Tag Archives: judicial practice

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.

Correction: the men of Gombrèn less confused than I thought

Long-term readers may be able to think back to the end of 2009, when I was jubilating over having got decent facsimiles of a few of the charters of Sant Joan de les Abadesses about which I’d had questions. I wrote about one of them then, a hearing in which Abbess Fredeburga of Sant Joan got several people (and apparently fewer than had been anticipated by the scribe) to swear to her nunnery’s long possession of the castle of Mogrony and its term.1 You may even recall that I was previously dubious about this document because the people who swore were given any kind of context in the signatures at the end of the document, and that on seeing the facsimile I was able to conclude that that was because the whole occasion had apparently been confusing and the scribe had made a mess of the document, leaving out various important details that he’d had to fudge back in later. With me so far? Because having now properly incorporated the actual text of the document into my files, I see that I’ve missed a crucial detail, which actually rather alters my idea of what was going on.

Arxiu de l'Abadia de Sant Joan de les Abadesses, volum de pergamins dels segles X-XI, fol. ???

Arxiu de l’Abadia de Sant Joan de les Abadesses, volum de pergamins dels segles X-XI, significant bit the long and crowded signature near bottom right

The crucial thing is the position of the men of Gombrèn, or as the settlement appears in the document, “Gomesindo morto”, dead Gomesèn, presumably a settlement founded by someone of that name some time before.2 Something I hadn’t previously taken fully on board is that this place was within the castle term of Mogrony, although I’d assumed something of the sort as otherwise why would you get those people to swear? But it was, anyway. What I hadn’t previously paid proper attention to is the exact wording of the clause that identifies these men in the signatures. One of them signs for all, a fellow called Admir, and his signature clause is as follows, exactly as in the original save the decoding of the graphical Signum and the filling-out of the abbreviations:

[Signum] Admiro·quimandatarius·fuid[e]ipsoshominesdegomesindo·etsacram[en]to
| superiusconprehenso recepi·p[ro]pterea me exvacuo in istoiuditio deipsu[m]alaude[m] | quiinfraconstitutosterminesestq[uod]superiusresonant

Which, translated as closely as I can get, comes out as:

[Signed] Admir, who was the representative of the men of Gomesèn and received the oath included above, on account of which I quit my claim in this court to the selfsame alod which lies within the assigned boundaries that resound above.

And this is kind of crucial. I’d somehow only ever got as far as the first clause, that he was the representative of the men of Gombrèn, never to the following section. What this means, of course, is that this is not the supporting witness; this is the opposition. The men of Gombrèn had presumably attempted to claim some kind of autonomy from Sant Joan de Ripoll (as it then was), and the abbess had therefore followed her predecessor Emma’s very good example and come to court with witnesses prepared to swear that Emma’s father, none other than Count Guifré the Hairy as you may already know well, had assigned the castle term of Mogrony to the nunnery. That in turn would seem to imply that the Gombrèn men had attempted to claim, not that they were not in the term or that they alone didn’t owe whatever it was to the nunnery, but that the whole term was not the nunnery’s property. (I don’t know who the castellan of Mogrony was at this point, no-one does, but I bet he wasn’t unhappy with this idea; all the same, it evidently wasn’t he who fronted the resistance.3)

Sant Pere de Montgrony

Sant Pere de Montgrony, centre of the point of contention in its slightly more modern form of both building and spelling, from Wikimedia Commons

Now, the sad thing about all this is that Admir and his cronies were probably right. As I said in the earlier post, everything that connects Mogrony (or Montgrony, as it now is) to Sant Joan in its earliest documents either doesn’t exist any more but is reported secondhand in antiquarian works, or else does exist and is patently interpolated.4 The nuns had obviously had, at some point, to fake their claim to this castle. And it’s interesting that Abbess Fredeburga didn’t bring documents to this court, but witnesses to long tenure, 50 years indeed which would have qualified as unchallengeable under the Visigothic Law that ran here still. A scholar who’s recently looked at that usage, Jeffrey Bowman, sees this as the kind of defence that unlettered peasants use against wily churchmen, and although I think that it’s often more knowingly legal than that, nonetheless, it’s certainly not the defence one would expect a nunnery with a good archive to use.5 Where are their charters? I suspect the answer is, not faked yet. However, she found her witnesses, though it may not be surprising that there were apparently fewer than they’d hoped, and the court found for her, and that’s the end of the story for Gombrèn. As I have oft-times remarked here, it’s tough to be up against The Man in late-Carolingian Catalonia, and this is true even when The Man’s a woman (and the Carolingians are about to run out; this all occurred in 987).

