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.

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.

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.

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. 20 However, a variant theory centred on Paris (and Peter Lombard), championed consent as the vital point when the marital bond was confirmed and thereafter indissoluble. Therefore, an unconsummated marriage could still remain valid and binding. And it was this latter consent theory which gained favour with the papacy (Alexander III (1159-1181)) by the close of the twelfth century and down into the modern era. 21 As for impotence, the importance of the consent theory vs. the copula theory clearly would have an impact on how sexual intercourse,

17 CIH 443.22-3. 18 CIH 1883.36; Kelly, Guide to Early Irish Law , p. 74. 19 Ó Corráin, ‘Marriage in Early Ireland’, pp 20-1. 20 Boccafola, Requirement of Perpetuity , pp 16-17; C. Rider, Magic and Impotence in the Middle Ages (Oxford, 2006), p. 40. 21 C. Donahue Jr., ‘The Canon Law on the Formation of Marriage and Social Practice in the Later Middle Ages’, Journal of Family History 8 (1983), 144-5; Brundage, ‘Impotence, frigidity and marital nullity in the decretists and the early decretalists’ in P. Linehan (ed.), Proceedings of the Seventh International Congress of Medieval Canon Law (Rome, 1988), pp 411-13; Boccafola, Requirement of Perpetuity , p. 35.

or the inability to engage in intercourse, would be viewed within the ecclesiastical courts and jurisdiction. The validity and nature of the marriage bond itself became the centre of the debate. The practice and formation of marriage in medieval Ireland was somewhat of a thorny and complex issue for medieval lawyers and commentators (and for modern historians). The Irish church and society in general, received criticism from archbishop and pope, for what were considered lax attitudes to marriage and divorce, indicating the possibility of a person entering into multiple marriages. 22 We might suspect that if the creation or dissolution of a union could be undertaken with ease, followed by the formation of subsequent unions, in such a fluid affair impotence may not have been a particular concern. 23 However, as we shall see in what follows this does not appear to be the case. The discussion of impotence within the vernacular text is very much within the context of marriage practice and law. And as with the consent theorists on marriage, and the practice proposed by the Church, we find ourselves needing to analyse the nature of consent and the contractual relationship between the parties concerned.

The Contractual Context Within the tract Cáin Lánamnae (The Regulation of Couples), detailed commentary can be found on the contractual capacity of each person within the marital union and in what circumstances either party could or could not interfere in one anothers’ contracts. 24 But what of the initial foundation contract of the union itself? Within the medieval Irish legal context, the word contract is particularly appropriate for the marital bond. It was a formal undertaking by both parties with the word for bride-price, the coibche ,

22 E.g., Archbishop Lanfranc of Canterbury (1070-1089), Pope Alexander III (1159-1181); see K. Simms, ‘The Legal Position of Irish women in the Later Middle Ages’, The Irish Jurist 10 (1975), 97; Cosgrove, ‘Marriage in Medieval Ireland’, p. 28; D. Ó Corráin, ‘The Synod of Cashel, 1101: conservative or innovative?’ in D. Edwards (ed.), Regions and Rulers in Ireland, 1100-1650 Essays for Kenneth Nichols (Dublin, 2004), pp 17-18. For the possibility of multiple marriages, see Ó Corráin, ‘Women in Early Irish Society’, pp 7-8; A. Connon, ‘The Banshenchas and the Uí Néill queens of Tara’ in A. P. Smyth (ed.), Seanchas Studies in Early and Medieval Irish Archaeology, History and Literature in Honour of Francis J. Byrne (Dublin, 2000), p. 108. 23 Simms, ‘The Legal Position of Irish women’, 97-98. 24 CIH 506.25ff. For a discussion on a woman’s capacity to contract, see D. A. Binchy, ‘The Legal Capacity of Women in Regard to Contracts’ in SEIL , pp 207-234.

incorporating a contractual core in origin. 25 In Cáin Adomnáin , the initial comment noted about a woman who is made pregnant by stealth was whether she was ‘without contract’. 26 A contract was expected and the norm in the formation of a union. At this point it is worth noting certain legal concepts in order to view the marital contract within the context of others. As McLeod comments, the ‘contracting party rendered a folud , ‘consideration’ or ‘obligation’, to the other. The acceptance of this [or any] obligation in turn creates an entitlement ( dliged ) to the counter-consideration ( frithf[h]olud ) promised by the other party’. 27 This represents a clear legal framework in which any contract can be assessed. We also read of important legal concepts such as a sochor (an advantageous contract for both parties), a dochor (a disadvantageous contract) and a míchor (an invalid contract). 28 Within the normal contractual context, the failure of consideration, i.e. failure to complete one party’s side of the agreement, could result in either the enforcement of completion (if possible), or the repudiation of or rescission from the contract. 29 One final point which needs to be noted in relation to responsibility and any contract is the concept of an absconder ( élúdach ), i.e. one who absconds from a situation without legal justification. To do so, resulted in serious sanction with diminished legal and social standing. 30 Therefore, it was important (and implicitly promoted) to follow a legal route to resolve a contentious situation. So where does all this leave the impotent and his partner?

The Heptad The concise primary statement of Heptad 3 leads with the following, ta morseisir i tuaith arcuille coir urnadma (‘there are seven in a túath who are

25 Ó Corráin, ‘Marriage in early Ireland’, pp 6, 15; ‘The word is derived from cobhach , ‘person in a contractual obligation’, com + fíach ‘debt’’, T. Charles-Edwards, Early Irish and Welsh Kinship (Oxford, 1993), p. 549. 26 M. Ní Dhonnchadha, ‘The Law of Adomnán: A Translation’ in T. O’Loughlin (ed.), Adomnán at Birr AD 697 (Dublin, 2001), § 52, p. 68. 27 McLeod, Early Irish Contract Law , pp 14. See also, p. 32. 28 Kelly, Guide to Early Irish Law , p. 159 (see also footnote 11, 159); for discussion of sochor / dochor, see McLeod, Early Irish Contract Law , 34-5; R. Thurneysen, ‘Sochor’ in J. Ryan (ed.), Féil-sgríbhinn Eóin Mhic Néill : essays and studies presented to Professor Eoin MacNeill (Dublin, 1940), pp 158-9. 29 McLeod, Early Irish Contract Law , p. 33. 30 CIH 11.28; 15.8; 47.2-3; 55.1-17.

prohibited from the right to contract marriage)’, 31 which is reiterated in the accompanying comment, ni coir ben snaidm doib (it is not proper for a woman to have connection with them). 32 This lays bare the stance of the jurist — particular people were prohibited or disbarred ( ar-cuilli ) from entering into the formation of a marriage contract. 33 Our impotent man, in fer diairm (glossed, in fer lem ), is in the company of those in holy orders, clerics, the landless man, the infertile, the corpulent and the man who discloses details of his sexual relationship. 34 Legal commentary accompanies the primary text of the Heptad which informs the reader as to how such circumstances were to be legally resolved. Therefore, a standard or common legal path is prescribed for all of these situations.

