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Volume 1, redone Dec. 2014


Volume 1


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Transcribed Sources


Andrea Frisch on the Witness
(law, Rabelais, Montaigne, Thevet, Léry)

There was considerable agreement among the legal humanists in late sixteenth-century France (Donald Kelley), on two criteria for assuring or enhancing the possibilities for truth in a history: 1) that the writer himself participated in the events he wrote about; and 2) that he be an eye-witness to the events he narrates. Similar but not the same, the two criteria derived from the ars historica, a sub-genre that flourished in and with links to legal humanism. So often repeated, along with claims to pursue the truth, but never actually subsumed under the more general revival of classical rhetoric, the relation of history to jurisprudence made the difference between uncritical use of sources with an emphasis on literary style, and the researched, documented historical scholarship exemplified in Etienne Pasquier's Recherches de la France.

There is a literature that joins history and jurisprudence. It begins to become much more systematic in the thirteenth century (Beaumanoir), and it continues down to this day, with bifurcations into the more historical or the more jurisprudential. La Roche-Flavin, and much more recently Detourbet, Esmein, Olivier-Martin, and Lebigre, are on the history side. For criminal law the sources usually are treatises on practice and royal legislation, although some attention to cases, to what actually occurred in the courts, has only more recently begun to be researched, notably by A. Soman for the sixteenth and seventeenth centuries, and Y. and N. Castan for eighteenth-century Languedoc. In her pioneering Return of Martin Guerre, N.Z. Davis explored a single case within a framework of legal culture, to discern more general aspects of social, peasant, family, property, and cultural history. James R. Farr has deepened this approach by a careful reconstruction of crime in a much more elite family in Dijon in the seventeenth century.

When editing literary texts, nineteenth-century curieux occasionally delved into the juridical aspects of the works and lives they edited, but it was Howard Bloch in 1977 who offered a model study of literary critical reading of medieval literature within the context of legal culture. Bloch relied on the legal histories to frame his study, but he did not pretend to have conducted exhaustive research or to have reached definitive conclusions. As I recall, he draws on Beaumanoir to characterize the role played by witnesses in court, suggesting that their rank and esteem, as held by their peers and their community, were more important for judgment than their "testimony." In other words, their presence was testimonial.

Andrea Frisch, in The Invention of the Eyewitness; Witnessing and Testimony in Early Modern France (Chapel, Hill, U. of N.C. Press, 2004), begins with the same issue, as she attempts to discern the emergence of the more modern emphasis on the orally-stated testimony, in lieu of the character of the witness. She also notes Derrida's remark about how all testimony is present (this sounds like Collingwood on history!), and that the event about which testimony is taken is in the past. The point may have some importance in other debates, but it bears little weight here for studying the action of witnessing, especially since the study of memory has become so important.
With these two points as frames (witness as character, oral and written testimony almost regardless of character, Frisch turns to interpreting late-medieval and early-modern travel literature. She is perhaps overeager to confirm these points, thus overlooking implications in her sources. I cite what she says about Las Casas, who remarks: "... this he proves with sixteen ear-witnesses and twenty-five eye-witnesses" (p. 22). After which Frisch comments that it is surprising that Las Casas does not place more emphasis on eye-witnessing, as he does elsewhere in his work. But here, right in this text, it is evident that Las Casas is not stating his own view. Rather, he is summarizing a statement by Columbus's son, Admiral Don Diego. Something may have indicated a change of voice that is replaced by dots, but I doubt it. Eagerness to confirm, nuance, or reject a mere theoretical scheme can lead to misreading.

I'll cite another example, this time from Imbert's sixteenth-century treatise on legal practice. "Then he [the judge] confronts them one after the other with the accused: he has both the defendant and the witness swear an oath" (p. 96). The defendant is once again brought before the witness later in the proceedings, but A. Frisch interprets the text referring solely to this second confrontation. This is not a problem of translation. There is simply a misreading of the text. I read the passage over three times, thinking and hoping I was wrong. A. Frisch has a careful eye, but it is perhaps a bit blinded by theories that are driving the analysis. But there are so many interesting an important issues in this ambitious book.

Q. Skinner has placed great emphasis on context in textual interpretation. By this he means more than just author, title, and date. Presumably the meaning of the word witness in travel literature is relatively free of its juridical moorings. I cannot recall at the moment whether the Dominican, Las Casas, had legal training. Richard Kagan has shown just how influential law studies were in the sixteenth century, but to call Las Casas a "historian" is anachronistic and to read him without wondering whether or not theology and canon law may be contexts for his use of the word, can only lead to a superficial reading. And what about Don Diego's use of the word?

In the rest of the book, A. Frisch draws on texts clearly from legal culture and theology; and since there are more of them, her findings are firmer.

