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Paule Pagès
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Women and the customs of the High Court of Jerusalem according to John of Ibelin

Peter Edbury

Texte intégral

  • 1 For a new edition, carefully distinguishing the original material from later additions, John of Ib (...)

1John of Ibelin completed his Livre des assises et des usages et des plais de la haute cort dou reiaume de Jerusalem in the mid 1260s. It is a long work – 160,000 words – and additions made by John himself after his first version was completed and then by later redactors made it longer still.1 It falls into two main parts: a description of the laws and procedures of the High Court of Jerusalem, and, secondly, a description of the feudal customs of the kingdom. Frankish society in the Latin East was, as elsewhere in the middle ages, male dominated, and that was certainly true of the courts. However, the right of women to legal protection through the courts was never in question, and John was careful to give their position and concerns due weight in his discussion. He made numerous references to women in his text, many of them in the context of such gender-specific topics as the rights of heiresses, marriage, widowhood and dower. At first sight it would appear that he gave much less attention to the rights and attributes of the woman litigant, although, as will be seen, he did include some revealing material on this topic as well.

  • 2 John of Ibelin, p. 331, 391.
  • 3 Ibid., p. 321-326.

2The right of a woman to inherit property was never in doubt. John explains that on the death of a fief-holder, the fief would pass by inheritance to the closest eligible relative of the deceased. A male heir would always inherit in preference to a female heir in the same degree of relationship, but, as is clear from John’s treatment of the subject, a female had precedence over a more distantly related male.2 If the deceased had had just one fief, it would pass in its entirety to the eldest male heir and any younger brothers would get nothing, but if there was no male heir, then all the female heirs in the same degree of relationship to the deceased – most commonly these would be his daughters – would divide the fief among themselves. However, if the deceased had held several fiefs and there were several male heirs in the same relationship to the deceased, they would be entitled to inherit one fief each and would chose them in order of seniority. If this happened, and there were more fiefs than there were male heirs, then, after the men had made their choices, any female relatives in the same relationship could have a part in the inheritance too. But whereas the male heirs would each take a complete fief – the principle being that, if there were more heirs than fiefs, the younger heirs would get nothing – the women would split the fiefs so that every relative in the same relationship to the deceased would get a share. Indeed, John was careful to specify that the only circumstance in which a fief owing a single knight to the lord could be divided was when there were several co-heiresses, and he described at some length the details of precisely how, in the absence of a male heir, the fief was to be divided among sisters.3

  • 4 Philip of Novara, Livre de Philippe de Navarre, RHC Lois, I, p. 542-543. (The lacunae in the text (...)

3Behind these inheritance customs lay the lord’s need to preserve military services. Lords did not want a single individual acquiring more than one fief for which personal servise de cors was owed, as in these circumstances the holder would need to find someone to deputise for him in all the fiefs but the first: hence the rule that the accumulated holdings should be divided among his heirs rather than pass intact to the eldest. But, on the other hand, there was the obvious danger that if a fief was split into units owing less than a knight to the lord’s host, the lord might be unable to extract the service of a knight when he needed it. But that does not explain why heiresses could divide a fief and its attendant services into fractions, and John made no attempt to justify this feature of inheritance law. His slightly older contemporary, Philip of Novara, stated in his treatise that originally the eldest heiress would have inherited a fief in its entirety in the absence of a male heir, and the principle that she would have to divide it with her younger sisters was only established as a legal precedent following the death of a nobleman named Henry Le Bufle. Henry’s death can be dated to between 1165 and 1171, and the decision to divide his holdings was said to have been taken on the advice of Count Stephen of Sancerre who was then in the East. Henry’s fief had owed ten knights to the king, and by the terms of the settlement each of Henry’s three sons-in-law became liable to the service of three and one third knights. It would seem that Stephen was advising the court to follow a practice that was widespread in the West, but it is difficult to avoid the suspicion that the decision came about because the husbands of Henry’s younger daughters – the principal beneficiaries of his advice — had the necessary influence.4

  • 5 Ibid., p. 379-380, 383.

