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Thursday, April 25, 2019

Women's Rights in Outremer


It is a common misconception that women in the Middle Ages lacked fundamental rights and were nothing but “chattels.” I’ve written about this in various forums in the past. Today I want to take a closer look at the rights Frankish women enjoyed (or didn’t) before the High Courts of Jerusalem and Cyprus based on the writings of two of the most important 13th-century jurists, Philip de Novare, and John d’Ibelin of Jaffa.




First, let me explain exactly what "the High Court" was. The High Court of both Jerusalem and Cyprus was composed of all the vassals — from 1162 including “rear-vassals,” i.e. men who owed their fief to another vassal — of the king. It ruled on all matters pertaining to relations between the King and his vassals and between members of this feudal upper class. A series of other courts (e.g. the Court of the Bourgeois, the Court of the Chain, canonical courts, manorial courts) regulated the affairs of the merchant class, commercial disputes, matters governed by canon law and disputes involving the clergy, tenants and more respectively. (For more on these other courts see: See: http://www.crusaderkingdoms.com/judiciary.html) These courts also covered cases between a member of the feudal elite and someone from a different strata of society, as the courts followed the fundamental principle of trying a case before the peers of the lower-ranking of the parties to the dispute. Critically, as John La Monte points out in his seminal work Feudal Monarchy in the Latin Kingdom of Jerusalem 1100 to 1291:



All members of the High Court were peers, and trial by peers being the fundamental formula of Outremer law, the king as well as any of the barons was subject to the decisions of the court.[1]



The High Court was first and foremost responsible for matters pertaining to the attainment, retainment, and loss of fiefs — including the kingdom itself. In other words, all issues of inheritance — including succession to the crown.  No fief, no matter how small, could change hands without the approval of the High Court.[2] The corollary thereto being that no vassal could lose his fief without a judgment of the High Court.




The High Court also ruled on taxes, treaties, and truces with the enemy, as well as on the marriage of heiresses. It ruled on the duties of vassals to the king — and those duties that the king could not impose.  It ruled on cases involving wardship, debt, even the sale of horses. Last but not least, the High Court sat in judgment on any vassal (member of the feudal class) accused of a capital offense, such as murder, rape or assault, and, of course, in all cases of alleged treason.  


It was because women in the Kingdoms of Jerusalem and Cyprus could be vassals of the King that they had any business with the High Court — and the importance of this can hardly be overstated. In Outremer, women could inherit even the kingdom itself, and so women were viewed as part of the ruling class and peers. Nothing can be farther from being a chattel!




Which does not mean that they were not in some significant ways disadvantaged, as we shall see. First, however, allow me to focus on the significant rights women enjoyed.



The right to inherit and hold fiefs took several forms. Women could be outright heiresses (in which case all daughters inherited equally, rather than the eldest alone as for men). They could be widows holding 50% of their husband’s former fief as their dower (for more on dowers see: Of Dowers, Dowries, and Dowagers), they could be guardians for minor heirs, not yet come into their inheritance, or they could be wives representing husbands in enemy captivity. However, because fiefs entailed a military obligation and the need to keep the feudal army of the Kingdom Jerusalem was so pressing, heiresses over the age of 12 were obliged to marry.




While the principle is clear, the practice if much murkier. The legal theorists say that the heiresses lord had to “summon her” — which lords did not always do, as the court records show.  If they did summon the heiress, they were required to offer the heiress a choice between “three candidates of comparable social standing.[3] Failure on the part of the heiress to comply with a summons was theoretically punishable by the loss of the fief for one year and a day, after which the fief was returned and the heiress summoned again. Aside from the fact that this gave the heiress (and or her relatives) a great deal of leverage in ensuring a suitable candidate was presented, we know of not one single case where this procedure was put into effect. The only similar incident was the case of the widowed Constance, Princess of Antioch, who — as William of Tyre laments — refused to follow the advice of King Baldwin III. He describes the situation as follows:



Great was the anxiety of King Baldwin of Jerusalem at this time on behalf of Antioch and the lands adjacent to it. He feared lest, deprived as it was of the protection of its prince, it might fall into the hand of the enemy and suffer the pitiable fate of Edessa… He therefore repeatedly advised the princess to choose one of the nobles as a husband… The princess, however, dreaded the yoke of marriage and preferred a free and independent life. She paid little heed to the needs of her people….



There is no talk here of her losing her fief — perhaps because Antioch was not a vassal state of Jerusalem and there was absolutely nothing King Baldwin could do. In the end, she married exactly who she pleased, in this case, the infamous Reynald de Châtillon.



