Unfit For Marriage

Impotent Spouses On Trial In The Basque Region Of Spain, 1650-1750

Edward J. Behrend-Martinez

• Éditeur: University of Nevada Press
• Année: 2014
• ISBN:
  9780874177138
• Sujet: History
• Sous-sujet: World History

The Catholic Church of early modern Europe intended the sacrament of matrimony to represent a lifelong commitment, and it allowed few grounds for the dissolution of an unhappy marriage. One was nonconsummation owing to the sexual impotency of one of the partners. Even then, an annulment was granted only after a church court had conducted a lengthy investigation of the case, soliciting testimony from numerous witnesses as well as from the aggrieved couple, and had subjected the allegedly impotent spouse (and sometimes both spouses) to an intimate physical examination.Edward J. Behrend-Martinez has studied the transcripts of eighty-three impotency trials conducted by the ecclesiastical court of Calahorra (La Rioja), a Spanish diocese with urban and rural parishes, both Basque and Castilian. From these records, he draws a detailed, fascinating portrait of private life and public sexuality in early modern Europe. These trials were far more than a salacious inquiry into the intimate details of other people's lives. The church valued marital sex as a cornerstone of stable society, intended not only for procreation but also for maintaining domestic harmony. Every couple's sex life, however private in practice or intention, was a matter of public and ecclesiastical concern. Unfit for Marriage offers vivid accounts of marital sex and the role that property, gender, and personal preference played in marriage in early modern Europe. It is essential reading for anyone interested in social history, sexuality, gender studies, canon law, legal history, and the history of divorce in western Europe.

1: Gerónima Martínez de Texada v. Diego Belasco, Logroño, 1681

He was not to be taken for a man . . .

—Gerónima Martínez de Texada

Anyone attempting to explain the rudiments of an impotence trial to an interested audience will be met with a flood of questions. How did judges test a litigant for impotence? How long did a husband have to be impotent for an annulment to be possible? How could a woman litigate independently in such a male-biased society? How could a woman be judged impotent? How common were these trials? Answering these fundamental questions can be complicated by the fact that marital annulments on grounds of impotence varied considerably; each case followed unique and twisted courses shaped by the assorted political, economic, and sexual situations of particular husbands and wives. And yet, impotence cases that came before the court shared numerous features. The present case serves as a superb example because it incorporates several characteristics found in many different impotence cases. The case of Gerónima Martínez de Texada v. Diego Belasco included a variety of rhetorics and legal procedures not seen together in other cases. For example, out of eighty-three cases, roughly a dozen were litigated against castrated men; three husbands used witchcraft as an explanation for their impotence; descriptions of impotence cures, apothecaries, and drugs occurred rarely; and only a minority of cases involved the medical examination of the wife by midwives. Furthermore, lawyers only occasionally resorted to calling witnesses. Yet these phenomena could and did occur in many impotence cases. The trial considered here had it all. All these issues can be introduced by dissecting this one case.

But Gerónima Martínez’s case against her husband, Diego Belasco, despite its twists and turns, did return to the primary questions of every impotence trial: Was the husband perpetually impotent? Could the wife demonstrate his impotence by proving herself a virgin? Had the couple ever consummated the marriage? Their case also reveals how ecclesiastical judges often applied canon law with practicality, and not necessarily sacramentality, as their foremost concern.

One of the few facts that Gerónima and Diego agreed on during a year’s litigation in the ecclesiastical court of Calahorra and La Calzada was that they legally wed before the church in accordance with the ritual and manner decided by the Council of Trent nearly a century earlier. That celebration took place on April 1, 1662. Philip IV (1621–65) was still on the Spanish throne, and the nation was recovering from four decades of wars at home and abroad. Diego had been twenty-three years old and Gerónima had been seventeen. The case meant to dissolve their marriage came before the court an amazing nineteen years later, making Diego forty-two and Gerónima thirty-six. Now the year was 1681, and the feeble and sterile Charles II (1665–1700) ruled Spain. Just as with his predecessor two centuries earlier, Henry IV (1454–74), known as “the Impotent,” Charles II’s impotence and inability to produce offspring would ultimately plunge Spain into civil war. Henry IV’s supposed impotence had resulted in a war when his alleged daughter Juana and his sister Isabella fought over the succession to the throne. Charles II’s sterility during his reign would lead, upon his death, to another war of succession: the War of the Spanish Succession (1701–1714).

