The backlog in my posting is awful [he wrote in May], but there is obviously something in the period of delay that matches the rhythms of my scholarship: I keep finding that I stubbed posts to blog which I come to just as the thing they were about again comes up in my study. Perhaps this will be another, as I found in reading Josep María Salrach’s Justícia i poder a Catalunya abans de l’any mil that he touches on the issue I blogged about a while ago, that of judges in tenth-century Catalonia fabricating legal precedent for their decisions, and also on a much older post of mine elsewhere about the judicial ordeal, with a case that combines the two things. So obviously it’s necessary to follow those posts up with this one, and presumably by the time this goes up I shall have come up against the idea again! [As it happens, not this time; I have obviously caught up too much! But read on...]
The case is interesting, which is why I blogged it before: it’s the only case of a judicial ordeal recorded in Catalonia before the year 1000, says Salrach, and this is true although the next one is from that year so it’s only just true.1 Never mind. There’s also an excellent clear report of it in Jeffrey Bowman’s book on Catalan justice around the year 1000, which as far as I can see Salrach did not use, which I paraphrase here.2 The events are in 988: one Sentemir was brought to court by the abbey of Sant Cugat del Vallès, who claimed that he had destroyed his brother’s will from which they should have had a large estate; they produced a witness to the will, but Sentemir refused to admit that he ever saw it and finally offered to go to the ordeal to prove his innocence. He chose the ordeal of hot water, in which the litgant plunged his arm full-length into a boiling cauldron and then the extent of his injuries and whether they were healing was assessed by a panel three days later. As Bowman points out, following Stephen White, the thing about ordeals is that the designed outcome almost never occurred as they’re recorded: here, the scribe says that Sentemir had intended to keep himself safe by incantantions and curses, but in fact as soon as his arm got near the cauldron his hand burst into flames, and he confessed. The court condemned him to penal servitude but the bishop let him off, though of course he lost the estate.
Now there’s a range of ways this is interesting: was Sentemir really attempting magic? Was that instead an accusation that one might slander someone with in this period? Either’s interesting. There is also the question of what we are supposed to think actually happened. The last time I blogged this trial, I wondered if Sentemir might have been trying something like coating his arm in pitch or similar to protect it against the boiling, and just caught the cauldron fire, but obviously we’ll never be able to tell from this. But for our immediate purposes the interesting question is why they went to the ordeal at all. It is commonly assumed that this was just something that happened in the early Middle Ages but as I said, this is the first one we have from Catalonia, and Catalonia’s principal source of jurisprudence, the Visigothic Liber Iudicum, Book of Judges, doesn’t mention the ordeal of hot water (or really any others except to outlaw them). So where did the idea come from?
Well, you may remember that in the previous post where I was talking about judges customising their precedents there came up a tenth-century copy of a version of the Liber Iudicum called the Liber Iudicum Popularis, one of two made by one of the judges of the era, a chap called Bonhom about whom I’ve often written, and whose copy is now online in scholarly edition.3 As it turns out, his version of the Liber Iudicum does contain a procedure for the ordeal of hot water, still claiming of course to be the legislation of the Visigothic princes of three hundred years before. And who do you suppose was the judge and scribe at Sentemir’s trial? Who else but Bonhom! So we have another adaptation of the letter of the law to the needs of the day, and one that works out in decidedly suspicious circumstances.
Nonetheless, it seems unlikely that Bonhom just invented the idea in whole cloth, or how on earth would he have convinced Sentemir to do it? As Bowman points out, there’s no sense in the charter that there was dispute about this. That’s perhaps not surprising since Bonhom wrote the document, but this was a man who tells us in his documents when he was sleepy in case it looks odd, so I’d expect more words rather than fewer if there was a problem. Even if it was not usual this was apparently an idea that was known to people. But whence had it come? There’s a famous trial by battle involving Bera I, Count of Barcelona, accused of treason, which the biography of the Emperor Louis the Pious by the anonymous known as ‘Astronomer’ says was done because both parties were Goths, and people have argued that since the Gothic Law has nothing of this, it was really a Frankish idea that got carried into Catalan judicial practice.4 Salrach raises the idea instead that the ordeal was in fact the ‘popular’ practice that Bonhom’s law’s adapted title suggests, excluded from proper practice by the Visigothic kings but locally maintained or innovated and so added in to Bonhom’s text because he knew it was sometimes done. Hey, maybe Sentemir had introduced him to the idea in 988! (Salrach doesn’t suggest that, but as usual, on a blog I can push these things further than I would in print.) That in turn implies that we really ought to look closely at the Liber Iudicum Popularis to find out what had needed changing since the seventh century; it may not all have been invented as needed, even if some of it probably was. This is the kind of thing I read to learn, after all.
1. Josep María Salrach, Justícia i poder en Catalunya abans de l’any mil, Referències 55 (Vic 2013), pp. 37-38.
2. Jeffrey Bowman, Shifting Landmarks: property, proof and dispute around the year 1000 (Ithaca 2004), pp. 119-140, and here esp. pp. 122-124; Stephen D. White, “Proposing the Ordeal and Avoiding It: strategy and power in Western French litigation, 1050-1110″ in Thomas N. Bisson (ed.), Cultures of Power: lordship, states and process in twelfth-century Europe (Philadelphia 1995), pp. 89-123, repr. in White, Feuding and Peace-Making in Eleventh Century France, Variorum Collected Studies 817 (Aldershot 2005), VII.
3. Jesús Alturo i Perucho, Joan Bellès, Josep M. Font Rius, Yolanda García & Anscari Mundó (edd.), Liber iudicum popularis. Ordenat pel jutge Bonsom de Barcelona (Barcelona 2003), VI.1.3.
4. Ernst Tremp (ed.), Thegan, Die Taten Kaser Ludwigs (Gesta Hludowici Imperatoris). Astronomus, Das Leben Kaiser Ludwigs (Vita Hludowici Imperatoris), Monumenta Germaniae Historica (Scriptores rerum Germanicarum in usum scholarum separatim editi LXIV (Hannover 1995), Astronomus cap. 32; A. Iglesia, El proceso del Conde Bera y el problema de las ordalías (Madrid 1980).