to it, we can measure, by a simple standard, the gradations of a [seigniorial] power that is still obscure’. In postulating a lord’s right to a woman’s body, the droit de cuissage tacitly opposed individual autonomy and personal freedom to a system of inherited rights, and made these the very emblem of the ignominy at the heart of feudalism: part and parcel of that complex of ‘feudal abuses’ and lordly oppression which the French Revolution determined to abolish. The droit de cuissage became a powerful symbol of the barbarity of the medieval period and played an important role in the construction of the idea of the ‘Middle Ages’ in both popular belief and academic historiography. Boureau’s conceptual map thus functions as a guide to varying evaluations of the Middle Ages, seen either as a wholly negative period for having adhered to such a barbaric custom, or as a fascinating one, with cuissage feeding the fantasy ‘of an institutional, even a juridical consent to violence’.

Confining himself to France (cuissage is barely attested elsewhere, with the possible exception of Catalonia), Boureau states at the outset that cuissage never existed as a social practice, although evidence of it in medieval cartularies and in literature dates from as early as the 13th century. The survival of this evidence means we must concede that, even if no lord actually exercised the right, the concept possessed an at least discursive reality which has helped to turn it into myth. In Boureau’s opinion, however, cuissage barely attains the status of myth, since it lacks myth’s systematic structure and capacity to command belief, consisting instead of ‘a sort of vocabulary without syntax; a vague tradition, understood as pure transmission’. Indeed, for most of its recorded history, it appears as a fragmentary and fugitive phenomenon, the evidence for which is widely dispersed temporarily and geographically. It failed to crystallise – until the 19th century – into a full-blown discourse of privilege and/or resistance to it. Given all this, how can the persistence of the ‘myth’ be explained?

The easiest answer to this is the ethnographic one, which sees the medieval custom as a relic of more primitive rites to do with nuptial and fertility practices. These rites involved a yet more basic ‘taboo of virginity’, according to which nuptial deflowering was relegated to a sanctified figure – a king or priest – and which manifested the ‘horror or fear of virginal blood and of defloration in primitive societies’. The chief proponent of this view was Edward Westermarck (1862-1939), who, in his monumental History of Marriage, begun in 1891, furnished partial evidence for his theory from Herodotus, and from Brazil, the Caribbean, Senegal, Libya, Morocco, Kurdistan, Cambodia and Malabar, while steadfastly rejecting its existence in medieval Europe. This tendency to displace cuissage in time and space was scarcely new, however. It can be found in the 13th and 14th centuries, in writers such as Vincent de Beauvais and, in particular, John Mandeville, who, in his (imaginary) Travels, projected his account of cuissage onto a distant world. According to Mandeville, the danger of deflowering a virgin was so keenly felt among certain primitive peoples that special young men – called gadlibiriens, or ‘fools of despair’ – were paid to perform the service: ‘in ancient times some men had died in that land in deflowering maidens, for the latter had snakes within them, which stung the husbands on their penises inside the women’s bodies; and thus many men were slain, and so they follow that custom there to make other men test out the route before they themselves set on that adventure.’

Mandeville’s passage may well bring to mind the vagina dentata discussed by Freud, and he also invoked the jus primae noctis, in an article on ‘The Taboo of Virginity’. Freud situated the taboo in the psychology of women rather than men, interpreting it at first as a way for the woman to escape excessive dependency on the male/husband who first deflowers her (and with whom, he thought, a special bond was created) by experiencing the physical ‘trauma’ with a transitory figure. Not satisfied with this explanation, Freud ultimately located the ‘taboo of virginity’ in a female libido fixated on father or brother, thereby explaining the jus primae noctis, in which the lord substitutes for the father, as an avoidance of incest. The effect of these ethnographic and psychoanalytic explanations was to endow cuissage with a virtually universal existence.

