The Measure of Woman. Marie A. Kelleher

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      This complaint-and-response was all part of the pretrial phase, designed to help the judge formulate the charges around which the actual trial (litis contestatio) would revolve. The trial itself began with both parties taking calumny oaths, that is, swearing that they were litigating for legitimate reasons, not out of malice, and that the testimony and evidence they would present was genuine. The plaintiff then presented his or her charge and the defendant his or her response to the charges, usually in a written form that incorporated the many statements and revisions made during the earlier pretrial phase. In this case, the lieutenant procurator presented a written summary of the articles (capitols) that he would be deciding in the course of the investigation. The articles in Maria’s case (condensed here for clarity) were as follows: that on the specified day, in front of the church of Santa Maria, Bertran Maçquefa, acting in his capacity as justicia, had confronted Maria and told her that she was to be expelled from the town, apparently without reason; that Bertran had publicly denounced her as a whore, saying: “muyre, muyre, la bagassa”; that he had taken her by the hair and thrown her to the ground, striking her many times with both punches and kicks; that his accomplices had also punched and kicked her; that she had run off and hidden in the house of Alexander de Foix, for fear that the men would murder her; that Bertran had gained the office of justicia by corrupt means; that all four men had broken down the door of the house where she was hiding and, on Bertran’s order, dragged her out and continued to beat and kick her and pull her hair in the public thoroughfare before finally expelling her from town. At the conclusion of this summary was Maria’s affirmation that all these things were common knowledge (fama publica) in the town of Cabanes, and beyond.¹⁰³

      Standard civil procedure gave each of the defendants the opportunity to respond to the charges, which, again, all four defendants in this case categorically denied.¹⁰⁴ The next step was for the court to consider the evidence. The day after the charges in this case were read and answered, the procurator’s court heard the testimony of fifteen witnesses—twelve men and three women. Most of them testified to Maria’s public expulsion from town, some to the blows, and more to the fact that they had heard Maria’s loud cries.¹⁰⁵ After this, if the case had documentary evidence—for example, wills or deeds of property sale—these would be entered into evidence.¹⁰⁶ Since, however, the parties in this particular case had no documentation, the lieutenant procurator announced that he was terminating the investigative phase and was sending a written record of the claims and witness statements to both the parties involved and to the procurator in the city of Valencia. At the conclusion of this trial transcript, the lieutenant procurator notes that he is summoning the parties to his court to give their final testimony.¹⁰⁷

      We know from procedural manuals that this phase of the procedure would have been followed by oral arguments, the lieutenant procurator’s deliberations, and his final sentence.¹⁰⁸ But our information about this particular trial ends here: unless there was a procedural misstep or an appeal that would have occasioned further correspondence, the verdict rendered in a lower court would have been transmitted to the parties in the case and possibly preserved in a local archive. Since records from these local courts survive in only very small numbers, we rarely see the final stages of the process in action. We can, however, use this trial, combined with the more general observations on Romano-canonical procedure, to make a few observations, First, we see that the principles of the ius commune had penetrated into the judicial atmosphere, not just in the realm of substantive law but also in matters of procedure. We may note the care with which the lieutenant procurator outlined the steps he was taking, mentioning at one point that he was acting specifically according to the Furs of Valencia¹⁰⁹ and in another place that, according to the Furs, each judge ought to diligently seek out the truth, not only of the facts of the case but also of the quality of the testimony that he receives.¹¹⁰ It is clear, then, that royal judicial officials like Bernat Dalcamora were using Romano-canonical procedure, even if only as mediated through regional or local law codes. Lawyers for plaintiffs and defendants were also wise to familiarize themselves with the complexities of Romano-canonical procedure, not just as an aid to navigating the process laid out for them, but also because they could take advantage of procedural nuances to aid their clients. In many of the cases analyzed in the following chapters, a litigant or his or her representative might use knowledge of procedure as a delaying tactic, leveling numerous exceptions to charges in the pretrial phase and producing long lists of witnesses for the trial phase, along with equally extensive lists of questions to be put to each. In cases involving poor litigants—for example, the abandoned married women treated in Chapter 2 who were suing for return of their dowries—the length of a trial could delay a financial settlement to the point where it became meaningless. In such cases, royal judicial authorities sometimes exercised their option to apply a summary procedure, which deemed the pretrial libellus unnecessary and allowed accusers to bring their complaints orally. Judges in these cases could reject exceptions and other measures introduced to produce delays and could limit both the number of witnesses and the length of depositions.¹¹¹

      We can also observe from the progress of Maria’s case that a woman’s interaction with the judicial system, even if begun in her immediate neighborhood, might eventually take her far beyond her own locality: consider that Maria’s complaint was against a local justicia in the town of Cabanes; that she lodged her appeal with a second-tier royal official in the town of Vall d’Uixó, some thirty miles to the south; and that he in turn reported to the procurator, whose seat lay in the city of Valencia, some thirty miles farther still. This meant that, while an individual woman’s ability to draw on local associations and support networks could be critical (as will be discussed below), the outcome of the case, as it moved progressively farther from a litigant’s home territory, would come to depend ever more heavily on how well she could adapt her legal narrative to the conceptual vocabulary and unwritten assumptions of the law and its agents.

      Women who entered into criminal court underwent an experience similar to those undertaking civil litigation. With the exception of Valencia after 1321, the same courts heard both civil and criminal cases during this period,¹¹² though different jurist-consultants might specialize in different types of cases, especially in larger jurisdictions that could support more than one judge. Even procedure could be similar: although the Roman law of the Corpus iuris civilis distinguished between civil and criminal procedure, early canon law made no clear distinction between the two. Later jurists agreed that a more stringent standard of proof needed to be applied in criminal cases; otherwise, differences in the actual ordo were slight, and even when medieval commentators began to draw distinctions between criminal and civil procedure, there were effectively few differences until quite late.¹¹³

      Although there were a number of similarities between the criminal and civil procedures in the courts of the Crown of Aragon, thirteenth-century procedural developments led to at least one significant difference: by the reign of Jaume II, litigants in criminal cases might find themselves involved in cases tried under the procedure known as inquisitio. The word “Inquisition” is most commonly associated with Church-sponsored programs in the medieval and early modern periods to find and extirpate heretics and relapsed converts from Judaism.¹¹⁴ But we might also understand inquisition, uncapitalized, more generally: as a set of legal procedures developed during the high and later Middle Ages to prosecute crimes for which there was insufficient direct evidence to produce an accuser.¹¹⁵ Under normal medieval procedural rules, prosecuting certain crimes could be difficult, as courts could find a defendant guilty only if either he confessed to his crime or if an accuser could provide “full proof” consisting of the sworn testimony of two witnesses who had either seen or heard the crime being committed.¹¹⁶ Procedural law as taught in the law schools of the high and later Middle Ages required proof “as clear as the light of day” for a conviction in criminal trials, and only confession of the accused or uncontradicted testimony by two witnesses to the crime met this requirement.¹¹⁷

      While the foundational principles for inquisitio СКАЧАТЬ