Tag Archives: judicial practice

‘We saw with our eyes and heard with our ears…’

I’m sorry for the unintended hiatus here over the last few days. It turns out that a week in which you start teaching a new hitherto-unfamiliar primary text in two volumes and initiate work on two separate projects outside your main job as well as going to three seminars and a football match (but a football match with medievalists, I should insist) just isn’t very compatible with blogging. Who knew? You will, of course, hear about not just the projects but also the primary text and what I read round it at least a little bit, but the post I have been meaning to finish, and now do, is one more about the gift that keeps on giving, Josep María Salrach’s Justícia i poder a Catalunya abans de l’any mil.1

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 last one of these posts, you may recall, involved the process for replacing lost documents under Visigothic law, reparatio scripturae, as applied in Catalonia. As I said then, the documents that record such events involve quite detailed reprises of documents sometimes from many years before, and this has led to scepticism that such details could in fact have been genuinely present in the old documents, rather than recovered from the contemporary situation and artifically gilded with the antiquity of presumed memory.2 But as with other such questions, while he doesn’t obviously know that it’s being asked, Salrach has an answer to this, at least potentially. Picking up on the Cuixà hearing I quoted last time and the way its witnesses say that they had read and re-read the missing documents when they existed (quite recently), he argues that probably anyone who had charters got them read out to audiences every now and then so that they would be remembered.3

The volumes of Calaixs 6 & 9 of the Arxiu Episcopal de Vic

I don’t have a picture of the actual document so that you can read it, alas, but it is physically within one of these volumes

Now this obviously makes sense in some ways: it would explain the level of recall that Bowman finds implausible, and certainly this is not the only place where witnesses say such a thing, though the usual phrase is less literate, “we saw with our eyes and heard with our ears”. And there is, as you may just recall, one case where this process is actually documented, at the cathedral of Vic in the year 898. There, one Boso himself took an oath as to the content of several charters he’d lost involving land sold him by two couples, Ermoarí and Farelda and Domènec and Guisilda, and then got five witnesses to testify under oath that they had seen this done. And so they duly say:

“We the above-written witnesses know, and well recall in truth, and saw with our eyes and our ears heard, or we were also present at that hour while those two people, by name the late Domènec and his wife Guisilda and Ermoarí and his wife Farelda, were in the county of Osona, in the term of Taradell, in the hamlet of Gaudilà. And thus made the late Domènec a little charter or sale to the man by the name of Boso, of all his heredity which he had in the county of Osona within the limits of the castle of Taradell or in the hamlet of Gaudilà, and Ermoarí with his wife Farelda sold all their lands or a house, all their heredity in Gaudilà’s hamlet to that same Boso. And we witnesses saw the selfsame documents confirmed and impressed with the sign of the man by the name of Domènec and his wife…”

… and it goes on into what I tend to call non-exclusion clauses, in which every sort of property that the estates concerned might have included is named so that nothing can be claimed as omitted.4 But what’s interesting here is where it goes next, which is to what happened to the documents:

“And we witnesses were signatories making marks in the little charter of Ermoarí, and there was recorded there the notary Joan the priest. We witnesses saw the selfsame documents confirmed and corroborated and impressed with the sign of the sellers, Domènec and his wife and of Ermoarí and his wife, and of the audience and of the chancellor just as is inserted above. And we saw the selfsame documents handed over into the power of that same Boso and I the already-said Domènec and his wife and Ermoarí and his wife handed them over of their own spontaneous will into the power of the selfsame Boso. And we witnesses saw and heard the selfsame documents read and re-read one and another and a third time in the hamlet of Gaudilà. And that same Boso had the selfsame lost documents, and it was evident.”

What Salrach of course picks up on is the reference to a repeated reading. Again this makes perfect sense as a way that things could have been done, and as I’ve said elsewhere it’s a real pity that we can’t trust it…5 The reason that we can’t is the notary and the chancellor; these are the only documents in the whole of Carolingian Catalonia as far as I know, and certainly in this county, that mention such officers. Obviously the documents had a scribe, but neither of these is likely to be a title they used. That means that the scribe of these documents, a priest by the name of Ademir, had another model in use from somewhere, and that no procedural detail included in these documents can be proven to come from life rather than the model. And this is the only text we have that mentions this re-reading on site…

Cathedral of Sant Pere de vic seen from the Riu Gurri

The cathedral of Sant Pere de Vic, from the Riu Gurri, where with a rather different and presumably smaller building on site this all took place. By Enfo (Own work) [CC-BY-SA-3.0], via Wikimedia Commons.