Though Diego inhabited a much humbler social world and economic level than the king of Spain, like Charles II he too was in a desperate fight to prove his virility at the end of the seventeenth century. The validity of Diego’s marriage was being questioned in the local bishop’s court in his home town of Logroño. Gerónima had publicly denounced Diego as impotent and had begun a suit for annulment. Diego also fought, therefore, to defend his reputation and manhood to a community completely aware of his wife’s accusations and the couple’s sexual problems. Furthermore, the dangers that sterility and impotence posed to public order could not have been lost on a citizenry concerned about the impending consequences of Charles II’s childlessness. The succession crisis was likely a common topic of public conversation and jokes.

Gerónima had filed her suit for annulment on February 5, 1681. She had much to gain from the dissolution of her marriage to Diego. In reality, she was fighting for her complete independence. If she could prove that she was a virgin and that her husband, for nearly two decades, had never consummated their marriage, she would reclaim full power over her dowry and take half of all that she and Diego had earned in their profession as tailors. Gerónima would avoid ever living again with a man whom she disliked and may have hated. She might live where she pleased; perhaps she would even remarry. Her marriage to Diego had proved to be a sterile union. With remarriage at age thirty-six, Gerónima might have looked forward to a last opportunity to have children.

Though her plans for life after Diego can only be guessed at, we do know that Gerónima was trying to wrest goods and money from the control of her husband, giving her much more actual autonomy. As we shall discover below, she had already easily avoided living with Diego. To be physically separated, Gerónima had not needed to turn to the courts. But for further liberty, she needed the return of her dowry and property, and only the courts could force Diego to give those to her. Gerónima would, of course, have been better off as a widow because she would have inherited all of the couple’s wealth. And given the mortality rates for men in the seventeenth century, her chances were not too bad. Instead, Diego was still alive after nineteen long years and Gerónima was still legally bound to him, as the majority of women in the seventeenth century were attached to a father, husband, brother, son, or confessor.¹ With an annulment, however, Gerónima could become a marriageable single woman and could hope to direct her own life more completely.

Much was also at stake for Diego. First there was the substantial question of his rights over Gerónima’s dowry. Even though it was not permitted for him to squander or otherwise alienate the dowry, Diego could still use and make money from it. Their home and all the goods that he held in common with Gerónima were also at risk. Because she had worked with him for many years in his tailor’s shop, Gerónima could also take half of all they earned and owned. However, Diego’s main concern may not have been economic at all. He may have been more worried about his public reputation as a man. If he could prove that he controlled his wife’s sexuality, and that he had, in his words, “deflowered her and deprived her of her virginity with his natural member without force or violence whatsoever,” he would maintain his legal power over Gerónima and all that was hers.² He would also protect his status as a man and a vecino, a full citizen, in the city of Logroño. If he lost the case, however, his customers, neighbors, and friends would consider him a eunuch, un capón. If he lost his case and was proved to be impotent, the court would prohibit him from ever marrying again. And, as was true for so many men in early modern Spain, without the financial cushion of a woman’s dowry, he would be forced to live the remainder of his life in poverty.

The ecclesiastical court had its own agenda in this case and others like it. If the court were to allow individuals to annul their marriages on the basis of spurious claims of consanguinity or impotence, it would weaken the importance of marrying in the church. The bishop had to enforce the church’s control over marriage formation and authority over legitimating who was and was not married. Because it was a sacrament, matrimony was to be treated, as much as possible, as a single momentous step. The Catholic Church throughout Europe had spent centuries wresting the legitimization of matrimony from the grasp of long-held customs and the aristocracy, and brought it into the doors of the church and cathedral. By the mid-sixteenth century it registered marriages in its books, and the church’s notaries kept track of profits from the sale of marital dispensations. Not long after 1681, the year of Gerónima and Diego’s trial, the defense of the church’s jurisdiction over marriage would become more intense. The Enlightenment, and the resulting anticlerical reforms, soon recommended that the state rather than the church have jurisdiction over many matrimonial issues.³

A great deal rested, then, on the determination of a single fact: had Diego and Gerónima ever had sex? Money, property, status, legal rights, and even salvation of both husband and wife depended on whether they were legitimately united by the holy sacrament of matrimony. Canon law clearly defined sexual consummation. A marriage was only consummated via erection, penetration, and insemination intra vas. Diego and Gerónima had conflicting stories as to whether this had happened or not. Diego claimed that he had been “in the act” with his wife on several occasions in the days after they married: “on the first, second, or third night that I began sleeping with [Gerónima] I deflowered her and deprived her of her virginity with the natural member without force or violence whatsoever.”⁴ Later in their marriage, however, Diego admitted to having used “two fingers . . . so that the virile member could enter with ease.”⁵

