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Annulment Suits and the épreuve du congrès at the Officialité de Paris in the Early Seventeenth Century: Judicial Theory and Legal Practice

Les procès en annulation et L'épreuve du congrès à l'Officialité de Paris au début du XVIIe siècle : Théorie judiciaire et pratique juridique
Michael P. Breen

Résumés

Cet essai examine l'utilisation controversée d'une procédure connue sous le nom d'épreuve du congrès pour juger les procès de femmes cherchant à annuler leurs mariages devant les tribunaux de l'Église française (officialités) en raison de l'impuissance de leurs maris. À partir de l'analyse de trente-deux cas reconstitués à partir de l'Officialité de Paris au début du XVIIe siècle, cet article évalue dans quelle mesure les défenses et les critiques du congrès comme mode de preuve par les juristes et les experts médicaux correspondent à son utilisation dans la pratique.

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Texte intégral

  • 1 On the history of divorce, see Suzanne Desan, The Family on Trial in Revolutionary France, Berkeley (...)
  • 2 Anne Robert, “De la visitation et congrès, et de la dissolution du mariage pour cause de frigidité (...)

1Although divorce, in the strict sense, was not legalized in France until 1792, sixteenth and seventeenth-century France appears to have experienced a profound divorce crisis, if a number of prominent lawyers, medical professionals, and other writers are to be believed.1 “There is now nothing more ordinary at the Court and in judgments than the complaints of wives and lascivious requests for dissolutions of marriages,” the avocat Bernard told the Parlement of Paris in 1587. Another early seventeenth-century avocat, Sébastien Roulliard, wrote that such requests had become “frequent and daily,” lamenting that “the unhappiness of this century” permitted wives “to divorce and undermine their husbands routinely on the flimsiest pretexts.” The royal surgeon Charles Guillemeau, meanwhile, claimed that divorce suits had become “so frequent and common today that they seem to be the only complaints one hears in our courtrooms and pleadings.”2

  • 3 Julie Hardwick, “Seeking Separations: Gender, Marriages, and Household Economies in Early Modern Fr (...)

2The divorces in question were not separations such as those studied by Julie Hardwick, Claire Chatelain, and others. As Hardwick has shown, separations of property, which allowed wives to administer their property independently while remaining with their husbands, were relatively easy to obtain in the seventeenth century, whereas separations of persons, which allowed the establishment of separate households (though not the right to remarry), were more difficult, requiring successful claimants to demonstrate severe abuse, deadly hatred, aggravated adultery, or even attempted murder.3 Rather, the anxieties expressed by Bernard, Roulliard, Guillemeau and others concerned annulment suits which, unlike separations, retroactively invalidated a marriage, allowing those who had been “demarié” to contract new unions.

  • 4 See Claude Horry, Nouveau Traité du mariage chrétien fait selon les loix de l'église et les ordonna (...)
  • 5 Edward Behrend-Martinez, Unfit for Marriage: Impotent Spouses on Trial in the Basque region of Spai (...)
  • 6 Julie Hardwick, Family Business: Litigation and the Political Economies of Daily Life in Early Mode (...)

3While early modern jurists stressed the fundamental legal distinctions between separations and annulments, those boundaries were less clear cut in practice. Indeed, some parties did not hesitate to seek one when attempts to obtain the other failed. For instance, when Leonor du Pont, sieur d'Aubevois, asked to have the impotence suit lodged by his wife, Marguerite de Gennes, dismissed on the grounds that they were already legally separated in persons and goods, the lawyers she consulted cited several cases showing that prior separation requests (whether granted or not) did not preclude subsequent suits for annulment.4 Edward Behrend-Martinez makes the same observation for northern Spain, noting that “litigants freely switched their pleas from separation to annulment and vice-versa”.5 This conflation reveals that early modern marriage, despite its seeming stability and solidity was “a process that might be made and remade…by the decisions and negotiations of either party.”6 Annulment suits, like separations, could thus be a powerful tool in the management of marriage and the many social, cultural, and property relationships it incorporated. This article will examine 32 suits for annulment on the grounds of impotence heard by the court of the Archbishop of Paris (the Officialité de Paris) in the early seventeenth century against the backdrop of theoretical debates over the procedures and forms of proof to be used in such cases. Such an analysis, it argues, enables us to better understand how legal professionals sought to manage and regulate efforts to undo marriages in ways that protected their credibility and authority while responding to the needs of petitioners within the context of a patriarchal marital and familial system.

Marital Annulments and the Problem of Impotence

  • 7 Sarah Hanley, “ ‘The Jurisprudence of the Arrêts’: Marital Union, Civil Society, and State Formatio (...)

4Annulments raised significant legal and jurisdictional questions. Once heard predominantly by church courts, separation suits had largely come under the jurisdiction of French royal courts by the beginning of the sixteenth century. This assertion of royal jurisdiction over marriage’s civil aspects was central to the elaboration of what Sarah Hanley has called the “Family-State Compact”, in which French legal elites created a mutually reinforcing relationship between patriarchal authority within the family and royal authority within the state to defend lineage interests, strengthen paternal authority, and protect long-term family marital strategies.7

  • 8 Abraham de Gaumont, “Traité de marriage”, Bibliothèque Royale de Belgique, Ms. 15418, fols. 225r- (...)