Concern 1: Disclosure, Intent & Informed Consent The initial concern raised in the commentary is whether or not the man was in knowledge of his condition ( rofitir in fer )35 and were that the case, whether or not he made known his condition. 36 The verb in question, fúacair , to make known, to disclose, or to proclaim, is generally used ‘of important or authoritative statements’, and therefore hints at a more formal or expected undertaking on his part to make such a declaration.37 The scribe continues

31 CIH 4. 33ff; 1823.12ff; 1883.16ff. For urnaidm , see R. Thurneysen, ‘Heirat’ in SEIL , p. 109ff. 32 CIH 4.36; 1883.19. 33 Dictionary of the Irish Language Compact Edition (Dublin, 1990), p. 48 (hereafter, DIL ); headword, ar-cuilli : prohibits, disbars, bars, ‘excluded from the operation of legal processes of various kinds’. 34 CIH 5.9; 1883.34; gloss, CIH 5.10; for this Heptad, see CIH 4.33-5.32; 1823.12-1824.4; 1883.16-1884.7; A. Knoch, ‘Die Ehescheidung im alten Irischen Recht’ in SEIL , p. 241. Heptad 3, which forms the foundation of the commentary, reads: ata morseiser a tuaith aruscuille coir nurnadma toich tinntat a mna uadaib a lanamnus 7 is diless ni thidnacar doib. fer dibreithe. fer diarm. fer coirthe fear graid fear eagalsa. fear rocollach. fer forinnet coemdai. , CIH 1883.16-18, .33. A translation of this Heptad (from CIH 1823-4, 1883-4) by D. Ó Corráin reads: ‘§1. There are seven men in the community whom the rule of marriage excludes and their wives turn from them out of marriage, and what they [the wives] have received is forfeit to them [the wives]: an infertile husband, an impotent husband, a husband in holy orders, a husband who is a churchman, a husband without assets, an obese husband, a husband who talks about the marriage bed’, taken from ‘Early Medieval Law, c. 700-1200’ in M. Ní Dhonnchadha et al. (eds), The Field Day Anthology of Irish Writing vol. iv Irish Women’s Writings and Traditions (Cork, 2002), p. 28. (The fer coirthe (a husband without assets) comes in third position within the particular vernacular text of the Heptad noted above). 35 CIH 5.11; 1823.22; 1883.25-26. 36 CIH 1823.13; 1883.20. 37 DIL , p. 345; headword, fúacair (vn. fócrae ).

to probe further into the circumstances in order to discover the reason for the man’s failure to disclose. Was his reticence in the provision of such information done in simple error and without any intent to deceive ( ni ar daigin meallta ), or was the presence of deceit evident in his actions (ar daigin meallta ). 38 If he was aware of his physical condition, though in simple error or bad- judgement did not declare it, the woman in question was to receive her coibche , the bride-price,39 coupled with rescission from the union. Therefore, it appears that compensation and dissolution of the contract could result, as McLeod has noted in relation to contracts in general. 40 Within the tract Córus Béscnai (The Regulation of Proper Behaviour), later commentary addresses the matter of the payment of compensation as follows, ‘if the one by whom it is given knows, every bargain in which there is a concealed defect is to be rescinded, whether that which is lacking be small or great, and an amount equal to the defect is to be paid in additions to restitution’. 41 Therefore, in general, compensation relative to the defect was required, which without intent to deceive on the part of the man in our passage, was the coibche noted. Within this general commentary on all men of this Heptad who acted without malice, one legal commentator suggests that his actions reflect his desire do caithem bid 7 etaig , which appears to imply that he wished to set up house (lit. to spend or consume food and clothing). 42 If however, intentional failure of disclosure was held to be in evidence, a much greater degree of compensation was necessary, with the woman receiving payment of her honour-price ( eneclann ), in addition to the coibche .43 That she too had to be in ignorance is crucial ( ni fetatar na mna na hainme- seo) ,44 and parallels what Boccafola remarks of Peter Lombard’s stance on impotence and the all important factor of media , i.e. ‘the knowledge and consent of the other contracting party’ in order to correctly establish the circumstances and the position of the marital bond.45 What underlies this

38 CIH 5.12; 1823.23-25. 39 CIH 5.2-3; 1823.13-14; 1883.20-1; for a discussion of coibche , see Kelly, Guide to Early Irish Law , pp 71-2; Thurneysen, ‘Heirat’ in SEIL , pp 114-19. 40 McLeod, Early Irish Contract Law , p. 35. 41 Ibid., pp 36-37: this is found within later commentary to Córus Béscnai (The Regulation of Proper Behaviour) and a version of Di Astud Chor (On the Bindings of Contracts). 42 CIH 1823.24. 43 CIH 5.12-13; 1823.25. For information on a woman’s status and honour-price, see Kelly, Guide to Early Irish Law , p. 68ff. 44 CIH 5.1; 1823.23; 1883.24-25. 45 Boccafola, Requirement of Perpetuity , p. 27.

line of discourse is whether or not she was in a position to give informed consent to this particular union, i.e. one in which sexual intercourse was not only in absence, but any entitlement to it was permanently removed. However, if she did not possess the relevant information with which to assess the situation, this could be perceived as deception or fraud, which could make a contract rescindable. 46 In general within early Irish law, contracts could be invalidated if made in ignorance, fear or under duress, with the nature of consent always of the utmost legal importance.47 Therefore, if a man had administered an illicit substance to a woman in order to ensure her acceptance of his advances, she was not considered to have been in full mind to give proper consent and was entitled to compensation. 48 In this case, she received her coibche and eneclann , but also a corpdire (body-fine) payment, which appears to reflect not only the intention to deceive, but an additional fine for the employment of sinister means to achieve his end. As to the time-frame of her departure from the union, we are informed that she did so with the adverb, lúath (quickly, soon, immediately, instantly, swiftly). 49 We can only speculate as to whether or not she needed to remove herself from the union upon the point of discovery, which may have been in her best interest for clarity of circumstance in any subsequent legal wrangle. Within the continental discourse, a gloss within Gratian’s Decretum on this matter notes that the woman should depart within two months of cohabitation. 50 Elsewhere in the Heptad collection (no. 52) on the subject of legitimate separations (the implication being the marriage contract was valid in the first instance), a woman could depart cibe la bes maith leo (whatever day they wished). 51 However, as Kelly points out, within the text, Gúbretha Caratniad , there is reference to a woman losing her coibche if she left a union ria ré téchtai (before a specific, recognised period of time). As to the precise period of time, it is left undisclosed in the commentary. 52 Within Heptad 3,