In his essay on justice and the law in Montaigne's Essays (Cambridge Companion to Montaigne, ed. U. Langer, Cambridge, 2005), André Tournon stresses that, for Montaigne and the legists of his day, it was the "relevance" of the statements made by eye-witnesses that could yield some fact out of the proceedings (p. 110).

At one point, A. Frisch states: "The result of these circumstances was that objections to witnesses were rarely made on ethical grounds in the sixteenth century" (p. 98). How can she conclude this? She does not seem to have studied a single case. An immense variety of jurisdictions and courts have left records of legal proceedings that are mainly unread and that fill miles and miles of shelves (sic!). Consequently, we have little knowledge about whether or not royal ordonnances were in fact obeyed. There was certainly little authority to punish judges if they did not obey, given the turmoil of civil war and religious conflict. Just how did legal professionals deal with witnesses in court? Through his story about how children stick to the point during a fight (quoted by Tournon, p. 110), Montaigne suggests that there is a natural, unlearned ability to stick to the subject in testimony, after oath. Sticking to the subject at hand is something witnesses can do.

In J. Farr's A Tale of Two Murders (Durham: Duke U.P., 2005), a study of a trial that became a cause célèbre in Dijon, the judges subjected the witnesses (hundreds of them!) to torture, not just once but twice, in an attempt to get at the truth (p. 171). Royal procedure prohibited more than one torture, but here we have a court that did not follow royal legislation in what was certainly one of the most learned and professional local legal cultures in France. Did the changes in the royal legislation result from the extension of professional legal learning (Bourges comes to mind) to court procedure? Or did these changes result from the divisions in society that came from religion and civil war? One does not exclude the other. The social and cultural standing of a witness would always be a factor, as Farr shows (it still is today!); thus A. Frisch's attempt to discern some directional change toward what was said or deposed is just that, an attempt that is interesting and useful for suggesting further research.

Attempts to understand the relations between the traveler as witness and his hearers-readers, as similar to the medieval witness-ethical community relation, does not yield much insight for me. Frenchness, and writing in French for a "public," had long before established something ­ a res for the writer to address ­ and the French public was "good," or considered positive. Atkinson derails this issue (p. 112).

The relation between the oral and the written (p. 125) before a court is fundamentally the same in Imbert and in an American court today. Oral testimony prevails (this type is recorded), and cross examination based on written depositions is an important way of finding out the truth. Variation, not "conflict" between the two, is brought out by cross examination. Since there is no research on the cases, we are left here with a suggestive but shaky attempt to discern change.

A. Frisch's studies of Léry, particularly from the viewpoint of his use of the first person to write his experience, and the theological contexts of his thought, strike this reader as very suggestive. I have to confess that I have not sought to keep up on all the writings about Léry. When faced with a tall monument, I often go around it, not climb it. Here I only wish to touch on some issues.

If Cartier lost a sailor on perilous voyage, would his fellow sailors have thought of the victim as a martyr? Of course not (p. 142). If a Huguenot going to Brazil to convert the natives died at sea, by tradition members of his community would certainly consider him a martyr. It is highly doubtful, however, if prayers would be addressed to him, to intercede with the divine on behalf of the person doing the praying. And not because he was a Huguenot! The Catholic martyr speaks for sixteenth-century believers, to God, the Virgin, the saints. Not speaking to the living is one of the features of death.

While there has certainly always been slippage, the distinction between the veneration of a relic and the worship of the relic, is a matter of Roman Catholic doctrine. Protestant positions (plural) involved whether or not invocation through prayer to a martyr is, or can be efficacious; and in general their answer was no. Privileging of the word over the image rested at the heart of Calvin's thought, and with many important consequences. Even veneration was dangerous: the Word alone sufficed. Catholic views, as summed up in the metaphor of the book (p. 151) as used by Reginald Pole, seems indirect to me. Living books are metaphors, not bodies. This point brings to mind Montaigne's claim to be entirely in his book.

Before briefly presenting A. Frisch's discussion of the links in Léry's thought between theology and witnessing, it is important to go back to what she notes about Léry's conscious and stated remarks about himself. To my mind, it is the most brilliant finding in the book. Léry himself points out that he is not known, and on those grounds his renommé, or reputation as a witness-writer, could therefore not be challenged. Then he specifically makes the point that Tournon finds to be of primary importance in testimonials ­ the relevance of what is said: "Si ce que j'ay dit ... est vray ou non; car c'est là le point, et non pas à la façon des mauvais plaideurs, esgarer la matière en s'informant qui je suis" (p. 112). Léry is states precisely the essential procedural feature about witnessing according to the royal legislation of his day. True, on the title page of his book Léry does say where he is from, certainly a fundamental element in renommée. After his name, he continues: " ... natif de Margelle, terre de Sainct Sene au Duché de Bourgogne." If someone had asked me where Léry was born, and I was before a judge, I would have replied, " don't know." If I had to guess for a G.R.E. exam, I would have guessed Sancerre! But to the point, Léry claims that the information in his book has been "receuilly sur les lieux"; and after tilting a bit openly with Thevet, he goes on to testify to his findings in Brazil. By the verse from Psalm 108 on the title page, he presents himself as a Huguenot.