Of course this doesn’t take away Salrach’s point. If the recall (which sometimes goes well beyond the likely: we have the name of one of the Muslim governors operating in Catalonia before the Muslim conquest from one of the Cuixà document replacements, whose forty-year-old original had apparently recorded a century of tenure history!6) is to be accepted, it needs explaining; here is a perfectly good explanation, even if it probably isn’t what actually happened here. So when would this hypothetical reading have taken place? There is a contention made by people who work on monastic cartularies that these, functioning as memorials of donors, would have been read out on solemn occasions in the monastery, such as particular feast days, and the same could just about be true of secular churches, if they picked a day when a good crowd would be there.7 But should we imagine similar opportunities being taken in the lay world? There would be no fixed points of the calendar outwith the liturgy for the lay population, so the occasion would have to be generated, either by the agricultural year or by one-off events, which it seems odd to picture being co-opted for this purpose. Everyone’s here for the wedding or whatever, let’s quickly get the charters out and run through ‘em? And who could run through formulaic Latin documents for such an audience anyway? There is, most likely, an evidentially silent practice of public land-speaking here that these procedures imply, but do not prove. The case is not made by Salrach, but it seems to me that the combination of these various cases does make it stronger. I would have liked more from him on this!


1. J. M. Salrach, Justícia i poder a Catalunya abans de l’any mil, Referències 55 (Vic 2013).

2. Jeffrey Bowman, Shifting Landmarks: property, proof and dispute in Catalonia around the year 1000 (Ithaca 2004), pp. 151-161.

3. Salrach, Justícia i poder, p. 195, referring to Pierre Ponsich (ed.), Catalunya Carolíngia VI: els comtats de Rosselló, Conflent, Vallespir i Fenollet, rev. Ramon Ordeig i Mata, Memòries de la Secció històrico-arqueològica LXX (Barcelona 2006), 2 vols, doc. no. 121.

4. The two documents from the hearing are edited as Ramon Ordeig i Mata (ed.), Catalunya Carolíngia: els comtats d’Osona i Manresa, Memòries de la Secció Històrico-Arqueològica LIII (Barcelona 1999), 3 vols, doc. nos 33 & 34, the latter here quoted in my translation. The cataloguic property listings are discussed by Michel Zimmermann, Écrire et lire en Catalogne (IXe-XIIe siècle), Bibliothèque de la Casa de Velázquez 23 (Madrid 2003), 2 vols, I pp. 208-217.

5. J. Jarrett, “Pathways of Power in late-Carolingian Catalonia”, unpublished Ph. D. thesis (University of London 2005), online here, pp. 49-53.

6. Salrach, Justícia i poder, 195, without further reference, but the document is Ponsich, Catalunya Carolíngia VI, doc. no. 120, with the actual content here referred to printed as its own entry as no. 23.

7. Patrick Geary, “Entre gestion et gesta” in Olivier Guyotjeannin, Laurent Morelle & Michel Parisse (edd.), Les Cartulaires : Actes de la Table Ronde organisée par l’École Nationale des Chartes et le G. D. R. 121 du C. N. R. S. (Paris, 5-7 décembre 1991), Mémoires et Documents de l’École des Chartes 39 (Paris 1993), pp. 13-26; see also Geary, “Land, Language and Memory in Europe 700-1100″ in Transactions of the Royal Historical Society 6th Series Vol. 9 (Cambridge 1999), pp. 169-184.

From the Sources IX: the most interesting document in the judicial administration of Carolingian Catalonia

Such is the claim that Josep María Salrach makes of the document below, and Senyor Professor Salrach does not say such things without basis so I thought I could do no better than put it before you!1 The matter is a hearing of 25th March 874, held before Count Miró I of Conflent, brother of Guifré the Hairy, though this is before either of them hit the sovereign big-time with their appointment to more counties in 878. Instead, what we have here is the working of a just-still-Carolingian judicial apparatus, and it goes like this.2

