Између правде и кривице: жена у српском друштву и кривична судска пракса (1804-1839)

Abstract

A woman in Serbia, in accordance with the norms of the Serbian patriarchal society, at the beginning of the 19th century, was subordinate to a man. In particular, there are testimonies that the insurgent elders were prone to violence in general, even towards women, some of them, in accordance with the oriental heritage, acted similar to the Turks, owned a kind of harem and punished women with punishments characteristic of the Turks. If a woman was prone to treachery and cooperation with the Turks during the war, her murder was punished more leniently, as can be seen from the case of the murdered woman, who wanted to lead the Turks to Serbian refugee hideouts. Superstitions and the presence of folk religion and customs were particularly evident in the harsh punishments for "witchcraft " and "sorcery", where women suspected of such acts were burned or immersed in water. Kidnapping of girls has been widespread since the Ottoman period. Eff orts were made to suppress it, because many people lost their lives during that act. Th e kidnappers were severely punished, but, nevertheless, more leniently than was foreseen by the legal regulations of the period of the First Uprising. Elders and judges looked more favorably on such acts and handed down lighter punishments. If a girl ran away for a young man, without her parents' permission, very oft en the elders allowed the wedding and the marriage thus concluded was considered valid. Th e Turks also abducted Serbian girls, in the time before the uprising, converted them to Islam, and they sometimes accepted and fi t into new social roles. Certain regulations were aimed at reducing the number of illegitimate children, fathers who took more money for their daughter's marriage than was prescribed were punished, because this increased the risk of kidnapping and defection of girls, due to fi nancial reasons. Also, fathers who did not perform, according to the norms of the time, their parental duty and allowed their daughters to marry on time, so they entered into extramarital relations 164 Мирослав М. Поповић: Између правде и кривице and gave birth to illegitimate children, were severely punished. Female infanticide was punishable by death, according to Karađorđe's code. Th is crime stemmed from fornication, which was also severely punished with corporal punishment, and in the case of repeated fornication, the punishment was drowning. Th e position of women in Serbia at the time of the uprising was, according to today's standards, unenviable, but in accordance with the level of development of the patriarchal society, social consciousness and social norms of that time, and the oriental heritage and tradition of the Ottoman rule. It should also be taken into account that the state and legislation were just taking the fi rst steps, in the conditions of constant war operations, and attempts to regulate social relations were still in their infancy and, given the circumstances, on the back burner. In the fi rst, there were Serbian statehood, independence and war successes. When we look at things from a theoretical perspective, the historians of the Annalles school divided the social life of the 19th century into the private and public spheres, in which, according to the traditional model, men had dominance in public, and women had a prominent role in private life. Also, the understanding of the patriarchal society implied, according to the usual model, the dominance of men over women and the elders over the younger ones. Today, in recent research, it is pointed out that things were not so unambiguous and that they were much more complex, more fl uid, depending on the historical and social context of the environment. In Europe, including Serbia, women played a signifi cant role in society, although, according to prescribed and institutionalized norms, men had an advantage. With a lot of eff ort, being formally forced to function within the framework of the era, and legally limited by the Serbian Civil Code of 1844, Serbian women really had an infl uence on their husbands, and sometimes even a leading role in the family, notably in the rural environment. In the city life dowry and material goods, which they brought to marriage, gave women importance and social status, as well as the ability to create a network of business and political contacts, from which husbands and the whole family benefi ted, and indirectly, women themselves. Between justice and guilt 165 It is noticeable that violence against women in the Serbian society of the 19th century was present, but "justifi ed" only in certain situations, oft en, as it is today, as an expression of men's powerlessness and incompetence. Also, at the beginning of the 19th century, at the time of Karađorđe and Miloš, it is evident, according to historians, that the society was morally and culturally at a low level, so that adultery, fornication, infanticide (abortion), which resulted from the aforementioned, were frequent. Legal norms from the time of Prince Miloš were intended to preserve and protect off spring; on the other hand, some criminal law regulations show that women were still taken care of. Th ey were arrested only