I am unfamiliar with all the literature about Thevet and Léry as ethnographers, so I read with an open mind Andrea Frisch's findings on the importance of Calvin's theology of the Eucharist and its possible influence on Léry. First, though, I admit that I have a certain sympathy for Thevet. He sought to integrate New-World people into the history and community of the West, by drawing parallels with ancient (mainly) cultures. Amazonian women of Brazil, like their antique exemplars, have played an enriching role in Western culture! Thevet was inclusive in his own way, giving ancestors to people who apparently had no ancestors.

For Andrea Frisch, Calvin's rejection of transubstantiation informed Huguenot communities about alternative ways of understanding the relations between words and things. Let us not forget that Calvin earned a degree in law (Orleans? Bourges?) at a time when that discipline was particularly creative and stimulating. Calvin was a legal humanist before he was a theologian. The debates over whether some other food and drink could be substituted for bread and wine in the sacrament of the Eucharist, frequently located the ceremony outside Europe, and centered on just how literally "This is my body" must be taken. A. Frisch is right to find this, not predestination, to be the centrally debated issue of Léry's time.

Putting it simply, Léry could say "This is a Brazilian," without obligatorily making that Brazilian European. This leads to an emphasis on what the witness says or writes, as not meaning something else; but Léry is, in fact, naming.

In the New World, Europeans named so many things that they must have seen themselves in a parallel with Adam and Eve. Calvin's teachings moved toward an ordinary language relation between bread and consecrated bread, with the power of the word over the latter being in the mind of the witness, rather than in the bread itself.

After tilting with Thevet, Léry himself becomes the witness. The frame in which he sets indigenous peoples is, as Michel Jeanneret infers, one of fellow sinners. There were strong evangelical impulses in some Huguenot communities; in others, waiting for divine action seemed to be in order. Léry's ambivalence about converting the natives therefore belongs in a context, especially as war between faiths raged in Europe. There was much to be done ­ for example, converting the Romans and the Muslims. True, "Go ye unto all nations ..." was the call.

The title page of Léry's first edition, as reproduced in 1927 in Atkinson's bibliography (p. 459), has a wonderful provenance. In a French italic hand, one sees: "Collegii Paris. Societ. Jesu." Did the Jesuit missionaries who went out across the world learn their ethnography from Léry? They certainly practiced and taught the doctrine of transubstantiation. Their relations would be an ingenious synthesis of ethnography and fund raising!

What directions have Andrea Frisch's researches taken since she completed this book? I for one hope that she pursues many of the same themes, but on different texts. Why not explore medical culture through the eyes of Ambroise Paré? And not only medical works, but his travel accounts as sources, as well. How does the discourse of observation interact with the discourse of experience? There is also Bernard Palissy. Paré and Palissy, those extraordinary thinker-writers, are Léry's intellectual and literary peers. Thank you, Andrea Frisch, for a good read!

p. 67: Rabelais doesn't call the serviteur a witness. A witness à gaiges would be perceived as supporting his master because he is paid.
p. 84: par devant means that they are personally present before the notary; it has nothing to do with precedence.

For a sixteenth-century reader, especially a Huguenot, it would be the Bible that might come to mind first as a source of comment and authority on witnessing. I just pulled down an old Concordance to the King James Bible and found 24 references to the word "witness" as a noun, and 6 as a verb. One that has to do with writing, and that is located in a crucial place (one thinks of all those paintings of him writing), is Luke 1:1-3.

Forasmuch as may have taken in hand to set forth in order a declaration of those things which are most surely believed among us, (2) Even as they delivered them unto us, which from the beginning were eyewitnesses, and ministers of the word; (3) It seemed good to me also, having had perfect understanding of all things from the very first, to write unto thee in order, most excellent Theophilus (4) That thou mightest know the certainty of those things....

A look at the same passage in the Vulgate yields some interesting points: "set forth" is narrationem, and "eyewitness" is Visium est.

The Vulgate edition we own is printed by the Baillys in Lyon in 1676. Under "testamentum" there are 3 references, and vide Novum Testamenum; and then 28 references under "testimonium," followed by vide Mendacium. The reference to Luke 1:3 is not there, and there is nothing in the concordance for "seeing."

I shall simply call attention to the beautifully complex account of witnessing when Jesus is before the Pharisees in John 8:13-22. If I were 30 years younger and better trained, I might tackle all the commentary on these verses, but....