The Measure of Woman. Marie A. Kelleher

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 dated back to at least the Roman Empire, the medieval elaboration of inquisitorial procedure was largely a response to the “occult” crimes of clerical indiscipline, especially clerical sexual incontinence.¹¹⁸ Since these crimes were hidden, their prosecution was initiated not by a libellus but by denunciation, persistent rumor, or open scandal, and prosecuted ex officio by the court officials themselves, who assembled the evidence, interviewed witnesses, and interrogated the defendant. A small group of decretals by Pope Innocent III from around the year 1200 laid the foundations for the medieval version of this procedure. The first, Inter sollicitudines nostras, asserted that, even if no complaining accuser had come forward, a combination of infamy, open scandal, and seriousness of the crime could require that a clergyman suspected of an offense undergo a canonical purgatio.¹¹⁹ The second, Licet heli, specified ways in which specific procedures could be matched to different types of complaints and when and how to launch the inquisitio. In the cases of public infamia, where the crime was serious enough that a guilty verdict would result in canonical sanction, questioning of witnesses as to the truth of the rumors could—and should—be undertaken.¹²⁰

      Even though inquisitio remained an extraordinary procedure,¹²¹ it made the transition from ecclesiastical to secular courts during the thirteenth century, where it was employed when no direct witness could be found, despite a persistent rumor of criminal activity. This made inquisitorial procedure ideal for prosecuting certain types of criminal litigation involving women, such as rape and adultery. However, although the essence of inquisitio was the fact that it could be launched ex officio, without a complaining witness, we should not understand “inquisitorial procedure” as a relationship strictly between the judge and the accused. Licet heli also clarified that the judge was not the accuser; rather, it was the rumor itself that “accused” the perpetrator. The trial was, in fact, initiated by public opinion, and the first job of the judge was to conduct a preliminary inquest to establish the truth of the rumor, before he could proceed to investigate the charge itself. Licet heli thus distinguished between a preliminary investigation to establish that a prosecutable offense had been committed (the inquisitio famae) and the actual inquest (inquisitio veritatis).¹²² This distinction would be clarified in canon eight of the Fourth Lateran Council, Qualiter et quando, which treated the question of which method and at what point a prelate must take the initiative to investigate—and possibly punish—his subordinates.¹²³ According to Innocent IV’s (r. 1243–54) gloss on this canon, in order for an inquisitio famae to lead to an inquisitio veritatis, the judge was required to find at least two upstanding community members to testify to the existence and extent of the rumor.¹²⁴