5Annulments, however, concerned marriage’s sacramental foundations, and even jurists who favored increased royal oversight acknowledged the Church’s power to determine a union’s canonical validity. Abraham de Gaumont, who viewed marriage as the “first foundation” of laws and civil order, nonetheless specified that it “in no way touched the bond of conscience, which is the jurisdiction of another tribunal.” This was so even though the judgements of those tribunals—the bishops’ courts (officialités)—could and did have profound implications for the marriage contract itself.8 Jurists and litigants alike were well aware that the developing “French Marital Law Regime” rested on a canon law foundation, and consequently that annulment suits remained, at least partially, beyond the scope of the Family-State Compact.

  • 9 Jean D'Arrerac, La philosophie civile d'estat, divisée en l'Irénarchie et la Polémarchie, Bordeaux, (...)
  • 10 Marion Philip, “Puissance sexuelle, puissance maritale: la sexualité conjugale au coeur de l’exerci (...)

6The objections of Bernard, Guillemeau, and others focused on a particular cause of action: annulments on the grounds of the husband’s impotence. Impotence was a well-established canonical impediment that rendered a marriage invalid if the condition was permanent and pre-dated the marriage. Men who married despite their sexual incapacity were considered guilty of fraud for cheating families out of the possibility of descendants and wives out of their only licit outlet for sexual desire as Christian women. Jean d'Arrerac, a late sixteenth-century Bordelais parlementaire, described such men as “mockers and affronters, who commit the crime of stellionat and pass false merchandise for true,” while Louis Servin, avocat-général at the Parlement of Paris in the early seventeenth century, described them as “defrauders” who “commit an act worse than that of a wicked thief, against whom one can defend one's self more effectively than against one who presents himself as an in-law, knowing full well that he cannot be.”9 And while some complained that wives who brought impotence suits undermined male authority and the patriarchal order, there was general agreement that annulments for impotence were consistent with male authority, and even necessary to protect it. As Marion Philip has recently observed, the ideal husband—virile and sexually active—represented a hegemonic form of male dominance, one that excluded not only women but men who failed to live up to its standards. Chief among these were the impotent, who were often derided as “neither man nor woman” and feeble, languishing “half-men” (demy-hommes) comparable to “the monsters we associate with foreign lands.” “The Church worked directly through ecclesiastical tribunals for the stability and prosperity of fathers,” Philip argues, “authorizing certain types of female contestation seeking to remove men who had usurped a status they did not deserve.”10

  • 11 Vincent Tagereau, Discours sur l’impuissance de l’homme et de la femme, 2nd ed., Paris, Veuve J. du (...)
  • 12 ibid., p. 148-49; AN Z1O #99, Officialité de Paris, pleading for Cosme Andrenan. 6 Feb. 1617; Soefv (...)
  • 13 Peleus, “De la dissolution du marriage”, p. 196; [Antoine Hôtman], Traicté de la dissolution du mar (...)

7The problem, according to critics, was that there had never been so many impotent men as there were in France during the sixteenth and seventeenth centuries. “Cases of male impotence are today much more frequent than ever before,” the early-seventeenth-century procureur Vincent Tagereau noted sardonically.11 Tales of women hauling their husbands before Officials on impotence charges despite their pregnancies or children, and anxieties that disillusioned or libidinous wives were flocking to church courts to “démarier” their husbands filled the pages of legal briefs, commentaries, and court decisions.12 Collectively, they expressed anxieties that while annulment suits for impotence were necessary, wives were nevertheless using them to undermine male authority, destabilizing families and the patriarchal social order. Such suits, Guillemeau complained, “[gave] rise to a thousand riots in what had once been the best and most peaceful households,” and Tagereau lamented that marriages now “depend more on the conscience of women and procedure than on the truth and the impotence of men.”13

  • 14 Angus McLaren, Impotence: A Cultural History, Chicago, University of Chicago Press, 2007, p. 73.
  • 15 Charles Fevret, Traitté de l’abus et du vray sujet des appellations qualifiées de ce nom d’abus, (...)
  • 16 James A. Brundage, “Impotence, Frigidity, and Marital Nullity in the Decretists and the Early Decre (...)
  • 17 Tagereau, Discours sur l’impuissance, p. 148-49, 183; Guillemeau, Traicté des abus, p. 41-42; Fevre (...)

8These claims were, of course, greatly exaggerated. While it is impossible to offer any definitive figures, surviving records from the Officialité de Paris suggest that the court may have heard roughly half-a-dozen impotence suits per year in the early seventeenth century. As Angus McLaren has observed, however, even exaggerations such as these can be revealing.14 What they reveal in this instance were lawyers’ and medical professionals’ profound concerns about the seemingly unbridgeable gap between ideological principles and legal and medical practice. The problem was not whether marriages should be annulled for impotence, but rather, how to ascertain which marriages should be annulled. This was no trivial matter. On the contrary, there was widespread agreement that impotence was, as the seventeenth-century avocat Charles Fevret put it, “difficult to recognize and even more difficult to adjudicate.”15 Considerable stakes, including honor, property arrangements, social bonds, and even the eternal salvation of husbands and wives hinged on the seemingly unknowable answers to this question.16 These were heightened by concerns that unhappy couples might collude in a false impotence claim to obtain a divorce, and the problematic consequences that might arise if a supposedly impotent man proved to be capable of intercourse with another woman.17

9The rest of this article will look at the method used by French officialités to adjudicate these cases—the so-called épreuve du congrès—and the controversies surrounding it. In particular it will analyze claims that it was a nearly automatic path to divorce by looking at how it was actually used, drawing on records from over thirty cases at the Officialité de Paris in the early seventeenth century. It will argue that while the vast majority of cases where the congrès was employed resulted in the dissolution of the marriage in question, records show both that husbands found ways to contest proceedings and attempted to manipulate how they unfolded. They also demonstrate that the court’s medical experts were sensitive to the particulars of each case and to the need to protect their own legitimacy as experts capable of ascertaining the truth in a matter that commentators agreed was virtually unknowable.

