The Measure of Woman. Marie A. Kelleher

work with.⁵⁹ Some gender ideas in the Corpus iuris canonici overlap with those of the Romans. Take, for example, the idea of female fragilitas and imbecilitas. Gratian, while he does not use these precise words, employs the same idea, declaring that “man (vir) is so-called not because of his sex but because of his virtue (virtute) of soul; woman (mulier) socalled not because of the sex of her body but because of her softness (mollitie) of mind.”⁶⁰ However, Gratian and other canonists were less concerned with any neo-Aristotelian ideas about women’s inborn qualities than with biblically founded ideas that reinforced a gender hierarchy that reflected a divine plan. According to Gratian, women’s connection to Eve’s original sin placed all women in a condition of servitude.⁶¹ This condition, however, is phrased less as a punishment than as the natural order of things: Gratian cites Paul’s analogy between man’s headship of woman and Christ’s headship of the church⁶² and shrugs off Old Testament examples of women in positions of public authority as irrelevant because the “old law” had been replaced by the perfectione gratiae brought about by Christ’s sacrifice, so that many old things no longer applied.⁶³ Although Gratian argued in at least one place for the complementarity of the sexes by asserting that “man is the head of woman; woman the body of man,”⁶⁴ his belief in the self-evident headship of male over female was further reinforced by the decretists who glossed his work: Johannes Teutonicus (ca. 1170–1245) noted that woman was created from man and should therefore be subject to him,⁶⁵ and Rolandus (fl. late 1150s) deemed women’s subordinate status to be “manifestly proved.”⁶⁶

      The decretals contained similar assumptions about women’s basic nature. An example from the early thirteenth-century chancery of Pope Innocent III may serve to illustrate the point: in his opinion on a case involving a female monastery in the diocese of Utrecht, Innocent mentions the fragilitas of the women in question. In the context of the decision as a whole, this is a passing mention, offered without comment,⁶⁷ suggesting that female weakness or incapacity was even by the early thirteenth century taken as a matter of course by men trained in the law. These assumptions were especially critical when the particular decretal concerned women’s actions in court. There seemed to be some debate, for example, as to whether it was legally permissible for women to give testimony in ecclesiastical court. Gregory IX, in his Liber extra, cites Isidore of Seville’s threefold categorization of who might and might not serve as legal witnesses:

      Regarding witnesses: condition, nature, and manner of life should be considered. Condition: that they be free, not slave, because sometimes a servant may be pressured by his master to suppress the truth. Nature: that they be male, not female, for females always produce varying and changeable testimony. Manner of life: if guiltless and irreproachable of deed. But where a good life is lacking, trustworthiness is found to be wanting.⁶⁸

      Isidore’s dismissal of women’s testimony as “varying and changeable” may hearken back to classical Roman notions of female levitas, thus reinforcing what may have been at the time only a minor note in the Roman legal assumptions about women. Yet canonists also recognized that there were certain situations in which a woman’s testimony in particular could be not only valuable but even indispensable—in cases concerning the conduct of local clergy,⁶⁹ for instance, or to discern impediments to marriage.⁷⁰ And Pope Boniface VIII (r. 1294–1303) seemed to take for granted that women would regularly be giving testimony when he specifically stipulated that women could not be compelled to appear personally in court, whatever the cause, and that if their testimony was necessary, they might pay the expenses of a judge to go to them and take their testimony in situ.⁷¹

      We might note that Boniface’s opinion is predicated on a specific gender assumption of matronly modesty; he begins, “Women, for whom it is fitting neither to wander about, nor to mix with the crowd of men.”⁷² That this decretal substantially reproduces the language of the earlier Roman legislation discussed at the beginning of this chapter indicates that, by the late thirteenth century when Boniface was pope (coincident with the early part of Jaume II’s reign in the Crown of Aragon), principles of Roman law, including their assumptions about gender, were already well integrated into the legal culture of the popes and their curia who would be making canon law. The fact that Boniface, like Innocent before him, felt that he did not need to elucidate such statements about women’s legal nature suggests that an assumption of female weakness or incapacity was something that both he and his audience took for granted. That audience would have been made up primarily of men schooled in the legal faculties of the medieval universities, and as these men returned to their homelands, they brought with them a new conceptual vocabulary with which to talk about the issues encoded within that law and incorporated those ideas into the law codes that they had a hand in compiling or adjudicating.

       Gendered Legal Assumptions in the Crown of Aragon

      By the late thirteenth and early fourteenth centuries, the ius commune constituted a substantial presence in the legal culture of the Crown of Aragon and exercised an accordingly profound influence on the construction of legal ideas about women. That these ideas were in the air during the thirteenth century when many of the law codes of the Crown territories were being formulated suggests ways in which to read gender ideas as they appear in the written law of the composite monarchy. The natural subordination of women to men that Gratian and his successors spoke of appears in Catalano-Aragonese law often enough to make its influence on legislators apparent. The assumption of male headship is most clearly visible in the many laws governing marital property (an issue that will be discussed more fully in Chapter 2) that flatly state that part of the husband’s responsibility is to support his wife financially, an obligation referred to as the “burden” (onera) of matrimony.⁷³ Since the same laws assume that part of the property that he would use to bear this burden remained the legal property of his wife, it seems clear that, in economic terms at least, lawmakers envisioned marriage as an unequal partnership between male and female, with the wife largely dependent on her husband.

      A much more obvious contribution of the ius commune to the gendered legal assumptions of the medieval law codes of the Crown of Aragon is the principle of female weakness or incapacity. The Furs of Valencia state this principle most baldly when they mandate the need to protect women’s marital property, asserting that a husband could not encumber the dotal goods without his wife’s consent because “the fragility of the female sex should not be turned against her or result in the diminution of her goods.”⁷⁴ The assumption of female vulnerability also influenced penal law: the Fueros of Aragon, “desiring to have compassion for the female sex,” stipulated that a woman might not be imprisoned for any debt or fine arising from a civil offense, unless she had first liquidated her goods in an attempt to pay off the debt.⁷⁵ The Furs of Valencia are even more specific on the issue of penal law and gender, opposing the imprisonment of women except for the gravest crimes. If royal officials had to imprison a woman, the Furs recommended that she be housed separately from the male inmates. But the Furs also urged judges to consider substituting corporal or pecuniary penalties for imprisonment,⁷⁶ suggesting that the fragility or weakness alluded to in the law codes was based on an assumption of women’s sexual vulnerability, rather than on a reluctance to administer punishment that would be detrimental to their physical well-being.

      These assumptions of female dependence and fragility dovetailed with the assumption of natural womanly modesty. In the Code of Tortosa, we see an echo of a principle present in both Roman and canon law, that women should not be compelled to appear personally in court for any contract that they signed with their husbands, whether or not their husbands were present.⁷⁷ The Tortosa law contains no specific or even implied reference to matronly modesty, but it seems likely that this law, so similar to its Roman and canonical antecedents, was adopted under similar assumptions, or at the very least with the Roman precedent in mind.

      The principle of female dependence extended to social status as well. The Constitucions of Catalonia, to take one example, linked a woman’s social condition to that of her husband. If a woman had no husband, past or present, her status was determined according to that of her