I suppose that this writeup covers three of my main interests within E2 - law, apocrypha, and unusual sex-related stuff, so I definitely had to do it.

Well then. Trial by congress. No, it's not where a President of the United States goes up before the legislature to answer charges of getting blowjobs off interns, but a rather strange legal procedure used in the law of France under the Ancien Regime. In fact, it's probably one of the most unorthodox juridical systems ever to have been devised by man. In a nutshell, it was a method of proving the impotence - or not - of a man (or a woman, but more on that later) in order for his or her spouse to obtain a divorce, by having the couple in question demonstrate their ability to do it before a bevy of experts as part of the investigative stage of the case. Furthermore, although not strictly part of the trial, but obligatory before getting to the carnal litigation proper, it also covers a variety of, well, pre-trial reviews of a sexual nature, and the wrangling that those entailed. Yet in a way, despite its many flaws, the trial by congress was not only founded on what seemed at the time to be a sound logical basis, but one that even has some holdovers in contemporary French divorce laws.

This particular writeup is structured into three parts. Now I know that you, good noder, are probably aching to get to the juicy bits in this writeup, so I'll say that the actual ins and outs (pun NOT intended) can be found in section (II). Section (I) will deal with the general legal and social background that led to the institution of the trial by congress, and section (III) will examine its decline and fall.

I - Ecclesiastical Law, and the Logical Basis for the Impotence Trial

As any student of European history knows, for most of the first half of the second millennium, European countries were mainly under a dualist system of law: the Royal law, which governed material affairs such as land, civil litigation, and most crimes, and the ecclesiastical or Canon law, which governed affairs of a more spiritual nature, including marriage and sexual mores. This dualist system lasted longer in some countries than others' whereas in England it was abolished fairly early after the Dissolution of the Monasteries by King Henry VIII and his Act of Supremacy of 1534, in France it lasted up to and even after, to some extent, the Revolution of 1789. The upshot of this dualist legal system was, among other things, that since both systems had a rather different approach to the juridical science. Specifically, that of the Canon law was based very heavily on the use of logic and deductive reasoning to determine the outcomes of cases, much in the mould of law in ancient Rome. This emphasis on logic and above all, the art of reducing a factually complex case into strictly-defined legal terms in order to determine quaestio quid iuris and to discern the correct form of legal solution which would apply to the greater part of cases resulted, as will be demonstrated, in the eventual trial by congress.

Now, in this case, the main legal principle at stake was that marriage is ordained by God and cannot, once formed, be dissolved. But it could be annuled, since the canon law set out a number of criteria for an ostensible marriage to be valid. Thus, if any such ceremony failed to fulfill all those criteria (except where the law made an allowance) then annulment was possible. As regards impotence, therefore, since one of the criteria for a valid, Church-sanctioned marriage in the body of Christ was that it be consummated, if either party was unable to perform in the bedchamber, then the marriage was evidently not consummated and could be annuled.

But this then poses another question - what's the sufficient criterion for consummation of a marriage? Social custom at the time, especially amongst Orthodox Christians, was to display the bed sheets from the wedding night out the window, like a Japanese flag, to prove to all and sundry that the bride was indeed a virgin and was no longer, though this practice is not - and wasn't at the time - considered a reliable proof of intercourse, due to both the non-ubiquity of hymeneal rupture and for other reasons that will be examined in detail in part (II). Furthermore, if the woman had previously engaged in intercourse, there would, even by that theory, be no bleeding and thus no way of proving that intercourse had occurred. So some other form of proof of intercourse was needed.

By the 14th Century, the basic tenets of a valid act of sexual intercourse were in place. Firstly, the genitals of both partners had to be in good working order to perform the sexual act, or, in layman's terms, the penis had to be capable of acquiring and sustaining an erection and the vagina must not have been occluded or otherwise non-functional. Secondly, the former must have been capable of insertion into the latter. And finally, the man in question must have been capable of orgasm and ejaculation - specifically, into the "appropriate orifice" as legal texts of the time referred to the vagina. This final stipulation was oft overlooked; in one case, a man was deemed impotent after a trial by congress as his semen was considered not only "too aqueous and serous", but also, critically, was not deposited properly inside the "appropriate orifice" but rather round the rim. In short, the trifecta of "erecting, entering, emitting", as the surgeon Guillemeau pithily put it, was what was set down as the be all and end all of a valid sexual intercourse.