Proof and the Épreuve

  • 18 On medieval forms of proof in impotence cases, see: Thomas G. Benedek and Janet Kubinec, “The Evalu (...)
  • 19 Murray, “On the Origins”, art. cit., p. 247.
  • 20 Ibid., p. 239 & 246; Danielle Jacquart and Claude Thomasset, Sexualité et savoir medical au moyen-â (...)
  • 21 Benedek and Kubinec, “Evaluation of Impotence”, art. cit., p. 132.

10The problem of proof had been an intractable one almost from the moment that impotence was recognized as grounds for annulling a marriage. In the late twelfth century, Pope Alexander III forbade the use of oaths to ascertain impotence, increasing the importance of medical evidence and the testimony of others. Other forms of proof adopted by medieval canonists proved equally problematic. The triennium and septima manus, which required a three-year waiting period and/or the oaths of seven people that, to the best of their knowledge, the couple had repeatedly failed to have successful intercourse were slow and hardly definitive. And while Innocent IV described medical examinations of the couple as the best possible form of proof, their utility was also limited, particularly in cases where there were no obvious deformities or the wife was a widow or not a virgin at marriage. The competence and integrity of midwives was also frequently questioned.18 Consequently, medieval canon lawyers and tribunals sought more direct methods of overcoming what Jacqueline Murray has called the “almost insurmountable problem of proof.”19 Some jurisdictions placed the husband's testicles in cold water and observed the skin, veins, and hair for evidence of penile paralysis. Spanish tribunals used warm baths in an effort to induce erections. Witnesses in medieval English church courts provided detailed anatomical descriptions to support claims of virility and impotence, and at least one church court employed “honest women” who exposed their breasts, kissed men, and rubbed their testicles in an effort to arouse them.20 As early as the late thirteenth century, the canonist Abbas Antiquus advised using the congrès under certain circumstances, a position that was echoed by others in the fourteenth century, most notably Giovanni d’Andrea, a canonist at the University of Bologna. The papal physician Guy de Chauliac first described the congrès in his Chiurgia Magna (1363), noting that after a physical examination: “the judges may rule that the couple lie together for several days in the presence of a midwife who is accustomed to these things. The midwife will give the couple spices and wines, warm them and anoint them with warm oils, rubbing them beside a fire of vine branches, and she will tell them to talk, caress, and kiss. Then this midwife will report to the physician what she has seen. And when the physician has been informed he can introduce the truth in the court.”21

  • 22 Anne Lefebvre-Teillard, Les officialités à la veille du Concile de Trente, Paris, Librairie général (...)
  • 23 Chrétien-François de Lamoignon, Plaidoyé sur le congrès par M. de La Moignon, Avocat general au Par (...)
  • 24 [Etienne Pasquier], “Factum pour Dlle Marie de Corbie, demanderesse en déclaration de nullité de ma (...)
  • 25 Pasquier, “Factum pour Dlle Marie de Corbie”, p. 167-8, 174, 177.
  • 26 Robert, “De la visitation et congrès”, p. 575-80.

11Even as it was abandoned elsewhere, the congrès, Anne Lefebvre-Teillard has shown, continued to be employed in French church courts.22 By the mid-sixteenth century, as the avocat-géneral Chrétien-François de Lamoignon noted over a century later, the congrès had “become almost a style,” an ordinary procedure used by the court.23 A 1581 factum by Etienne Pasquier observed that it had been used to adjudicate “an infinite” number if cases, while Roulliard later described it as the “ordinary” form of proof in impotence cases heard by officialités.24 It was also, according to its proponents, the most reliable form of proof, providing direct, first-hand evidence. Pasquier, for instance, affirmed that it was “the only method and most certain proof for defining and judging such matters, and its efficacy rendered other proofs “superfluous.”25 “Many years of experience,” the avocat Garnier declared, “have shown that the visitation and congrès are true and very certain proofs of virility.” Because physical examinations alone were so “uncertain and hazardous,” Garnier maintained, “there is no more assured form of proof than when a man is reduced to the congrès, where there is no room for him to escape or to excuse himself.”26

  • 27 Stile général des notaires apostoliques, avec la forme de proceder en l’officialité sur toute sorte (...)
  • 28 Antoine Paré, “Rapport de l’impuissance, tant de l’homme que de la femme”, in J.-F. Malgaigne (ed.) (...)

