Tag Archives: judicial practice

Name in Lights X

Cover of Josep María Salrach's Justícia i poder en Catalunya abans de l'any mil (Vic 2013)

Cover of Josep María Salrach’s Justícia i poder en Catalunya abans de l’any mil (Vic 2013)

The 2014 outputs have begun to appear at last! Though thankfully this is already not the last of them, it is the first, a review by me of Josep María Salrach’s new book as you see above for The Medieval Review; it is online here. The final version of this went off at the end of June, it was up some time earlier this month, not too bad; sometimes online publishing actually does live up to its promise for quick delivery. The book, by the way, is rather good, but if you want to know why I think so, well, read the review, it’s open-access… Some of the points I make there in a sentence or so will turn up here as worked-up blog posts in due course. Stay tuned also, however, for more publications news!


Full citation: J. Jarrett, review of Josep María Salrach, Justícia i poder en Catalunya abans de l’any mil (Vic 2013) in The Medieval Review 14.09.16, online at http://hdl.handle.net/2022/18731, last modified 15 September 2014 as of 27 September 2014.

Leeds 2013 report part 2

Sorry, this has taken a couple of days to find the time to write. But, as with the conference experience itself, the only way out of the backlog is through! Or something. So, resuming the Leeds 2013 report on Tuesday 2nd July, your blogger found himself breakfast (which was reassuringly, basically the same as it had been at Bodington, which is to say, there were many options healthier than the somewhat limp fry-up but that’s what I always have anyway). Thus fortified, I headed for dispute!

506. Law, Violence, and Social Bonds, I: Power, Conflict, and Dispute Settlement

  • Matthew McHaffie, “Warranty of Land in eleventh- and early twelfth-century Anjou”
  • Kim Esmark, “Power and Pressure: the micropolitics of 11-century aristocratic networks”
  • Warren C. Brown, “Conflict and the Laity in Carolingian Europe”
  • Mr McHaffie here was looking at at a particular procedure in Angevin charters whereby the actor undertook to stand warranty for the recipient’s onwership of the property, meaning that they would defend it at law and if necessary by force. He emphasised that this was rare (120 cases in the 3000+ documents he’d looked at), that it was by no means always carried out when it should have been (as, as Geoffrey Koziol pointed out in questions, we see in the Conventum Hugonis), and that a lot of what it involved must have been going on outside the courts that provide us with half the relevant records. It very quickly comes down to the micropolitics of who was involved with whom, which meant that Dr Esmark followed on very neatly, especially since he was also talking about Anjou: the thrust of his paper was that lords’ actions were shaped by the pressures of their followings as much as any other factor. Matthew Hammond tried to use this to suggest that Thomas Bisson might exaggerate lords’ freedom of action in the period; Dr Esmark, as my notes have it, thought there was “lots more to do to prove him fully wrong”. Both I and Bob Moore pressured him for more on the ties of the groups involved, whether they were a steady body of people and how they were linked between themselves, but variability over both time and case seems to be the motif, as I reluctantly suppose we’d expect, though core membership of the groups seems to be more identifiable than in my materials till, well, I suppose the mid-eleventh century actually! Hmm…

    The donjon of the Château de Loches

    The donjon of the Château de Loches, originally built by Count Fulk Nerra of Anjou. Probably room for a few amici

    Lastly, Warren Brown, as is his wont, emphasised that for the early Middle Ages, formulae are in some ways a richer source for social practice than land transfer documents and showed it by extracting from them information on judicial process in disputes between laymen, something that given most surviving documents’ involvement of the Church we otherwise hardly see; this shows up, even in Frankish sources, a picture of negotiation, settlements, tactical defaults, oaths and corruption that looks a lot more like the picture we have from the more detailed Italian evidence, although also a significant amount more homicide and highway robbery than we find in any other sources.1 He also emphasised that women were envisaged as aggressors too, not just by underhand means like sorcery but sometimes by flat-out assault. His conclusion was that the formulae show the patches that had to be applied to a system that often went wrong, which I think is pretty realistic.

I seem now to have skipped a session, which if I remember rightly was simply because I didn’t get the location of the one I had decided to go to worked out in time, realised I would be late and decided I would do better just to get coffee and decompress for a short while. This is probably the point at which most of this happened, too:

A stack of books bought at Leeds IMC 2013

The haul from Leeds 2013

I must have slipped! So after that obviously stern strictures were required, in the form of law.

703. Origin, Usage, and Functionality of the Frankish Leges

  • Magali Coumert, “Isidorus Hispalensis and the Lex Salica
  • Lukas Bothe, “Let ‘Em Pay or Hang ‘Em High?: tackling theft and robbery in Merovingian legal sources”
  • Stephan Ridder, “Traces of the Frankish King in the Lex Baiuvariorum
  • Start of a copy of the Salic Law in Paris, Bibliothèque Nationale, MS Latin 4404

    Start of a copy of the Salic Law in Paris, Bibliothèque Nationale, MS Latin 4404

    Dr Coumert started from the odd fact that although Isidore of Seville would seem to have precious little to do with the supposed codification of old Frankish custom into the Salic Law, nonetheless, a quarter of its manuscripts also contain his work, and from there went into a lengthy but justified plain about how misleading the canonical edition of Lex Salica is in terms of how anyone actually used it, since it raids manuscripts of radically different traditions to construct a ‘pure’ text that it is obvious no-one at the time had or used. “He just didn’t care,” said she of Karl August Eckhardt, and it’s hard to disagree, though as the paper revealed, it’s also very hard not to use his groupings of the manuscripts anyway.2 What taking the manuscripts as wholes reveals, however, is that they almost never have only one code in, but are always collections of several laws or sources of law, and Isidore seems to have been an authority that could travel with these too. The users of these manuscripts were not doing with them what the nineteenth-century editors thought they should have been, and it’s probably worth trying to figure out what they were doing rather than seeing that use as something in the way of our scholarship…