4A woman could marry at the age of twelve. At that age an heiress to a fief owing servise de cors could be required by her feudal lord to take a husband, and, until such time as she married, whoever had held the wardship (or bailliage) of her inheritance during her childhood would continue to hold it. Similarly, the feudal property of an unmarried heiress who was over twelve when she inherited it would be administered by whoever would have been entitled to the wardship had she been under age, and this state of affairs would continue until she married. Then again, an unmarried woman over the age of twelve who acquired rights of wardship over the property of a relative owing servise de cors would herself now be liable to marry at the behest of the lord of the fief.5

  • 6 Ibid., p. 379, 394, 398, 483.
  • 7 For an example of his use of this phrase, ibid., p. 324.
  • 8 Ibid., p. 379, 398, 510-511.
  • 9 Ibid., p. 512-513.
  • 10 Ibid., p. 514-515.
  • 11 Ibid., p. 516-521.

5The right of the lord to summon the heiress to a fief owing servise de cors to take a husband was never in question, the rationale being that the husband could thereupon be called upon to perform the service owed.6 The heiress could therefore be said to ‘owe the lord marriage’ although it might be noted that John is sparing in his use of the phrase ‘servise de mariage’ that modern writers frequently employ to denote this obligation.7 Failure to answer summons, or, when summoned, to chose a husband was punishable by the loss of the fief for a year and a day, and at the end of this period the fief would be returned and the lord would summon the heiress afresh.8 Should the heiress hold fiefs from more than one lord, she was to respond to the summons from the lord to whom servise de cors was owed, and, as an heiress could only marry one husband, the other lords would accept that they had no say in the matter.9 If on the other hand she married without waiting for the lord’s summons, all the lords could confiscate her fiefs and hold them for as long as the marriage lasted.10 John, however, does not say whether the other lords could seize the heiress’s fiefs for a year and day if she failed to respond to the original summons. The vassal who married the heiress to a fief held from his own lord without that lord’s permission was in breach of faith and was therefore liable to be challenged to a judicial duel if he took seisin of his wife’s fief, but if he did not – the implication being that seisin of the fief passed to the lord – the lord had no claim against him.11

  • 12 Ibid., p. 381, 508-509.
  • 13 Philip of Novara, p. 558-559.
  • 14 But note John's use of phrase ‘de finer de lui de son mariage’ (p. 383).
  • 15 Texte officiel de l'allocution adressée par les barons de Chypre au roi Henri II pour lui notifier (...)
  • 16 John of Ibelin, p. 379-382.

6When an heiress was summoned to take a husband, she was confronted by the requirement to chose one of three candidates of comparable social standing selected by the lord.12 Philip of Novara, in his discussion of this topic, explained that this practice had taken time to evolve and that it represented a compromise between the demands of the lord and the interests of the woman’s kin.13 (The other members of her family would have had a vested in who she married and in all likelihood would have determined the choice.) John, however, made no comment on the rationale for this system, nor did he consider the question of what would happen if the woman or her kin wanted to challenge the choice of a candidate on the grounds that he was not the woman’s peer and so would disparage her. How this system worked out in reality is problematic. It is unfortunate for the historian that no anecdotal evidence survives that records an instance of an heiress making her choice from a panel of three candidates. One may suspect that the woman or her relatives would have sought to ensure that the lord nominated the man of their choice as one of the candidates, but if that did happen we may question whether the lord then bothered to find two other men to make up the number. On the other hand, the lord might use the marriage as a form of patronage to assist the fortunes of one of his own men or of someone else he wished to advance. Whatever happened, the lord probably did well out of it financially, thanks to a proffer either from the heiress or her kin or from prospective suitors, but, as such considerations fell outside the legal aspects of the marriage, John did not deal with them in his treatise.14 It might be noted in passing, however, that the financial value to the lord of his right to supervise the marriage of heiresses is clearly implied in the arrangement made in Cyprus in 1306 at the time King Henry II was suspended from office.15 Financial advantage or the exercise of patronage could also come to a lord by not allowing an heiress to marry. John described the situation in which a lord chose to delay a marriage indefinitely so that the holder of the wardship could continue to enjoy the revenues of the fief. The woman or her kin could seek to persuade the lord to put an end to this situation, if necessary by making a financial proffer to get the lord to summon the heiress to take a husband, and, if that failed, they could take the more risky path of instituting court proceedings to compel him to issue the summons.16

  • 17 Ibid., p. 394-398, 514.
  • 18 The Cartulary of the Cathedral of Holy Wisdom of Nicosia, ed. N. Coureas, C. Schabel, Nicosia 1997 (...)
  • 19 For further discussion, see P. W. Edbury, John of Ibelin and the Kingdom of Jerusalem, Woodbridge (...)