12Use of the congrès in impotence proceedings, it should be noted, was not automatic. Following the wife’s initial complaint, both were summoned and their testimony taken. As the 1652 Stile général des notaires apostoliques explained, they were then “seen and visited in their shameful and natural parts” by the officialité’s medical experts.27 As the surgeon Amboise Paré explained, if the experts found “defects” in “the parts dedicated to generation,” the court could annul the marriage. This is what happened in the 1611 case of Guillaume Mynard and Barbara Pothier before the Paris officialité, where the court’s experts determined that Mynard’s genitals were “poorly nourished” and “not sufficiently developed and full of natural warmth” to permit consummation. If, as was often the case, however, neither party presented any obvious defects, the court would, in Paré’s words “order the couple to lie together in the presence of the physicians and others in order to know whether they can accomplish the game of Venus.”28 The early seventeenth-century épreuve began, according to Tagereau, with an inspection of both parties for charms, ligatures or other objects that might hinder or artificially promote intercourse, and women were sometimes given a warm bath to counteract astringents they might have used. These preliminaries accomplished:

  • 29 Tagereau, Discours sur l’impuissance, p. 134-35.

The husband and wife lie down in a bed (equipped with curtains, it should be noted) in the middle of the day. The experts remain in the room or, if one or both of the parties request it, retire to some nearby closet or hallway, though with the door always open and the matrons remaining close to the bed. Once the curtains are closed, it is up to the man to go to work and prove his virility... Finally, the parties having spent some time in bed, an hour or two, the experts, either having been called or entering on their own once they’ve become bored and had enough, approach, open the curtains, and inform themselves as to what has happened and immediately visit the wife to learn if she is more open and dilated than when she was put in the bed, and whether or not intromission had occurred.29

  • 30 Paré, “Rapport de l’impuissance”, p. 668-69.
  • 31 Tagereau, Discours sur l’impuissance, p. 156-57; [Nicolas Venette], Tableau d’amour consideré dans (...)

13Where proponents defended the congrès as certain, direct evidence, critics attacked it as completely unreliable. “It seems to me such an épreuve is not well assured,” Paré wrote, adding that “the game cannot be accomplished in the presence of so many men one fears and with a woman one does not love.” Like Guillemeau, Bernard, and even Montaigne, Paré argued that “such actions depend not on our spirit, or body, or will, such that the parts destined for such an action do not obey our will like other members.”30 One recurrent criticism was that it was impossible to succeed at the épreuve. Tagereau described it as “practically impossible for any man to execute,” and Venette observed that “out of a thousand men, there is maybe not even one who could emerge victorious from the congrès,” a form of proof many compared to outmoded procedures such as trial by ordeal or battle.31

  • 32 Hôtman, Traicté de la dissolution, fol. 27v-28r; Tagereau, Discours sur l’impuissance, p. 150, 148- (...)
  • 33 Pierre Darmon, Le Tribunal de l'impuissance : virilité et défaillances conjugales dans l’ancienne F (...)

14Even worse, critics argued, the very impossibility of satisfactorily completing the épreuve actually encouraged women to seek divorces. “From the beginning of their cases,” Hôtman argued, “women request the congrès, as they all know that it is an indubitable means of winning their suit.” Tagureau concurred that the épreuve made impotence suits “a singular path, brief and assured, for arriving at one’s goal and being separated, no matter how recently or long ago the marriage had been celebrated."32 Indeed, he complained, women viewed impotence suits in church courts as easier to win than separations before royal judges and lamented that ecclesiastical judges were “too prompt to dissolve marriages,” often issuing annulments in less than a month.33

The Épreuve in Practice in Early Seventeenth-Century Paris

15To what extent did the criticisms of Tagereau, Hôtman, and others reflect the reality of the épreuve and its usage by officialité courts? To what extent can their criticisms be dismissed as exaggerations or hyperbole? Unfortunately, research on annulment trials in early modern France is quite limited. As a first step towards answering these questions, the rest of this essay analyzes the records of 32 annulment suits for impotence heard before the Officialité de Paris between 1612 and 1625. These records were compiled by reconstituting case files from bundles of procedural records involving the various types of disputes heard by the court, including suits to enforce marriage promises, breaking engagements, conflicts between clerics, and a number of other matters. In the absence of registers or other such documents, it is impossible to know how complete or representative a record these case files present. Moreover, a significant percentage of cases are incomplete, and there is no way to know whether this is because cases were abandoned, records were lost, or some combination of the two. Nevertheless, these records do give us insights into how the Officialité of Paris handled impotence suits and how it utilized the épreuve du congrès.

  • 34 Archives Nationales 1ZO #95 & 96 (12 Nov. 1614-21 Feb. 1615).
  • 35 The accessibility of formal mechanisms of justice to early modern Europeans has been analyzed by Gr (...)

16One of the first things to note is that annulment suits for impotence involved parties from a broad swathe of early modern French society, suggesting that the officialité remained an active jurisdiction in the minds of many men and women. Most came from the ranks of skilled artisans, merchants, or professionals, though some members of the nobility could be found, as could individuals such as Susanna Desplatz, an actress who brought her husband, an apothecary, before the court.34 A number were described as “noble homme,” “honorable personne,” or “damoiselle,” suggesting respectable status, and several defendants had ties to the world of the law, including a sergent at the Châtelet, an avocat, and a conseiller au bailliage. That said, it should also be noted that the couples involved in these suits came from urban settings, which raises the question of whether annulment litigation was primarily accessible to urban populations who possessed a certain level of property and education.35

17Of the thirty-two cases in this sample, two had unknown outcomes, five were resolved without resorting to the épreuve (by inspection alone, default, or evocation/suspension). In four other cases, it is impossible to determine whether or not a congrès was ordered. In the remaining 21 cases (65.6%), four results are unknown, fourteen resulted in annulments after the husband failed at the épreuve, two others likely ended in the same result, though the final sentence is missing, and in one case, as we shall see, the husband showed enough signs of virility to avoid an annulment, with the court instead ordering the couple to be separated.

