Litigating Women

Gender and Justice in Europe, c.1300-c.1800

Teresa Phipps, Deborah Youngs, Teresa Phipps, Deborah Youngs

• Publisher: Routledge
• Year: 2021
• Print ISBN:
  9780367230302
• eBook ISBN:
  9781000528886
• Topic: History
• Subtopic: World History
• Index: History

This edited collection, written by both established and new researchers, reveals the experiences of litigating women across premodern Europe and captures the current state of research in this ever-growing field.

Individually, the chapters offer an insight into the motivations and strategies of women who engaged in legal action in a wide range of courts, from local rural and urban courts, to ecclesiastical courts and the highest jurisdictions of crown and parliament. Collectively, the focus on individual women litigants – rather than how women were defined by legal systems – highlights continuities in their experiences of justice, while also demonstrating the unique and intersecting factors that influenced each woman's negotiation of the courts. Spanning a broad chronology and a wide range of contexts, these studies also offer a valuable insight into the practices and priorities of the many courts under discussion that goes beyond our focus on women litigants.

Drawing on archival research from England, Scotland, Ireland, France, the Low Countries, Central and Eastern Europe, and Scandinavia, Litigating Women is the perfect resource for students and scholars interested in legal studies and gender in medieval and early modern Europe.

1Mothers and daughters and sons, in the lawFamily conflict, legal stories, and women’s litigation in late medieval Marseille

Susan McDonough

DOI: 10.4324/9780429278037-2

Luiseta Bariesse lived a relatively ordinary life, for a while. Like many women from well-off urban families in fourteenth-century Marseille, she married and had children. In preparation for her marriage, Luiseta’s family negotiated a dowry, which her betrothed husband recognized.¹ But the life she expected ended with her husband’s death. At this moment, Luiseta’s life became a matter of the historical record, when she brought a series of cases before the judge of Marseille’s Palace Court, its court of first instance. Before the market tables in front of the doors of Notre Dame des Accoules, Luiseta asked the judge to prioritize her needs before the many claimants on her husband’s estate and to authorize the return of her dowry.² Her story unfolded in the paper folia of the court’s register. Her youngest daughter, still nursing at the time of her father’s death, was ill and Luiseta had no resources to nourish or get medical care for her children. Worse, she contended that the guardian chosen to administer her daughters’ inheritance had fudged their father’s post-mortem inventory and cheated them by over two hundred livres. To make the latter case, Luiseta litigated with enforcements. She joined with her mother Alegreta to petition the court to change her daughters’ guardian because of his malfeasance.

This chapter’s close reading of cases like Luiseta’s will demonstrate how women in late medieval Marseille used the civil courts not only to protect their property but also to argue publicly for the righteousness of their claims of the soundness of their judgement, and of their communal good standing. That good standing rested on arguments about how well women cared for their relatives in maternal, uxorial, or filial roles, navigating the potentially conflicting demands on them as mothers, wives, widows, and property owners. What strategies did women deploy as part of the extra-legal cases they built within their legal arguments? Deliberate choices undergirded how women narrated their claims, accused their opponents, and selected their co-litigants.

Working with lawsuits as sources requires the maintenance of a delicate balance. Scholars must be attentive to the requirements of the law and how that shaped the form of the sources.³ However, medieval litigants, both men and women, had some leeway to frame and broadcast their legal woes. For a compelling story, litigants peppered the formulaic documentary record with personal details, perhaps chosen in collaboration with legal advisors who suggested which version of their story had the best chance of winning a favourable judgement. Historians have long been attentive to these legal stories. Natalie Zemon Davis famously argued that early modern pardon petitions to the king of France were evidence of how ordinary people shaped and told stories, rather than faithful recreations of something that had really happened.⁴ Lawsuits, like royal petitions, have a fictional quality to emphasize the righteousness of the litigants to the judges. Jeanette Fregulia has argued that lawsuits cannot show much about the interior lives of women, but they can show at least in public presentation a pride in their expertise and a certainty that the courts would back them up.⁵ The art historian Marian Bleeke examined literary texts and sculptures to posit that ‘medieval women in general should be understood as active makers of the meanings of their own lives’.⁶ In this chapter focussing on a set of cases involving women who brought their family members to court, I will argue that as litigants, women made meaning of their lives through the stories they told in Marseille’s courts. When they contested control over dowries, asserted their right to land, or claimed rights to an inheritance, women, as they made a case based in Roman and statutory law, also told stories emphasising their worthiness of the judge’s favourable ruling.

