The Measure of Woman. Marie A. Kelleher

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СКАЧАТЬ male head of household’s near-absolute rule over the women in his household). Thus, the later medieval Italian cities were the scene of a collision between Roman law ideas of female incapacity, which restricted (though did not eliminate) a woman’s public activities while maintaining her essential legal personhood, and the municipal statutes, shaped as they were by the interests of the urban patriciate, which tended to focus not so much on female incapacity or vulnerability as female absorption into the patriarchal casa, with all the restriction of legal personhood that entailed.¹¹

      The situation of medieval Italian women with regard to the law illustrates how individual actors within a given legal system might exercise choices about which part of the legal framework available to them made the most sense in a given situation. Further north, in France and the Low Countries, the most important competition between legal systems (and the gendered logics they encapsulated) was the rough division between customary law in the North and traditions closer to Roman law in the south. The gendered rhetoric of both legal cultures generally presented women as inferior to men, though the customary law of the north (like the Lombard law of northern Italy) tended to place greater restrictions on women’s legal personhood than did the Roman legal traditions of the South. By the end of the Middle Ages, Roman law had effectively penetrated the legal systems of the North, and historians of early modern France have noted that while jurists echoed Roman-law rhetoric in their tendency to cite women’s weak and frivolous nature, those same women continued to exercise important control over property and rights of guardianship, especially as widows or even never-married women. The root of a married women’s real (as opposed to theoretical) incapacity lay less in the fact of her biological sex than in her married state and the assumption that she was therefore a subordinate member of a household with a single unambiguous—and usually male—head. But these legal ideas about the relative capacities of married women drew their strength from the individual women, men, and families shaping choices within the framework of the law.¹² A similar situation existed in the Low Countries in the later Middle Ages, when members of middling households had the opportunity to choose between one marital property regime based in customary law that emphasized the household as a unit, and another based in Roman law that was contractual and assumed a separation of martial goods. In both regions, as in the Italian cities, litigants and judges had at least two gendered logics to choose from and, as Martha Howell has noted in her study of later medieval Douai, the way that they went about making these choices shows us that gender “is not solely the product of a particular legal discourse but of multiple and competing discourses, and it thus cannot be reduced to the personal attributes necessary to a single role defined by law.”¹³

      This brief overview of the law of the Crown of Aragon’s neighbors demonstrates that, during a period of legal transition such as the later Middle Ages, the relationship between law and its consumers was not a one-way street, as choices made in the process of litigation actively involved medieval people in the shaping of legal culture. Thus, we cannot credit or blame any new legal system, even one as pervasive as the ius commune, for the later medieval gender system: presented with options of legal systems and gender conceptions, jurists, legislators, and litigants would choose the one that best embodied the “social logic” of their time, place, and particular circumstance.¹⁴ However, given the frequency with which late medieval legislators, legal professionals, and even laypeople echoed the gender ideas of Roman and canon law in actual litigation, it would be foolish to discount the influence of this new set of legal developments.

      Accordingly, the argument in the following chapters draws primarily on two types of sources: law codes, which told people how to behave, and legal case records, which show us how people represented their behavior to others. In the first category, I depend largely on the secular law codes developed and promulgated in the Crown of Aragon during the twelfth and thirteenth centuries. In the century and a half after the unification of the kingdom of Aragon and the counties of Catalonia in 1137, Roman-influenced law codes appeared in Teruel (1176), Lleida (1228), Valencia (1238), Aragon (1247), and Tortosa (1273), among others.¹⁵ But codes such as these were not the only sources of law in the Crown of Aragon. By the thirteenth century, the Catalano-Aragonese jurists commissioned to draw up these codes and the judges making rulings based on them would have had formal training in one of the legal faculties of one of the nascent universities, most likely Bologna, Montpellier, or (after 1300) Lleida.¹⁶ As I discuss in Chapter 1, this training would have consisted of a combination of Roman law (the Justinianic Corpus iuris civilis) and canon law (the Corpus iuris canonici), collectively known as the ius commune. Thus, to understand the legal culture of the later medieval Crown of Aragon, we must look not only to the branches of the regional law codes but also to the vast culture of the ius commune that formed their roots.

      Taken together, these two types of legal sources—local or regional codes and ius commune—provide us with a rough picture of the assumptions (including gender assumptions) that legal professionals brought to the table when they made rulings in individual cases. The prescriptive sources are, however, only one part of the larger legal culture. The argument of this book rests on the vital interaction between the gender assumptions encoded in the law and those of ordinary people as revealed in records of actual legal cases. Several dozen of these cases are drawn from regional archives of royal judicial officials and municipal governments. But the most important source for secular case material, especially for the period before the Black Death, are the vast collections of the Archive of the Crown of Aragon, located in Barcelona. This archive’s processos en foli and processos en quart sections contain numerous records of civil prosecutions and criminal inquests, many running to several dozen double-sided pages or more. I have used these wherever possible, but relatively few of these processos date from the early fourteenth century, and even fewer of these record disputes in which a woman was one of the primary litigants. On the other hand, the Chancery section of this same archive preserves a rich source for this earlier period: hundreds of bound registers (each comprising hundreds of double-sided folio pages) of royal correspondence on matters administrative, fiscal, and judicial, written from the king or the infante (prince) to a local official regarding a specific issue.¹⁷ Some of these letters are rescripts—that is, responses to a legal query that no longer survives. Others were correspondence initiated by the king or infante himself in response to a complaint from a third party. In all cases, the letters contained in these registers are brief, usually ranging from one-half to one-and-a-half folio pages. Among the correspondence relating to judicial matters, there are a few royal pardons for persons convicted in lower courts or safe-conducts for persons accused or convicted of noncapital offenses, but most common are royal orders directing a royal judicial official at the local level to investigate a particular accusation or punish a particular offense. These orders were sometimes prompted by a personal appeal from a defendant or his or her legal representative, or they might have originated in the royal courts themselves, as ex officio prosecutions, sparked by a general rumor of a crime or civil offense.

      I have selected the particular cases that appear in this book because they involve women in some significant way, usually either as plaintiffs or defendants but sometimes as witnesses whose testimony touches on matters of gender. The following pages show the extraordinary breadth of the matters dealt with in these records and can only hint at how rich a source they constitute for future studies of the daily lives of women and men in the medieval Crown of Aragon. But the nature of these sources means that there is also a great deal left out. First, only in rare instances can we pinpoint the social standing of the women involved. The occasional document might refer to a woman’s membership, either by blood or by marriage, in a local aristocratic family; even more infrequently, the documents refer to her occupation, usually as a member of some craft trade. But the vast majority of these documents identify women only in relational terms, as wife, daughter, or widow of a given man. Except in the few cases where the document mentions something about that man’s occupation—usually an artisan or craftsman, but sometimes also a local bureaucrat or a member of the minor local aristocracy or military elite—we can infer very little about the socioeconomic standing of the woman herself. The best we can do is to chart a broad swath, based on the nature СКАЧАТЬ