    Mr Bothe, meanwhile, approached the question of death for thieves, something that is supposed often to be normal ‘barbarian’ practice, especially for those caught in the act, but which is often deprecated in the actual laws in favour of heavy fines, which he suggested were preferred because of not implicating the judiciary in the feud that might result from executing someone. I thought that that, and the idea of a legislating state trying to patch up law, both sat oddly next to the idea we seem otherwise to be developing of Merovingian Frankish law as a more or less decentralised set of ideals, something on which I’ve heard enough since to make it impossible for me to recover what I thought about this session at the time. That picture was much more present in Mr Ridder’s study of the Laws of the Bavarians, though, a text whose origin and issuer is almost perfectly unclear, but which attributed to the king of the Franks considerable connections to and authority over the Agilolfing dukes of the Bavarians. Mr Ridder suggested that here we might even take the text seriously and associate it with a Merovingian move into the duchy to coordinate its defence against the Avars. The questions mainly focused on Mr Bothe’s fines, however, and whether, given their size, even they were supposed to be more than deterrents; he thought that probably was their function, but pointed out that what seems to be an impossibly large amount of gold might still be achievable in cattle, because cows were surprisingly expensive (say two solidi each?), or of course in land, which, as in Spain (why I’d raised the question) was not envisioned in the law but certainly happened here. Here again, therefore, we saw that the actual law texts bear only the sketchiest relation to what was actually done, meaning that they were not the kind of resource we usually think they were. How many other sorts of text does that apply to, we might ask?

Then coffee and then fireworks, at least of an intellectual kind.

803. Defining Kingdoms in 10th-Century Europe

  • Geoffrey Koziol, “The (Dark) Matter of France: monasticism and the making of the West Frankish kingdom”
  • Simon MacLean, “Who Were the Lotharingians? Defining political belonging after the end of the Carolingian Empire”
  • Charles Insley, “Beyond the Charter Horizon: (un)making England in the 10th century”
  • Saint-Philibert de Tournus

    The eventual home of the monks of St Philibert, at Tournus. “Tournus-StPhilib” by MorburreOwn work. Licensed under CC BY-SA 3.0 via Wikimedia Commons.

    Despite the plethora of brackets, this session was surely my favourite of the conference, probably mainly because it’s so nice to have people other than myself looking at the tenth century as if it might tell us something. Professor Koziol was excited to tell us about about his new theory, which was coming in the wake of the completion of the most substantial work on the Carolingian tenth century for quite a while.3 The problem he was seeking to solve was how the West Frankish kingdom, of which large parts repeatedly rebelled in the ninth century and much of which was beyond the control of its kings for the tenth through to twelfth centuries, held together as any kind of unit. Why did the idea of France even include Aquitaine and Provence by the time the Capetian kings could make that mean anything? For Professor Koziol, the answer is monks, or more specifically, congregations of monasteries or single houses with really wide-ranging property interests, like the familia of Saint Philibert whose sporadic flight from the Vikings took them through four different homes with supporting endowments.4 Another obvious one would be Cluny, which though outside Francia proper controlled a network of houses within it and saw the king as their principal defence. Such places relied on the kings’ support, and by doing so gave the kings the framework of a state which kept them present, even when ineffective, in peoples’ schemes of the world. Such at least was the theory, but the fact that such royal documents were rarely brought out of archives, as far as we can tell, and that even allowing for Cluny there’s really no way to show any shared ideology other than Christianity between all Frankish monasteries, gave others pause. For me there’s also the question of why this didn’t work in Catalonia, which even in its parts then north of the Pyrenees stopped asking the kings for such documents quite sharply after 988, yet meets most of the same criteria before then. Nonetheless, Professor Koziol did not seem unconvinced so I guess that we will see further versions of this thought, and even I’m sure it explains something, I’m just not quite sure how much yet…

    Old map of Lotharingia with some more modern captions

    Old map of Lotharingia with some more modern captions

    Simon, meanwhile, was asking a quite similar question but without the surviving monarchy, which makes the old ‘kingdom of Lothar’, Lothari regni, Lotharingia or Lorraine or Löthringen, as an idea even harder to explain. Despite the completely arbitrary origins of the area, evident in its name, Simon cited sources from the 960s talking about the ethnic characteristics of Lotharingians. Of course, as he said, this just goes to show that even when ethnicity is entirely constructed and situational (which is possibly always, I might throw in), it’s still a powerful idea. For this case, Simon thought that its power was being appropriated by the writers who supported local noble groups against a West Frankish crown that returned to the area as a conqueror, not as an heir, in the form of King Charles the Simple in 911, so that what had been ‘Lothar’s kingdom’ became more comfortably separate as an area with a people named after him than as a territory that had clearly belonged to the Carolingian monarchy. In doing so, however, he mentioned various other formulations that didn’t seem to stick, like ‘regnum Gallicanum’, and in questions some of the most interesting points for me were raised about other such ethnicities that fail, for example the Ribuarians, who had a Frankish lawcode but who seem never to have been a people anyone could locate. There are others, and so the question may be why this one stuck and others didn’t, and I suppose that one answer might be, it was not controlled by outside interests for long enough at a time to remove the value of an ‘inside’ identity, in which case I need to look at it rather more closely…

    British Library, Cotton MS Claudius B VI, fo. 109v

    The Abingdon Cartulary, demonstrating its interest in the kingdom by picturing Edward the Confessor, albeit quite a long time after he would have cared. British Library, Cotton MS Claudius B VI, fo. 109v

    Lastly, Charles Insley took aim at the developing historiography, of which you’ve had plenty reported here since it’s largely coming from Oxford, that is trying to place the definitive development of an English state in the tenth century. He pointed out that by using Koziol-like tactics of analysing the uptake and issue of royal diplomas, it seems clear that large parts of this supposed kingdom just did not deal with the kings in the way that the south did.5 Instead, therefore, he suggested that far less of tenth-century England was governed by consent, as opposed to grudging acceptance of the king’s ability to beat them up with southern armies, and that governmental structures may therefore not be enough to tell us about unity. Most of the questions Charles got were about preservation: there has been so much Anglo-Saxon material lost that arguing from areas of absence is dangerous, but, as he says, there are lots of charters from East Anglia, just no royal ones, and there aren’t no documents from the north (though it’s very close!) so there is still something to explain.6 Julie Hofmann suggested that we might be looking less at obedience to royal power projection in the tenth century and more at subservient submission to royal dissolution in the sixteenth, which as Charles said is a possibility that late medieval registers might help eliminate. Work to be done, therefore!