46 McLeod, Early Irish Contract Law , p. 35. 47 Kelly, Guide to Early Irish Law , p. 159 (see also note 11, p. 159); McLeod, Early Irish Contract Law , pp 55-61; Thurneysen, ‘Sochor’, pp 158-9. 48 CIH 48.11-20. 49 CIH 4.33-5.1. 50 J. A. Brundage, ‘The Problem of Impotence’ in J. A. Brundage and Vern L. Bullough (eds), Sexual Practices & the Medieval Church (New York, 1994), p. 136. 51 CIH 47.22. 52 Kelly, Guide to Early Irish Law , p. 74; CIH 2198.22-3 = R. Thurneysen, ‘Aus dem Irischen Recht III 4. Die falschen Urteilssprüche Caratnia’s’, Zeitschrift für Celtische Philologie 15 (1925), §44, 356.

a similar financial incentive to remain temporarily within the marriage is in evidence, which will be returned to below. 53 Within medieval Irish law, there was a clear responsibility to disclose in advance any possible fault or defect pertinent to any contract, 54 otherwise the contract would be inherently defective. As Thomas Aquinas wrote, ‘marriage is like every other contract in this respect, that the obligation cannot be valid if one of the contracting parties takes on what he or she is incapable of doing or of giving’. 55 This holds true for undisclosed impotence. If, however, he was unaware of his physical incapacity (and therefore clear of any fraud), and she was also unaware, no compensation was required and separation could occur. 56 But what if she did know of his condition prior to entering into the union? That being the case, she was considered to have given full and informed consent, and therefore was to remain within the union ( is asta i ndligiud ). 57 This is consistent with the stance taken by the medieval canonists, theologians and the papacy (Pope Lucius III (1131-1185), down through the middle ages. 58 The existence of this discourse implies that sexual capacity was integral to marital consent, otherwise full disclosure of any defect was necessary to ensure the validity of the marital contract.

Concern 2: Timing, a life-line & a perpetual impediment A further point on which the medieval Irish jurist sought clarification was the timing of the impotence and whether the condition was antecedent to marriage. Did the problem exist ria tiachtain (before coming [together]) or iar comrac (after sexual union)? 59 This was important to determine, for in the eyes of the medieval church a marriage once consummated, even by a single act of intercourse, became indissoluble thereafter on grounds of impotence, 60 nor did a temporary period of impotence invalidate a marriage. 61 The timing may also provide clarification as to whether either

53 See below, p. 12. 54 McLeod, Early Irish Contract Law , p. 36. 55 Fr Tesson, ‘The Canonical Impediment of Impotence’ in M. G. Carroll (ed.), Two Unusual Marriage Problems (Cork, 1964), p. 124. 56 CIH 5.13; muna fitir nechtar dib, imscar doib . 57 CIH 5.13-14. 58 Brundage, ‘The Problem of Impotence’, p. 137; Boccafola, Requirement of Perpetuity , p. 27. 59 CIH (ria ) 5.11, 5.13-14, 1823.22, 1823.26; ( iar ) 1823.16, 1883.23. 60 Brundage, ‘Impotence, frigidity and marital nullity’, p. 408. 61 Boccafola, Requirement of Perpetuity , p. 25; Brundage, ‘Impotence, frigidity and marital nullity’, p. 408.

party knew of the condition prior to entering into the marriage contract. 62 Before dissolving a marriage, the church sought to ensure that the condition was one of impotentia antecedens et perpetua , supported and propagated by leading theologians and canonists of the middle ages— Hostiensis, Thomas Aquinas, Raymond of Pennafort et al .63 This concern strikes at the heart of the issue of impotence, marriage and the question of annulment (not divorce), particularly within the context of the teachings of Matt. 19:6, ‘what therefore God hath joined together, let not man pull asunder’. 64 By making permanency a factor, Pope Innocent III’s (1198-1210) impedimentum perpetuum 65 was to impose on the impotent person a perpetual impediment to any possible future marriage. 66 In essence, the contract would always be defective in the first instance. Not only is it a defect in consent and consideration, but as Bernard of Pavia ( c. 1191) notes, a ‘personal juridic incapacity based on defectus corporis’. 67 A person’s legal capacity was therefore restricted, if officially declared impotent. Heptad 3 also reflects this position, as a marital contract with such a person should never have occurred in the first place. The categories of people within this Heptad, were in legal theory prohibited from contracting a marital union at any point in their lifetime. One commentator applies, na hinndlig[thecha]-so , ‘these illegalities’ to refer to the circumstances noted within this Heptad. 68 As Innocent III (1198-1216) noted in the 1210 Bull, Devortioni vestrae , ‘[an impotent man] cannot oblige himself to an impossible obligation’, 69 and therefore should not attempt to, nor be permitted to do so. At this point in the commentary, the Irish jurists throw the man a marital life-line. If he did not know that he was impotent (similarly for the sterile man), the woman is encouraged to remain within the marriage (and therefore implied cohabitation continued) and to allow what is termed a re freaptha , a healing period, which was to last for three years.70 If, however, he

62 CIH 5.13-14. 63 Boccafola, Requirement of Perpetuity , pp 5, 51-2, 60. 64 Kelly notes that elsewhere within the Heptad collection (no. 51) the scribe quotes from St Mark 10:9 ‘what God has joined, let not man put asunder’, Guide to Early Irish Law , p. 2. 65 Ibid., p. 62. 66 Brundage, ‘The Problem of Impotence’, p. 136; Boccafola, Requirement of Perpetuity , p. 22. 67 Boccafola, Requirement of Perpetuity , p. 33. 68 CIH 1823.22; DIL , p. 403; in + dliged : an illegality; indligthech : not possessing certain legal rights, lawbreaking. 69 Boccafola, Requirement of Perpetuity , pp 34-5. 70 CIH 1823.14-21; 1883.21 (for the fer dibreithe and healing period, see CIH 187.38-9; 1823.32); DIL , p. 340; frepaid : healing, curative treatment, remedy, cure.