  • 36 Archives Nationales 1ZO #92 (9-23 Feb. 1613)
  • 37 ibid., #98 (9 July – 3 Aug. 1616).
  • 38 The mean duration of a case was between 73 and 89 days. The average was 187 days, but when the two (...)
  • 39 ibid., #100 & #115 (21 Jan. 1621 – 13 Dec. 1623).

18Some cases did bear out Tagereau’s complaint about the speed with which officialités pronounced annulments. Charlotte Faschon’s request to dissolve her marriage to Me. Pierre Cossard, avocat au parlement, took only two weeks, with the original request made on 9 February 1613, the inspection three days later, a congrès ordered on the 16th and held the following day, and a definitive sentence issued on 23 February.36 Similarly, Nicole Barbier’s suit against Blaise Vignardet, a compagnon tailleur d’habitz was completed in just short of four weeks in the summer of 1616.37 Overall, all but three cases were disposed of within six months.38 Nevertheless, determined defendants could draw out proceedings by employing a variety of dilatory tactics, including failing to appear, frequent appeals, feigning illness, and others. The longest case, between Marie Lanay, the daughter of a master surgeon and Jacques Le Camus, conseiller au bailliage, lasted nearly three years.39 Several cases where the congrès was utilized thus resembled the description of Tagereau and other critics, moving quickly and almost mechanically from the wife’s complaint, to inspections where the wife was affirmed to be virgin even as the husband was found to have no deformities, to a failed congrès, and a final dissolution of the marriage.

  • 40 ibid., #94-97 (23 July 1614 – 1 Aug. 1615).
  • 41 ibid., #97-99 (28 Aug. 1615 – 11 Mar. 1617)
  • 42 ibid., #99-100 (21 June 1617-5 Aug. 1617).
  • 43 Magic and witchcraft were often cited as explanations for impotence in medieval and early modern Eu (...)

19And yet, the evidence suggests that annulment proceedings were not always as straightforward or perfunctory as critics claimed, and that the officialité and its officers viewed the congrès as a source of evidence that could provide information about an inherently occult and difficult question. First, it should be noted, husbands were not as passive or powerless as Tagereau and others claimed. Rather, they and their procurators and advocates actively worked to defend themselves and their honor. Sometimes, they did this by trying to frustrate proceedings by delaying the initial medical exam or even fleeing to avoid it. Such moves could backfire, however, as in the case of Pascal Desbaretz, whose marriage to Charlotte Le Bigle was annulled on the basis of contumacy.40 Marcel Garneau, whose suit with Anne Tessier is the second longest in this sample at more than two years, successfully invoked the triennium – the three-year waiting period established as a form of proof by medieval canonists – to delay, though not avoid, the eventual dissolution of his marriage.41 Pierre Furillet employed the full array of delaying tactics to contest the suit brought by his wife, Elizabeth Guyot. First, he objected to the use of the officialité’s regular physician, requiring a different one to be named. Then he postponed the inspection, citing an unspecified illness, and the finally he failed to appear for the congrès, citing an unspecified “indisposition.”42 Jacques Roget also had to be summoned several times before attending the congrès ordered in his wife Claude Arnoul’s annulment suit, while Pierrot was fined for his initial failure to appear. Men also tried to explain or justify their failure to perform. Pierre Alix claimed, unsuccessfully, that he had been “wounded by a spell,” while Pierrot demanded a second congrès, though the medical professionals at the scene told him he would have to take the matter up with the judge of the Official’s court.43

  • 44 ibid.,, #98-99 (23 Aug. 1616-12 May 1617).

20Given that the épreuve was supposed to provide a conclusive test of virility or impotence, Pierrot’s request for a second congrès might seem futile or absurd. And yet it does appear that the officialité staged a second congrès on at least a couple of occasions. Jean Joly and Louise Collet, for instance, underwent the épreuve in December 1616 and again on 6 April 1617.44 The fact that this case resulted in one of the few partial verdicts in this sample—Joly was specifically declared impotent only for virgins, a proviso that did not save his marriage but did leave open the possibility he might marry a widow (whereas most men deemed impotent were banned outright from remarrying)—suggests that the officialité and its medical experts carefully scrutinized the results of the congrès, rather than treating it as a perfunctory exercise, as critics claimed.

  • 45 ibid., #115 (Report and procès-verbal of congrès, 11 Sept. 1625) & (Report and procès-verbal of con (...)

21That this is so can be seen in looking at the longest-running case in this sample, the nearly three-year annulment suit between Jacques Le Camus and Marie Lanay. Certainly, the fact that the husband was a conseiller au bailliage and the wife was the daughter of a master surgeon might have played a role in the ability of both parties to manipulate proceedings. What is particularly relevant, though, is the way the report from the congrès staged on 11 September 1623 differs from many of the others, which simply note that the husband was unable “to execute any marital act” and that the wife remained “entirely uncorrupted” and a virgin.45 In this case, however, Lanay was described as “more relaxed and open” after the congrès and the report implied her lack of “amitiés naturelles” might have played a role in her husband’s failure to achieve penetration. As for Le Camus, the experts noted that he had achieved a “strong erection” and “multiple ejaculations,” albeit outside his wife’s body. On that basis they did not declare him “froid et impuissant” as was routine, though it appears the couple was separated.