in case they had committed murder, and were kept separately from the men in prison. Otherwise, waiting the sentencing for other criminal acts, women were placed in county chief's or parish priest's house, on "safe" and "neutral" ground. Th e abduction of a girl and the forced abduction and forced marriage were strictly punishable in the period 1815–1839. Also, Prince Miloš, who was otherwise very oft en the supreme instance in court aff airs, had the power to pardon or punish. He forgave his wife, Princess Ljubica, for the murder of his lover Petrija, and he himself was prone to adultery and extramarital adventures, for which he was known and which still arouse the interest of both historians and the reading public. Corporal and death punishments, as well as the rituals of execution and punishment of the body aft er death, were, in the time of Prince Miloš and later, oft en cruel from the point of view of today and human rights, although to some extent a product of the era, present in some forms in the countries of the European West, in combination with the legacy of long-term Ottoman rule and the traditional customary law of a patriarchal society. Th ese punishments were carried out equally on men and women, with the fact that it can be seen from the cases that the corporal punishments for women, in terms of the number of blows with a cane or whip, were, sometimes, especially concerning fornication, more severe. As in any society, women who had infl uence and connections with prominent men had material and social privileges. Also, women from the ruling classes had some kind of protection, even in the period of Prince Miloš, as can be seen from the case of the pardon of Princess 166 Мирослав М. Поповић: Између правде и кривице Ljubica. Long aft er the murder, which she committed in 1819, in the 1830s the princess got her own lodging in Belgrade, in which she was the mistress and which functioned as a women's space, connected to the elite, arranged according to the princess' orders. Th e image of Serbian women in the 19th century by Western travelers depended on the epoch and position of the travel writer himself, the intentions of his travels, education, class affi liation and other factors. Th ere were a lot of women among the passengers, fi rst from the aristocracy, later from the middle classes. In the "image of the Other", including women from the Orient, colonialism and prejudice about Western superiority were included. Th e images of women vary from romantic and idyllic ones, to those that women, and other phenomena and groups in the Balkans and in Serbia, were compared with savagery. All that has been said above shows that the Serbian society and the position of women in it in the fi rst decades of the 19th century, did not diverge so much from the main currents of the position of women in other Balkan countries, even in Europe. Namely, Serbia and the countries of Southeast Europe bordered Central and Western Europe, and Western ideas, albeit indirectly, came to Serbia, and the Serbian population and the state were nevertheless familiar with them, and of their own free will, aware of state and social needs, accepted the ideas, applied and adapted to the Serbian socio-historical context, looking for autochthonous solutions. Th e Serbian Civil Code from 1844, which is a product of the era of Constitutionalists, fi nally, for a long period of time, regulated certain legal issues. It was unfair to women, limiting more the civil law power of women than, say, the Austrian legislation of that period. Jovan Hadžić, as the author of the code, introduced some new parts in order to regulate certain property relations in Serbian society, primarily to ensure the preservation of the unity of the property of the Serbian cooperative. Th e problem of women before the courts should, in conclusion, be summarized within the public and private spheres, i.e. "male" and "female". It can be seen that women appeared before the courts as criminals only if they violated social norms, which defi ne their gender Between justice and guilt 167 identity - femininity (wives, mothers, prostitutes). If someone has violated their femininity, they also appear before the court as the injured party (kidnappings, "unfounded" violence in the private sphere). It follows that the range of criminal acts women were associated with indirectly testifi ed to their position in a patriarchal society. Th e legal regulation and regulations on the punishment of murder during the fi rst reign of Prince Miloš had the goal of taking the punishment of murderers into the hands of the state, to stop the practice of paying fi nes. According to the rule of talion, the murderer was punished with the death penalty, which was carried out in the same way and with the weapon with which the murder was committed. Th is was also valid for women. From numerous cases, it is clear that murders related to women oft en stemmed from family relationships in a patriarchal society. Wives, once angered by the violence of their husbands, killed their husbands. Also, adultery in marital relations was present as a motive for murder, oft en the wife and her lover, in complicity, killed the husband. Th ere were frequent poisoning attempts, which sometimes resulted