did know about his impotence prior to entering into the union, even if no blatant intention to deceive was considered present, his failure to disclose eliminated any entitlement to a ‘healing period’, ni dlegait re frepa do tabairt dona feruib .71 We also witness this three-year approach within the medieval church writings, known as the triennium experimentale , and attributed to Roman civil divorce proceedings (and primarily Justinian). It gained popularity with the medieval canonists, and a clear stance taken by Pope Honorius III (e. 13thc) recommends the nullity of a union after three years in which attempts were made to engage in sexual relations without success. 72 By church standards, this period of time was sufficient to distinguish between permanent and temporary impotence and was a feature retained after the Council of Trent and one which survived up until the beginning of the nineteenth century. 73 According to one medieval Irish legal commentator, if she departed without allowing the healing period to occur, she was to receive a reduction in the coibche to the value of a half. 74 This may have functioned as a financial incentive for the woman to remain within the union, in the short term at any rate. If the impotence came about íar comrucc , and therefore it is implied that sexual intercourse had occurred at one point, yet she did not allow a period of healing, she was to receive nothing upon leaving the union (but note, no fine or penalty is put upon her for her departure).75 The entire loss of her compensation in this scenario possibly reflects the expectation that a once potent man may yet regain his potency and therefore, a healing period would be expected and is promoted within this commentary. Her possible departure, however, is a primary divergence with canon law, whereby a marriage once consummated was valid in perpetuity. If she did agree to the healing period, and no change resulted in the situation, she was entitled to full payment upon her departure. 76

Possible Proof? Owing to the concise and consistent approach to all the men within Heptad 3, the commentator does not digress into how a case of impotence should

71 CIH 1823.14; 1883.21. 72 Brundage, ‘Impotence, frigidity and marital nullity’, p. 416. 73 Boccafola, Requirement of Perpetuity , pp 33-4, 115-16; Bajada, Sexual Impotence , p. 121; Rider, Magic and Impotence , p. 61; Tesson, ‘The Canonical Impediment of Impotence’, p. 129. 74 CIH 1823.15; 1883.22. 75 CIH 1823.16-17. 76 CIH 1883.22-3.

be proven. However, much concern is expressed within the medieval church writings, especially from the twelfth century onwards, over the ease with which an allegation could be made, or perjury committed (suspected upon the return of potency at a later date), and/or collusion between couples occur within cases of impotence. 77 Alongside consanguinity or affinity, impotence was another possible route through which a person or couple could attempt to exit and annul a marriage. As a result, testimony was not to be accepted without proof of some sort to support or corroborate the case. 78 Late medieval matrimonial litigation from the Armagh court records reveal similar apprehension at being too hasty in granting an annulment on grounds of impotence, and therefore, even when the man in question admitted the charge of impotence, he was required to undergo a physical inspection to determine whether this was in fact the case. 79 The possibility of corporeal inspection is attested from the twelfth century onwards normally to be undertaken by a jury of matrons ( matronae honestae ) or ‘wise women’. Their remit could include the discovery of whether the man had a particular physical or congenital defect, an attempt to sexually arouse the man, or to inspect the female in question in order to determine whether or not she was still a virgin, or had a physical defect which would prevent intercourse from taking place. 80 It is of interest to note that in the case of Armagh above, a group of men inspected the man’s anatomy. In conjunction with a physical inspection, within the medieval English and continental record, the testimony of witnesses regarding a couple’s sexual relationship could be provided by neighbours. Living in close proximity and/or being perhaps a confidant of either party within the coupling, neighbours were perhaps perceived to be in a good position to corroborate or divulge intimate details of a couple’s sexual relationship or failed attempts at a sexual relationship. 81

77 Brundage, ‘Impotence, frigidity and marital nullity’, pp 414-15; Boccafola, Requirement of Perpetuity , pp 23, 39-40, 71; Cosgrove, ‘Marriage in Medieval Ireland’, p. 43. 78 Rider, Magic and Impotence , p. 61. 79 Cosgrove, ‘Marriage in Medieval Ireland’, p. 43. 80 T. R. Forbes, ‘A Jury of Matrons’, Medical History 32 (1988), 23-26; J. Murray, ‘On the origins and role of ‘wise women’ in cases for annulment on the grounds of male impotence’, Journal of Medieval History 16 (1990), 241; Rider, Magic and Impotence , pp 61-2, 171; Boccafola, Requirement of Perpetuity , p. 39; Brundage, ‘Impotence, frigidity and marital nullity’, pp 420-1. 81 Rider, Magic and Impotence , p. 61.

To refute a claim of impotence within the medieval Welsh law tractates, Cyfraith Hywel , physical evidence is sought as follows,

‘If it happens that a woman says of a man that he cannot have sexual relations with her, and because of that seeks to separate from him, law orders her to be tested. This is how testing is done: a freshly-laundered white sheet is spread under them, and the man goes to her on it to engage her; and when his will comes he ejaculates on the sheet; … and she cannot separate from him for that cause. If he cannot do it at all, she can separate from him, and take the whole of what it hers’ .82

Therefore, if he can provide evidence for ejaculation, he was considered capable of engaging in sexual intercourse. What specifically constituted impotence is not specified within the native Irish legal discourse. We can note that the infertile man ( fear dibreithe ) is a separate category within Heptad 3 and therefore, in all likelihood the fer diairm is unable to achieve penetration, if not also sufficient arousal in the first instance.