Conclusion

  • 46 Philip, “Puissance sexuelle”, art. cit., p. 118.
  • 47 Cited in Louis-Henri Moulin, Le carnaval et les causes grasses au Parlement: Dernier procès pour im (...)

22The relatively speedy and routine nature of many trials suggests that criticisms of the épreuve had some basis in fact and were not simply exaggerations by the procedure’s many critics. At the same time, Philip’s argument that officialités displayed “enormous prudence” in handling such cases in the period after the épreuve’s abolition by the Parlement of Paris in 1677 would seem to apply to the Paris officialité’s behavior in the earlier period as well. The judges, she argues, truly “wanted to know what happened in the couple’s intimate life,” and it appears that the court and its medical experts saw the épreuve as a way to gain insights into these matters.46 At the same time, the officialité’s willingness to stage a second congrès and nuance its conclusions in some instances indicate that those who administered the épreuve sought to protect their authority and reputation at a time when the abilities of legal and medical experts to ascertain the truth were under considerable attack. Despite the criticisms leveled at it, the épreuve was not a “fatal shield, which [women] only have to show their husbands to turn them into inanimate bodies” as the avocat Pageau claimed.47 Instead, it was a procedure that was taken seriously by those who participated in it, whether it was the husbands who contested it and sought to manipulate it, or the experts who administered it and tried to accurately and carefully interpret its results. If none of the husbands in this sample of cases succeeded at the épreuve, a few did not fail entirely. This has important implications for understanding how marital status was negotiated in early modern France and how the legal and medical experts who helped broker these negotiations sought to construct and maintain their authority, even in matters that were widely perceived as all but unknowable.

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Notes

1 On the history of divorce, see Suzanne Desan, The Family on Trial in Revolutionary France, Berkeley, University of California Press, 2006.

2 Anne Robert, “De la visitation et congrès, et de la dissolution du mariage pour cause de frigidité & impuissance”, in Quatre Livres des Arrests et choses jugées par la court. . . . Mise en françois par M.G.M.D.R. Advocat en la Parlement de Paris, Paris, Joseph Cottereau, 1611, p. 555-82, p. 557; [Sébastien Roulliard], Capitulaire, ou Recueil des principaux chefs du procès d’entre le S.B.D. &c, appellant de Messieurs les deleguez de la P.D.L. et Dame M.D.L.C. sa femme, poursuivant de leur mariage intimée, s.l., n.d., p. 46 & 6; [Jacques Guillemeau], Traicté des abus qui se commettent sur les procedures de l’impuissance des hommes et des femmes, Paris, Abraham Picard, 1610, p. 6.

3 Julie Hardwick, “Seeking Separations: Gender, Marriages, and Household Economies in Early Modern France”, French Historical Studies, 21, no. 1, 1998, p. 157-80 ; Claire Chatelain, “Le mari violent et la femme insoumise : entre conflits d’intérêts et théâtralité des genres, le procès Pommereu”, in Robert Descimon and Elie Haddad (eds.), Epreuves de noblesse: Les experiences nobiliaires de la haute robe parisienne (XVIe-XVIIIe siècle), Paris, Les Belles-Lettres, 2010, p. 125-52.

4 See Claude Horry, Nouveau Traité du mariage chrétien fait selon les loix de l'église et les ordonnances de nos Rois, avec des notes sur l'édit du Roy en reglement du mois de mars 1697 concernant les formalitez que sa Majesté veut estre observées dans la celebration des Mariages, Paris, François Pralard fils, 1700, p. 241-49. Similar cases can be found in Lucien Soefve, Nouveau Receuil de plusieurs questions notables tant de droit que de coutumes, jugées par arrests d’audiances du parlement de Paris depuis 1640 jusques à present, Paris, C. de Sercy, 1682, 2 vols. vol. I, bk. 4 #95, p. 458-59; vol. II, bk. 2 #52, p. 138, and bk 4 #86, and Jean Du Fresne, Journal des principales audiences du Parlement depuis l’Année mil six cens vingt-trois jusques en mil six cens cinquante-sept, avec les arrests intervenus en icelles, Paris, Jean Guignard, 1692, 3 vols, vol. I, bk 8 #22, p. 802, vol. II, bk. 4 #49, pp. 410-11.

5 Edward Behrend-Martinez, Unfit for Marriage: Impotent Spouses on Trial in the Basque region of Spain, 1650-1750, Reno, University of Nevada Press, 2007, p. 1.

6 Julie Hardwick, Family Business: Litigation and the Political Economies of Daily Life in Early Modern France, New York, Oxford University Press, 2009, p. 4.

7 Sarah Hanley, “ ‘The Jurisprudence of the Arrêts’: Marital Union, Civil Society, and State Formation in France, 1550-1650”, Law and History Review, 21, no. 1, 2003, p. 1-40. The “Family-State Compact” was first defined by Hanley in “Engendering the State: Family Formation and State Building in Early Modern France”, French Historical Studies, 16, no. 1, 1989, p. 4-27.

8 Abraham de Gaumont, “Traité de marriage”, Bibliothèque Royale de Belgique, Ms. 15418, fols. 225r-65v, fol. 234r, 226v, 228r, & 225r.

9 Jean D'Arrerac, La philosophie civile d'estat, divisée en l'Irénarchie et la Polémarchie, Bordeaux, S. Millanges, 1598, p.316; Servin, Actions notables et plaidoyez, p. 71. The crime of stellionat involved selling or mortgaging a property one did not own.