“In the court of Count Miró and the judges who were ordered to hear, determine and rightly judge the cases, that is, Langovard, Bera, Odolpall, Dodó, Esteve, Fulgenci and Guintioc, judges, on in the presence of many other worthy men, the priest Kandià, Rautfred, Cesari, Goltred, Mauregat, Sentred, Ennegó, Sesgut, Daneu, Llop, the Saió Enelari, everyone who was seated in that court, there came a man, Sesnan by name, the representative of Count Miró, and he said: ‘Hear me, how that same Llorenç, that he ought to be a fiscal slave from the descent of his parents and grandparents, with his brothers and kinsmen, and they did service to the lord Count Sunifred, father of my lord by voice of whom my lord ordered me his representative to enquire.’
“Then the abovesaid judges said to Llorenç, who was summoned on behalf of himself and his kinsmen: ‘What do you answer to this?’ And he said in response: ‘I ought not to be a fiscal slave, and neither should my kinsmen, by descent from our grandfathers or grandmothers in the paternal or maternal lines, since I and my kinsmen, just as it says in the Law of the Goths, for 30 or fifty years have stayed in the houses in which we who are present among you were born without any blandishment or servile yoke, in the villa of Canavelles, with no count or judge summoning us.’

Archives Départementales du Bas-Rhin, 151 J 50, fo. 1r., a fragment of the Visigothic Law

Here is a completely non-Catalan copy of the Law, a fragment from Lorsch now in Straßburg, but it is at least ninth-century and secondly dealing with enslavement (V.4.x), so that’s not bad is it? For full reference to the text see n. 4 below. The MS is Archives Départementales du Bas-Rhin, 151 J 50, fo. 1r.

“We the judges indeed said to the representative Sesnan: ‘Can you present witnesses or documents or any index of truth by which you may prove that this same Llorenç, his brothers or his kinsmen ought to be fiscal slaves to your lord, and that they have been subjected to service within those legitimate years that the response mentioned?’ And he said: ‘I have no other proof than that I found in an inventory of my lord that his father assigned to him the woman Ludínia who was related to this kindred whom I prosecute.’
“We the judges indeed said to Llorenç: ‘How did that same Ludínia, who was your grandfather’s sister, come to be in that inventory if she was not a fiscal slave?’ And Llorenç responded: ‘I don’t know why it says that, but I do know one thing, that she was not a slave subject to service; but if servile condition isn’t carried from someone in the kindred to which I am connected to their children, then the servile condition doesn’t apply to their children.’

Madrid, Biblioteca de la Real Academia de Historia, Cod. 34, fo. 43r

And here is the exact bit of the Law that is about to be quoted, V.7.viii, from a late-ninth or early-tenth-century copy now in the Real Academia de Historia in Madrid, to which I can now link you because PARES have finally enabled stable URLs! It is Biblioteca de la Real Academia de Historia, Cod. 34, fo. 43r.

“So we searched in the Law of the Goths where it says: ‘If anyone wishes to bring a free person into slavery, let him demonstrate by what rule the slave came to him. And if a slave should claim himself to be a free person, and shows to the selfsame person proof of his freedom in the same way’, and the rest which follows.
“Wherefore we asked that same Llorenç if he might be able to produce such witnesses as the law says, that he or his kinsmen ought to answer for nothing to the fisc. He said: ‘I can’. He introduced four legitimate witnesses without any crime, that is, Guitsèn, Adaulf, Belès and Viatari, who swore by a solemn oath just as is written there. Then we the abovesaid judges said to Sesnan: ‘Can you produce more or better witnesses, or name a crime that prohibits testimony in the law, today or later?’ And that man said in his answers: ‘I can produce neither witnesses nor documents nor any index of truth whereby I may defame those same witnesses, or to subject those same persons to service neither in those same three hearings nor at any other time, today or hereafter. I thus, by the interrogation of the judges and in the presence of worthy men do recognise and quit my claim in the villa of Vernet, in the church of Sant Sadurní, and recognise that I have received the oaths which those same witnesses made truly by the order of my lord, and those things that I have done rightly and truly I do recognise and evacuate in the judgement of you or the presence of those written above.’

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

Lastly let’s just bring out that Catalan copy of the Law one more time… Abadia de Montserrat ([1]) [Public domain], via Wikimedia Commons.


“Recognition or evacuation made on the 8th Kalends of April, in the 34th year of the reign of King Charles.
“Sig+nature of Sesnan, representative of the lord count Miró for fiscal cases needing answering, who have made this recognition or evacuation and handed [it] over [to] witnesses for confirming. Miró. Guintioc. [...]
“Protasi, conversus if God should be his companion, who have written this document of recognition or evacuation on both the day and year as above.”

