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Impotence, Disclosure and Outcome: Some Medieval Irish Legal Comment

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Impotence, Disclosure and Outcome: Some Medieval Irish Legal Comment Impotence, disclosure and outcome: some medieval Irish legal comment Brónagh Ní Chonaill Introduction ‘An impotent man is not easy for a wife’, notes the medieval legal scribe of Raw. B 487. 1 What follows will explore the medieval Irish jurist’s comment on this condition and investigate what legal course of action was open to a woman who found herself with an impotent partner. The primary focus will be a short section of legal commentary within a body of material known as the Heptads (Sechtae ) — an Old-Irish legal collection of 65 entries encompassing a wide variety of topics and which are accompanied by later legal commentary. 2 ln today’s society, impotence may be considered somewhat of a private and personal matter (and a billion dollar industry for pharmaceutical companies); however, much in medieval law and society was far from private. On the subject of male sexual incapacity or dysfunction, we find ourselves engaged in the areas of marriage and the validity of marriage, the role of sexual intercourse, the nature of relationships, kin- group sustainability, not to mention masculinity and gender relations. Within the domain of marriage and sexual relations, we cannot overlook the position of the medieval church, which strove to attain greater control in this area throughout the middle ages. Therefore it is important to see whether native Irish legal comment parallels on-going debate within the church. The nature of the material under review, will also permit entrance into the legal world of contracts, obligations and ultimately, theoretical social order. Sexual Relations & Entitlement In order to place impotence in context, a logical place to begin is with the topic of sexual intercourse itself. Scripture, medieval canonists and theologians gave recognition to three primary functions fulfilled by the 1 CIH 5.24-5; ni husa seitche nach diairm . 2 L. Breatnach, A Companion to the Corpus Iuris Hibernici (Dublin, 2005), pp 291-2; F. Kelly, A Guide to Early Irish Law (Dublin, 1988), p. 266. For the vernacular texts of the Heptads, see CIH 1.1-64.5; 1881.9-1896.22; 537.16-549.18; 1821.28-1854.36. For translation, see N. Hancock et al. (eds), Ancient Laws of Ireland v (Dublin, 1865-1901), pp 119-351. 1 © Brónagh Ní Chonaill marital bond with two directly related to sexual intercourse: first, procreation; second, as a deterrent to fornication ‘( remedium concupiscentiae (an antidote to desire)’, and linked therefore to overall contentment within the marital bond; with the third primary function being fellowship or companionship created by a union.3 Within the vernacular legal material of medieval Ireland we read similar sentiments expressed throughout the extant legal corpus. Towards the beginning of Cáin Lánamnae (The Regulation of Couples), it is noted that a lánamnus (coupling/union) was for the purpose of procreation. 4 Similar advice is proffered within the early Irish penitential collection advising a couple to engage in sexual relations for the primary purpose of procreation and once a specific time had lapsed post- partum, to then re-commence the engagement of sexual relations for the purpose of further conception. 5 The engagement in sexual intercourse was not simply an ideal or a recommendation, but an entitlement, often referred to in secondary literature as the conjugal or marital debt. 6 One can read a range of entries across the medieval Irish legal corpus which protects this right. A woman in Cáin Lánamnae is entitled to compensation if her husband preferred to have intercourse with male youths, thus denying her physical attention. 7 Another scribe elaborates upon obstacles to conception ( collud mbreithi ‘infringing [the possibility] of birth’), and includes within his list, nemdul cuice ’na imda , ‘not going to her in bed’. 8 This was clearly perceived as 3 Gen. 2:24; I Cor. 7:1-5; K. E. Boccafola, Requirement of Perpetuity for the Impediment of Impotence Analecta Gregoriana 200 (Rome, 1975), pp 33, 37, 58; J. Bajada, Sexual Impotence The Contribution of Paolo Zacchia Analecta Gregoriana 252 (Rome, 1988), pp 61, 65; T. O’Loughlin, ‘Collectio canonum hibernensis: Marriage and Sexuality’ in Celtic Theology Humanity, World and God in Early Irish Writings (London, 2000), p. 115-16; J. A. Truax, ‘Augustine of Hippo: defender of women’s equality?’, Journal of Medieval History 16 (1990), 289; J. Cadden, Meanings of Sex Difference in the Middle Ages (Cambridge, 1995), p. 247; E. M. Makowski, ‘The conjugal debt and medieval canon law’, Journal of Medieval History 3 (1977), 99-101; J. T. Noonan, Contraception A History of Its Treatment by the Catholic Theologians and Canonists (Cambridge Mass., 1965), pp 284-8, 290. 4 CIH 505.19. 