All the same, this session hit a great many of my buttons: three scholars I think are always interesting and argumentative, all pushing more or less big ideas, and happy to let others take shots at them in the cause of testing them out, with plenty of people happy to do so; it may look quite disputational, and I suppose it isn’t for the thin-skinned, but in a session like this one can practically feel the field energise and take shaky steps forward. There was plenty to think about over dinner. But then there was also some more to think about after dinner, in the form of a dessert of databases.

910. ‘Nomen et Gens’ and ‘The Making of Charlemagne’s Europe': early medieval database projects – a round table discussion

    This took the form of two short presentations of the respective projects by their principal investigators, introduced by Jinty Nelson, with a question and answer section for each. I’ve yet to see a round table at Leeds that really is a round table, though I do generally avoid them which is probably why, but nonetheless there was lots of information here. Nomen et Gens is a project that’s been running since the 1970s—as Steffen Patzold who was introducing it said, long enough to have its own Traditionskern—but has lately advanced fully into the database age, and its aim is to amass enough prosopographical data to assess quantitatively what ethnic identifiers actually meant to their early medieval users.7 What this means, however, is that it now contains basic biographical and personal information for 10,000-plus people of the seventh and eighth centuries and the easiest way to find out more is to go and look, here. The only real question was why this was only a demo version, but apparently there is much more to check and unify before the full thing can go live to the world. Accounts are available for those who can help, though.

    Screen-capture of <em>Nomen et Gens</em>'s entry for Charlemagne

    An example of cross-over: screen-capture of Nomen et Gens‘s entry for Charlemagne

    Alice Rio spoke for The Making of Charlemagne’s Europe, a project I’ve heard a lot about given its staff’s frequent presence at the Institute of Historical Research. Here the aim has been to database all the charters from the reign of Charlemagne and the territories which he ruled. A lot has been learned from the approaches used at Kings College London, where the project lives, on Prosopography of the Domesday Elite, and its structure is quite sophisticated. Here, again, the best way to find out more is probably to go and play with it: it wasn’t live in July 2013 but now it more or less is, so take your Charlemagne-period enquiries to it and see what it has to tell you! At this point it was still very much in development: I asked, for example, if it could answer stacked queries (a query performed on the results of a previous query) and was told that it had been able to since two o’clock that afternoon… But it was clearly going places at last, after many frustrations, and the two databases were also probably going to be able to talk to each other behind the scenes in productive ways.

And thus, pretty much ended the second day. [Edit:: I forgot to mention that Magistra also blogged the first and last of these sessions, and particularly in the former her impressions were quite different from mine, so you may like to take a look there as well.] More will follow, after a short digression about a tiny church…


1. W. C. Brown, “Conflict, letters, and personal relationships in the Carolingian formula collections” in The Law and History Review Vol. 25 (Cambridge 2007), pp. 323-44; cf. Chris Wickham, “Land Disputes and their Social Framework in Lombard-Carolingian Italy, 700-900″ in Wendy Davies & Paul Fouracre (edd.), The Settlement of Disputes in Early Medieval Europe (Cambridge 1986), pp. 105-124, rev. in Wickham, Land and Power: studies in Italian and European social history, 400-1200 (London 1994), pp. 229-256.

2. Eckhardt did about a hundred different editions of the Lex Salica but I guess that the definitive ones are the MGH ones, K.-A. Eckhardt (ed.), Pactus Legis Salicae, Monumenta Germaniae Historica (Leges Nationum Germanicum) IV.1 (Hannover 1962), online here, and idem (ed.), Lex Salica, MGH Leges IV.2 (Hannover 1969), online here. The problems of assuming an Urtext behind the manuscripts of course also dog attempts to come up with a single translation, such as Katherine Fischer Drew (transl.), The Laws of the Salian Franks (Philadelphia 1991), where pp. 52-55 demonstrate the awkward choices that had to be made.

3. That being none other than Geoffrey Koziol, The Politics of Memory and Identity in Carolingian Royal Diplomas, Utrecht Studies in Medieval Literacy 19 (Turnhout 2012).

4. The last word on the monks of Saint Philibert appears now to be Isabelle Cartron, Les pérégrinations de Saint-Philibert – Genèse d’un réseau monastique dans la société carolingienne (Rennes 2009), which Professor Koziol cited.

5. Referring to Koziol, Politics of Memory, in case that’s not clear, though cf. Mark Mersiowsky, “Towards a Reappraisal of Carolingian Sovereign Charters” in Karl Heidecker (ed.), Charters and the Use of the Written Word in Medieval Society, Utrecht Studies in Medieval Literacy 5 (Turnhout 2000), pp. 15-25!

6. What there is from the north is now printed in David Woodman (ed.), Charters of Northern Houses, Anglo-Saxon Charters 16 (Oxford 2012).

7. I had here some acid comment about how it would be normal to look to Germany for a project working to establish ground-base values for ethnicity then realised the problem with making such a generalisation…

Cat of four silver tails

The last few posts’ illustrations have been extremely manuscript-heavy. I make no apology for that but all the same some variety is nice: what do you make of this?

Silver scourge from the ninth-century Trewhiddle Hoard, Britism Museum 1880,0410.4

Silver scourge from the ninth-century Trewhiddle Hoard, Britism Museum 1880,0410.4

I think it’s fair enough to say you don’t see this every day, even if you work at the British Museum, since it’s in store, but also because it’s pretty much unique. It was part of a hoard of silver objects found in 1774 in a streambed running out of some tin workings at Trewhiddle in Cornwall, these objects having come to be the types of a particular style of Anglo-Saxon metalwork which they embody, but this scourge is not really in the style since, as you can see, it’s hardly ornamented at all. It’s very fine: what you’re looking at is strands of silver chain held together by loops and broken out into four strands with plaited lumps at the ends, and a loop at the other end, presumably for hanging the thing up? But it’s not sophisticated, and it seems to raise a lot of questions, not the least of which is what it was for.

Items from the Trewhiddle Hoard, Britism Museum 1880,0410

The rest of the hoard items as now conserved. I count a chalice, two buckles, three lengths of ornamented silver strip (two curved, all toothed), three silver pennies (one in fragments), a hook-tag, one sword-pommel, two diamond-shaped mounts, two strap-ends, the scourge and the two bits that look like fragments of some apparatus of rods at top-left, including the one with the peculiar dodecahedral termination. But there was more! British Museum 1880,0410.