in the death of the husband. Also, the prince knew how to spare the wives that committed murder the death penalty, if they had several small children that no one had to take care of. Th e free assessment of Prince Miloš, who was an authority in court aff airs, was at times decisive in court practice. Th at's how Prince Miloš forgave his wife Ljubica for the murder of his lover Petrija. Th at was certainly infl uenced by the fact that the princess was pregnant. Th e unwritten rules according to which the local community functioned give an image of intolerance towards any deviation from the social norms that were accepted in that community. And when the authorities released the murderer for some reason, the community would take justice into their own hands and punish them. Such was the case of the stoning of Kumrija, in the Požarevac nahija. Th ere was no formal prohibition of prostitution in Serbia, because no penal norms were prescribed for it. Prostitutes lived in urban areas, had the right to buy and sell real estate, authenticate documents, perform various legal actions. Th ey are mentioned in the correspondence of the 168 Мирослав М. Поповић: Између правде и кривице authorities, where they are recognized by their picturesque nicknames. Th ere were raids and mass arrests, punishments and expulsions of prostitutes, but they were momentary and temporary, sometimes due to the suppression of venereal diseases. Numerous confl icts broke out in Belgrade between Serbs and Turks, who were fi ghting for the aff ection of certain public prostitutes, and that was one of the reasons for their arrest and expulsion. Of the 130 public prostitutes known before 1851, Ivan Janković states that the marital status of 80 is known, namely, most of them were married, then widows, and the fewest were girls (10%) and a couple of divorcees and so-called "concubines". Most of the prostitutes were originally from Belgrade, more than a quarter from the district towns, then from Austria, who came there of their own free will or were bought, and the fewest prostitutes were from the countryside and from Turkey, i.e. Bosnia and South Serbia. During the time of Prince Miloš, prostitutes were at the bottom of the social hierarchy, according to reputation, but according to economic and political power or infl uence, education, they could reach higher social positions. Bad fi nancial situation, poverty, inability to support themselves and children, in the absence of their husbands, incompetence and violence of their husbands, were the most common causes of women becoming public prostitutes. For some, who had ambitions to advance both materially and on the social ladder, engaging in prostitution was a "stepping stone". Connecting with the elite, political, administrative and fi nancial, through men, they acquired property, rights and reputation, even family. According to Aleksandra Vuletić, extramarital relationships and extramarital pregnancies were unacceptable forms of behavior for the norms that were valid in the collective consciousness of the social community, and yet very widespread. Patriarchal society has developed its own ways of reconciling confl icting social norms and practices, and has oft en been willing to look the other way when unwanted children have been eliminated. On the other hand, the Serbian state constantly tried to suppress socially unacceptable forms of behavior, especially the practice of infanticide, in order to gain control over society. Between justice and guilt 169 It happened that the motive for murder was also an unfulfi lled marriage, i.e. because of the girl, who was proposed for someone else, a man from the village tries to kill the girl's fi ance. Men oft en tried to kill or killed women who became pregnant with them out of wedlock. When a man negligently killed a woman, it is notable that the killers were mildly punished, with fi nes and imprisonment. Also, if both a man and a woman participated in the woman's involuntary death, the woman suff ered a more severe corporal punishment. Prince Miloš, as the supreme instance, had the habit of pardoning a man for murdering a woman, if he so judged himself, in the cases that the reason for killing related to the welfare of young children. Of cultural importance are the cases when husbands killed other women from the village, suspecting that they caused their wives to fall ill through "witchcraft ". It was obvious that there was a lack of rational judgment, because these were men who had already been exposed to the trauma of losing their wives and off spring. Th e authorities strictly sanctioned such murders, aiming to suppress superstitions and elements of folk religion that were in confl ict with Orthodox Christian teachings. Men who killed "witches" were punished by death. For a woman, in the case of "unjustifi ed" violence, there was a certain type of legal protection during the fi rst reign of Prince Miloš. Th is confi rms the conclusion of Aleksandra Vuletić that the use of force against women was not tolerated, except in cases where the woman neglected her traditional duties, because then it was considered "justifi ed". In other cases, violence against women by men is punished. In the cases of girls abducted by the Turks, especially from