We complain today about the time needed to separate two people, united by legal ties, who are asking to regain their liberty because of their incompatiblity. Our ancestors had a more expeditive justice. In former French legislation, the tribunals had no hesitation in annulling the marriage. Not because of incompatibility – they didn’t much care about that – but for the unique fact that one of the spouses, usually the husband, refused, or was incapable of doing, his or her part in the conjugal duo.
This sort of private debate, under the eye of Justice, might appear to have been the invention of some sadistic magistrate, whose imagination needed this stimulant to move him. However, it was the ecclesiastic tribunals, known as officialities, which introduced this practice.
Voltaire observed with great wisdom that canonists, particularly monks, usually sexually inactive, were the ones who delved the most deeply into the mysteries of love.
“This astonishing research has only ever been done, anywhere in the world, by theologians. It is only in the Christian religion that the tribunals have rung with these quarrels between brazen women and shameful husbands. Jewish law allowed the husband to repudiate whichever one of his wives displeased him, without specifying the cause… There was never any question of impotence in Jewish law.”
It would seem that “God could not permit impotence among a sacred people who had to multiply like the sands of the sea.”.
Voltaire explains how sexual things came to penetrate the theological domain.
“Marriage having been, over a period of time, raised to the dignity of sacrement, of mystery, the ecclesiastics gradually became the judges of everything which happened between husband and wife, and even of everything which didn’t happen… Clerics pleaded, priests judged. But what were they judging? Things of which they must have known nothing.”
The canonical constitutions never admitted divorce. They recognized only the nullity of the marriage for the cause of… inutility.
Saint Thomas d’Aquin, in his Somme, admits the principle, in vigour with the Romans, that the rupture of the marriage should be pronounced propter imbecillitatem mariti. The word “imbecillity” has a material sense here, otherwise the ecclesiastical tribunals would have been very busy. Stupid husbands are far from constituting the majority of impotent ones.
Canonical jurisprudence was not founded on Roman tradition because Justinien refused to admit feminine impotence, while Pope Gregoire III re-established the man and the woman as equals. This pontiff judged that there were cases when the husband had the right to ask for his liberty, if the constitution of the wife’s private parts did not allow the physical act.
The following pontiffs, such as Alexander III and Luca III, confirmed this decree. Innocent III shared the opinion of his predecessors on this subject, and pronounced the nullity of the marriage, when the impotence of the wife was duly shown.
Using these precedents, King Louis XII asked to repudiate the daughter of Louis XI, the unfortunate Jeanne de France, so as to be able to marry the widow of Charles VIII.
The case brought by Louis XII against his wife was conducted by commissionaries named by the Pope. And the virtuous Queen Jeanne could protest as much as she wanted that the marriage had really been consummated, she had to be submitted to the shameful visit of the matrons, because her revolting husband maintained that she was deformed from birth, and that she could neither conceive nor give birth, because of her physical conformation.
Rather than submit to a degrading expertise, the princess preferred to renounce winning the case, saying that she was “pudic and ashamed”, and that she could not be “easily exposed to such a visit, whose judgement could even be misleading”.
Jeanne’s lawyers proposed replacing the matrons’ enquiry by prayers, exorcisms and other ecclesiastical remedies, designed to chase away the demon, considered responsible for the corporal incapacity alleged by the King as being the only obstacle to the consummation of the marriage.
At this time, no-one thought to ask for the meeting of a “congress”. It was only later, around the middle of the XVIth Century, that this new procedure would be inaugurated.
To be continued.