Natural Impotence The inability to engage in sexual relations is the focus of the legal commentary within Heptad 3, rather than discourse on the cause of this condition. Whereas in the continental literature from the ninth century onwards possible causes such as extreme youth, or inexperience are taken into consideration, such comment is absent within Heptad 3. 83 Briefly noted above was the possibility that there may have been an anatomical or physiological reason for impotence, which is generally referred to in medieval church writings as ‘natural impotence’ ( impotentia naturalis ). 84 In all likelihood, what the Irish commentators have been dealing with up to this point is a natural or congenital form. The commentary then intriguingly, though briefly, gives recognition to those who are afflicted by galar or serg (illness, disease, withering) and how such men (the impotent and the sterile) were entitled to a re freptha mor (a longer healing period) of teora mbliadna 7 tri misa 7rl (‘3yrs + 3 mths etc.’). 85 The comment trails off at this point. This

82 A. R. Wiliam, Llfyr Iorwerth (Cardiff, 1960), §54, p. 31 = D. Jenkins, Hywel Dda The Law (Gomer, 1986), p. 59. 83 Boccafola, Requirement of Perpetuity , pp 20, 37; Cadden, Meanings of Sex Difference , p. 245; Makowski, ‘The conjugal debt and medieval canon law’, 106. 84 Rider, Magic and Impotence , p. 8. 85 CIH 1823.20-21. Within continental literature, the possibility of the diseased organ is noted, see Noonan, Contraception A History , p. 289.

extended time period may have been allowed for those who suffered impotence as a result of a particular illness or its side effects, owing to a greater expectation that in these circumstances a cure or natural return to health was more of a probability than in the case where impotence was present from the outset of a couples’ relationship. Therefore, greater latitude to aid recovery is present in this text within the context of illness. However, a woman’s departure do gres (permanently) from a union on grounds of galar is reinforced elsewhere within Heptad 53 and therefore, perhaps in Heptad 3, we have an ideal of time (and patience) on the part of the woman. 86 In the interim what options were open to the couple? There is no mention of cure within the commentary of Heptad 3. Elsewhere, prayer is mentioned in the case of infertility, 87 and we may speculate that this too was one possible action on the part of the couple dealing with impotence. Once again, turning to medieval English and continental sources we read reference to prayer, confession, penance, exorcism, almsgiving, altering patterns of behaviour, all of which may proffer a solution. 88 Within the church discussion of natural impotence, a further aspect considered in a decretal by Innocent III was whether there was any physical disparity between the couple concerned, 89 with natural respective impotence (i.e. impotence only and specifically associated with a particular person) gaining in recognition across the Middle Ages. 90 A range of physiological possibilities are noted, whether either party had a physical defect, or the possibility of being over-weight and how this might have a negative impact on sexual relations, as William of Auvergne, Bishop of Paris (d. 1249), commented on how overweight men were sometimes frigid by this very condition. 91 In the company of our impotent man, within Heptad 3, is the man who is labelled rochollach (too corpulent or fat (?)). 92 He is incapable of providing satisfaction to a woman because of ‘the obese body’, in colond

86 CIH 48.28; glossed .i. gairit , 48.35-6; for Heptad 53, see CIH 48.27-49.7. 87 CIH 49.5-6. 88 Boccafola, Requirement of Perpetuity , pp 20, 109; Rider, Magic and Impotence , pp 8, 40, 48-9. For the earlier period of Ancient Greece and Rome, see McLaren, Impotence A Cultural History , pp 15-19. 89 Brundage, ‘The Problem of Impotence’, p. 137; Boccafola, Requirement of Perpetuity , p. 74. 90 Boccafola, Requirement of Perpetuity , p. 53. 91 McLaren, Impotence A Cultural History , p. 39. For a link made between sterility and being overweight, see Cadden, pp 242-3; McLaren, Impotence A Cultural History , pp 10-11. 92 CIH 5.20; 1883.33; Kelly, Guide to Early Irish Law , p. 74.

remur ,93 or, as another commentator notes, reamur a cholund umun lubrudh (‘his body (?) is too rotund/great for the work’). 94 His inclusion within this Heptad is somewhat puzzling and clearly not classified as a temporary condition. The only episode of impotence within medieval Irish narrative which I have come across to date, concerns the Dagda, the father figure of the Irish pantheon, who in the tale Cath Maige Tuired sees a beautiful, feisty girl passing by, desires her, but is impotent and therefore unable to act on his desire owing to his corpulent belly — the result of a magical quantity of porridge earlier that day. 95 He does eventually succeed in physically engaging the girl, once his stomach deflates (which involves a degree of physical discomfort in the process). However, the fer rochollach is a lost cause by his very inclusion within Heptad 3, for along with the impotent, the sterile, the man in holy orders and others in this entry, he is legally prohibited from contracting a marriage. One other possible interpretation is that the man in question is too well-endowed which would result in a physical incompatibility between the couple (a more human Fergus mac Róig figure perhaps), one which was deemed sufficient and permanent for his inclusion in this Heptad .96

Accident & Castration By the nature and brevity of the Heptad, we are not provided with extended discourse for each category included within it and therefore certain questions linger — what of the man who has suffered extensive injuries, whether accidental or punitive, which leave him unable to engage in intercourse? Is he disbarred from marriage, or what of any current marriage? What of Stephan O’Regan, who in 1307 was castrated by John Don (a wine merchant from Youghal) and several of his men for continuing an affair with Basilia, John’s wife, after a warning had been issued (and ignored)? 97 According to Rider, any type of impotence which was non-congenital was classified as ‘accidental impotence’ ( impotentia accidentalis ) by the medieval continental writers. 98 Within a section of the tract Bretha Étgid (‘Judgements

93 CIH 1884.5-6. 94 CIH 5.22. 95 E. A. Gray, Cath Maige Tuired Irish Text Society 52 (Dublin, 1982), §93, pp 46-8. 96 W. Stokes, ‘The Tidings of Conchobar Mac Nessa’, Ériu 4 (1910), 26.12. 97 Cosgrove, ‘Marriage in Medieval Ireland’, pp 36-7. 98 Rider, Magic and Impotence , p. 8. For further discourse, see M. S. Kuefler, ‘Castration and Eunuchism in the Middle Ages’ in V. L. Bullough and J. A. Brundage (eds), Handbook of Medieval Sexuality (New York, 1996), pp 279-306.

of Inadvertence’), which includes information relating to bodily injuries, embedded within a section on injury to the eyes, are a couple of sentences on injury to the male reproductive organ (before the jurist returns to the subject of eyes). 99 On initial reading, this may appear to be a peculiar diversion, but on further reflection, blindings and castrations had similar political aims and outcomes. This is further reinforced by Simms’ observation that between the eleventh and fifteenth centuries in Ireland, there appears to have been a move away from killing to mutilation, and that ‘there is reason to suppose that this operation [i.e. castration] is often concealed beneath the annalists’ euphemisms of dalladh , ‘blinding’, and scathadh , ‘lopping off’.100 It appears that not only the medieval annalist followed this particular train of thought, but also the medieval Irish jurist. Turning to the text, if the penis ( uidim ) is struck from the person, full body-price, full honour-price and restitution were owed in compensation (lancoirpdire 7 laneneclann 7 aithgin comlan ).101 This is a very weighty fine and reflects the severity of the injury. The text then moves onto the ‘glands of desire’ ( na hairne toile ), the testicles, at which point we read that importance is attached to the order of loss. If the left testicle ( uirghi cle ) is initially removed, full injury payment ( lan coirpdire ) was necessary for is uaithi ata in geinemain (the progeny is from it). 102 This hint at an understanding of generation is out of step with ancient and medieval medical treatises (from Aristotle to Jacopo of Forlì in the fifteenth century) which profess how the warm right testicle was the origin of the male sex, with the colder left testicle producing the female. 103 Within this Irish tract, the right testicle ( uirghi dhes ), required