Now, OK, you might think the answer to that is obvious: it’s a scourge, it’s for hitting people. But really? It’s silver. I don’t have a lot of experience myself with whips and flails but from what talking I’ve done with people who do, I’m pretty sure this would draw blood if used in any kind of anger, and blood is hard enough to get out of most things, let alone plaited silver wire. Anyone who owns any silver will know how hard it is to stop it taking a tarnish; now count that difficulty strand by strand and tie them all together… I don’t know what one would have cleaned silver with in the early Middle Ages: I guess a pad of wool soaked in urine would get most stuff off, but what you’d polish up with afterwards that would stop the effects of even that mild acid I’m not sure at all. If this had ever been used to strike people with, even if then cleaned, I’m pretty sure the ends would be blackened in a way that even the best metals conservators couldn’t remedy, at least after nine hundred years in the Cornish ground to finish the job.

A depiction of of the god Osiris from the tomb of Seti I, with crook and flail

A depiction of of the god Osiris from the tomb of Seti I, with crook and flail

So, OK, if it’s not for use it must by symbolic, right? And indeed my son, when I described it to him, immediately thought of the flail borne by the Egyptian pharaoh in depictions, presumably (though not certainly) to symbolise his power to punish. And that makes extrinsic sense but in an Anglo-Saxon context, as Trewhiddle is usually seen, it’s still weird, because in Anglo-Saxon law corporal punishment is really something done only to slaves. Freemen paid fines, or were reduced to slavery if they couldn’t, and anyone who had slaves had the right of punishment over them, so there was nothing exclusive about it worth symbolising in silver, or so it seems to me. But on the other hand we are not necessarily in an Anglo-Saxon context here. The hoard is no longer complete: when found, as well as the items depicted above, there were some things now lost and a lot of coins whose dates make a deposition date of around 868 seem likely. That was of course a reasonable time for hiding treasure, in as much as there were large numbers of Vikings about, but the goods also send mixed signals, as the British Museum website now points out.

“The accompanying metalwork presents an intriguing mixture of ecclesiastical and secular material, and in addition to its obvious and predominant Anglo-Saxon components includes one brooch of Celtic origin.”

That brooch was I guess not wholly of silver and thus now stored somewhere else in the BM? In any case, it’s not obviously in the picture borrowed above. But, aside from the odd bits of broken stuff, there are some unique things. One is the scourge, which seems to have attracted really very little commentary, but the chalice is another, the only known Anglo-Saxon silver chalice says the BM website (though it also says that the interior was gilded), and its best parallels all come from Ireland. And all this reminds me that this hoard was in Cornwall, which had at this point been under definitive Anglo-Saxon control only for a generation or so but which prior to that had been the rump of the British kingdom of Dumnonia. While it’s absolutely true that much of the material in the hoard is culturally or at least artistically Anglo-Saxon, other symbol libraries were surely available in this area, and that scourge is so simple of manufacture that it’s pretty hard to date… It could be a deal older than some of the other things in the hoard. Is there, I wonder, anything in Welsh or Cornish myth that gives a whip or scourge some important rôle? Early medieval Welsh law, in so far as we really have it, is firstly still supposed to be later than this and secondly just as compensation-focused as the Anglo-Saxon ones, but I wonder if some royal or ex-royal family had a story about themselves that made this tool an important thing to display…


I stubbed this post when I met this item in Leslie Webster & Janet Backhouse (edd.), The Making of England: Anglo-Saxon art and culture AD 600-900 (London 1991), no. 246 (b), and that’s still quite informative but the website link I’ve given here has all that material and more up-to-date references, so I see no point in my usual array of footnotes for once…

Seminar CLXXXIII: community law enforcement in early medieval Britain

My relentless progress through my seminar report backlog now finally leaves me looking at the last seminar I went to in Oxford, something of a milestone. The person who had the dubious honour of that slot in my academic life was the estimable Dr Alice Taylor, one of Kings College London’s regiment of Alices and an acquaintance of long standing from the Institute of Historical Research but here presenting to the Medieval History Seminar at All Souls with the title “Lex scripta and the Problem of Enforcement: Anglo-Saxon, Welsh and Scottish law compared”. This was a version of a paper she’d given in Oxford the previous year, but I’d missed it then and there was plenty of debate this time round…

Edinburgh, National Archives of Scotland, MS PA5/1, fo. 59v

The opening of the text of Leges Scocie, as close as there is to an early medieval Scottish lawcode, in Edinburgh, National Archives of Scotland, MS PA5/1, the so-called Berne Manuscript, fo. 59v.

It has so far been Alice’s most widely-recognised achievement to convince people that there even was such a thing as early medieval Scottish law, which she has had to retrieve from contextually-undatable references in much later manuscripts, but when you’ve done that, as she explained, you start to wonder about how the system worked and since, if that was your best evidence, you have no case-law or documentation by which practice might be examined, you have to start comparing. So, after a brief run-through of the different schools of historical thought on how written law relates to what people actually do to maintain social order in their communities, from the minimalist Patrick Wormald thesis that legislators of such law were not after judicial effects so much as the promotion of the legislators’ position above society to the somehow more spiritual one that written law reflects the wider community ideology as it was lived, she adopted a position for debate that written law was in these cases the top of an iceberg of unwritten legal practice, both part of the same corpus of social ideology, but more similar between her areas at the bottom than at the top.1

The three corpora do certainly differ, not least in preservation—Wales has various thirteenth-century redactions of what purports to be a royal lawcode of the tenth century, the Laws of Hywel Dda, Anglo-Saxon England has a large corpus of summative royal lawcodes with additional provisions also largely issued in royal council in what we now recognise as a fairly Carolingian way and in Scotland, as said, there are thirteenth- and fourteenth-century references to laws that in some cases probably go back rather further—but also in the legislative process: Welsh law names a king but its real developers were specialist lawyers, Anglo-Saxon England places the king first and foremost and Scotland is somewhere between the two. Alice argued, however, that all three corpora have references in that imply strongly that the legislators expected the initial action against criminals to come from the communities in which the crimes were committed, and the royal or state process would only creak into operation when that failed. The English laws are full of communal obligations for default of which the king can penalise, at what after the tenth-century is usually a flat fine of 120 shillings; Welsh law has a whole set of pay-scales for abetting crimes, which are charged at the same rate as the crimes themselves but to the state, rather than the victims; and the more shadowy Scottish references still assume posses who might hang a thief if he was caught, in a style quite similar to the Anglo-Saxon laws. All, or so Alice argued, expected the most immediate action to be taken in community, leaving royal justice as a superstrate over a bustle of quite various local enforcement of communal solidarities. For this reason, the main focus of the laws in all three areas is on persons, not communities, who have broken out of their social bonds by reason of their actions.