10 Marion Philip, “Puissance sexuelle, puissance maritale: la sexualité conjugale au coeur de l’exercise du pouvoir domestique a Paris au XVIIIe siècle” in Jérome Luther Viret (ed.) Le Gouvernement domestique en France: Défaillances, trahisons, et réconciliations (Moyen Âge-Époque moderne), Nancy, Centre de Recherche Universitaire Lorrain d’Histoire, 2018 p. 93-122, p. 94-95 & 118. A more detailed analysis of the concept of “masculine hegemony” can be found in Raewyn Connell, Masculinities, 2nd ed., Berkeley, University of California Press, 2005. For contemporary descriptions of impotent men, see “De la dissolution de mariage pour la froideur & impuissance du mary”, in Julien Peleus, Les Oeuvres de Me Julien Peleus, advocat en parlement, contenant plusieurs questions illustres, tant en matiere beneficiales, civiles, et criminelles, que des coustumes de France, droict escrit, et constitutions de l’Eglise Gallicane, ensembe les arrests notables sur ce intervenus, avec les plaidoyers des anciens et fameux Advocats, Paris, P. Billaine, 1638, p. 194. See also Robert, “De la visitation et congrès,” p. 568-69 and Horry, Nouveau traité de mariage chrétien, p. 258.

11 Vincent Tagereau, Discours sur l’impuissance de l’homme et de la femme, 2nd ed., Paris, Veuve J. du Brayet, 1612, p. 8 & 186.

12 ibid., p. 148-49; AN Z1O #99, Officialité de Paris, pleading for Cosme Andrenan. 6 Feb. 1617; Soefve, Nouveau recueil vol. I, bk. 4, #95, p. 458-59 and vol. II, bk. 2, #52, p. 138.

13 Peleus, “De la dissolution du marriage”, p. 196; [Antoine Hôtman], Traicté de la dissolution du marriage par impuissance et froideur de l’homme ou de la femme, Paris, Robert Estienne, 1581, fols. 26r-v & 27v-28r; Guillemeau, Traicté des abus, p. 36-37; Tagereau, Discours sur l’impuissance, p. 216.

14 Angus McLaren, Impotence: A Cultural History, Chicago, University of Chicago Press, 2007, p. 73.

15 Charles Fevret, Traitté de l’abus et du vray sujet des appellations qualifiées de ce nom d’abus, 2nd ed., 2 vols., Lyon, Jean Girin, 1667, vol. II, p. 117.

16 James A. Brundage, “Impotence, Frigidity, and Marital Nullity in the Decretists and the Early Decretalists”, in Peter Linehan (ed.), Proceedings of the Seventh International Congress of Medieval Canon Law, Vatican City, Monumenta iuris canonici, 1988, p. 407-23, p. 420.

17 Tagereau, Discours sur l’impuissance, p. 148-49, 183; Guillemeau, Traicté des abus, p. 41-42; Fevret, Traitté de l’abus, vol. II, p. 128. Such concerns were hardly academic. In the Poynant case (1378-80), an English court rescinded the annulment of John Poynant’s first marriage when he impregnated his second wife. See James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, Chicago, University of Chicago Press, 1990, p. 512. French jurists, however, recognized that such a solution was impracticable, especially in cases where a subsequent marriage had produced children. See Fevret, Traité de l'abus, vol. II, p. 128.

18 On medieval forms of proof in impotence cases, see: Thomas G. Benedek and Janet Kubinec, “The Evaluation of Impotence by Sexual Congress and Alternatives Thereto in Divorce Proceedings”, Transactions and Studies of the College of Physicians of Philadelphia 4, 1982, p. 122-33; Jacqueline Murray, “On the Origins and Role of Wise-Women in Causes for Annulment on the Grounds of Male Impotence”, Journal of Medieval History, 16, 1990, p. 235-49; Brundage, Law, Sex, and Christian Society, p. 457; Ludwig Schmugge, “Matrimonial Dispensation: How the Penitentiary Handled Cases of Impotence”, in Gerhard Jaritz, Torstein Jørgensen, and Kirsi Salonen (eds.), Apostolic Penitentiary in Local Contexts, Budapest, Central European University Press, 2007, p. 72-82; Anne Lefebvre-Teilhard, “À défaut d'expert”, in Nicolas Derasse, Annie Duperchin, and Bruno Dubois (ed.) Figures de justice: études en l’honneur de Jean-Paul Royer, Lille, Centre d’histoire judiciaire, 2004, p. 665-78, p. 668.

19 Murray, “On the Origins”, art. cit., p. 247.

20 Ibid., p. 239 & 246; Danielle Jacquart and Claude Thomasset, Sexualité et savoir medical au moyen-âge, Paris, Presses universitaires de France, 1985, p. 232-33; Behrend-Martinez, Unfit for Marriage, op. cit., p. 106; Bronach C. Kane, Popular Memory and Gender in Medieval England: Men, Women, and Testimony in the Church Courts, c. 1200-1500, Woodbridge, The Boydell Press, 2019, p. 119-25; Richard H. Helmholz, Canon Law and the Law of England, London, Hambledon Press, 1987, p. 88-89.

21 Benedek and Kubinec, “Evaluation of Impotence”, art. cit., p. 132.

22 Anne Lefebvre-Teillard, Les officialités à la veille du Concile de Trente, Paris, Librairie générale de droit et de jurisprudence, 1973, p. 108-09.