The ‘primitive’ character attributed to such activities perhaps helps to explain why the earliest accounts of cuissage in the 16th century tended to relegate it to the Celtic or Germanic fringe. An influential history of Scotland, written by the Scottish scholar Hector Boece, or Boethius, in 1526, for example, lauded the 11th-century King Malcolm III Canmore’s elimination of earlier customs created by a pagan predecessor, King Evenus, who was said to have reigned towards the end of the first century BC. According to Boece, Evenus had decreed that ‘the wives of the commoners shall be free to the nobility, and the lord of the ground shall have the maidenhead of all virgins dwelling on the same.’ This fictive episode played an important role in the developing history of the droit de cuissage, linking it to the triumph of Christianity over paganism. It conveyed the message that ‘the savages of the borderlands fornicate like beasts so long as they remain untouched by the grace of conversion’ – a sentiment which was to have a long run in Western Europe.

No less polemical were 19th-century folkloric accounts of cuissage, which tended to focus on the rights of young men in the community to compensation, in the form of wine or a meal, from a member of their village cohort who had just married. Here, the presumed ‘right’ seems to be connected with village control of sexuality and marriage, rather than with seigniorial abuse, and illustrates cuissage’s persistent association with indemnifications in the form of food and drink, a right known as cullage. Thus, in a document of 1419, the lord of La Rivière-Bourdet (in Normandy) declared:

In the said place I also have the right to take from my men and others, when they marry in my land, 10 sous tournois and a loin of pork from the whole spine up to the ear, and the tail generously included in that loin, with a gallon of whatever drink there is to be at the meals, or I can and I must, if it please me, go to lie with the bride in the case that either her husband or someone sent by him not pay to me or my representative one of the things declared above.

The right to ‘lie’ with the bride is claimed in the context of its routine indemnification in the form of food and drink (in fact, cuissage never occurs in a document without its compensatory substitutes) and takes the form of a more or less jocular ‘threat’ – what Boureau calls ‘social persiflage’ – intended to underline the symbolic authority of the lord at a time when genuine forms of dependence had largely waned. Lacking true power over the community, the lord contents himself with a joking or humiliating ritual that ‘publicly re-enacts fossilised forms of dependence by then long gone’.

The implicit universalism of these interpretations accords badly with the dispersed nature of the surviving documentation. From a historical perspective, the picture that emerges is considerably more complex and, Boureau argues, should be viewed not in relation to pagan rituals or universal fears of female sexuality but rather to what he calls the ‘master-slave dialectic’. Viewed in this way, cuissage drew on a metaphorical language of sexual possession to underscore the threat of domination, and pretended to enact an ‘erotics of inequality’. More specifically, it articulated a discourse of seigniorial privilege which was part of a system of power and was indemnified by money.

The cuissage motif appears for the first time in 1247 in a French poem – the ‘Chanson des vilains de Verson’ – inserted into a fragment of the cartulary of the Abbey of Mont-Saint-Michel. The poem, written by a monk of the Abbey, denigrates the secular practice of extracting money as indemnification for the lord’s right ‘to do his will with a serf’s daughter’, thus raising the spectre of barbarity on the part of lords with whom the Abbey was embroiled in territorial disputes. Later mentions are found in official statements or censuses compiled by vassals at the request of their suzerain to enumerate the rights they exercised over tenants. All in all, only five authentic, hence ‘troubling’, medieval attestations of the practice exist – scattered over Normandy, Picardy and Béarn. Their presence in seigniorial cadastres offers some clues about the strategic deployment of cuissage for economic or political advantage. Thus, in 1538 the Lord of Louvie-Soubiron, whose father had recently failed as an industrialist, attempted to reconstruct his domain on the model of late feudalism by taxing his peasant neighbours and extracting ‘feudal’ rights and dues – including cuissage – from them, all with a view to negotiating the sale of his seigniory. Elsewhere, the claim to cuissage was used to augment lists of legitimate rights, raising the stakes ‘in a cacophonie pursuit of individual interests’.