Swansea, National Library of Wales, MS Peniarth 28, fo. 2r

An illustrated page from the Laws of Hywel Dda in Swansea, National Library of Wales, MS Peniarth 28, fo. 2r

This met with some opposition and refinement in discussion. Paul Brand pointed out that despite the texts’ focus on individual actions, royal enforcement was carried out against whole communities, such as the harrying of Worcestershire in 1041 by King Harthacnut’s orders to pick just one.2 Mark Whittow suggested that the real rôle of law in these cases was to penalise action on behalf of the kindred, i. e. feud, as opposed to action on behalf of the community; and Wendy Davies evinced scepticism that the local community existed in these areas as a group so clearly defined as that it could be expected to act as a body. To the last, Alice (correctly, it seems to me) said that the texts nevertheless envisage such a group with mutual knowledge, though this doesn’t remove Wendy’s objection that it’s hard to show that was really there on the ground. Thomas Charles-Edwards and Tom Lambert both raised the question of change, however, and here there seemed to be more room for modification at least about what the royal law was for: Tom has after all argued something not dissimilar to this but both he and Professor Charles-Edwards emphasised that the lawcodes we have (i. e. the English ones) develop new terms over the course of the tenth century, as the kings try and open up space for themselves in what had previously been community action.

My notes no longer make it clear to me exactly how the three positions differed here, but the focus of disagreement seems to have been on whether the legislators, in all three cases, were trying to use what the communities over whom they legislated already did, to support it or to change it. I think Alice was arguing for the first two options, but for England the swell of opinion elsewhere around the table seemed much more on the first plus the third. It did seem to me (what my notes do reflect) that the English laws have as a big part of their agenda to regularise and eliminate local variation in custom, and the detailed provisions of the Welsh laws look like that to me also; the Scottish stuff I know much less well, but since we don’t have it as issued (if it was) it’s harder to say. The differences in practice here may not matter very much, but the Oxford scholarship seems even now to be very keen on knowing the minds of rulers, and it does seem as if law should be a way one can do it; to that way of thinking, Alice’s paper was probably more subversive than it initially appeared…


1. Alice here contrasted Patrick Wormald, The Making of English Law: King Alfred to the twelfth century. 1: Legislation and its limits (Oxford 2001) with Ruth Mazo Karras, Slavery and society in medieval Scandinavia (New Haven 1988). Patrick’s book is certainly where to start for more on any of the lawcodes mentioned in this post. As for Alice, her beacon work so far might be “Leges Scocie and the lawcodes of David I, William the Lion and Alexander II” in Scottish Historical Review Vol. 88 (Edinburgh 2009), pp. 207-288, but this paper itself is out, since last month only, as “Lex Scripta and the Problem of Enforcement: Welsh, Scottish and Anglo-Saxon Law Compared” in Judith Scheele & Fernanda Pirie (edd.), Legalism: justice and community, Legalism 2 (Oxford 2014), pp. 47-76!

2. So recorded in The Anglo-Saxon Chronicle in its entry for the year 1041. in whatever edition or translation you prefer to use; mine of resort is Michael Swanton (transl.), The Anglo-Saxon Chronicle (London 1996, repr. 1998).

Seminar CLXXIII: blended Burgundians

Continuing to fight the backlog, let me tell you all about the time I went to hear Erica Buchberger, now well out of Oxford, present a paper to the After Rome seminar there on 25th April 2013, a paper entitled “Romans, Barbarians and Burgundians in Early Burgundian Law”. Erica’s work at that point was, and probably still is, to clarify what it was that the ethnic terms beloved of early medieval sources actually meant, and on this occasion she was working through the two Burgundian lawcodes, the Lex romana Burgundionum and the Liber constitutionum or Lex Burgundionum, to see what they do with the three terms of her title.

The title-list of a tenth-century copy of the Lex Burgundionum in Paris, Bibliotheèque Nationale de France, MS Latin 10753

The title-list of a tenth-century copy of the Lex Burgundionum in Paris, Bibliotheèque Nationale de France, MS Latin 10753

The short answer seems to have been that these texts don’t much help: while the separation of the two texts seems to indicate a category distinction between Romans in Burgundy and Burgundians, the number of circumstances in which one’s sort of law could be chosen, associated with property or even sold with property makes a rapid nonsense of the idea that these were categories of birth. In fact, almost all the invocations of the ideas of ethnicity come up, in either lawcode, where landed property is concerned. I suppose, as I think from my notes did Erica, that this is because in land, claims of inheritance were more important than they were in everyday cases of affray or disagreement, so that one’s ancestry, from people who perhaps felt and expressed their identity as Roman or Burgundian more sharply as the two groups first interacted, would be more relevant. In that case, as Erica certainly did say, the laws are testifying silently to the ongoing collapse of the distinction, and show us many ways in which they could be crossed or avoided. She also argued that the laws were a tool working towards that combination of peoples, and there I’m less clear what the basis of her argument was: perhaps, though, that the two laws should not be seen as alternatives but as complements, applying Roman and ‘barbarian’ solutions respectively to a population who were increasingly able to see themselves as both. There were lots of questions, but almost all about the details of accommodation or case-law, and what I got from that is that Erica knows her stuff, by now not a surprise. It was good to attend this paper, as it represented the hoped-for outcome of many a piece of research: even though research ineluctably initially reveals that the question is too complex to answer simply, at the end one needs to have some answers that do help us understand better. This, now-Dr Buchberger certainly provided!