Widows in Outremer, like widows in the west, enjoyed even greater freedom as they were under no compulsion to remarry — unless they were heiresses, in which case the above rule applied to them as well. Furthermore, they were financially better protected than their sisters in the West, as the dower in the Latin East was recognized as one half of their husband’s property, compared to one third in England, for example. They could also purchase new fiefs — provided they could do knight’s service, which meant effectively only if they had a younger son who did not own service for the paternal fief, or if they were prepared to re-marry. If they were inclined to re-marry for whatever reason, however, they needed the permission of their feudal overlord. (An her new husband, presumably faced sanctions.) 




Before the law, women were also recognized as peers in that they could both initiate and be the defendants in court proceedings. In capital cases, i.e. cases that could be referred to judicial combat or trial-by-combat, female litigants were allowed to employ “champions.” In effect, these were witnesses, willing to demonstrate the veracity of their testimony (in favor of the lady litigant) by facing combat.



This is a critical point. If a peer (male or female) brought charges against another peer, they would testify in court by swearing on scripture. The defendant had to challenge them as a perjurer, and if no out-of-court settlement could be reached, a judicial duel would be organized. The loser of this judicial combat was deemed a perjurer. Since a woman was not capable of fighting a knight in judicial combat (presumably mounted and with lance, sword or mace), she needed a champion to testify on her behalf and fight the duel for her. Whoever lost the combat (if he survived) was hanged; if the man had been the witness for a woman litigant, she too lost her life. She was burned at the stake.




However, because it was the witnesses to a case that had to stand the trial-by-combat, women were excluded from bearing witness in the High Court — except in matters (e.g. inheritance, lesser crimes) that did not carry capital punishment for the guilty party and so the possibility of judicial combat. While this may seem like a “misogynous” provision, it had nothing to do with sex at all. The Latin clergy — hardly an otherwise oppressed or disadvantaged class — was also excluded from bearing witness at trials involving capital offenses for the same reason.



Likewise, non-Latins, serfs and children were excluded from bearing witness too, since none were deemed able — or entitled — to face a knight in mortal combat. Here the principle of trial by one’s peers was the operable issue. Members of other strata of society, much less serfs, were not the peers of a knight and so could not have a role in determining his guilt or innocence.



The capital crime of greatest relevance to women was probably rape. Here another anomaly crops up. Unmarried women (maidens, nuns) and widows could initiate court proceedings for rape on their own. They would, of course, still need two witnesses willing to swear on the scripture and face a recalcitrant defendant in combat if necessary. Married women, however, could not initiate proceedings at all; their husband had to do it for them. Their husband was expected to face judicial combat for them. The implication was that if the husband was not, i.e. if he had doubts that his wife had been an unwilling partner, then no one else would believe her.


In another way too, married women were disadvantaged before the law: there was no legal recourse in the Kingdoms of Jerusalem and Cyprus for domestic violence. While it was unchivalrous and the church condemned violence against the weak — including wives and children, a man could legally employ violence against his wife, his children and his slaves with impunity.



Unclear based on the evidence we have is whether women could plea before the High Court (that is make arguments), but this seems on the whole very unlikely. Most men chose legal counsel over arguing their own cases as well, and a woman would have had even more reason to want the benefit of a highly respected and experienced lawyer in order to compensate for any latent prejudice against women.




It is also unrecorded whether women holding fiefs in their own right but without husbands due to death (i.e. widows) or imprisonment could take part in the deliberations of the High Court. In the case, the fact that it was not explicitly prohibited suggests rather that it was allowed since in feudal society — and especially in the crusader kingdoms — class was always more important than sex. From the time of Queen Melisende, women had been involved in the government of Jerusalem, and the heiresses of the great baronies such as Galilee and Oultrejourdain were also prominent. Most important, we know that Queen Melisende attended meetings of the High Court after she had abdicated power and in her capacity as a “baron.”



As in all societies, practice will have been far more diverse — both for better and for worse in individual cases — than theory. Certainly, Edbury notes, the recorded cases of trial by combat are limited, suggesting that very many cases were, in fact, settled out of court.


Crusader society is depicted as accurately as possible in all of my novels set in Outremer: 

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[1] John La Monte, Feudal Monarchy in the Latin Kingdom of Jerusalem 1100 to 1291 (Cambridge, Mass: Medieval Society of America, 1932) 92.

[2] La Monte, 95.


[3] Peter Edbury, Law and History in the Latin East (Farnham, Surry: Ashgate, 2014) V:287.

2 comments:

  1. I enjoyed this article, and it will be a help to me in my Writing the Middle Ages. How do I sign up for notifications of future blogs?

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    1. Kathryn,
      There's a button in the right-hand margin to subscribe to posts and/or comments. Blog posts also appear on my website, which you could bookmark: http://www.helenapschrader.com/blogs.html
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