99 CIH 1623.17-32. For the section on injury to the reproductive organ, see CIH 1623.22-9. 100 K. Simms, From Kings to Warlords The Changing Political Structure of Gaelic Ireland in the later Middle Ages (Woodbridge, 2000), pp 50-1 (see footnote, 71); E.g.s, Annals of Connacht : 1224.3, 1244.2, 1272.4; Annals of Ulster , 1490, 1496, 1503, 1504. See also, A. Cosgrove, ‘Marriage in Medieval Ireland’ in Marriage in Ireland (Dublin, 1985), pp 36-7. For a medieval British context, see J. Gillingham, ‘Killing and mutilating political enemies in the British Isles from the late twelfth to the early fourteenth century: a comparative study’ in B. Smith (ed.), Britain and Ireland, 900-1300: insular responses to medieval European change (Cambridge, 1999), p. 132. 101 CIH 1623.22-23. See Kelly, Guide to Early Irish Law , for a brief discussion on honour- price, pp 8-9; on payment for injury, pp 131-2; on payment as punishment, pp 214-15. 102 CIH 1623.26; DIL , p. 627; headword, genemain . I have taken this as an abstract, progeny, although entry (e) within DIL suggests the more specific semen virile as a possibility. 103 Cadden, Meanings of Sex Difference , p. 254 (for right-left opposition, see pp. 17, 33, 62-3, 197); I. C. McManus, ‘Right-left and the scrotum in Greek Sculpture’, Laterality 9 (2004), 191-3; G. E. R. Lloyd, ‘Paramenides’ Sexual Theories. A Reply to Mr Kember’, The Journal of Hellenic Studies 92 (1972), 179; A. Nic Dhonnchadha, ‘Irish Medieval Writing, 1400-1600’

compensatory payment to the value of the injury ( fo truma na cneide ) and not automatically full body-fine payment as in the case of the left. 104 We are provided with one extra piece of information within this very short section which relates to the elderly or decrepit and to clerics (senoir diblidhe ł fer graidh ) who suffer a similar fate. Such categories of people, if injured or castrated, would receive a reduced fine of solely the body-price. The reduction in compensation is directly linked to a reduced expectation and need on their part to engage in sexual activity and to have a procreative capacity. 105 Within Heptad 53, which focuses on reasons for permanent separations, we read amongst the list of eleven, disease, illness and a defect/blemish (ainim ). 106 The word ainim is also used of our impotent man in Heptad 3. 107 We may speculate that perhaps castration or severe mutilation may be considered under such a defect or blemish which a physician could not cure. 108 It is of interest to note in these separations, the woman can depart without any payment or compensation necessary. 109 There is a clear absence of culpability or responsibility on the man’s part, which may fit our scenario of the castrated or mutilated man who has suffered such a robenadh .

Unnatural Impotence Harmful magic, maleficium , is well recognised within the Irish penitential collections from the sixth century onwards. 110 Within both Irish and continental sources, dabbling in such matters frequently related to sexual and personal relationships — to induce love or hate, the creation of a mysterious aversion to a partner, and possibly impotence. 111 Rider argues in Ní Dhonnchadha et al . (eds), Field Day Anthology iv, pp 343-4. Dr R. deVries noted that perhaps the jurists were describing the mirror image (pers. comm.). An interesting suggestion and one would which warrant further investigation into the right-left usage across the wider legal commentary. 104 CIH 1623.27. 105 CIH 1623.28-9; for a similar approach to the aged and sexual capacity within the canonical material, see Brundage, ‘The Problem of Impotence’, p. 137. 106 CIH 48.28-30. 107 CIH 5.1-2;1823.13; 1883.19; 1883.23-5. 108 CIH 49.2. 109 CIH 48.27-8; for this Heptad, see 48.27-49.7. 110 Bieler, Irish Penitentials , Finnian, no.s 18-20, pp 79-81; Bigotian, no. 37, p. 205; Ní Dhonnchadha, ‘The Law of Adomnán: A Translation’ in O’Loughlin (ed.), Adomnán at Birr , § 46, p. 66. 111 Rider, Magic and Impotence , p. 72; Bieler, Irish Penitentials , Finnian, no.s 18-19, p. 79; J. T. McNeill and H. M. Gamer (eds), Medieval Handbooks of Penance (Rept. New York, 1990):

that from the ninth century onwards, a better understanding and recognition of the separate categories of magic — for impotence, or for love/hate — is evident in the medicinal and legal texts. 112 Papal recognition of magically caused impotence is apparent from the eighth century onwards, reiterated by Hincmar and down through the Middle Ages, with Noonan noting that one title within the medieval decretal collections reads, ‘The frigid and the hexed, and inability to copulate’. 113 Overall, magically-caused impotence was considered to be completely relative in essence (i.e. specifically and only between two particular people) and without physiological basis. Therefore, within the eyes of the church, impotence as a result of magic was considered transient and a curable condition and not grounds to annul a marriage, 114 (although some medieval canonists did recognise that impotence through maleficium could be permanent). 115 Hrut, a character appearing in Njal’s Saga , is one of the better known medieval literary figures who suffers this type of impotence, when he becomes too well-endowed to engage in sexual intercourse whenever he attempts to do so with Unn, who relates, “when he comes to me his penis is so large that he can’t have any satisfaction from me, and yet we’ve both tried every possible way to enjoy each other, but nothing works. By the time we part, however, he shows that he’s just like other men”. 116 Within the commentary of Heptad 3, unnatural impotence is not specifically mentioned. However, we do find references elsewhere in the medieval Irish legal corpus which points to its occurrence. Within the tract Cethairslicht Athgabálae (The Four Divisions of Distraint), we read of collud mbreithi (infringing [the possibility] of birth). 117 One explanation given in the glosses to this entry is lemadh (impotence), which appears to carry the implication that someone through sinister means has produced these