The standard editions of the Burgundian laws are the MGH ones, Friedrich Blühme (ed.), “Leges Burgundionum” in Georg Heinrich Pertz (ed.), Monumenta Germaniae Historica inde ab anno Christi quingentesimo usque ad annum millesimum quingentesimum Legum III (Hannover 1863), online here, pp. 497-630, or Ludwig Rudolf de Salis (ed.), Leges Burgundionum, Monumenta Germaniae Historica: Leges Nationum Germanicarum II.1 (Hannover 1892), online here, and there’s a translation of the Lex Burgundionum in Katherine Fischer Drew (transl.), The Burgundian Code: Book of Constitutions or Law of Gundobad; additional enactments (Philadelphia 1972). The Lex Romana Burgundionum isn’t published in translation yet, but I know that a masters student at Kings College London has done a translation, so, who knows… ?

Seminar CLXII: feud and punishment in Anglo-Saxon England

We now reach a point in my seminar backlog where before I get one version of a paper written up I have already seen a later version, but I don’t know what to do about that that isn’t do what I would do anyway, so, let me tell you about the work of Tom Lambert. Tom definitely counts as one of the friends I made in Oxford, so this is a friendly write-up, but that’s not hard, as Tom’s stuff is really sharp,1 and, on 4th February 2013, he was performing it to the Medieval History Seminar in Oxford under the title, “Crime, Community and Kingship in Anglo-Saxon England”.

Troston Mount, nr Honington, Suffolk

One place where we can be reasonably sure Anglo-Saxon justice got given, Troston Mount, near Honington, Suffolk, the old meeting site for Bradmere hundred

You could tell very early on this paper that Tom is possessed of an uncommon brain, because as I recall (this not in my notes, but I’m fairly sure) he began by saying that he had been thinking about crime and punishment in Anglo-Saxon England for some years now and had recently realised that it was all much simpler than we’ve been inclined to think. I tell you, one does not often hear an academic tell you their subject could be simpler. But by the end he had me convinced, with one or two minor reservations. The thing is that, since Patrick Wormald and even before, if you follow thinking on law in Anglo-Saxon England the idea has been that it started with a system that was basically feud, where social order is kept if at all by the threat of vengeance, and finish up with a system where the kings have imposed themselves in almost all arenas and the system has been, well, nationalised.2

The first page of the Laws of King Æthelberht as preserved in the Textus Roffensis at Rochester

The first page of the Laws of King Æthelberht as preserved in the Textus Roffensis at Rochester, image from Wikimedia Commons

However, as Tom pointed out, even the earliest Anglo-Saxon laws we have, those of King Æthelberht of Kent, have some areas of action reserved to the king, things for which he takes fines.3 That’s what makes something a crime in this thinking, rather than just an injury deserving vengeance, the declaration of a public power that it needs public action. This is the area of jurisdiction that expands, but why is it there at all? Tom’s answer was that these things, largely failures of religious observance or breach of peace, are things for which there is no obvious victim. The community as a whole may be offended, they may even be punished by God collectively (because this is a thing that is well-known to happen to Anglo-Saxon England) but there is no specific person whose responsibility it clearly is to take vengeance. For that kind of offence, you need someone who represents everyone, i. e. the king.

LAte Anglo-Saxon manuscript depiction of a hanging

An apparently-eleventh-century manuscript depiction of the outcome of some Anglo-Saxon justice

The concomitant of this, however, is that for everything else, feud was considered an adequate mechanism of restraint. This is not to say that Anglo-Saxon England was a simmering cauldron of violence: compensation was probably the rule—it’s certainly what most of the, well, rules, in the earliest Anglo-Saxon laws are about—and it could be demanded at a public assembly, indeed; the system is still a vengeance one, though, in which adequate reprisal and restoration of offended honour has to take place when a person suffers injury at another’s hands. What the laws did here, here, again as Tom sees it, is assure people that a certain level of compensation was in fact adequate for a certain injury. Otherwise, as Tom pictured eloquently for us, the offended party would always be encouraged to escalate, for fear that by accepting too little compensation his ability to defend those whose protection was his affair would be cast into doubt and his honour among his peers diminished. A lawcode, by setting tariffs that could be agreed as reasonable and adequate, might avert that doubt and its over-compensation, as well as making the king look like a Roman ruler and other things like that as identified by Wormald.

Burial 34 from the Sutton Hoo execution cemetery

Burial 34 from the Sutton Hoo execution cemetery, copyright Martin Carver & The British Museum, used by kind permission

For Tom, and this was one of the things that got questions going afterwards, this system was very long-lived; there are already execution burials that date to before 597 (though some arguments might have been raised about that had John Blair not been finishing his next Ford Lecture and thus not present4) suggesting, as for some has the nature of Æthelberht’s laws, that the system represented in them is fundamentally pre-Christian, and Tom argued that it did not change, but only intensified, before the Norman Conquest: kings added punishments, set up new procedures, but all of this can be seen as maintenance and improvements in enforcement of this basic division of injury, for which compensation was and remained adequate, and crime, where someone had to act for the community. The main argument in questions was about whether conversion to Christianity acted as a lever for the kings to insert themselves in community action, as many would see them doing later on (Ros Faith raised the issue of the hundred court, which was good because of similar things I remember saying about George Molyneaux’s theories on tenth-century shifts in royal action). Now that I write this up, too, I remember other issues I had with the argument, but I had them with its second iteration in London some months later, and I’ll save them for when I get to that. For now, you have to admit, I think, Tom’s got a point; maybe it is actually simpler than we thought…


1. Even at this point his stuff was also in print as T. Lambert, “Theft, Homicide and Crime in Late Anglo-Saxon Law” in Past and Present no. 214 (Oxford 2012), pp. 3-43 and idem, “The Evolution of Sanctuary in Medieval England” in Paul Dresch & Hannah Skoda (edd.), Legalism: anthropology and history (Oxford 2012), pp. 115-144.

2. Paul Hyams, “Feud and the State in Late Anglo-Saxon England” in Journal of British Studies Vol. 40 (Chicago 2001), pp. 1-43; Patrick Wormald, The Making of English Law: King Alfred to the twelfth century. 1: Legislation and its limits (Oxford 2001).

3. Printed in full and translated in F. L. Attenborough (ed./trans.), The Laws of the Earliest English Kings (Cambridge 1922, repr. New York City 1963, Felinfach 2000).