7But whereas lords could control the marriage of heiresses, they had no such control over widows who were not heiresses but who held dower. Nevertheless, the widow still owed homage to the lord of the fief and the lord had to signify his consent if she wished to remarry. Dower was fixed at half of whatever her husband had held at the time of his death, although John specified that this provision did not hold good for the queen and the wives of the four barons of the realm.17 There is good evidence to support the idea that the widow was entitled to half her husband’s holding,18 but why the queen and the wives of the barons were excluded from the rule is not explained. Presumably the idea was that, as so much of the revenue from these major political units was already committed for purposes of defence, to endow the widow so generously was out of the question. But that would also have been true of the other major lordships that were not designated baronies.19 As in the case of the marriage of heiresses, John was concerned with the strictly legal aspects of dower, not with the everyday practicalities of how dower was arranged. So for example, how an heir was supposed to manage if, as must often have happened, both his mother and his grandmother were still alive is not mentioned. Presumably he would have been heavily dependant on their generosity to support himself and his feudal obligations.

  • 20 John of Ibelin, p. 73, 571.
  • 21 Ibid., p. 421-424.
  • 22 Ibid., p. 397-398.

8Widows and orphans were recognised as being vulnerable and needing special protection.20 Even so the widow who was herself the legitimate daughter of a knight and his lady, besides having rights to her dower, had certain other privileges. She could, for example, purchase a knight’s fief put up for sale in accordance with assise de vente, although if it was burdened with servise de cors she would then be liable for servise de mariage.21 It often happened that a widow, besides acquiring half her husband’s holding as her dower, also had custody of the other half by virtue of the wardship (or bailliage) to which she was entitled because his heir, the child of their marriage, was under age. In these circumstances she would be subject to servise de mariage, but she could avoid this obligation by relinquishing the wardship and the half of her husband’s property that went with it to the lord who would then hold them himself until the heir came of age.22

  • 23 Ibid., p. 656-659. It is present in MS A which dates to ca. 1290 as well as the later MSS B and V. (...)
  • 24 John of Ibelin, p. 250, 695-696.

9The heiress who was widowed was still liable for servise de manage. There was, however, an upper age limit of sixty. John did not mention this feature of the legal custom in the Last, but there is extended treatment of it in one of the chapters that was inserted into a later recension of his text at some date before 1291,23 (This chapter may have been written on the island of Cyprus as the author speaks of ’uz... ou reiaume de Jerusalem ou en cestui de Chipre’, although several lines further on he turns the phrase round and writes ’en cestui reiaume de Jerusalem ne en celui de Chipre’.) The principal argument takes the line that it would be inappropriate to make women over 60 years of age remarry since men over sixty were no longer required to perform servise de cors. It is only then, and much more briefly, that the author added that it was also inappropriate because at that age a woman is long past child-bearing. (Nowhere does John mention that men over sixty were no longer liable for servise de cors, although that point too was introduced into the treatise after his death. The nearest he comes to referring to it is his statement that men over sixty can employ a champion if appealed by wager of battle.24)

  • 25 Ibid., p. 167.
  • 26 Ibid., p. 188.
  • 27 Ibid., p. 440, 461. See the discussion in the introduction, p. 20-21.
  • 28 lbid., p. 228.

10The secular law of the High Court, though it encompassed the rights of the lord to demand servise de mariage, did not have cognizance of matrimonial disputes. Matters such as the legality of a marriage and the related issues of divorce, adultery and illegitimacy belonged to the Church Courts. Accordingly John had little to say on such topics, although he did include bastards and adulterers in his list of people who could not bear testimony in the High Court.25 The unmarried sexual partner – John uses the word ‘soignant’ and the phrase ‘tenue... en soignantage’ –is only given legal recognition in the context of categories of people for whose murder someone can bring accusations.26 Seducing the wife or daughter of one’s lord, or turning a blind eye to someone else doing so, is included in John’s list of things that constitute a breach of homage. So too is seducing the lord’s sister ’tant con ele est damoisele en son hostel’.27 Similarly the vassal who abducts the wife, daughter, mother or sister of the lord by force is guilty of treason towards his lord, ‘quar tos sont si prochains dou seignor qui son ausi come sa char et lui meimes’,28

  • 29 Ibid., p. 184, 188, 246, 248, 250.
  • 30 Ibid., p. 66, 79, 81.