Going to court was about more than simply winning a case. As Daniel Smail has maintained, medieval people brought lawsuits to pursue their hatreds and to harass their opponents as much as they did to recover their property.⁷ Women brought cases to the court, a public forum, to right a legal wrong and to stake out their identities as authorities and worthy beneficiaries of the court’s favour within their family constellations. The three case studies (involving five discreet cases) analysed here suggest women’s certainty that they should be compensated for the emotional and physical care they offered as wives, mothers, and grandmothers.⁸ The dowered female litigants were also mothers, whose dotal retrocession cases had the potential to disadvantage their own children. Litigating women, then, navigated competing loyalties among legal and social pressures that often appealed to or relied on principles that existed in parallel to the law itself. The legal strategies the women deployed teach us about interfamilial care and responsibilities and how both were gendered in the late Middle Ages.

The legal structure

Like many jurisdictions in Mediterranean Europe, late medieval Marseille boasted a robust legal system. In addition to criminal and ecclesiastical courts, judges heard civil cases in the palace court or two other courts designated the curiae alterium iudicium or ‘other courts’. Litigants could transfer cases from the ‘other court’ to the palace court by challenging the original presiding judge; these cases are called causae suspiconis or ‘cases of suspicion’ and they are quite common in the palace court registers. No clear rules governed the court where litigants would initiate their civil cases, but there were some differences. Judges of the ‘other courts’ were citizens of Marseille and appointed by the city’s municipal council, whereas palace court judges were required to be strangers to the city, who presided over the court for a one-year term.⁹ Above the palace court and the criminal court were two courts of appeals. After losing a case in the court of first instance, litigants could appeal their cases twice, within thirty days of the adverse judgement. Litigants built their civil cases on a mix of statutory law and Romano-canonical law, as was typical throughout the northern Mediterranean region after the legal revolution of the twelfth century.¹⁰

Presenting to the judge of the palace court, litigants worked with their procurators, their legal stand-in who may or may not have had any legal training, or other legal advisors to craft a libel (libellum), which laid out their legal claims, and a list of titles (tenor titulorum), which enumerated the various points that the litigant intended to prove. These points were the result of some collective action; litigants might have a procurator or a lawyer, and all of the documents were written up by a notary paid for his service. It is hard to parse who contributed each aspect of the legal strategy, but in Marseille, the women who chose to air their familial grievances in court were actively involved in shaping the documents presented on their behalf and framing the details of the stories they wanted told. Their legal opponents had the same opportunity to present their own cases.¹¹ Cases in the palace and appellate courts relied on witness testimony and on documentary proof, often copies of notarized agreements, last wills and testaments, or bills of sale. Copies of all of these might be included in the official record, along with any procedural motions the hostile parties might make.

It was not unusual for women to use the courts to protect their rights in late medieval Marseille. Between 1323 and 1416, years for which we have the uninterrupted records of the palace court, women were the principal litigants in 22% of cases, and they participated in additional 5% of cases as part of a married couple.¹² Technically married women needed their husband’s permission before opening a court case, and occasionally a notarial casebook will contain an example of such permission.¹³ I’ve noted elsewhere that these notarial acts are uncommon and women’s presence as both litigant and witness in Marseille’s courts was unremarkable to their opponents or onlookers.¹⁴ Women litigants in Marseille, who were as likely to represent themselves as being represented by a procurator, illustrate what Thomas Kuehn has called women’s legal personhood.¹⁵

Though Marseille’s archives are rich, in a quirk of archival fate, very few of the judgements produced by Marseille’s judges have survived. While scholars have access to cases from a court of first instance, a court of first appeals, and a court of secondary appeals, they cannot always know how the judges ruled on the cases before them and cannot know how effective the women’s stories were in persuading the judge to rule in their favour.¹⁶ Many of the litigants, including the women whose names appear in this article, pled their cases before Marseille’s judges but did not leave other traces in the archive, so scholars can only make inferences about their age, economic status, or community connections. A further challenge is the language of the court, Latin, although Marseille’s denizens spoke a vernacular Provençal. Only very occasionally are snippets of the vernacular recorded, usually insults or bits of conversation.¹⁷ The formal Latin of the official record is only an imperfect replica of what litigants or their witnesses might actually have said during the proceedings.