4. John Blair, “The Dangerous Dead in Early Medieval England” in Stephen Baxter, Catherine Karkov, Janet Nelson and David Pelteret (edd.), Early Medieval Studies in Memory of Patrick Wormald (Farnham 2009), pp. 539-560.

Law is what you make it: fixing documents in Catalonia in the year 1000 or long before

One of the things that marked Catalonia under Carolingian rule out from the rest of Charlemagne’s Empire was its continuing adherence to and use of the Visigothic Law that had run in the counties on the Franks’ arrival, and of course presumably since long before. We see this in two ways, procedural and textual. That is, people did things that we recognise from the law, such as the elaborate procedure of declaring a dead person’s will before judges or the losing party in a court case issuing a quitclaim or evacuatio disclaiming any right to take the suit up again; or else they invoke the law when doing things, often by specific chapter and verse but as often just as an idea, from which Roger Collins long ago got an article title, “Sicut lex gothorum continet“, ‘as is contained in the Law of the Goths’.1

A Catalan copy of  the Visigothic Law, Abadia de Montserrat MS 1109, from Wikimedia Commons

An actual Catalan copy of the Visigothic Law, Abadia de Montserrat MS 1109, from Wikimedia Commons

A decade ago already, Jeffrey Bowman added to this a sharp analysis of how selective and free-handed that quotation could be, however.2 A particularly common deformation is what is ‘contained in the law of the Goths’ about inheritance. Book IV Title 2 Era 20 says, as Bowman translates it: “Every freeborn man and woman, whether belonging to the nobility or of inferior rank, who has no children, grandchildren, or great-grandchildren, has the unquestionable right to dispose of his or her estate at will.”3 This is quoted relatively often at the beginning of donations to churches, and sometimes of sales although they tend to invoke other parts of the law, but when it turns up it always turns up with the bit about children and their descendants omitted. Thus what was originally a law that formed part of a block of twenty strictly regulating inheritance so as to prevent property-owners disinheriting their heirs through pious donation (or anything else) winds up being invoked to cover exactly that possibility. Bowman has other examples of this selective quoting, but what he has none of is cases where the people using the law actually write their own provisions into it, and that seems to be what I found towards the end of Catalunya Carolíngia IV.

This should probably have been spotted, in fact, because the document is in a small way famous. It records a gathering at the church of Sant Julià de Manresa (hitherto unrecorded) in March 1000, when in front of the judge Guifré a chap called Odsèn brought three people to swear under oath what had been in nine charters by which he and his wife Sabrosa held property, charters which had recently been lost in a fire. The level of recall is quite surprising, frequently flipping into the narrative person of the actual documents as if actually quoting, and calls to mind an earlier case of similar replacements in which the receipient of the property was said to have got them read out three times at the places involved, although since as I’ve shown that case was using a written model from elsewhere I don’t know quite how we explain what looks like the results of its procedures coming out here, eighty miles west and a a century later.4

There is basically no trace of the church of Sant Julià in Manresa now so the best I can do is tell you roughly where we are for this story...

We actually do have a good few cases of this, however, and it’s clear enough that a procedure existed to handle such losses that it has been given a name by legal scholars, reparatio scripturae.5 It was perfectly legal as far as Guifré was concerned, anyway, as we can tell because he says:

“And after I had heard and seen their numerous testimonies, I the above-said judge looked in the Law of the Goths, in Book VII, Title 5, Era 2, where it says:

‘If indeed they shall have burned in a fire any scripture required by law or stolen and burnt such a scripture, they shall give their professions in the presence of a judge and those professions be confirmed by witnesses, so that the lost or destroyed scriptures may be given force, or if most evidently what the scriptures contained cannot be recalled, then to those whose scriptures they were shall be given licence to prove them by their oath or by testimony’.6

This is, you may think, slightly creative, in as much as what that law seems to have been about is people like the Lombard Pando who famously burnt a document and was then forced to admit by a judge that, “If it had been favourable to me, I would hardly have burnt it”, that is, people who had destroyed their own stuff and needed to be called on it.7 Still, it obviously served Guifré’s purpose as well. Exactly how far Guifré had gone towards fitting the law to the case is however only evident if you actually go and check his citation. For convenience, here’s the translation of S. P. Scott, but the Latin can be checked at the Digtal MGH and he seems to be on the mark here to me:

“If any person should steal, or deface, a document belonging to another, and should afterwards confess, in the presence of the judge, that he had stolen or defaced said document, and this confession should be corroborated by witnesses, said testimony shall have the same force in law as the destroyed or defaced document would have, if it still existed in its integrity. But if the contents of the document cannot be shown with certainty, he who drew it up shall be permitted to prove by his own oath, or by a witness, what said document contained.”8

Now, the differences are partly only in translation: Scott, seeing that the fifth Title of Book VII is called “On Forgers of Documents”, obviously went fully out to make it clear who was to blame for what, and has used ‘confession’ for the word I’ve translated ‘profession’ and so forth; actually the Latin is not so far apart, except that there is no mention of fire in the original. Not one. There is Visigothic Law about stuff that gets lost in fires, but it wouldn’t have helped here and Guifré didn’t quote it. Instead he bolted in some extra phrases to the law, to the very written model he was invoking to justify the outcome of the case, to make sure it applied. (Or the scribe did, this is also possible but doesn’t take away the point, I think, since Guifré is said to have looked it up and found it there.)