So now the Canon jurist knew how to discern valid sexual intercourse, but there still remained the problem of how to prove it before a judge. And to any man well versed in the science of logic, there was one obvious solution.

Get them to demonstrate.

II - The Cut and Thrust of Impotence Litigation

It should be stressed, of course, that actual trials by congress were comparatively rare up until around the mid-16th Century and most impotence litigation even then, never really got that far. For before either party had standing to demand a trial by congress, the affair had to pass through the hands of the "experts". Literally.

A hands-on testimony could be demanded by either party to a case, either to prove or to disprove accusations of sexual inability under any of the three heads of valid sexual congress, be it erection, intromission, or ejaculation - or, in the rare events where female impotence was in question, to discern whether it was possible for penile penetration to be inflicted upon the woman, be it by an imperforate hymen, by frigidity, or even by a complete absence of the vagina. Indeed, it is quite interesting how, considering the attitude of the Catholic Church of the time towards sex and its glorification of virginity as a state of enlightenment, the reports of these affairs go into an almost morbid level of detail and poetry as regards the reportage of these tests.

Though this can be partially explained by the level to which the examinations were conducted. Simply achieving an erection was not enough. Instead, literally hordes of experts would poke, prod, molest, and scrutinise the penis, assessing it for size, tensile strength, hardness, and curvature, all of which were deemed to play a part in ensuring capacity for intercourse. Furthermore, the volume, size, and pendulosity of the "cullions" or testicles was also open for debate. Given all that, it really is no surprise that even with the greatest "libidinous provocation" (an element of the examinatory procedure to which all candidates had a right) of the duly assigned matrons in the case, having one's member handled by a bevy of critics, combined with the pressure of knowing that this particular stiffy is nearly all that stands between the candidate and the loss of half his worldly goods, was almost certain to render even the most hot-blooded male barely able even to present the metaphorical "ashes of a fire which had been lit and had since gone out." A fact which at least one lawyer acting the defence of a client accused of impotence raised before the court:

"Did {he} think himself of sufficiently comely appearance and sufficiently enlivening hand to raise the imagination of a man of modesty?"

Legally prescribed genital examinations for women were just as foul, if not worse. The jurist Anne Robert wrote that as a result of this examination, "the maid abed does feel her parts itch to such a degree that evein if she be a virgin when examined, she would not leave other than corrupted and spoiled." Such was the fervour with which the examiners carried out their duties that, again in Anne Robert's words, "it would be shameful to further speak of this."

But we must, despite the shame, continue the discussion of the female parts, for even where the sexual capacity of the woman was not in question, a genital examination was still carried out as a matter of course. Why? Because if the man that the unfortunate woman married was indeed impotent, then she'd still be a virgin, at least in theory. Therefore it was necessary to discern such a state, not an easy task by any token. Theories abounded. Some thought that after she were deflowered, the maiden's nose would change from a rounded, chubby shape to a more gaunt and pointy mien. Others looked for it in the manner in which she walked. But one system which most tended to agree on was, yes, a genital examination, in order to detect a hymen or the tight, narrow character which, to the minds of the alleged experts, signified that the woman had yet to experience penetration.

And as a direct result of this, also abounded methods by which a girl of dubious virtue might regain the signs of innocence. Indeed, as the surgeon Ambroise Paré commented at the time, such astringents such as the vapour of vinegar, herbal concoctions, and suchlike were perfect for "constricting the privy parts of women which do tend to be too open," with the intent that the "poor ninny" that was her husband "does believe he has had the cream when he has had but the dregs of the pot." As a response to these methods, of course, the examiners came up with methods of removing such astringents and tricks, prompting the women placed in such a quandary to develop or find new tricks, and so on. Even if her privy parts were found to be too distended, this was still not a cast-iron disproof of the impotence allegation. As one trial lawyer put it, a woman's husband might "have done more work with his ten fingers over the past year than thought possible."

And so the case would rattle on, becoming mired in argument and refutation and generally going nowhere, since for every success or failure in a physical test, a clever lawyer could undoubtedly concoct some reason as to why the result should be ignored by the court, for instance, how "at the end of August, the mornings do tend to be chill," or the above-mentioned physical ungainliness of the examiners. Until sooner or later, one party or the other would demand a trial by congress proper. These were undoubtedly harrowing affairs. They would begin with yet more experts examining both partners from the crown of the head to the soles of the feet, to detect the presence of things that might somehow prejudice the outcome of the trial (such as the aforementioned astringents or pieces of foul sorcery) and to determine the state of the genitals beforehand, in order to aid them determine "whether intromission hath occured or no" as Vincent Tagereau described it. After this, it was to bed. Surrounded, of course, by watchful matrons to ensure that the congress was undertaken correctly.