We are here; Gombrèn shows up just south of Mogrony if you zoom in one step

None of this in any way forgives the scribe, the usually super-competent Wonder Judge Ervigi Marc, for his numerous blunders. Why is the most important part of the document, the quit-claim that actually prevents the case being raised again, relegated to the very bottom right-hand corner in tiny script? It shouldn’t even technically be on this document: Roger Collins would tell us that for a trial under Visigothic Law there ought to be three documents preserved, the description of the case, the oath of the witnesses, and the quit-claim of the losing party.6 There’s very little incentive to preserve all three of these if you’re the winner, so we usually only have one or two, but here parts two and three were combined, and in a hurry too. Nul points, Ervigi Marc. And all my previous points about the bodges of vital information also still stand, except the linkage of this signature to the confusion over who was swearing, because the people swearing were not the men of Gombrèn; I got that wrong. So I thought I should own up to as much, and now I have.

1. The document is now best edited in Ramon Ordeig i Mata (ed.), Catalunya Carolíngia IV: els comtats d’Osona i Manresa, Memòries de la Secció històrico-arqueollògica LIII (Barcelona 1999), doc. no. 1526.

2. For a suggestion of the founder’s identity, see Jonathan Jarrett, Rulers and Ruled in Frontier Catalonia, 880-1010: pathways of power, Royal Historical Society Studies in History (Woodbridge 2010), p. 61, which unfortunately contains a typo but nothing that makes anything unclear.

3. Manuel Anglada i Bayès, Antoni Pladevall i Font, Maria Lluisa Cases, Joan-Albert Adell i Gisbert, Rafael Bastardas i Parera, E. Bargallo i Claves & Jordi Vigué i Viñas, ‘Sant Pere de Mogrony’ in Pladevall (ed.), Catalunya Romànica X: el Ripollès (Barcelona 1987), pp. 110-117. I have long-held views on Mogrony’s early control but they turn out to probably be wrong as well, look for more on that in the near future.

4. Jonathan Jarrett, “Power over Past and Future: Abbess Emma and the nunnery of Sant Joan de les Abadesses” in Early Medieval Europe Vol. 12 (Oxford 2003), pp. 229-258 at pp. 235-241.

5. Jeffrey A. 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. 47-51.

6. Roger Collins, “Visigothic Law and Regional Diversity in Disputes in Early Medieval Spain” in Wendy Davies & Paul Fouracre (edd.), The Settlement of Disputes in Early Medieval Europe (Cambridge 1986), pp. 85-104, repr. in Collins, Law, Culture and Regionalism in Early Medieval Spain, Variorum Collected Studies 356 (Aldershot 1992), XVI.

Seminars CXXXV & CXXXVI: characterising some medieval disputants

The need to catch up on the seminar reports is still fairly urgent, so I must do my now-usual filtering of what is in the pile. Out, with reluctance because it was good but with reassurance because as so often Magistra has already covered it, goes the second Clerical Cosmos conference in Oxford, but do go have a look at Magistra’s reports if the subtitle, “Ecclesiastical power, culture and society, c. 900 to c. 1075″, sounds like it should hit your interests. That at last takes me into the Easter term of 2013, and that term was greeted in Oxford by a paper by Mark Whittow to the Medieval History Seminar on the 23rd April entitled, “Territorial Lordship and Regional Power in the Age of Gregorian Reform: Matilda of Canossa and the Matildine lands”.

Countess Matilda of Canossa, enthroned with attendants, manuscript portrait from the Vita Mathildis by Donizone

Countess Matilda of Canossa, enthroned with attendants, manuscript portrait from the Vita Mathildis by Donizone (who may be the cleric at her right)

