The Measure of Woman. Marie A. Kelleher

whether they were unmarried women, wives, or widows. What the ius commune added to the legal landscape was a conceptual vision of “woman” as a broad legal category. The overarching ideas about women in the ius commune—that they were, as a group, vulnerable, weak, or naturally modest, and thus in need of male protection in their dealings in the public sphere—permeated both Roman and canon law. Yet even during the centuries that these gendered legal assumptions were taking shape, they were the subject of some debate and may have been honored as much in the breach as in the observance.

      Catalano-Aragonese jurists, legislators, and litigants inherited these overarching ideas about women’s legal nature, but it is only fair to assume that they must have approached these sweeping assumptions with some of the same ambivalence as their predecessors. The inherent contradictions of the legal culture as it related to women are perhaps most evident in the field of procedural law. Women’s supposed incapacity was belied by their willingness to go to court to defend their own interests; medieval jurists’ frequent recourse to women’s testimony demonstrates that the written law’s image of women as vulnerable and incapable legal beings was not always reflected in practice.

      Yet we cannot pretend that Romano-canonical ideas about women in general had no impact on women’s lives. Nor should contradictions be oversimplified to a contest between written law and reality of women’s experience, or even necessarily read as women subverting the law. Jurists and laypeople alike seemed quite capable of working with the contradictions that were built into the system. In fact, embracing the gendered conceptual vocabulary of the ius commune was essential to the legal strategies of female litigants in this period. Returning to the case outlined at the beginning of this chapter, Ermessenda de Cabrenys’s procurator tried to use gendered legal ideas to exempt his client from the obligation to appear in person to answer charges brought against her. Although this defense strategy ultimately proved fruitless (both the veguer and his judge-ordinary insisted that Ermessenda appear in person), it seems at least reasonable in the context of the Roman law revival of the high and later Middle Ages. There was, however, a catch for women like Ermessenda who might choose to employ such a strategy or have it employed on their behalf: Roman ideas about the legal status of the materfamilias, like many other later medieval legal ideas about gender, were firmly bound to the Roman and ecclesiastical gender systems that helped to produce them, and medieval legal representatives had no cause to try to divorce the one from the other. A Roman praetor might have felt comfortable with the language that Berenguer used in defense of his client Ermessenda, referring to her “matronly modesty” (matronalis pudoris)¹⁵⁸ and saying that the veguer’s order that she present herself personally in his court was “contrary to the modesty and shame of females” (contra pudorem ac verecundiam feminarum)¹⁵⁹—all of which hearkened back to his opening argument that it was inappropriate for a materfamilias to mix with the crowds of men at the law courts.¹⁶⁰ Ermessenda’s procurator thus used a provision of Roman law with a specific gender meaning—that the nature of women made it inappropriate for them to be forced to appear in the implicitly male world of the law courts—in order to assert his client’s immunity; this, despite the fact that Ermessenda’s previous business dealings had already proven her quite capable of undertaking legal action on her own behalf.

      Ermessenda de Cabrenys’s case before the legal authorities of Girona is not only located at the intersection of law and gender but also illustrates the complexity of the relationship between the two. The reception in the Crown of Aragon of the Roman and canonical legal traditions that formed the ius commune added an element to the interplay of law and culture that would not have been present a little over a century earlier. Yet that element was not monolithic; rather, it encapsulated several ideas about gender as it related to women’s standing before the law.

      Jurists, litigants, and their representatives thus had not one or two gender ideas to choose from but many. As we shall see in the following chapters, some of these were applied to women in general, while others differed according to a woman’s life stage, marital status, and reputation within her community. Social standing (where the documents allow us to discern it) could make a difference as well: Ermessenda de Cabrenys’s position within the community and her ability to hire highly trained legal counsel mean that the ideas outlined in this chapter are more explicit in her case than they might be in others. Yet we might assume that this same set of often contradictory ideas ran through much of the later medieval jurisprudence involving women. The combination of increasingly complex substantive and procedural law with the importance of fama meant that many different types of knowledge went into the formation of both a legal identity and a court’s verdict. How the interaction of those ideas played out often depended upon the particulars of a given case. If we wish to understand fully how the interaction of law and culture reflected or influenced women’s situation in both law courts and life, we need to take into account not only written and received law but also the larger discourses of community reputation, social networks, and a woman’s relationship with the men in her world—variables that are the subject of the following chapters.

       Chapter 2

      The Power to Hold: Women and Property

      The conjugal life of Sibila and her husband Pere de Sala ended badly. In 1329, in the first of what turned out to be a series of bitter court battles, Sibila alleged that her husband had abandoned her and their daughter and had maliciously refused to support either of them financially; she was, therefore, suing her husband for the financial support owed her.¹ Pere, the batlle of the Catalan town of Borredà, lodged a counter-complaint that his wife was a notorious adulteress—a circumstance that would have legally absolved him of any obligation to either her or her daughter. As far as Pere was concerned, his wife had forfeited any claim on the financial support to which her dowry should have entitled her, and she and her child were on their own.²

      This chapter will focus on the gendered relationship between women’s economic position and the law. Unlike the much-studied phenomenon of the medieval English common law’s feme covert (an adult woman whose legal personality was “covered” by her spouse),³ women in the Crown of Aragon maintained legal personalities distinct from those of their husbands, fathers, and other male relatives. This does not mean, however, that they were equal in the eyes of the law. In the area of property in particular, the romanizing law codes of the later medieval Crown of Aragon assumed a distinctly unequal relationship between men and women, with all economic decisions being made by the male head of household. This particular assumption is implicit in all written law about women’s property rights and, as such, colored the existence of medieval women.

      Questions surrounding women’s access to and control of property in the Middle Ages have been the subject of a great deal of scholarship, generally undertaken with a view to describing the social effects of gendered property law.⁴ This chapter asks a slightly different set of questions, revolving around the legal assumptions that underpinned both laws and litigation and the way that shifts in these underlying assumptions produced changes in women’s ability to control their economic lives. Beginning with a survey of law codes from throughout the Crown of Aragon and samples of dotal contracts from judicial districts around the northwestern Mediterranean, I will briefly outline the way that this particular society conceived of women’s relationship to their dotal properties. Having established the economic landscape of the later medieval household as background, the core of this chapter will examine litigation between women and their husbands or husbands’ families regarding dotal properties, the outcome of which often depended upon conflicting interpretations of legal principles that had been developed more than a millennium earlier during the time of the Roman Empire. Women’s property litigation reveals an internal contradiction in Catalano-Aragonese law, which sought simultaneously to protect women’s property rights and to enforce a patriarchal household structure that gave the male head of household full administrative rights over and responsibilities for the family economy. An investigation of the ways in which jurists, family members, and women themselves negotiated between these two imperatives not only adds to our understanding of women’s historical relationship to property law, but also shows how women adjusted their litigation strategies to engage with the gendered assumptions that underpinned those laws.