However, scholars interested in the medieval quotidian can find in the archive a broad cross section of people, as men and women, citizens and foreigners, urban oligarchs and poor artisans all used Marseille’s courts to make their cases and to tell their stories. Those stories and the cultural scripts they draw from and rely on were common currency among ordinary people, not only those learned in the law.

The palace court judge ruled according to statutory and Romano-canonical law, but extra-legal storytelling had an effect as occasional hints in the extant court records show. Judges held deeply engrained ideas about mothers and children and articulated expectations for them in the court records. In 1396, the widow Berengaria Lymosine sued her sons Antoni and Isnard Bonhomi for the return of her dowry.¹⁸ Her sons protested, saying she had agreed to give them a seven-year grace period to settle their debts, using proceeds from her dowry, and argued before the judge that she was reneging on this. In the margins of this dotal retrocession case the judge, however, was having none of it. ‘Lawsuits between mothers and sons are odious,’ he ordered, and referred both mother and sons to arbitration.¹⁹

This intriguing hint of a judge’s personal opinions on familial relations is relatively rare, though it indicates that the efforts women made to craft stories could be effective. The judge was not the litigants’ only audience. Women also crafted the narratives contained in their libel and list of titles to address their local community. Rather than the closed courtrooms in dedicated buildings of modern judicial dramas, until 1424, the courts in Marseille met in the open markets next to the parish church Notre Dame des Accoules. All of the discussions, heated or calm, were performed for the benefit of those who chose to come to the court, or even those customers of the market. Perhaps, sometimes, the market goers who served as the audience for the court even interjected, signalling their support of one side over another. If they did, the court notaries chose not to make a record of it. But the litigants would have been aware of their multiple audiences. Beyond the important goal of persuading a judge on the legal merits of their cases, women used the court to broadcast their characters and make public their opponents’ weaknesses. Women could positively shape their reputations as mothers, businesswomen, and managers of their households and their property in the court’s public forum.

The case studies

Here, let us return to the story that opened this chapter. The lengthiest dispute I will discuss, Luiseta Bariesse’s family affair, was narrated over the course of three separate litigations. Her brother-in-law was her legal adversary and sometimes her mother was her co-litigant. At issue was control over Luiseta’s dowry as well as the support for and guardianship of her minor children. Represented by her curat...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of figures
• List of tables
• Acknowledgements
• List of contributors
• Introduction: Teresa Phipps and Deborah Youngs
• 1 Mothers and daughters and sons, in the law: Family conflict, legal stories, and women’s litigation in late medieval Marseille
• 2 Consent and coercion: Women’s use of marital consent laws as legal defence in late medieval Paris
• 3 Shades of consent: Abduction for marriage and women’s agency in the late medieval Low Countries
• 4 Female litigants in secular and ecclesiastical courts in the lands of the Bohemian Crown, c.1300–c.1500
• 5 Widowhood and attainder in medieval Ireland: the case of Margaret Nugent
• 6 Choosing Chancery? Women’s petitions to the late medieval court of Chancery
• 7 Gendered roles and female litigants in north-eastern England, 1300–1530
• 8 Property over patriarchy? Remarried widows as litigants in the records of Glasgow’s commissary court, 1615–1694
• 9 Women negotiating wealth: gender, law and arbitration in early modern southern Tyrol
• 10 A litigating widow and wife in early modern Sweden: Lady Elin Johansdotter [Månesköld] and her family circle
• 11 Women litigants in early eighteenth-century Ireland
• 12 Hidden in plain sight: female litigators, reproductive lives, archival practices and early modern French historiography
• Combined bibliography
• Index