This paper did the audience the good service of recapitulating Matilda’s career, something it’s quite hard to get in one place from literature outside Italy despite its importance in the politics of Germany and Italy (and especially both) in the time of the eleventh-century dispute of Holy Roman Empire and Papacy, and assessing her landed holdings.1 Out of this came several observations, one being that little enough of her focus was actually in her marquisate of Tuscany, where competition for power was perhaps not one-sided enough, and another being that while she is often represented as a champion of public office because she held one, her armies were formed of vassals based in castles even if the emperor had approved the grant of the castles. In other words, she was pretty much as feudo-vassalitic in operation as the Dukes of Aquitaine, even if she was more closely involved with a persistent and intermittently-powerful royalty than they were. Nonetheless, there was a difference in the discourse of power Matilda used, with artwork and manuscripts presenting her as imperially-descended and legitimate and traditional in a way the Meridional princes wouldn’t have used unless they went for Roman roots, as Christian Lauranson-Rosaz would argue they did in the Auvergne.2 That, at least, would have worked to undermine the claims of a royalty that drew its ancestry back to fairly recent, and certainly post-Roman, times, but Matilda was competing for the same grounds of legitimacy as her German royal opponents (and sometimes allies). So this was all very interesting and fitted Matilda into a different framework than the one where English-language historians usually meet her, but the thing that sticks with me is something that I had to raise in questions, that the pictures we have of her do, yes, twice show her on a throne, but they also consistently show her dwarfed by it, compared to her noble antecessors shown on the same throne in the same manuscript. The author of that manuscript knew the lady personally; it was hard not to conclude that the artist did too, and what he or she knew was that their patron was pretty small.3 This obviously didn’t make her any the less considerable, if so!

15th-century manuscript depiction of the Court of Common Pleas, London

15th-century manuscript depiction of the Court of Common Pleas, London

Then the very next day the Medieval Church and Culture Seminar was lucky enough, as we were told at fulsome length, to be host to Professor Paul Hyams, who spoke with the title, “Disputes and How to Avoid Them: charters and custom in England during the long 12th century”.4 This appealed to me, predictably perhaps, as it was a paper about what the charters aren’t telling us, the trouble that a dispute settlement charter averts or that preceded its issue but which its scribe thought it impolitic to recount, at least from more than one side. It dealt with the invisible threshold of wealth beyond which written records were even available, specifically, and whether we can see serfdom in medieval England as early as it may start. I wouldn’t like to say that it concluded that we could, but the plea to consider what else was going on around the documents we have – the meetings, to and fro voyages of negotiation, the feast and the talk at dinner when a transaction was concluded, all of which probably explain a lot more about how a given transaction unfolded than does its surviving record – is a plea always worth hearing, especially when loaded with this many interesting examples.

1. The core text here is a Vita Mathildis by one Donizone of Canossa, whence we get the charming picture, the text most recently edited and translated (into Italian; I’m fairly sure there’s no English translation) by Paolo Golinelli as Vita di Matilde di Canossa (Milano 2008); the secondary work that Mark cited included Golinelli (ed.), I poteri dei Canossa da Reggio Emilia all’Europa. Atti del convegno internazionale di studi (Reggio Emilia – Carpineti, 29-31 ottobre 1992) (Bologna 1994), especially Guiseppe Sergi’s “I poteri di Canossa: poteri delegati, poteri feudali, poteri signorili”, pp. 29-39, and Sergi, I confini del potere: Marche e signorie fra due regni medievali (Torino 1995); on the dispute between empire and papacy in which Matilda became so involved, I like Ute-Renate Blumenthal’s The Investiture Controversy: Church and monarchy from the ninth to the twelfth century (Philadelphia 1988).

2. For example, C. Lauranson-Rosaz, “La romanité du midi de l’an mil (le point sur les sociétés méridionales)” in Robert Delort (ed.), La France de l’An Mil, Points-Histoires H130 (Paris 1990), pp. 49-74, rev. as “La romanité du midi de l’an mil : le point sur les sociétés méridionales” in Xavier Barral i Altet, Dominique Iogna-Prat, Anscari Mundó, Josep María Salrach & Michel Zimmermann (edd.), Catalunya i França Meridional a l’Entorn de l’Any Mil: la Catalogne et la France méridionale autour de l’an mil. Colloque International D. N. R. S.[sic]/Generalitat de Catalunya « Hugues Capet 987-1987. La France de l’An Mil », Barcelona 2 — 5 juliol 1987, Actes de Congresos 2 (Barcelona 1991), pp. 45-58.

3. The manuscript is Vatican City, Biblioteca vaticana, MS 4922, and is edited in facsimile as Donizone di Canossa, La vita di Matilde di Canossa: Codice Vaticano latino 4922, ed. Golinelli, Codices e Vaticanis selecti 62 (Milano 1984). A few more bits of it are online here.

4. This was work deriving from a project to follow up P. Hyams, Rancor and reconciliation in medieval England (Ithaca 2003), and I guess we can expect it to start some disputes as well as settle some…