11It is with the subject of rape that we come to the problems surrounding the status of the woman litigant. John lists the accusation of rape – ‘ce est de feme esforcee’ – among the charges that must be answered immediately. In other words, the accused cannot simply ask for an adjournment without entering a plea. John, however, does not give the subject any separate treatment, but simply lumps it together with other acts of violence. If the victim is married she can get her husband to offer proof in a judicial duel, but if he is not prepared to risk wager of battle on her behalf, she can only employ someone else as her champion with his agreement. Without her husband’s agreement she cannot bring charges and, if nobody else will, the culprit cannot be dealt with in the court. In this situation the unmarried woman is in a stronger position, since she at least has autonomy in initiating the case.29 It would seem that what normally happened was that when a married woman wished to initiate litigation, her husband would start the process on her behalf by requesting that the court assign her a member of the court as her counsel. Alternatively the husband could, without having been given counsel, plead on his wife’s behalf.30

  • 31 Ibid., p. 246-247. For the judicial duel, p. 240-245.
  • 32 Ibid., p. 567.
  • 33 Ibid., p. 241.
  • 34 Chronique d'Amadi, ed. R. de Mas Latrie, Chroniques d'Amadi et de Strambaldi, Paris 1891-1893, 1, (...)

12Subject to her husband’s approval, a woman was able to initiate accusations of rape, assault, highway robbery and other capital offences as well as engage in litigation over land or other property. Court procedure required that the apellant (apeleor) should produce two witnesses to testify to the truth of the accusation. They, or rather their avantparlier, an experienced member of the court assigned to them for this purpose, recited their testimony, and then the witnesses were required to take an oath on the gospel book that this was a true statement. It was at the moment of taking the oath that the defendant, unless he was going to allow his case to collapse, would have to challenge one of the witnesses as a perjurer. Then, unless composition was agreed, the defendant and the witness would fight a judicial duel. If the witness lost, he would be hanged and the woman burnt at the stake. If the witness was entitled to employ a champion to fight on his behalf and the champion lost, all three – woman, witness and champion – would be executed. If on the other hand the defendant lost, he would be hanged. That at least is the procedure as John described it.31 He made it clear that the lord who presided at the court had limited power to exercise clemency,32 but the high body-count raises the question of how often these procedures were followed through. John was describing the process before the court, and so was not concerned with out-of-court settlements. He did indicate the possibility that ‘pais en seroit faite’ right up to the last moment before the battle,33 but he made no comment on how a settlement might be achieved and gave no indication of the frequency with which such settlements were made. The fact that the Cypriot chronicler recorded that an appeal of murder in 1314 ended in a duel may suggest that such events, at least at that period, were something of a rarity.34

  • 35 For example, John of Ibelin, p. 84, 90, 91, 183, 264, 462-463, 470-471.
  • 36 Ibid., p. 247, 248.
  • 37 For example, ibid., p. 81, 309, 313, 323, 327, 328-330, 335, 341, 344, 348, 363, 384, 391, 408, 41 (...)
  • 38 Ibid., p. 262-265 at p. 265.

13John alluded on a number of occasions to women defendants, and it would appear from comments scattered through his treatise that their position was no different from that of their male counterparts.35 It should be noted, however, that a woman convicted of a capital offence would be burnt and not hanged.36 Similarly when it came to litigation over land and the rights, duties and privileges of fief-holders, the lady of a fief was on the same footing as a man, and John gives numerous instances to illustrate this point.37 There was, however, one particular area where the law gave the woman no redress. If a woman was the victim of domestic violence and sustained visible bruising at the hands of her husband, she, in common with their children and serfs, was not entitled to claim compensation using the procedure known as ’cop aparant par l’assise dou roy Bauduin’. John also noted that the husband similarly could not claim compensation if assaulted by his wife.38

  • 39 Ibid., p. 250.
  • 40 Ibid., p. 165, 167, 354-355, 356-362, 377.