the kidnapping of the Vrenčević brothers in 1832, in which a political moment was involved, we see that the Serbian girls were mostly taken by force and, if there was an opportunity, they oft en ran away or at least were willing to return into the Serbian environment, without renouncing Christianity. From the instructions given by Prince Miloš to Mileta Radojković, regarding the interrogation of the girls abducted by the Vrenčevićs, and some other cases, it can be inferred that there were situations in which Serbian girls, abducted by the Turks, had better conditions for life and comfort than before, and, sometimes, 170 Мирослав М. Поповић: Између правде и кривице willingly agreed to be with the Turks. If the girls fl ed back to Serbia, aft er converting to Islam and marrying Turks, the Serbian authorities allowed them to convert to the Orthodox faith and enter into a new marriage. As part of the fi nal considerations, some space should be devoted to the relationship between customary and positive law in the time of Prince Miloš, i.e. how tradition and its unwritten norms used to be stronger and more present in judicial practice, especially at the beginning of the formation of the judicial organization and the appearance of the fi rst regulations, which were few. Also, the state tried to suppress some deep-rooted customs through strict sanctions, in order to strengthen its authority, and, on the other hand, let local communities administer justice, according to the customary law of the patriarchal society. We get such a picture from several court cases. Th is phenomenon is in accordance with the defi nitions of common law in modern scholarship. Th e image of women and their role in Serbian society changed during the 19th century. It should be noted that the supporters of the United Serbian Youth, followed by Svetozar Marković and several representatives of socialism-feminism, spearheaded the fi rst serious attempt to change existing ideas about gender relations and the roles of women and men. Th e United Serbian Youth tried to include women in their activities, i.e. the desire to include women in public life was expressed. Serbian intellectuals, infatuated with liberalism and socialism in the 1870s, began to get acquainted with „feminist“ ideas about the emancipation of women, which came from Europe. Th is is where women's right to education, political and civil rights were emphasized above all. In his works, Svetozar Marković took a serious approach to the "women's question." He believed that a woman can be freed from the "slave position" by freeing herself from the framework of the family prescribed by the institution of marriage, and by being included in society by gaining legal and civil equality. Th e „fi rst Serbian feminist“ was Draga Dejanović, who in her lectures emphasized the need for mental and work improvement of women, which was part of the European feminist tradition of the era. Finally, we can connect what has been said so far, which refers to the era of Prince Miloš, with the fate of female prisoners of the Požarevac Between justice and guilt 171 Penitentiary at the end of the 19th century. Th eir testimony is presented by the album of the women's department of the Pozarevac Penitentiary institution with statistics by Milutin A. Popović from 1898. Svetlana Tomić dealt with this album from a theoretical perspective, analyzing the fears and emotions of female prisoners of that time. We can see Tomić's attitude related to the "systemic violence of the patriarchal society towards women", and about the inadequate work of the institutions. Female perpetrators were afraid of death and, in general, of the dead body. Th ere were specifi cally women's fears of pregnancy, i.e. abortion and rape. Th is album testifi es that Serbian women were brave, had diff erent ways to resist, sexual freedom, too. Some of these phenomena are of a universal character and did not change much in essence from the beginning to the end of the 19th century, except, perhaps, in the form and through the birth of the feminist movement in Europe, the echoes of which reached Serbian women in the second half of that century. Th e boldness of individual Serbian women, individual attempts to oppose the norms of the patriarchal society, the practice of sexual freedom, and at the same time the fear of punishment, violence, abortion, rape, can be transferred to the time of the fi rst reign of Prince Miloš. Cases from criminal court practice can be a guide in that direction. To quote Aleksandra Vuletić, "the cult of virginity was largely created around the fear of giving birth to an illegitimate child." Of course, at that time there were no psychological examinations and examinations of society and public opinion, so all this remains at the level of supposition. We cannot know whether women's actions were the result of individual and occasional "bursting" due to the constraints of patriarchal society, or whether women already had the awareness and desire to initiate the struggle for their human rights. It was probably more a form of individual rebellion and a spontaneous reaction to the diffi culties faced by women in a patriarchal society, because there was no organized women's movement with a formed ideological basis.