Theodore, no. 15, p. 196; Ebgert, no. 29, p. 246; Corrector of Burchard of Worms, no. 69, p. 331, no. 186, p. 340; Penitential of Bartholomew Iscanus (bishop of Exeter, 1161-84), ‘of magic’, p. 349. 112 Rider, Magic and Impotence , p. 27. 113 Noonan, Contraception A History , p. 289; Rider, Magic and Impotence , pp 7-8, 40, 57; McLaren, Impotence A Cultural History , pp 43-7. 114 Boccafola, Requirement of Perpetuity , p. 57. 115 Brundage, ‘Impotence, frigidity and marital nullity’, p. 414; Boccafola, Requirement of Perpetuity , pp 33, 59. 116 R. Cook, Njal’s Saga (Penguin, 1997), p. 16. 117 CIH 387.32.

circumstances. 118 With references to magic being practised in other matters (such as love, abortion, rape), we may speculate that it may also be employed to this end. 119 Within this tract we also read of fuba nimda .i. pisoca isin lepaid… .i. cnamcosait (bedwitchcraft/magic i.e. spells/charms in the bed… i.e. setting [a couple] at variance’. 120 We also discover a fine for imarchor auptha (carrying a charm/spell), 121 or how a ben aupthach (female practioner of magic) was not entitled to receive particular types of fines. 122 Already mentioned previously, was the man who used an aupaid to engage a woman in marriage and sexual intercourse. 123 From the various sources, we can speculate that instigating maleficium could involve the bearing of charms, the use of clothing, particular food and drink, and incantations. 124 Here is not the place to digress any further into the role of magic within early and medieval Irish society, but the brief evidence noted, indicates concern within this area which is also found elsewhere in Europe in medieval times. 125

Concern 3: An Emotional Dimension The treatment of and approach to impotence within Heptad 3 is undertaken in a matter-of-fact way, which reflects the legal nature of the source. However, the commentary concludes with a final clause which introduces an emotional, even psychological dimension to the scenario. That the three- year healing period is clearly the preferred path proposed by the jurists has

118 CIH 388.10-12. See DIL , p. 427; lemad : rendering impotent, sinister act (soft, tender, powerless); .i. leamad nó pisoga do [ dénum dó ], O’Dav 930; R. I. Best, ‘Some Irish Charms’, Ériu 16 (1952), p. 32. 119 See Bieler, Irish Penitentials, Columbanas, no. 6, p. 101 (to excite love, destroy someone, abortion); Finnian, no. 20, pp 79-81 (abortion); For examples of magic within medieval Irish literature, see T. P. Cross, Motif-Index of Early Irish Literature (Bloomington, 1952), which contains 106 pages on aspects relating to magic (pp 104-210; section D). 120 CIH 387.31-2; gloss, 388.23. 121 CIH 387.32; 388.12-13. 122 K. Meyer, The Triads of Ireland Todd Lecture Series 13 (Dublin, 1906), no. 185, p. 25. 123 CIH 48.16-17. 124 Rider, Magic and Impotence , p. 33; Bieler, Irish Penitentials , Finnian (potion), no. 18, p. 79; McNeill and Gamer (eds), Medieval Handbooks of Penance , Penitential of Bartholomew Iscanus (bishop of Exeter, 1161-84), ‘of magic’ (philtre), p. 349; Corrector of Burchard of Worms (bread), no. 193, pp 340-1; for a general discussion on sorcery see, M. D. Bailey, ‘From Sorcery to Witchcraft: Clerical Conception of Magic in the Later Middle Ages’, Speculum 76 (2001), 960-90; for the inverse and healing therapies, see L. T. Olsan, ‘Charms and Prayers in Medieval Medical Theory and Practice’, Social History of Medicine 16 (2003), 343-66. 125 See Kelly and Borsje, ‘‘The Evil Eye’ in Early Irish Literature and Law’, 1-39.

been noted above. However, what if the couple could not tolerate it? At the point where miscais (hatred) enters the household, and it is implied that this was before the three-year period had passed, she was permitted to depart the union. 126 It would appear that here we have a type of medieval irreconcilable differences, followed by separation. With miscais , we have legally recognised discord. Scholars such as R. Bartlett and D. L. Smail have discussed aspects of hatred and/or official enmity as a formalised medieval legal institution.127 Within medieval Irish legal discourse, we too appear to have moved beyond anger, which could be perceived as short term and more personal and immediate response,128 and into sustained, intense emotion, which may impact on a person’s mental state and possible actions. There is a degree of realism present which would concur with Tancred of Bologna’s comment in his Summa on Marriage , which reads, ‘for it would give cause for murder if a man stayed with his wife and could not have intercourse with her, when he was potent and compatible with other women’. 129 Our text takes its stance from the opposite sex, but the underlying sentiment still holds. The recognition and channelling of miscais within the medieval Irish legal system is important in its reflection of how the jurists strive to remove disharmony from the household and in turn secure the maintenance of social order. The negative impact which miscais could have finds further reflection within a discussion on proof or sworn evidence ( tuididen ) within a case, where it is stated that miscais has no place in proceedings. 130 It should be noted that in the eyes of the church, this would not be sufficient grounds for separation, and therefore the medieval Irish tradition diverges from church teachings on this matter.

Masculinity & Virility? A further aspect to impotence which can only be briefly mentioned at this point, is what is referred to elsewhere as ferdacht (manhood, manliness,

126 DIL , p. 465; headword, miscais : hatred, dislike; miscaisigid , cherishes dislike, enmity. Wb gloss for inimica . 127 R. Bartlett, “Mortal Enmities”: The Legal Aspect of Hostility In the Middle Ages T. Jones Pierce Lecture (Aberystwyth, 1998), p. 1; D. L. Smail, ‘Hatred as a Social Institution in Late- Medieval Society’, Speculum 76 (2001), 90-126. 128 Smail, ‘Hatred as a Social Institution’, 90-1. For an example of a wife who displays both an aversion to and hatred for her husband, see R. Sharpe (trans.), Life of Saint Columba (Penguin, 1995), ii. 41. 129 Rider, Magic and Impotence , p. 119. 130 CIH 234.29.