14Even if we are right to suspect that very few cases were pursued to their logical conclusion in a judicial duel, legal procedure was predicated on the assumption that they might be. The role of the witness (or garans) therefore acquires considerable significance, since it would be the witness and not the appellant who would fight the defendant on the field. It would seem that the court would not normally allow witnesses to employ champions to fight on their behalf. That being so, John devoted a chapter to listing categories of people who could not bear witness in the High Court: people whose previous behaviour had rendered their oaths untrustworthy, non-Latins, and people – clergy, children, serfs, and women –who would not bear arms. So whereas a woman could initiate proceedings and could employ a champion in appeals of murder where by definition there were no witnesses and so the appellants themselves had to bear the responsibility of proof, and whereas the woman who was a defendant could employ a champion,39 a woman was barred from giving testimony on the grounds that she was unable to fight the duel in person. The only exceptions to this rule arose when it was necessary to testify simply as to the age or parentage of a particular individual. Disputes over property would frequently have turned on claims of descent, and from time to time it would be necessary to establish whether a claimant had reached his or her majority. There was a well-established procedural principle that there could be no judicial duel over testimony proving age or descent, and that meant that there could be no objection to a woman bearing such testimony if she were the appropriate person to do so. John was bothered by this rule, since, without the threat of divine retribution that could be brought to bear through recourse to wager of battle, he feared that people would be more likely to perjure themselves, but, although he discussed this point at some length, it would seem he had to accept the legal procedures for what they were.40

15Despite the extensive coverage that John gave to the legal position of women in the High Court of Jerusalem, there are many questions that historians might want to ask to which he does not provide answers. For example, could a woman who was a fief-holder in her own right but who had no husband to perform her servise de cors on her behalf participate in the deliberations of the court? Or could a woman who was involved in litigation dispense with the services of her counsel and conduct her own case in person? We might assume that the answers to both question is ’no’, and maybe the idea that such things could happen was so unthinkable that it never occurred to John to comment, but are we right? Then again, could the lady who had inherited a lordship with coin; coins et justise and who had no husband preside over her seigneurial court in person, or did she have to appoint a man as her deputy? This is one aspect of the wider issue of the extent to which a noblewoman might have a visible role in public affairs, but, for all the emphasis on the early deaths of husbands in the Latin East, it is a question that has yet to be examined fully. Even the position of the women included in the list of those obliged to provide knights to the royal host which dates from the mid-1180s and which John added at the end of his treatise is unclear. About fifteen women are mentioned out of a total of about a hundred named individuals. Most are described as the wife (feme) of so and so, but are they heiresses whose husbands are alive; widows who have dower and wardship of their children’s inheritance, or even the wives of knights who were currently prisoners of war? Presumably when the host was summoned, the summons was addressed to these women, but there is no indication as to their precise status.

  • 41 For example, ibid., p. 59, 66, 198,321,334,374.
  • 42 Ibid., p. 617-619, cf p. 11-12. 159-161.

16From time to time John departed from his normal practice of using male pronouns to refer to the parties to a lawsuit and employed inclusive language, as for example in the phrases, ‘tos ceaus et toutes celes’, ‘celui ou cele’ or ‘ne d’aucun ne d’aucune de son lignage’.41 Why he should do this in some places and not in others is a mystery, but it could be that behind these rather bland expressions is a memory that a woman had been a party in the specific case John had in mind as he wrote. This can certainly be demonstrated in one instance where John himself subsequently revised his account. A contentious issue in the East in the thirteenth century were the rights of heirs to lands conquered by the Muslims and then much later recovered and the rules governing inheritance when one or more generations had been unable to take seisin. The lawyers insisted on the principle that Force de Turs ne tot saisine (’forcible occupation by the Turks did not affect rights to seisin’), and John revised his discussion to include the story of how his aunt, Margaret of Ibelin, had successfully asserted her rights to the lordship of Ibelin, lost in 1187 and recovered in the early 1240s. What is of interest here is that in the sentences immediately before his insertion of this new material John deliberately altered the wording by including phrases such as ‘et la fille’ to prepare the reader for the idea that the successful claimant in such cases could be a woman.42

17What is clear from this discussion is that John’s treatise contains a wealth of information about the status and activities of women in the High Court of Jerusalem, but that what he says gives rise to further questions which cannot easily be resolved. While it is clear that women had certain disabilities at law just as they had a limited role in public life, it is also clear that they had well-defined rights and that the legal system was able to guarantee them. John never allowed himself to make pejorative remarks about women, but it was nevertheless true that the courts were primarily a place where men made the decisions and determined the outcome, and, although he never specifically sad so, John would not have wanted things otherwise.

