The Measure of Woman. Marie A. Kelleher

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СКАЧАТЬ much more obvious contribution of the ius commune to the gendered legal assumptions of the medieval law codes of the Crown of Aragon is the principle of female weakness or incapacity. The Furs of Valencia state this principle most baldly when they mandate the need to protect women’s marital property, asserting that a husband could not encumber the dotal goods without his wife’s consent because “the fragility of the female sex should not be turned against her or result in the diminution of her goods.”⁷⁴ The assumption of female vulnerability also influenced penal law: the Fueros of Aragon, “desiring to have compassion for the female sex,” stipulated that a woman might not be imprisoned for any debt or fine arising from a civil offense, unless she had first liquidated her goods in an attempt to pay off the debt.⁷⁵ The Furs of Valencia are even more specific on the issue of penal law and gender, opposing the imprisonment of women except for the gravest crimes. If royal officials had to imprison a woman, the Furs recommended that she be housed separately from the male inmates. But the Furs also urged judges to consider substituting corporal or pecuniary penalties for imprisonment,⁷⁶ suggesting that the fragility or weakness alluded to in the law codes was based on an assumption of women’s sexual vulnerability, rather than on a reluctance to administer punishment that would be detrimental to their physical well-being.

      These assumptions of female dependence and fragility dovetailed with the assumption of natural womanly modesty. In the Code of Tortosa, we see an echo of a principle present in both Roman and canon law, that women should not be compelled to appear personally in court for any contract that they signed with their husbands, whether or not their husbands were present.⁷⁷ The Tortosa law contains no specific or even implied reference to matronly modesty, but it seems likely that this law, so similar to its Roman and canonical antecedents, was adopted under similar assumptions, or at the very least with the Roman precedent in mind.

      The principle of female dependence extended to social status as well. The Constitucions of Catalonia, to take one example, linked a woman’s social condition to that of her husband. If a woman had no husband, past or present, her status was determined according to that of her nearest male relative.⁷⁸ This does not, however, mean that women had no legal personality of their own. One Valencian statute stipulated that women were not to be held responsible for their husband’s crimes,⁷⁹ implying an understanding that spouses had independent legal (and moral) agency. But as Thomas Kuehn has pointed out, even though we may take as a given that legal ideas of female subordination did not preclude female legal personhood, a medieval woman’s legal identity was still in many ways contingent on an assumption of male headship of women.⁸⁰

      Creating Legal Discourse: Lawyers, Litigants, and Neighbors

      The ius commune thus added not one but many elements to the question of women’s legal personality in the Middle Ages. It was not monolithic; rather, it reflected an ongoing debate about women’s roles in the society that produced those legal traditions. This debate would be carried on in the later medieval societies that adopted those traditions and reflected in the rulings and writings of the ius commune-trained jurists who adjudicated cases involving women; it was also reflected in a broader legal culture that female litigants themselves helped to shape.

       The Courts

      Our analysis of women’s interaction with the gender system encoded in the ius commune and the Iberian codes it inspired might well begin at the courtroom door. But which court? By the beginning of Jaume II’s reign, female litigants (or men litigating against them) in the Crown of Aragon were confronted with numerous options. In many cases, the best choice would not have been a secular court at all but the local ecclesiastical court. Canon law, especially sacramental law, touched on the daily lives of all medieval Christians, and since marriage was one of the most heavily regulated sacraments in the later Middle Ages,⁸¹ a large number of cases involving women and marital matters—especially petitions for ecclesiastical separation—would not have appeared in the records of the secular courts. On the other hand, traces of these cases appear in the ancillary suits over sex, violence, or property that were the province of the secular courts. Furthermore, it would be a mistake to conflate women’s litigation with marriage litigation. As we shall see in the following chapters, while disputes or agreements with husbands often formed part of cases involving women, marriage per se was not always central to the case, nor were all female litigants married. Moreover, in cases not directly touching on matters of sacraments, theology, or religious practice, the secular courts of the Crown of Aragon claimed primary jurisdiction, regardless of the sex of the litigants.⁸²

      For all three major territories of the Crown of Aragon, the ultimate arbiter of secular justice was the king himself. The highest court in the joint realms of the Crown of Aragon was the royal Audiencia, an assembly celebrated every Friday.⁸³ Justice in the Audiencia was administered personally by the king or, if he was away, by his lieutenant-general.⁸⁴ Litigants with enough money or influence might have access to the Audiencia as a court of first instance, but the Audiencia also served as the final court of appeals for lower courts in all three realms.⁸⁵ Additionally, records indicate that evocation—the practice of a superior court unilaterally “calling up” a case from a lower court—became more common during the reign of Jaume II. Royal authorities’ stated reason for evoking lower court cases was the desire to safeguard the correct administration of justice, especially in cases where one party was at a disadvantage. To this end, the Audiencia declared itself protector of dependents, widows, the poor, and other miserabiles personae—a category interpreted broadly to include students, travelers, merchants, and others whose expatriate status meant that they lacked the full protection of local law.⁸⁶ In addition to the Audiencia’s regular meetings, the lieutenant-general also held a special hourlong session every afternoon for cases involving minors, widows and the poor, and civil cases involving sums of fewer than twenty lliures (400 sous).⁸⁷ These special jurisdictions meant that a substantial body of cases involving women in particular could, at least theoretically, end up being heard in the highest court in the land.

      It was, however, a general principle of jurisdiction that both civil and criminal cases should initially be tried in their own locality. In earlier centuries, this probably would have been a seigneurial court or the court of a locally elected official,⁸⁸ but by the late thirteenth century, it was likely that a woman who lived near a town of any moderate size in the Crown of Aragon would be appearing in the court of a royally appointed judicial representative. In the counties of Catalonia, a litigant’s first stop, if he or she lived in the confines of a town or village, would probably be the court of the batlle.⁸⁹ By the reign of Jaume II, the batlles were judicial officials who represented royal interests in a given town or village, usually as a counterweight to a locally elected council. The batlle was judge-ordinary for his town or village and the immediately surrounding territory, and was empowered to adjudicate both civil and petty criminal cases, as well as cases between Christians and Jews.⁹⁰

      The batlle could not, however, judge persons of high status or cases that involved bloodshed (either in the commission of the crime or its punishment). For these cases, as well as those originating outside the geographic boundaries of a batllia, a litigant’s court of first instance would be the court of the royal official known as the veguer. The vegueries encompassed broader swaths of territory than the batllies, generally corresponding to the boundaries of older counties or seigneurial jurisdictions. The veguer’s competence was also conceptually broader than that of the batlle, comprehending all types of criminal and civil cases, litigants of high and low estate, and imposition of fines, corporal punishments, or imprisonment. In essence, there were few limits to the type of cases the veguers could hear, which rendered them the most important source of secular justice in their territories.⁹¹

      Both veguers and batlles might be assisted in their duties by semi-independent lieutenants (sub-veguers and sub-batlles) who reported to them but who were empowered СКАЧАТЬ