The Measure of Woman. Marie A. Kelleher
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there was sufficient fama that someone had committed a crime.144 That is, fama could decide matters of law (i.e., whether there was a case to be made) but not matters of guilt or innocence.145
In order to establish that a set of circumstances was indeed common knowledge, inquisitors questioned witness groups that were as diverse as possible—not only going outside litigants’ ties of kin and obligation to avoid exceptions but going so far as to incorporate people from various neighborhoods, families, sexes, and social ranks (though nobles would likely have been less important in many cases since their knowledge rarely extended to everyday village business). In the Garret/Gamiça murder case mentioned earlier, the long list of fifty-three witnesses questioned over the course of three days included four notaries, one surgeon, one Jew, and twelve women.146 Inquisitors might also call in experts to introduce specialized knowledge into the testimony. For example, the four notaries may have represented the sum total of the notaries in a town as small as Alcira, but because people called in notaries any time they needed a contract or agreement drawn up, both judicial officials and laypeople might have believed notaries’ knowledge of the community to be more extensive than that of the average community member. Additionally, because a notary might have received formal legal training,147 one can well imagine that their fellow legal professionals might regard their testimony as more reliable. Notably, three of these four notaries were among the first six witnesses called, preceded only by the two eyewitnesses to the events surrounding the murder.148 In addition to the notaries, another witness in the same case, Bernat Estefán, contributed his own brand of specialized knowledge: although many witnesses had claimed to have seen the victim’s wounds and speculated that those wounds had been made with a sword or dagger of some kind, Bernat Estefán told the veguer’s court that, after having found Bernat Gamiça’s murdered body under the bed, he had picked the victim up by the hair and looked for a pulse but, not finding one, determined that he was dead. Asked how Gamiça seemed to have been wounded, the witness replied that it was probably a sword or dagger of some kind that made the wound. Unlike the other witnesses, however, Estefán asserted that this was no mere guesswork, telling the judges that he was a surgeon and could tell such things by touch.149
The use of expert witnesses such as this one illustrates the intersection of the specialized knowledge represented by lawyers and the community knowledge represented by ordinary witnesses. We should not, however, assume that expert involvement—whether from male legal officers or male professionals called in to provide professional expertise—meant that the courtroom excluded women’s voices. In fact, the presence of a dozen women in the group of people questioned also reflects the importance of gender in the construction of public fama. Diversity of witness lists could establish that knowledge was common to all, but the inclusion of women also reflects an understanding at the time that some types of knowledge may have been gendered: later medieval courts seem to have regarded women as authorities on matters of birth, death, kinship, marriage, and sexuality, as well as the household possessions of neighbors, with whom they might often dine as guests.150 In the Garret/Gamiça case in particular, the first two witnesses questioned were women. The reason for and placement of the first—the unfaithful wife who watched her husband burst into her rooms, threatening her lover with a dagger—is obvious. But the second witness (and the one who gave the second-longest statement) was also a woman: Bevenguda the wine-seller, whose regular visits to the couple’s home to deliver wine and at times assist in some household tasks had made her a frequent witness to the wife’s infidelities, to the point where Gamiça had felt comfortable asking her where his married lover was and whether her husband had gone out.151
While knowledge such as Bevenguda’s might not rely specifically on gender, in other cases it did. This was especially important in cases touching on sexuality and the body. In some cases, this might mean bringing in women to test a couple’s claim of male impotence as grounds for marital annulment.152 In others, women might be asked to verify a young woman’s virginity, as was the case when, at the request of the father of an alleged rapist, the sub-veguer of Besalù pressed into service three respectable women: Maria, daughter of the late Ponç de Salevaya, Sibila, wife of Berenguer Mir of Girona, and Guillema, widow of the butcher Pere de Gradu of Besalù. These women, under the supervision of the veguer’s judge Arnau de Batet, were charged with conducting a thorough physical examination of the purported victim, Ermessenda Sabater, to determine whether she was still a virgin.153 The case documents do not specify whether the panel’s composition of unmarried woman, wife, and widow was the result of a deliberate choice, but this selection does at least suggest not only that women had access to certain types of knowledge, but also that the courts may have recognized that different types of women would bring different knowledge to bear on a given case.
In general, we can regard fama as a mixture of social fact and legal fact, consumed by the same people who produced it, as well as by the law courts. There was no single causal connection between fama-as-reputation and famaas-legal status; rather, there existed a complex link between the two, mediated by authoritative legal texts and by the traditions of learned jurists. Laypeople might construct distinctions of reputation that did not always match up with those of learned law,154 but what transformed social fama into legal fama was its constraint within parameters outlined by legal professionals.155 That is to say, reputation carried legal weight only when it was translated into terms actionable at law.
The growing specialization and professionalization of the law played an important role in this process of translation. By the time that the cases discussed in this and the following chapters came to court, a litigant, whether male or female, had to navigate a tortuous path through not only the complicated and overlapping jurisdictions of the Crown of Aragon but also through the morass of procedural law. The later Middle Ages saw a proliferation of specialized interpretive guidebooks, written by university-trained legal scholars and meant to aid legal practitioners in navigating their way through the complexities of Romano-canonical procedure.156 Specialized procedure also required specialized legal professionals: advocates to advise both plaintiffs and defendants on the law, and judges and legal experts to sort out the legal nuances for the veguers, batlles, justicias, and assorted other judicial officers who were not themselves trained in law. Considering how complicated the law had become, we should not be surprised to see female litigants operating in court with the assistance of procurators, advocates, and other legal representatives. While some of this mediation of women’s participation in their own litigation may have been the result of gendered ideas about women’s role in the public forum of the courts, the only legal bar in the ius commune on women’s participation was that they should not be compelled to represent others in court, and even this rule had its exceptions. While gender undoubtedly played a role in women’s frequent recourse to procurators and other male representatives, the very complexity of the court system probably also had a lot to do with it: as James Brundage has pointed out, by the later Middle Ages (much as in our own time), it would be a foolish business indeed for an untrained layperson to attempt to navigate the court system unassisted.157 On the other hand, the procedural innovations that relied on fama meant that community knowledge about both events and people would take on increasing importance, giving laypeople, both male and female, a voice in the outcome of a legal case, thus making them participants in the shaping of women’s legal identity.
Conclusions
The later medieval period in the Crown of Aragon was a time of great ferment in the culture of the learned law. Spurred in part by the increasing number of jurists trained in the ius commune in the first half of the thirteenth century, the count-kings of the Crown of Aragon sponsored new codifications of regional law, drawn up according to the paradigms of Roman and, to a lesser degree, canon law. Although the penetration of the new law was by necessity incomplete—monarchs had to contend with persistence of local custom, seigneurial jurisdictions, semiautonomous Jewish and Muslim communities, and even antiregalian uniones in Aragon and Valencia—by the end of the thirteenth century the ius commune formed the fundamental underpinning of both substantive and procedural law throughout most of the Crown territories.
As the next chapter will show, both Roman and canon law, like law codes throughout early and high