Notes

1 For a new edition, carefully distinguishing the original material from later additions, John of Ibelin. Le Livre des Assises, ed. P. W. Edbury, Leiden 2003 (The medieval Mediterranean 50). This supersedes the nineteenth-century edition in RHC Lois, I.

2 John of Ibelin, p. 331, 391.

3 Ibid., p. 321-326.

4 Philip of Novara, Livre de Philippe de Navarre, RHC Lois, I, p. 542-543. (The lacunae in the text can be filled from the readings in a manuscript not used by the editor. See P. W. Edbury, Philip of Novara and the Livre de forme de plait, Πρακτιά του Tρίτου ∆ιεθνούς Kυπρολογικού Συνεδρου, 2, ed. A. Papageorgiou, Nicosia 2001, p. 559 n. 23); John of Ibelin, p. 763, 766.

5 Ibid., p. 379-380, 383.

6 Ibid., p. 379, 394, 398, 483.

7 For an example of his use of this phrase, ibid., p. 324.

8 Ibid., p. 379, 398, 510-511.

9 Ibid., p. 512-513.

10 Ibid., p. 514-515.

11 Ibid., p. 516-521.

12 Ibid., p. 381, 508-509.

13 Philip of Novara, p. 558-559.

14 But note John's use of phrase ‘de finer de lui de son mariage’ (p. 383).

15 Texte officiel de l'allocution adressée par les barons de Chypre au roi Henri II pour lui notifier sa déchéance, ed. L. de Mas Latrie, Revue des questions historiques 43, 1888. p. 539.

16 John of Ibelin, p. 379-382.

17 Ibid., p. 394-398, 514.

18 The Cartulary of the Cathedral of Holy Wisdom of Nicosia, ed. N. Coureas, C. Schabel, Nicosia 1997, no. 87 (at p. 227).

19 For further discussion, see P. W. Edbury, John of Ibelin and the Kingdom of Jerusalem, Woodbridge 1997, p. 167-168.

20 John of Ibelin, p. 73, 571.

21 Ibid., p. 421-424.

22 Ibid., p. 397-398.

23 Ibid., p. 656-659. It is present in MS A which dates to ca. 1290 as well as the later MSS B and V. See J. Fold a. P. W. Edbury, Two Thirteenth-Century Manuscripts of Crusader Legal Texts from Saint-Jean d'Acre. Journal of the Warburg and Coutauld Institutes 57, 1994, p. 244-249.

24 John of Ibelin, p. 250, 695-696.

25 Ibid., p. 167.

26 Ibid., p. 188.

27 Ibid., p. 440, 461. See the discussion in the introduction, p. 20-21.

28 lbid., p. 228.

29 Ibid., p. 184, 188, 246, 248, 250.

30 Ibid., p. 66, 79, 81.

31 Ibid., p. 246-247. For the judicial duel, p. 240-245.

32 Ibid., p. 567.

33 Ibid., p. 241.

34 Chronique d'Amadi, ed. R. de Mas Latrie, Chroniques d'Amadi et de Strambaldi, Paris 1891-1893, 1, p. 396.

35 For example, John of Ibelin, p. 84, 90, 91, 183, 264, 462-463, 470-471.

36 Ibid., p. 247, 248.

37 For example, ibid., p. 81, 309, 313, 323, 327, 328-330, 335, 341, 344, 348, 363, 384, 391, 408, 419, 435, 439-440, 484, 527, 543, 554.

38 Ibid., p. 262-265 at p. 265.

39 Ibid., p. 250.

40 Ibid., p. 165, 167, 354-355, 356-362, 377.

41 For example, ibid., p. 59, 66, 198,321,334,374.

42 Ibid., p. 617-619, cf p. 11-12. 159-161.

Auteur

Cardiff University

© Éditions de la Sorbonne, 2004

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