virility).131 Jo Ann McNamara poses a wider Herrenfrage (a crisis of masculine identity) for Europe, particularly of the twelfth-century world with the church assuming a greater control over social practice. 132 But what of a Herrenfrage within the individual or community setting? At a very simplistic level, the functioning male reproductive organ was a clear and outward expression of virility and even masculinity. This is further emphasised by the fact that the penis could play a role in legal proceedings — within a paternity suit we are informed, were a man to swear on his penis to deny the suit, the woman could only trump this action by offering to go to the ordeal (cach uair urtoingeas in fer a meamar is lais imdenam ). 133 But to be diairm , impotent, literally ‘weaponless’ (< di + Lat. arma ), implies at its root a loss of power and control (also apparent in the German translation of diairm with waffenlos or kraftlos ). 134 So where did that leave the impotent man and his standing within his community and society and masculine vulnerability? How society coped with male and female potency, being under-potent or over-potent, created its own raft of problems for jurist and cleric alike and a subject which would warrant further investigation. This would prove helpful for understanding masculinity and gender relations within medieval Irish society. In relation to entitlement to sexual intercourse and the problem of impotence, Heptad 3 approaches the matter from the woman’s position — her legal position, her options and how the scenario could vary in its effect on her financial advantage. Makowski correctly comments of the conjugal debt that it was an ‘equal opportunity concept’, 135 which raises the issue of female impotence. 136 This is mentioned within the writings of continental theologians and canonists, from the eighth century onwards, in the works of Rabanus Maurus ( c. 775-865), down to Gratian and on into the later Middle Ages.137 Quite often female impotence is defined in relation to a physical

131 DIL , p. 300. 132 J. A. McNamara, ‘The Herrenfrage The Restructuring of the Gender System, 1050-1150’ in C. A. Lees (ed.), Medieval Masculinities (Minneapolis, 1994), pp 3, 22. 133 CIH 232.26. DIL , p. 459; headword, memar ( membrum ). 134 CIH 5.9; 1883.34. DIL , p. 207; Knoch, ‘Die Ehescheidung im alten Irischen Recht’ in SEIL , p. 241. 135 Makowski, ‘The conjugal debt and medieval canon law’, 99; Cadden, Meanings of Sex Difference , p. 246, ‘the marriage debt’; McLaren, Impotence A Cultural History (Chicago, 2007), p. 32. 136 Boccafola, Requirement of Perpetuity , pp 39-40, 50-1; Bajada, Sexual Impotence , p. 129. 137 Rider, Magic and Impotence , p. 164; Boccafola, Requirement of Perpetuity , p. 24.

defect, e.g. where the vagina was too narrow. 138 Within CIH , where we read of the woman being unable to engage in sexual intercourse, thereby denying her husband his own entitlement to physical relations, this is in the context of her being too infirm. By the nature of her ill health, as one commentator expresses quite matter-of-factly, ‘she is dead in the law of marriage’. 139 Once again, we read of a healing period which she must be given in these circumstances, re na freptha di . However, thereafter, if she does not recover she can either be returned to her kin, or maintained by her husband until her death, whilst in the interim he is permitted to take another partner. 140

Conclusion Intimate details on a couple’s functioning sexual relationship had legal protection and were to remain a private affair. However, acute dysfunction in this matter was clearly too serious an issue for such discretion to be maintained. After all, any defective union could be damaging not only for the couple involved, but also for the kin-group and the community in turn. 141 Therefore, the impotent person is very much in the public domain, one who is permanently and judicially impaired within the law of marriage by his very condition (along with all the other men in Heptad 3). And it is very much within the context of marriage practice and law, that impotence is debated in both native Irish legal material and church writings. The approaches of the vernacular and canon lawyers to impotence have much in common, both in content and the investigative approach to this subject. The (defective) nature of marital consent, or a marital contract, takes centre stage in the discourse. In addition, we witness similar distinctions within impotence being recognised and probed — whether impotence was natural, possibly accidental, permanent or transient and curable. However, there are a number of important differences to highlight between the native legal commentary and the canonical position. In the native Irish legal domain, the woman could ultimately walk away from a union in which her partner was impotent (with a varying amount of compensation determined by the particular circumstances and the timing of her departure). This was not permitted in the eyes of the Church, once the marriage had been consummated. Furthermore, the native Irish jurist did not need to champion the tenets of faith, or to address the thorny issue of

138 Cadden, Meanings of Sex Differences , p. 242. 139 CIH 7.37; in .c.muinter croli im, bean is marb i ndliged lanamnais . 140 CIH 8.4. 141 Charles-Edwards, Early Irish and Welsh Kinship , p. 87.

whether or not the first marriage should be reinstated, if the person once again became potent. 142 Through such discussions, we realise that this was an evolving area in canon law and practice across the medieval period, 143 which paralleled the development and extension of church courts to deal with such matters. 144 From a legal standpoint, knowledge and disclosure and how this directly impacted on consent, influenced who assumed responsibility for the situation and what compensation was necessary. Ultimately, resolution is always found in the various scenarios mentioned within the commentary, whether the couple remain together throughout and beyond the healing period, or separate, even prior to a period being granted or miscais entering the frame. The approach by the medieval Irish jurist to the subject of impotence is very much from the standpoint of what options were open to women who have made not simply an ill match in choice of partner, but technically an illegal one. As with other scenarios which relate to sexual matters (e.g., rape, paternity), a woman’s legal capacity and protection also come to the fore in this situation. ‘It seems doubtful if the easy availability of divorce in this society worked to the benefit of women’, 145 and indeed this was probably the case. However, in this particular challenging scenario, and in full recognition that an impotent man is not easy for a wife ,146 the jurist asserted her entitlement to rescind the contract of marriage, if required.

Acknowledgements I wish to thank Prof Thomas Charles-Edwards and Prof Thomas Owen Clancy for their time and comments. All errors are my own. (8 Nollaig, 2007) Posted 11.12.07

142 Boccafola, Requirement of Perpetuity , pp 39-40, 71; Brundage, ‘Impotence, frigidity and marital’, p. 414. 143 Rider, Magic and Impotence , p. 27. 144 Brundage, ‘Impotence, frigidity and marital nullity’, p. 415; Rider, Magic and Impotence , p. 113; C. Morris, ‘From Synod to Consistory: the Bishops’ Courts in England, 1150-1250’, The Journal of Ecclesiastical History 22 (1971), 115-123. 145 Simms, ‘The Legal Position of Irish women in the Later Middle Ages’, 111. 146 CIH 5.24.