Of course, in such a potential time-bomb as the marital bed of the estranged couple who were wrangling over the annulment of their marriage, things rarely ran smoothly. Tagereau, in the same passage as cited above, goes on to mention how "even if such nonobstant indignities and obstacles he carry on to intromission, this were impossible unless the legs and arms of his partner were to be tied down." Indeed, the wife might complain of her husband attempting to prejudice the trial by "manually dilating and opening her", or the husband might accuse the wife of deliberately hindering the possibility of penetration by whatever means available to her, and suchlike. Not to mention the pressure of the congress being scrutinised by another bevy of experts to determine that all was going according to procedure. Once again, even contemporary jurists and physicians would have expected flaccidity, especially if, as in one case, the wife was taunting her husband that he should "rise to the occasion and for shame prove himself a man." No, by no means could the trial by congress possibly be considered a fair test, as we shall see when we look at the case of the Marquis de Langey below.

So after all that, the experts once again scrutinised the partners to decide upon the occurrence of "intromission" and, of course, ejaculation in the "appropriate orifice". The reports that they then compiled are a brilliant exemple of how the people in question are reduced to a series of descriptions, weights, and measures, and florid metaphor. And, of course, the content of these reports was the subject of yet more legal wrangling, which went on to prove nothing.

The impotence trial, especially when it went to this stage, was, of course, a hotbed of gossip and popular excitation. Which was, as we shall see, to prove its downfall.

III - De Langey and Abolition

The Marquis de Langey was a French nobleman who was, arguably, the best known victim of the impotence trial and his case helped expose not only the complete lack of reliability that such a trial had, but also, by dint of the popular approbation which surrounded his case, exposed the sheer unfairness and mockery of justice that it was.

It took place in 1659, after a marriage turned sour and his wife accused him of impotence. Needless to say, the combination of an attractive young woman and a rich toff provided the masses with a cause célebre to which they could stick their colours - much like the trial of O. J. Simpson in 1996, the question of the Marquis de Langey's impotence provoked much popular debate in pre-Revolutionary France as to which party they supported. Initially they sided with the Marquis, who was, apparently, an expert at making an impact and impressing the crowd, but as things dragged on, support started to shift towards his wife. At this point, de Langey made the mistake of demanding a trial by congress, which proved catastrophic, with tales leaking from the conjugal bedroom of how he, in desperation, prayed to gain an erection, prompting a sharp rebuke from his wife - "You are not here for that!"

The sentence was handed down, and it was that de Langey's marriage be annulled and, as was the custom of the time, he be forbidden from marrying ever again. And so the furore died down, although not until several poorly worded and insulting songs about the man had been composed, which poked but at how "the field was clear" but he still was unable to "plough it". Until, one fortuitous day, a distant relative of the Marquis died, and he gained the right to change his name from de Langey to de Téligny, thus evading the interdict on marrying in future. It was at this point that he shocked all those involved by remarrying and then fathering seven children, all healthy, on his new wife. The upshot of this was that, by 1675, those in the legal establishment saw the trial by congress as an inaccurate, unfair legal procedure and soon after it was abandoned.

Parts of it - and the impotence trial in general - still live on though. Even after the reinstatement of divorce into French civil law in 1884, cases cropped up in which marriages were annulled for non-consummation, and notably, the Appeal Court of Nancy in 1958 accepted a confession of impotence as grounds for annulment of marriage, despite the discrediting of such items almost three hundred years beforehand. Furthermore, even into the 20th Century, Catholic theologians still continue to theorise on what exactly constitutes a valid consummation of marriage, using terms which are not far removed from those that ancient ecclesiastical jurists came up with to generate the trial by congress and all that entailed.

Needless to say, one should still be thankful that it's no longer in force, else the gutter press would be on the gravy train for life and would be given a legal right, nay, duty, to pry into the sex lives of the modern day equivalents of such as the Marquis de Langey.

References:
Damning the Innocent, Pierre Darmon, 1979
Discours sur l'impuissance de l'homme et de la femme, Vincent Tagereau, 1611
WickedPedia - although the French version, mainly to tidy up certain facts and dates.