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 to proceed against suspected criminals ex officio, whenever there was sufficient fama that someone had committed a crime.144 That is, fama could decide matters of law (i.e., whether there was a case to be made) but not matters of guilt or innocence.145
In order to establish that a set of circumstances was indeed common knowledge, inquisitors questioned witness groups that were as diverse as possible—not only going outside litigants’ ties of kin and obligation to avoid exceptions but going so far as to incorporate people from various neighborhoods, families, sexes, and social ranks (though nobles would likely have been less important in many cases since their knowledge rarely extended to everyday village business). In the Garret/Gamiça murder case mentioned earlier, the long list of fifty-three witnesses questioned over the course of three days included four notaries, one surgeon, one Jew, and twelve women.146 Inquisitors might also call in experts to introduce specialized knowledge into the testimony. For example, the four notaries may have represented the sum total of the notaries in a town as small as Alcira, but because people called in notaries any time they needed a contract or agreement drawn up, both judicial officials and laypeople might have believed notaries’ knowledge of the community to be more extensive than that of the average community member. Additionally, because a notary might have received formal legal training,147 one can well imagine that their fellow legal professionals might regard their testimony as more reliable. Notably, three of these four notaries were among the first six witnesses called, preceded only by the two eyewitnesses to the events surrounding the murder.148 In addition to the notaries, another witness in the same case, Bernat Estefán, contributed his own brand of specialized knowledge: although many witnesses had claimed to have seen the victim’s wounds and speculated that those wounds had been made with a sword or dagger of some kind, Bernat Estefán told the veguer’s court that, after having found Bernat Gamiça’s murdered body under the bed, he had picked the victim up by the hair and looked for a pulse but, not finding one, determined that he was dead. Asked how Gamiça seemed to have been wounded, the witness replied that it was probably a sword or dagger of some kind that made the wound. Unlike the other witnesses, however, Estefán asserted that this was no mere guesswork, telling the judges that he was a surgeon and could tell such things by touch.149
The use of expert witnesses such as this one illustrates the intersection of the specialized knowledge represented by lawyers and the community knowledge represented by ordinary witnesses. We should not, however, assume that expert involvement—whether from male legal officers or male professionals called in to provide professional expertise—meant that the courtroom excluded women’s voices. In fact, the presence of a dozen women in the group of people questioned also reflects the importance of gender in the construction of public fama. Diversity of witness lists could establish that knowledge was common to all, but the inclusion of women also reflects an understanding at the time that some types of knowledge may have been gendered: later medieval courts seem to have regarded women as authorities on matters of birth, death, kinship, marriage, and sexuality, as well as the household possessions of neighbors, with whom they might often dine as guests.150 In the Garret/Gamiça case in particular, the first two witnesses questioned were women. The reason for and placement of the first—the unfaithful wife who watched her husband burst into her rooms, threatening her lover with a dagger—is obvious. But the second witness (and the one who gave the second-longest statement) was also a woman: Bevenguda the wine-seller, whose regular visits to the couple’s home to deliver wine and at times assist in some household tasks had made her a frequent witness to the wife’s infidelities, to the point where Gamiça had felt comfortable asking her where his married lover was and whether her husband had gone out.151
While knowledge such as Bevenguda’s might not rely specifically on gender, in other cases it did. This was especially important in cases touching on sexuality and the body. In some cases, this might mean bringing in women to test a couple’s claim of male impotence as grounds for marital annulment.152 In others, women might be asked to verify a young woman’s virginity, as was the case when, at the request of the father of an alleged rapist, the sub-veguer of Besalù pressed into service three respectable women: Maria, daughter of the late Ponç de Salevaya, Sibila, wife of Berenguer Mir of Girona, and Guillema, widow of the butcher Pere de Gradu of Besalù. These women, under the supervision of the veguer’s judge Arnau de Batet, were charged with conducting a thorough physical examination of the purported victim, Ermessenda Sabater, to determine whether she was still a virgin.153 The case documents do not specify whether the panel’s composition of unmarried woman, wife, and widow was the result of a deliberate choice, but this selection does at least suggest not only that women had access to certain types of knowledge, but also that the courts may have recognized that different types of women would bring different knowledge to bear on a given case.
In general, we can regard fama as a mixture of social fact and legal fact, consumed by the same people who produced it, as well as by the law courts. There was no single causal connection between fama-as-reputation and famaas-legal status; rather, there existed a complex link between the two, mediated by authoritative legal texts and by the traditions of learned jurists. Laypeople might construct distinctions of reputation that did not always match up with those of learned law,154 but what transformed social fama into legal fama was its constraint within parameters outlined by legal professionals.155