Gerónima adamantly maintained that her husband was lying. She asserted that Diego never had been able to penetrate her and deprive her of her virginal seal, her claustro virginal, and furthermore, that she had suffered and persevered in her chastity for the nineteen years since their marriage. Though she had lived apart from Diego for many years, Gerónima claimed that she had also never lost her virginity to any other man. Thus, she defended her public reputation as a virgin, a status that was always crucial for any woman planning to marry in early modern Spain.⁶ Gerónima’s virginity, after all, was worth a great deal of money.⁷ In claiming her virginity she asserted that Diego had no legitimate rights to her dowry and goods and that they were hers. As a virgin, Gerónima could claim control over her physical person; she had rights, therefore, to the property that was attached to that person. If Diego had not taken her virginity, he had no legal claim over her and her property. Juan de Gámiz Hidalgo, her lawyer, argued that “on no occasion during the entire [marriage] was [Diego] able to copulate with [Gerónima].”⁸ But what proof was there? All claims would eventually need to be proved to the court by physical examination. To trump any conclusion by a midwife that her claustro virginal was no longer intact, Gerónima made an excuse for the state of her vagina in a deposition to the court.⁹ If her genitalia were at all lax or otherwise corrupted, she argued, it was because her husband, driven mad by his inability to consummate the marriage, “had done [the penetration] with his fingers and fingernails seizing her as on different occasions he would seize her by her parts and insert his fingers.” ¹⁰ Gerónima’s accusation was not common enough to be considered a rhetorical formula, but neither was it unique in defloration and impotence cases. It was also one of her lawyer’s favorite allegations. Juan de Gámiz used it in the 1692 case when wife Josepha de Echabarría accused her husband, Antonio Ruiz, of “planning to break the virginal seal with his hands.”¹¹ And it appeared in two other of Gámiz’s impotence prosecutions, one in 1697 and one in 1704.¹² The charge that a husband illegitimately used his fingers, rather than his penis, to effect consummation was not peculiar to Gámiz and Spain. We find it used in a 1736 French impotence trial between Marie-Catherine Chardon and her husband, Nicolas Séné.¹³ Not only did such indictments explain the loss of the hymen, according to the prosecution’s rhetorical approach, they helped expose the trickery of these alleged imposters who claimed to be real men. In Gerónima’s testimony about her husband’s inabilities, she told the court “that the said Diego de Velasco would cry recognizing that [he] was not a man.” ¹⁴

Juan de Gámiz Hidalgo had written Gerónima’s initial petition for an annulment on grounds of impotence. In it he claimed that Gerónima married her husband seventeen years earlier. Gerónima and her counsel may have been already attempting to downplay the long duration of their marriage. Gerónima would later admit in a declaration that she actually married Diego nineteen years earlier. Still, they had only lived together for a fraction of the time that they were legally wed. Three years after the wedding, Juan de Gámiz explained, Gerónima recognized that her husband was incapable of consummating the marriage because he was impotent. On advice of her confessor and other learned persons, the couple voluntarily separated quoad torum et mutuam cohabitationem, from hearth and cohabitation.

Note the ease with which Diego and Gerónima separated. The couple did not need to litigate for a formal separation. They parted mutually on the simple advice of local clerics. Gámiz argued that they parted for the protection of their souls; the marriage not having been consummated, Gerónima and Diego were technically man and woman living alone under one roof. They were living in sin. No doubt, however, there could have been problems for the couple had their makeshift separation come to the attention of an ecclesiastical visitor. Gámiz ended Gerónima’s petition by asking that Diego make a declaration to the court concerning his alleged impotence, that medical experts visit the husband to confirm his affliction, that the tribunal annul the marriage and give Gerónima license to marry whomever she pleased.