Perhaps the most surprising aspect of the myth is its routine attribution to supposedly chaste ecclesiastical lords. For example, the serfs belonging to the monks of the Abbey of Saint-Théodard of Montauriol were said in the 17th century to be subjected to a jus cunni – the origin of the popular French saying ‘conduire la fiancée au moutier’ or ‘to lead the bride to the monastery’ – a slur on monastic honour later denounced as a Protestant calumny. As a literary tradition, ecclesiastical cuissage goes back to the Cent Nouvelles nouvelles (One Hundred New Tales) of 1462, a work commissioned by Philip the Good, Duke of Burgundy. Tale 32 tells of Franciscan monks in Catalonia who ‘tithed’ women on the number of times they had sex with their husbands. But since Franciscans were not permitted contact with money, they were forced to take their tithes ‘in kind’, that is, in sexual instalments, as a ‘spiritual equivalent’. The Cent Nouvelles goes on to recount that all the women without exception paid their tithes, except for a few old women, who protested their willingness to ‘tithe’ but said that the friars had changed their tithe into ‘textiles, sheets, cushions, bench-coverings, pillows and other such items’. Boureau insists that the myth of ecclesiastical cuissage should be understood as a protest against the taxes imposed by the Church on marital behaviour, notably a tax collected for dispensation from a prescription requiring husbands and wives to abstain from sex for three nights after marrying.

After the 16th century, the myth entered juristic tradition, and this brought it into public view as the various instances of it that had been accumulating from the late Middles Ages were published with extraordinary frequency, preparing the way for Enlightenment and Revolutionary denunciations of the Ancien Régime’s ‘feudal abuses’. Boureau stresses the important role that works like Voltaire’s Essai sur les moeurs (1756) and Beaumarchais’s The Marriage of Figaro (1784) played in propagating the droit de cuissage as an example of seigniorial abuse. By transposing lordly domination into domestic farce, with the protagonists figuring as ‘master and serving maid’ rather than ‘master and slave’, the 18th-century comedy of manners first unmasked the social pretension lurking within cuissage, showing it could be a means for failing or fake (i.e. bourgeois) lords literally to play the grand seigneur.

At the heart of The Lord’s First Night is a lengthy discussion of the Great Debate of 1854-58 and the dossier of 72 ‘proofs’ for the existence of cuissage published by Jules Delpit in 1857. Boureau traces the origin of the debate in the opening up of historical archives, the publication of recently discovered medieval documents, the emergence of new forms of historical training offered by the creation of the Ecole des Chartes in the 1820s, and the rise, with Michelet, of a liberal historiography which saw cuissage as an evil prologue to a more harmonious and benevolent present. This led to a political attack on the practice as a symptom of both seigniorial abuse and clerical scandal. In response, Catholic publicists set out with equal fervour to prove that it hadn’t existed. The quarrel turned bitter after the Revolution of 1848, at which point, Boureau argues, ‘despair born of defeat made images of the Ancien Régime and feudal abuses ... menacing and odious.’ Cuissage then finally emerged as a specifically medieval phenomenon, rather than being associated generally with the Ancien Régime.

Behind all these vicissitudes, Boureausees a dual, conflictual process at work: on the one hand, the progressive decline of real dependency and the gradual movement towards its expression in monetary form, leading lords to insist on indemnification for largely symbolic forms of privilege; on the other, the Church’s continual insistence on the individual’s right to her own body and on the principle of free choice in matrimonial life, a principle that he contends was ‘the most sacred area of individual liberty in medieval Europe’. This last proposition remains more assertion than proven fact, but it interestingly relocates the question of cuissage in the context of the evolution of a possessive individualism that resisted abuse and control of persons and bodies as contrary to divine law. It is the great merit of The Lord’s first Night to make a persuasive case for this view of an otherwise dubious curiosity bequeathed by the medieval past.