Well, you may say, in a saving throw for Y1K Catalan jurisprudence, perhaps there were updated copies of the Law out there that did have this in; perhaps a seventh-century Ur-text established by the best models of German philological editing in the nineteenth century is not the best guide to what people were actually using hundreds of miles from Toledo centuries later. And this is fair enough: what we would really need is, if not Guifré’s own copy of the Book of Judges (for so the Law was called), at least a contemporary one and ideally one from the same judicial milieu. And as it happens we have one of those, copied by Guifré’s occasional colleague Bonhom, my official favourite scribe.9 Even better, there is a recent critical edition of one of them and better still than that, because this is reckoned one of the foundational texts of Catalan law, no less an authority than the Parlament of the Generalitat de Catalunya has stuck it on the open web for free. And this is all very useful, because actually here the Latin is even closer to what Guifré quoted, except that the bit about fire still isn’t there.10

A manuscript of the Liber Iudicum Popularis in the Biblioteca de l'Escorial

A manuscript of the Liber Iudicum Popularis in the Biblioteca de l’Escorial, probably not MS Z.II.2 that we want here but all I can find on the web and probably nicer anyway

It’s hard to see this as forgery in our modern sense, or at least, it is for me. Guifré was not out to defraud anyone here: Odsèn and Sabrosa were in a pickle, they had no problem producing witnesses whose testimony was obviously more or less accurate, no-one seems to have been contesting their right to the lands, and it was Guifré’s job to put the cladding of proper legal process back onto their ownership of it. The law wouldn’t quite cover the case, so he edited it so that it would serve and so that everybody could have what they needed from the meeting. This is very much the model of medieval ‘forgery’ propounded by such luminaries as Christopher Brooke and Giles Constable long ago, where the intent was not necessarily to deceive but to supply evidence that was sincerely believed once to have existed for things everyone knew to be true.11 Here the evidence didn’t exist, but it was needed, so it was supplied. Nothing was lost from this, except perhaps the integrity of the law. But the big point here is that that is our idea of how texts and authorities work, not the medieval one in use here. So often we have to wonder whether ‘the medievals’ thought and reasoned the same way we did. It is useful, therefore, to be able to point at a concrete case and say: this was different, but it was different in a way that we can easily understand, if we choose.


1. Roger Collins, “‘Sicut lex Gothorum continet’: law and charters in ninth- and tenth-century León and Catalonia” in English Historical Review Vol. 100 (London 1985), pp. 489-512, repr. in idem, Law, Culture and Regionalism in Early Medieval Spain, Variorum Collected Studies 356 (Aldershot 1992), V; the milestone name in the Catalan historiography is Aquilino Iglesia Ferreirós, whose classic “La creación del derecho en Cataluña”, in Anuario de Historia del Derecho Español Vol. 47 (Madrid 1977), pp. 99-423, is now revised in his La creación del Derecho: una historia del Derecho español (Barcelona 1988), 3 vols, 2nd edn. (Barcelona 1989-1991), 3 vols; a shorter version of the early medieval part of his scheme is available as “El Derecho en la Cataluña altomedieval” in Federico Udina i Martorell (ed.), Symposium internacional sobre els orígens de Catalunya (segles VIII-XI) (Barcelona 1991-1992), also published as Memorias de le Real Academia de Buenas Letras de Barcelona Vols 23 & 24 (Barcelona 1991 & 1992) and thus online here, II pp. 27-34.

2. Jeffrey Bowman, Shifting Landmarks: Property, Proof, and Dispute in Catalonia around the Year 1000, Conjunctions of Religion and Power in the Medieval Past (Ithaca 2004), pp. 33-55.

3. Karl Zeumer (ed.), Leges Visigothorum, Monumenta Germaniae Historica (Leges Nationum Germanicum) I (Hannover 1902, repr. 2005), transl. S. P. Scott as The Visigothic Code (Boston 1922), IV.2.20, quoted with modifications Bowman, Shifting Landmarks, p. 40.

4. The document here is Ramon Ordeig i Mata (ed.), Catalunya Carolíngia IV: els comtats d’Osona i Manresa, Memòries de la Secció històrico-arqueològica LIII (Barcelona 1999), 3 vols, doc. no. 1840; the previous case is ibid., doc. nos 33 & 34, on which see J. Jarrett, “Pathways of Power in late-Carolingian Catalonia”, unpublished Ph. D. thesis (University of London 2005), online here, pp. 49-53.

5. A term first coined by José Rius Serra, “Reparatio Scriptura” in Anuario de Historia del Derecho Español Vol. 5 (Madrid 1928), pp. 246-253; see now Bowman, Shifting Landmarks, pp. 151-164, pp. 155-156 covering the point I make here but not this case or its special characteristic.

6. Ordeig, Catalunya Carolíngia IV, doc. no. 1840: “Et posquam audivi et vidi sua plurima testimonia supradictus iudex inquisivi in lege gotorum in liber septimus, titulus quintus, ers secunda, ubid dicit: «Si vero alicuo iuri debitam scripturam ad ignem concremaverint aut eandem scripturam substraxisent vel concremasent coram iudicem suas professiones depronant quod professiones ad testibus roboratas, perdiates vel vinciatas scripturas robur obtineant, quod si evidentisime quod scripturas continebant recordare non potuerint, tunc illis quibus scripturas fuerint habeant licentiam comprobare per illorum sacramentum vel per testem».”

7. For details and analysis see Antonio Sennis, “Destroying Documents in the Early Middle Ages” in J. Jarrett & Allan Scott McKinley (edd.), Problems and Possibilities of Early Medieval Charters, International Medieval Research 19 (Turnhout 2013), pp. 151-169, the case instanced at p. 151 with reference.

8. Admittedly, the Latin can’t be checked at the dMGH right now, because it seems to be down, but when I first stubbed this post and did the checks for it at the end of July 2012 (argh) it checked out fine then. The translation is from Scott, Visigothic Code, VII.5.2.

9. On him see Bowman, Shifting Landmarks, pp. 84-99.

10. Jesús Alturo i Perucho, Joan Bellès, Josep M. Font Rius, Yolanda García & Anscarí Mundó (edd.), Liber iudicum popularis. Ordenat pel jutge Bonsom de Barcelona (Barcelona 2003), VII.5.2: “Si uero alicuo iuri debitam scripturam subtraxerint aut uiciauerint, eandem scripturam subtraxisse uel uiciasse coram iudice sua professione depronant, qua professio a testibus roborata, perditae uel uiciatae scripturae robor obtineant. Quod si euidentissime quid scriptura continuit recordare non potuerint, tunc ille, cuius scriptura fuit, habeat licentiam comprobare per sacramentum suum aut per testem…”

11. Christopher N. L. Brooke, “Approaches to medieval forgery” in Journal of the Society of Archivists Vol. 3 (London 1968), pp. 377-386, repr. in Brooke, Medieval Church and Society: collected essays (London 1971), pp. 100-120; Giles Constable, “Forgery and Plagiarism in the Middle Ages” in Archiv für Diplomatik Vol. 29 (München 1983), pp. 1-41.