Wednesday, November 18, 2009

Sweeny on ASLH panel: Exceptional Women in the Medieval Courtroom

Our next ASLH post comes from JoAnne Sweeny, Ph.D. candidate, Queen Mary University of London, and Westerfield Fellow, Loyola University New Orleans College of Law (and my former student at USC Law School). From Sweeny:

Exceptional Women in the Medieval Courtroom

This panel focused on the unique place women had in the court room during the Middle Ages in Spain, France and Italy. Each paper presented a difficult legal situation involving women that required courts to adapt or change the law in order to properly address the issue.

Marie Kelleher (California State University, Long Beach) presented a paper entitled “Facing off from the Margins: Female Slaves and Jews in Medieval Procedural Law,” which focused on a single, though fascinating, case in late medieval Barcelona that presented a tricky procedural issue for the courts due to the limitations placed on women who witnessed a crime. In the case of adultery at issue in Professor Kelleher’s paper, the only two witnesses available were women, who were traditionally prohibited from testifying in criminal cases. Faced with a dilemma of two substandard witnesses who contradicted each other’s testimony, the judge in the case was forced to innovate by having each woman testify while looking the other witness in the eye, wherein it was hoped that the liar’s body language would give her away. Professor Kelleher concluded that this “hard case” is an example of how judges were willing to innovate with regard to procedural rules, particularly because Barcelona had large slave and Jewish populations, which meant that this issue was likely to reoccur.

Jamie Smith (Alma College) presented a paper entitled “Avoiding Great Harm, Danger, and Absurdity: Legal Protection for Wives with Absent Husbands.” This paper concerned the legal plight of Genoese wives whose husband’s went on long naval voyages. Wives were unable to conduct business, even regarding their own property, without their father and husband’s consent. Professor Smith showed how the law evolved to allow women increased freedom to engage in monetary transactions costing more than ten lire, providing they had other proper witnesses that would testify to their husband’s absence and approval of the transaction. A hardship clause was also introduced to allow a woman to manage her husband’s affairs if he were gone for more than three years. According to Smith, these changes in the law show that the legal system was willing to accommodate women as well as the larger community, which wanted to encourage men to embark on these profitable naval journeys.

Sara McDougall (Yale University) presented a paper entitled “Abandoned Wives and the Law in Late-Medieval Champagne.” Using court registers, Professor McDougall was able to reconstruct detailed and fascinating accounts of the private lives and legal travails of three women whose husbands went missing but later returned to find their wives had remarried. At first, the law accepted a woman’s belief that her husband was dead but later changed to require evidence, which, depending on the circumstances, could be impossible to provide. These case studies show how ecclesiastical courts attempted to police marriage in the midst of the chaos resulting from the 100 Years War.

Susan McDonough (University of Maryland, Baltimore County) provided unifying commentary by noting that these exceptional women were not truly exceptional because they represented reoccurring problems within the legal community. She also focused on the importance of community perceptions and legal legitimacy for each paper.

Among other things, commentators brought up the point of the difference between legal courts and ecclesiastical courts and how the two might combine in the presenters’ cases.