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Diplomatics thought for the day

4 December, 2011

“Jede Untersuchung über Rechtsfähigkeit von Frauen im frühen Mittelalter muß zwangsläufig mit einer Analyse der entsprechenden Legestellen beginnen.”

–Brigitte Pohl-Resl (1995)

And even though she makes it short, it’s true. And probably has a lot to do with why we don’t move the argument forward in any coherent fashion. Wish I’d had this as a start to my Leeds paper last summer. Because, you know… there’s a thin line between due diligence and building a monument to authority.

And also? if women can swear oaths, why wouldn’t they be able to act as witnesses? *sigh*

(Pohl-Resl is not the source of my questions…this is just riffing while thinking)

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13 Comments leave one →
  1. 7 December, 2011 12:18 am

    Brigitte Pohl-Resl is (a) right about many things and (b) wears really smart boots. Both of these things should be more widely found.

  2. 8 December, 2011 10:04 am

    I suggest that the answer (not to Brigitte Resl’s boots) is to be sought as follows:
    1 – in asking whether it’s the case that they don’t, rather than can’t, witness, and
    2 – in that, if that is the case, there’s a subtle but important difference in practice between witnessing and oath-swearing.

    • 9 December, 2011 6:30 pm

      The don’t/can’t issue is important — and I am not sure that I ever really thought of it that way. But clearly some of my problems with the issue have been over the “what do you mean they can’t? Obviously, since they are doing so, they can…”

      I think there are some very good reasons for the ability to swear oaths in general vs witness. There are all sorts of non-property related things where women might have to swear oaths, I expect — oath-swearing at its heart has more religious meaning? maybe?

      Whereas witnessing a property transaction seems to me to be a function of praxis. Something was seen to be done, and here are the people who can verify it. In that sense, it’s less important (no threat of risking salvation, unless the witness then swears something happened that didn’t). But it also brings up interesting questions re our understanding of roles women could and did play, and their importance.

      • 10 December, 2011 11:21 am

        “Firstly, we may consider land ownership. Whatever the laws say about this, there are very few instances of women alienating land. There are thirty-nine documents in the Wissembourg cartulary relating to the region of Metz, but in only seven of these (18%) are women named as donors (Wiss.202, 225, 228-9, 261-2, 265). Two of these women issued the charter jointly with their husbands, and another with her son (her brother also appears in the witness list). Two of the remaining four charters are issued by Gundoin’s wife Wolfgund (Wiss.228-9) without any male occurring in the text of the charter as co-donor. Nonetheless, it is significant that in Wiss.228 her son Ermbert appears as the first witness, and in Wiss.229 her two sons (Ermbert and Otto) head the witness list. Wiss.261 is issued by a Geretrude-Gaila, but on behalf, not only of herself but also of her three sons, one at least of whom, Buccellin, was old enough to be the first witness. This leaves only one Merovingian charter out of thirty-nine (2.56%) in which a woman grants land to Wissembourg abbey other than in partnership with, or with the consent, of an adult male. All of the other Merovingian charters relating to the region of Metz are issued by men (though Pippin ‘II’s’ wife, Plectrude is co-donor in Pertz, Mayoral 2). However, charters represent only the last, formal stage of a transaction. How much informal, ‘behind the scenes’ influence existed is unclear. We must remember, nevertheless, that these documents relate to fairly powerful classes of the free, as has been mentioned. It is difficult to know how far down the social scale we can push any conclusions suggested by the charters about female alienation of property.
        Except where they are donors, women never appear in witness-lists. This might suggest legal incompetence, and support one reading of the laws. It might also suggest that women did not attend the public gatherings where such documents were issued in any active capacity. Again, however, this applies to a comparatively restricted social group, and, perhaps, only in restricted circumstances (land-giving).”
        Halsall _Settlement and Social Organisation_, ch.2. [don’t have page ref as using the ms!]
        That’s Halsall, already moving away from the dichotomy between practicality/impracticality and into the area of praxis, 17 years ago! 17 years on … I think that that is probably the key. That the mallus vel sim was essentially a male gathering, not least because it could become a posse. Women could come for specific purposes, to swear in cases that involved them, to publicly donate land etc, but otherwise those in attendance were for the most part male heads of households (and their hangers on). There could be good practical reasons for that in terms of local politics. Thus women wouldn’t show up in witness lists. I don’t think that a legal ‘principle’, one way or the other, can be extracted from that evidence. My view remains what it tended towards in ’95: that there was no theoretical legal bar to female oath-swearing, land-holding, litigation, etc. in Francia.