5 See L. Bieler, Irish Penitentials Scriptores Latini Hiberniae 5 (Dublin, 1963); Finnian, no. 46, pp 91-3. On sexual continence within marriage, see Cummean, no.s 30-1, p. 117; Bigotian, no. 9, p. 223. 6 E. M. Makowski, ‘The conjugal debt and medieval canon law’, Journal of Medieval History 3 (1977), 99; J. Cadden, Meanings of Sex Difference in the Middle Ages (Cambridge, 1995), p. 246; A. McLaren, Impotence A Cultural History (Chicago, 2007), p. 32. 7 D. Ó Corráin, ‘Women in Early Irish Society’ in M. Mac Curtain and D. Ó Corráin (eds), Women in Irish Society The historical dimension (Naas, 1978), p. 5; Heptad 52, CIH 48.5-6. 8 CIH 387.32; gloss, 388.12; 1692.33-4. 2 © Brónagh Ní Chonaill a slight on their union. Similarly, an entry within a fragmentary Old Irish law-text on legal offences within marriage notes nemduscu do chomrac fria (not waking to have intercourse with her). 9 All such examples purport to protect a woman’s right to expect sexual relations. Even the leprous wife, as Kelly points out, appears legally entitled to such physical contact, otherwise compensation was necessary. 10 As shall be returned to below, being incapable of satisfying a woman’s sexual desire ( toil ) could also result in separation. 11 As for procreation, the tract Bretha Crólige (Judgements on Bloodlying) provides a clear illustration of a married woman’s right to bear children and how the opportunity to do so should not be impeded. Within this text we read of compensation owed to the woman (na .s. uriata coimperta ), if her husband was physically incapacitated through injury which in turn removed the possibility of their engagement in sexual intercourse. 12 Such women must declare that tainic a naimsera dligteca coimperta doibh (their lawful periods of conception have come to them) and will receive the appropriate compensation. 13 Such an entry is testimony to the importance of a person’s right to procreate, if so desired. 14 This desire is reflected in late medieval matrimonial litigation on impotence from the Armagh court records which reveal women petitioning for an annulment on the grounds of a desire to be a mother. 15 Within the native legal corpus, the extent to a woman’s legal capacity (of alienation, payments, contracts, inheritance) was linked to her procreative function, with women described in the legal tracts as being co macaib (with sons) or cen maccu (without sons) when discussing their position and status. 16 An important broad brushstroke statement on marriage is found within the Díre tract, which makes reference to a man’s ‘failures to discharge the 9 CIH 149.19. 10 F. Kelly and J. Borsje, ‘The Evil Eye in Early Irish Law’, Celtica 24 (2003), 34; Makowski, ‘The conjugal debt and medieval canon law’, 111. 11 CIH 5.28; 1884.5. 12 D. A. Binchy, ‘Bretha Crólige’, Ériu 12 (1938), §40, 32; CIH 2296.38. 13 Binchy, ‘Bretha Crólige’, Ériu 12 (1938), §40, note 2, 32; CIH 2297.13. 14 CIH 2296.38ff. 15 A. Cosgrove, ‘Marriage in Medieval Ireland’ in A. Cosgrove (ed.), Marriage in Ireland (Dublin, 1985), p. 43. 16 CIH 2057.5-6; N. Power, ‘Classes of Women Described in the Senchas Már ’ in R. Thurneysen et al . (eds), Studies in Early Irish Law (Dublin, 1936), pp 81-108 (hereafter, SEIL ); D. A. Binchy, ‘The Legal Capacity of Women in Regard to Contracts’ in SEIL , pp 217-222; T. Charles-Edwards, Early Irish and Welsh Kinship (Oxford, 1993), pp 85-6. 3 © Brónagh Ní Chonaill obligations of marriage’ ( anfolaid lánamnais ) and that he should not degrade his wife. 17 Within the physical domain, she was not to be repudiated, denied physical contact, nor information regarding their sexual relationship revealed to others. 18 There is an expectation and entitlement to engage in sexual relations within a union, and protection of such personal rights finds firm reinforcement throughout the legal corpus. The Marital Union The nature of the marital bond and what precisely constituted a marriage would have a direct impact on how impotence would be considered. Across the medieval period marriage law was an evolving entity, as Ó Corráin notes in the following: ‘between the end of the ninth century and the first half of the eleventh the church established its exclusive competence in regard to the whole marriage law — the legal conditions of contract, the duties of the spouses and the indissoluble nature of the marriage bond — and its legislation was collected and refined by the canon lawyers of the eleventh and twelfth centuries’.19 The law was further refined at points throughout the later middle ages. Two medieval schools of thought on marriage emerge which are important for any discussion on impotence. One centred on Bologna, and dominant in the mid-twelfth century, held that that act of sexual intercourse sealed the validity of the marriage process after consent had been given — the ‘Copula Theory’ of marriage, with Gratian being one of its most well-known defenders.
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