23 Chrétien-François de Lamoignon, Plaidoyé sur le congrès par M. de La Moignon, Avocat general au Parlement de Paris, Paris, n.p., 1680, p. 83-84.

24 [Etienne Pasquier], “Factum pour Dlle Marie de Corbie, demanderesse en déclaration de nullité de marriage contre Me Estienne de Bray, défendeur” in [Jean Bouhier], Traité de la dissolution du mariage pour cause d’impuissance, avec quelques piéces curieuses sur le même sujet, Luxembourg, Jean-Marie VanderKragt, 1735, p. 135-84, p. 167-8; Roulliard, Capitulaire, p. 43; Tagereau, Discours sur l’impuissance, p. 131-32. Jean-Claude Boulogne argues that the early seventeenth century witnessed the “full blossoming” of the épreuve. See Histoire de la pudeur, Paris, O. Orban, 1986, p. 101.

25 Pasquier, “Factum pour Dlle Marie de Corbie”, p. 167-8, 174, 177.

26 Robert, “De la visitation et congrès”, p. 575-80.

27 Stile général des notaires apostoliques, avec la forme de proceder en l’officialité sur toute sorte de matieres, tant civiles que criminelles, auquel sont adjoustez le reiglement des officialitez fait en l’Assemblée Générale du Clergé de France, Lyon, Simon Rigaud, 1652, p. 405.

28 Antoine Paré, “Rapport de l’impuissance, tant de l’homme que de la femme”, in J.-F. Malgaigne (ed.), Oeuvres completes d’Ambroise Paré, Revues et collationnées sur toutes les éditions, avec les variants, Paris, J.-B. Ballière, 1841, vol. III, p. 668. For the Mynard-Pothier case, see Archives Nationales (hereafter AN) Z1O #91, Officialité de Paris, Medical Experts’ report of 30 Dec. 1611 and Sentence of 24 Jan. 1612.

29 Tagereau, Discours sur l’impuissance, p. 134-35.

30 Paré, “Rapport de l’impuissance”, p. 668-69.

31 Tagereau, Discours sur l’impuissance, p. 156-57; [Nicolas Venette], Tableau d’amour consideré dans l’estat du mariage, divisé en quatre parties, Parma, Frederic Gaillard, s.d.

p. 464.

32 Hôtman, Traicté de la dissolution, fol. 27v-28r; Tagereau, Discours sur l’impuissance, p. 150, 148-49.

33 Pierre Darmon, Le Tribunal de l'impuissance : virilité et défaillances conjugales dans l’ancienne France, Paris, Seuil, 1979, p. 136; Tagereau, Discours sur l’impuissance, p. 149 & 138-39.

34 Archives Nationales 1ZO #95 & 96 (12 Nov. 1614-21 Feb. 1615).

35 The accessibility of formal mechanisms of justice to early modern Europeans has been analyzed by Griet Vermeesch, “Reflections on the Relative Accessibility of Law courts in Early Modern Europe”, Crime, histoire, et sociétés / Crime, History, and Societies, 19, no. 2, 2015, p. 53-76.

36 Archives Nationales 1ZO #92 (9-23 Feb. 1613)

37 ibid., #98 (9 July – 3 Aug. 1616).

38 The mean duration of a case was between 73 and 89 days. The average was 187 days, but when the two longest cases are excluded, the average drops to 83 days.

39 ibid., #100 & #115 (21 Jan. 1621 – 13 Dec. 1623).

40 ibid., #94-97 (23 July 1614 – 1 Aug. 1615).

41 ibid., #97-99 (28 Aug. 1615 – 11 Mar. 1617)

42 ibid., #99-100 (21 June 1617-5 Aug. 1617).

43 Magic and witchcraft were often cited as explanations for impotence in medieval and early modern Europe. See, for example, Catherine Rider, Magic and Impotence in the Middle Ages, Oxford, Oxford University Press, 2006, and Matteo Duni, “Impotence, Witchcraft, and Politics: A Renaissance Case” in Sara F. Matthews-Grieco (ed.), Cuckoldry, Impotence, and Adultery in Europe (15th-17th Century), Farnham, Ashgate, 2014, p. 85-101. AN 1ZO, #120 (4 May-13 Aug. 1625); AN 1ZO #97 (9-19 Dec. 1615) & (15 Sept.-2 Dec. 1615).

44 ibid.,, #98-99 (23 Aug. 1616-12 May 1617).

45 ibid., #115 (Report and procès-verbal of congrès, 11 Sept. 1625) & (Report and procès-verbal of congrès between Marie Boytel and Cosme Andrenan, 18 Apr. 1617).

46 Philip, “Puissance sexuelle”, art. cit., p. 118.

47 Cited in Louis-Henri Moulin, Le carnaval et les causes grasses au Parlement: Dernier procès pour impuissance et abolition du congrès (1659-1677), Paris, Charavay frères, 1885, p. 20.

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Michael P. Breen, « Annulment Suits and the épreuve du congrès at the Officialité de Paris in the Early Seventeenth Century: Judicial Theory and Legal Practice », Genre & Histoire [En ligne], 28 | Automne 2021, mis en ligne le 01 janvier 2022, consulté le 28 mai 2022. URL : http://journals.openedition.org/genrehistoire/6498

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Michael P. Breen

Department of History. Reed College (Portland, OR, USA). Courriel : breenm@reed.edu

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