  3. 9 December, 2011 2:56 pm

    I think the way we’re going to move it forward is two-fold. One is more systematic collection of charter data (which is where projects like yours and the KCL Charlemagne charter database are really going to make a difference). Because then we’ve got a decent evidence base to discuss practice. The other is bringing together this with new understandings of what the law-codes are for and how they are used, which go beyond binaries of irrelevant to their society/strictly applied. There’s a lot of this work being done (Alice Rio on formularies, Tom Faulkner on minor law codes, Graham Barrett on Visigothic law etc), but it hasn’t yet been pulled together enough to look critically at how early medieval people understood and used laws as partial constraints.

  4. 9 December, 2011 5:17 pm

    Isn’t the point that, as far as we can see, they do witness, but rarely? And that this is usually minimised to extinction in the conventional historiography because it’s `well-established’ that women didn’t have such rights? That would cover my area of knowledge well, but I don’t know about Fulda so much.

    I would say, though, that I suspect the issue in both cases may be: sometimes, the only person who has the relevant knowledge is a woman so she must be asked to swear (and here Jinty’s chapter in Settlement of Disputes would serve as support, unless I am very confused and it’s actually her piece in Gendering the Middle Ages or, worse, one of the other pieces therein). The same might then equally be true of witnessing *but why*? Women never witness alone, so why is it occasionally important that their voice be heard? I hope I may be able to do something with this at some point.

    • 9 December, 2011 6:34 pm

      Yes. But also, see my response above. Because … well, do witnesses need to swear? or simply verify? Also, given the seemingly different ways that charters may have been produced, especially those drawn up in part after the fact, you kind of have to wonder how much the witnesses are “people you can ask for verification,” rather than “people who will swear/have sworn to …”

      Hmmm.

      Meanwhile, I need to get re-writing.

      • 11 December, 2011 3:54 pm

        Because … well, do witnesses need to swear? or simply verify?

        Damn good point. In the Catalan stuff a sworn witness is on a different level, selected and trucked out to swear to the truth of a will or other document or event on an altar, in public with judges present and so on. I realise that where you don’t have the Visigothic law it looks different but the sworn inquest also exists in Francia, yes? Whereas for witnesses that paraphernalia is not mentioned. Indeed, such events are themselves witnesses by named persons without them being subject to the same oath. Maybe “hic præsens fuiis the important bit. Or to put it another way, Halsall may be right (again). Now I have to do some more thinking, though thankfully not for the current paper…

  5. 10 December, 2011 8:24 pm

    HotEdge — I have that in my notes already (although not so much on this paper. And I agree fundamentally with your assessment. If we compare Metz with Fulda (and ‘Carolingian’), the picture is somewhat different. There are 14 cases of women’s names appearing on witness lists in the charters of one (extended) family alone — all before 796. Those are all cases where the women were not donors. There are ten others where women not acting as donors, although in a couple of them, IIRC, they are the wives of the donors. In a couple of others, women are on the witness lists for charters made by women — a couple of cases looks as though they may be religious, but that isn’t specified.

    There are most definitely cases of women making over lands to Fulda on their own, or with female relatives (and obviously, with their husbands). The numbers I have (will be looking them up later, since I’ve realized they are not in my paper — just in the graphs) indicate that both independent donations by women and the appearance of women’s names on the witness lists decrease over the Carolingian period. They’re strongest before 800, but there are circumstances that mitigate that.

    BTW, thanks for the passage anyway — seeing stuff like what I’m trying to revise, and knowing it’s already in print, is a reminder that this is not entirely stupid 🙂

    • 13 December, 2011 2:30 pm

      I have a feeling things were different in the Wissembourg charters after c.750 too, but I have no idea now where I’d look for my notes! I did, I see, note that there was a difference in recording the names of the wives of mancipia in the Carolingian period, but in the opposite direction – towards not naming them. However, I concluded that maybe by then, with a crystallising of social classes, gender might have been delineated in very distinct ways among different groups.

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