Diego and his lawyer had many arguments to counter the suit begun by Gerónima. The most suspicious aspect of this lawsuit, his lawyer Juan de Soldevilla argued, was the nineteen-year lapse between the day Gerónima married Diego and when she finally decided to sue for an annulment. Why had she waited so long if her husband’s impotence was so obvious? “For if it were as certain as [Gerónima] holds that the impotence of [Diego] from the first was visible and natural, she would not have remained quiet such a long time [before] now issuing her plea.”¹⁵ A second issue was the condition of Gerónima’s vagina, which Diego hoped would show that she was no longer a virgin. Juan de Soldevilla persistently demanded that medical experts examine her, in addition to the traditional examination of the allegedly impotent husband. The true motivation for the suit, Juan de Soldevilla claimed, stemmed from the couple’s separation that brought to an end three years of domestic discord. He argued that Gerónima wanted to transform the separation into the marriage’s complete dissolution: an annulment. Finally, he had several explanations for Diego’s inability to perform his conjugal duties consistently. Though the husband did admit to having suffered from a lack of sexual vigor later in his marriage, he blamed this on maleficio, evil potions or witchcraft.¹⁶ Diego also claimed that a botched impotence cure had resulted in his persistent sexual weakness. He blamed the malpractice on an apothecary whom he and Gerónima had consulted in Estella. In any case, Diego asserted that because his bouts of impotence had occurred long after they had had sex, the marriage was therefore consummated and legitimate.

Such were the competing and contradictory claims of husband and wife. Whom were the judges to believe? Following the regular procedure in annulment trials based on impotence, the court looked to medical experts to substantiate or refute the assertions of litigants. The ecclesiastical tribunal depended heavily on the diagnoses of doctors and surgeons as the most reliable evidence to substantiate charges of impotence. The man’s potency, rather than the woman’s viginity, was the court’s primary concern. Unless there were extenuating circumstances, the husband had to demonstrate his capacity for “the use of matrimony” before a wife would be examined to confirm her virginity. Little more than a month after Gerónima initiated the suit, Dr. Don Mathias Femat Lobera and surgeon Matheo de Urrondo visited with and inspected Diego.

The ecclesiastical tribunal generally relied on a familiar list of medical professionals to provide their learned opinions. Between 1679 and 1683 Dr. Femat appeared before the tribunal and gave medical testimony in three other cases. In 1681 he declared a man from Castillo potent; two years earlier he found a husband from San Román impotent. And, in a curious case from Alegria, in 1683, he absolved a young husband of having intolerable bad breath.¹⁷ Surgeon Matheo de Urrondo was more of a regular in the court than Dr. Femat. He appeared as an expert witness in more than fifteen cases between 1673 and 1686. Urrondo’s job as a surgeon was to examine the subject with his hands while following the instructions of the doctor, whose privilege it was not to have to actually touch the patient at all. During the examination Dr. Femat was not an uninformed and blind arbiter of Diego’s sexual potency. Before meeting Diego, the doctor had been fully appraised of the marriage and the circumstances of the case. The court had apparently provided him with the statements made by the litigants and their lawyers. In Dr. Femat’s declaration he demonstrated that he was conversant with the details of the case and the marriage in question. Before physically examining his patient, Dr. Femat had a lengthy interview with Diego. The husband revealed the details of his bout with impotence and efforts to find a cure. After nine years of marriage Diego believed that he had been bewitched. Diego told Dr. Femat that he and his wife had made a trip north of Logroño to the Basque town of Arbeyza in search of a cure. There they were exorcised by a cleric famous for ridding couples of impotence. Such exorcisms, according to this and other trials, involved acts of penance and a clerical exorcist who physically exorcised the husband of the evil spirits causing the impotence; however, few of the cases provide specific descriptions of what these exorcists actually did. Some testimonies describe that in the process of exorcism the afflicted men trembled or sweated heavily. The exorcists themselves cited the Fustis dæmonum of Hieronymous Mengus as their guide to exorcism of impotence. Many of these exorcists insisted that both husband and wife needed to be exorcised.¹⁸

By the beginning of the eighteenth century few educated professionals believed in witchcraft. As Keith Thomas has demonstrated, European intellectuals had clearly defined the belief in the supernatural powers of the devil in the temporal as superstitious.¹⁹ Dr. Femat was such an educated man. He did not believe that witchcraft could have caused Diego’s impotence. He testified before an ecclesiastical tribunal, however, and acknowledged the fact that the Catholic Church made provisions for exorcism. Canon law allowed for the possibility that impotence could be caused by diabolic spells, defined as maleficium. Still, Dr. Femat made it clear that he disavowed witchcraft as a cause and placed little faith in the spiritual cures of clerics. For example, referring to the couple’s visit to a Basque priest in Arbeyza known for curing individuals of impotence, Dr. Femat stated that “the abbot who exorcised them for the span of nine days deceived them.”²⁰ Diego went on to tell...