The Measure of Woman. Marie A. KelleherЧитать онлайн книгу.
practical effect of this last stricture was to forge a strong tie between inquisitorial procedure on the one hand and community knowledge and opinion on the other. The process of integrating these two involved the incorporation of the specialized knowledge of legal professionals, who were exclusively male, with the common knowledge of all members of a community, both male and female. This general, often unsubstantiated knowledge about events came under the rubric of fama, loosely translatable here as “common knowledge” or “rumor.”125 Court officers conducting inquests into criminal matters routinely inquired into what the talk was about an incident, and laypeople in the early fourteenth century seem to have had a basic understanding of what constituted fama. One example of the interaction between lay knowledge and formal court proceedings comes from the Valencian town of Alcira in 1296, when royal judicial officials launched a preliminary inquest into the murder of Bernat Gamiça, who had apparently been carrying on an affair with Geralda, the wife of Guillem Garret. Witnesses reported not only what they had seen but also the fama surrounding the murder: that Guillem had surprised Bernat and Geralda in flagrante delicto and had murdered Bernat in a jealous rage. When questioned as to what they meant when they said something was fama, witnesses’ answers varied slightly from person to person but were generally similar: fama was “what people say,”126 “what the people say all over the place,”127 or “that which the majority of people in any place affirm to be true.”128 Variations on this theme continue to appear in testimony from other cases, where “witnesses” who had not personally seen or heard the crime in question reported that the accusations were common knowledge in the community. For example, in a case dating from the second half of the fourteenth century in the Catalan town of Vilafranca, when a man named Valentí Golet was accused of having murdered his wife Blanquina, royal prosecutors questioned several villagers as to what degree they had known the victim and whether they “knew or had heard tell” (sab ni oÿt dir) anything about her reputation (fama). Almost all witnesses testified to the same basic set of circumstances: that Blanquina’s husband had discovered her together with Pere Mísser, who had jumped out a window and broken his arm and leg while escaping. Some even went so far as to assert that this discovery was precisely what had provoked Valentí to murder his wife. Significantly, though, most of the “witnesses” had no firsthand knowledge of the events in question. One prefaced all his statements with the assertion that he did not know the truth of the matter (dix que non sab res de veritat), and almost all the other witness statements were couched as repetitions of common gossip (ha oÿt dir comunament; es deya comunament), with only one statement attributed to a person who supposedly had firsthand knowledge of the events and one other person claiming to have seen Pere Mísser’s injuries, though not the incident from which they resulted.129 While the records do not tell the outcome of this case, the part of the case that the official record does preserve is enough to suggest that “things that everybody says are true” could be damaging, if not damning evidence.
As this case illustrates, however, fama did not just mean the rumor about the facts of a case; it had a second related meaning of common knowledge about a person. Probably the most important reason that inquisitio was useful for prosecuting hidden offenses was that it allowed prosecutors to make use of a person’s bad reputation (mala fama) as a basis for prosecution.130 In the process of an inquest, officers of the court would question witnesses not just as to the facts as they understood them but also as to the reputation of the people involved. This conception of fama can be traced back at least to Isidore of Seville (560–636), who noted that fama is a two-sided coin—a term that may designate either illustriousness or notoriety.131 By the later Middle Ages, inquiries into a person’s fama within a community had become routine in criminal inquests. In some cases, these inquiries concerned the fama of those giving the testimony: questioners in criminal inquests routinely asked witnesses to provide not only their name and residence but also whether their testimony had been affected by love, hate, coercion, subornation, or any relation to the defendant or accuser. While an inquisitio famae might include testimony from persons who might be biased for or against the defendant, such testimony was not given under oath, suggesting that inquisitors considered it supplementary.132 Reliable witness testimony had to come from persons of good repute and unblemished motive: if the accused could demonstrate that the witnesses were disreputable (viles personae) or that they were acting out of ulterior motives, their testimony would lack probative value, and the judge would thus lack grounds to launch an inquisitio veritatis with regard to the crime itself.133
More important, however, was the fama of the accused. Licet heli had established that bad reputation could serve in an inquisitio famae as part of the grounds for bringing a case to trial,134 and later commentators clarified that public scandal (that is, publicly flaunted misconduct, as opposed to the open secrets that produced fama) could likewise serve as grounds for launching an inquest into the crime itself.135 In the case involving Blanquina and Valentí Golet, for example, witnesses described not only the gossip about the murder but also Blanquina’s generally bad reputation. According to witnesses, it was common knowledge in Vilafranca that she had been four or five months pregnant when Valentí had married her and that she had carried on an affair with Romeu Comes, veguer of Vilafranca.136 Similarly, witnesses in the Garret/Gamiça case reported on the respective reputations of the two men in question, asserting that Garret was “a good man who kept good company” (although one witness noted in passing that he was known to patronize prostitutes), while Gamiça was rumored to have been a serial adulterer whose actions had prompted at least one of his cuckolded victims to leave town in shame.137
In this second case (and possibly in the first as well), these assertions about the reputation of the persons involved were made in response to direct questions from court officials, illustrating that, while fama-as-reputation was much more a social category than a legal one, a person’s reputation within the community could have legal implications.138 At its worst, a person’s mala fama could be converted into infamia, a condition that went beyond mere reputation and translated into a loss of legal personality that was difficult to reinstate. The concept of legal infamia dated back to the late Roman Republic and by late antiquity was present in both Roman and canon law, making its way from there into the medieval law of the ius commune, where it manifested as a list of types of persons barred from giving testimony. In practice, however, the construction of the medieval terminology regarding infamy, both legal and social, tended to blur the distinction between the two. As early as the age of the Bolognese jurist Irnerius, medieval commentators on Roman law sometimes interpreted the Roman-law term “infamia”—which in Roman law meant legal infamia—in a way that conflated it with the idea of fama-asreputation: Irnerius, for example, defined infamia as a “decrease or consumption of reputation.”139
Whether due to such terminological confusion or to a lingering sense that justice was a community affair,140 it seems clear that talk, gossip, and “common knowledge” about a person could play a role in judicial proceedings, just as could common knowledge about events.141 Historians studying England’s common law courts have argued that trial records were “steeped in gossip and the collective memory of the village,” to the point where substantive legal principle meant less than community reputation,142 and that the common law system, with its jury trials and emphasis on standing within the community, might be contrasted with inquisitio, a package of procedures whose main emphasis was fact-finding.143 However, while this general distinction is certainly true to some extent, we should not ignore that a person’s reputation within a community did figure in to the continental legal system in important ways. For one, a person’s fama determined the degree to which his or her testimony would be accepted. In court proceedings, it was not just the reputation of defendants and plaintiffs that mattered but that of witnesses, whose fama affected the credibility of their testimony. Even more significant, however, was the fact that fama could be the “reasonable cause” that sparked a full-fledged inquisitio into a particular case. Most civilians proceeded in accordance with the position taken at the Fourth Lateran Council, which made fama the procedural threshold that allowed judges