Again, there is an awful lot here to play with. I like especially the representation of direct speech that, it becomes clear, can’t be, because they talk in formulae and refer to things that haven’t been reported, like the exact nature of Ludínia’s relationship to Sesnan. I also note that here both sides, both the state representative and the undowntrodden peasant, cite the Law of the Goths, and the judges know that the peasant’s cite is justified. As I have said, people generally do seem to have known about the thirty-year rule. I am also fascinated by the suggestion that Count Miró I had an officer whose business was the pursuit of fiscal claims, though the complex phrasing that Protasi (who was at this stage in the business of drumming up support for a monastery at Sant Andreu d’Eixalada that would not end well, and was a serious person about the public sphere) seems to have loved may be making as much of that title as it does of his own (which is, I should make clear, very hard to translate, so I may be glossing what is actually incoherence). And of course, the count has an inventory! But as we have seen before (when talking of later, but so what?) it’s not a very good inventory; the claim hadn’t been pursued for years and the only data the count had went back a generation and was inherited, rather than compiled, by the current administration. As I said a couple of posts ago, just because the Carolingian and post-Carolingian state had ambitions to systematic record doesn’t mean that they were necessarily very good at it.

Saint-Saturnin de Vernet-les-Bains

And finally the actual location of the hearing, in its modern guise, Sant Sadurní de Vernet or as you would now find it in an atlas, It seems an impressive enough place to hold court! Saint-Saturnin de Vernet-les-Bains. By Baptiste Autin (Own work (Baptiste Autin)) [GFDL, CC-BY-SA-3.0 or CC-BY-2.5], via Wikimedia Commons.

For Salrach, what is most interesting here is the back and forth about service, servitium, which seems to be what defines slavery in practical terms here.3 There are several definitions floating around the case, it seems to me: the comital claim hinges on an argument by descent, and Salrach says that the relationship is found insufficiently close because of slavery not transmitting through the maternal line so that doesn’t work. They don’t actually say that, though, even though they could have because it too is in the Law of the Goths.4 And what they looked up in the Law doesn’t seem to relate either to that or what they did next, perhaps because although both sides were trying such arguments everyone knew that the thirty-year rule probably made them irrelevant anyway. The deciding factor was whether or not Llorenç’s kinsmen did servitium to the count in that time; they had people to say they hadn’t and Sesnan had nothing but the descent claim from a woman whose presence in a list of slaves wasn’t explicable. As I say, the comital archive wasn’t up to the job it was being asked to perform here.

From all this, anyway, and several other mentions of servitium, Salrach builds up a picture of the development of the obligations of the general populace to the count, seeing it as being a form of servitium generalised to all subjects of the public power (which the Vall de Sant Joan hearing qualifies as army service and the ‘lesser royal service’) and a more specialised, demeaning one that is what was at issue here.5 I’m not sure I would go as far as he does with this but it’s about the only attempt to work out what the counts could actually demand from their subjects that’s not based essentially on a template of Carolingian government assumed still to be running, so for me it still has great value as an idea to work with. Nonetheless, he’s right that this is a very interesting document, and it’s the hints, the drama of court and the attempts by people to swing old law in their directions in various ways and with various unexpected sorts of proof that make it interesting for me as much as the big point that Salrach believes it helps make.


1. J. M. Salrach, Justícia i poder a Catalunya abans de l’any mil, Referències 55 (Vic 2013), p. 128: “Aquest és, segurament, el document més interessant dels que coneixem de l’administració de justícia a la Catalunya Carolíngia.”

2. Pierre Ponsich (ed.), Catalunya Carolíngia VI: els comtats de Rosselló, Conflent, Vallespir i Fenollet, rev. Ramon Ordeig i Mata, Memòries de la Secció històrico-arqueolòico LXX (Barcelona 2006), 2 vols, doc. no. 81: “In iuditio Mirone comite seu iudices qui iussi sunt causa audire, dirimere vel recte iudicare, id est, Langobardus, Bera, Odolpaldus, Dodo, Stephanus, Fulgentius et Guintiocus, iudicum, vel in presentia aliorum multorum bonorum hominum, Kandiani presbiteri, Rautefredi, Cesari, Gultredi, Maurecati, Sentredi, Enneconi, Siseguti, Danieli, Lupon, Enalario saione, omnes qui in ipso iuditio residebant, veniens homo nomine Sesenandus, mandatarius Mirone comite, et dixit: «Audite me cum isto Laurentio qualiter servus fiscalis debet esse ex nascendo de parentes de abios suos, cum fratres vel parentes suos, et servicium fecerent domno Suniefredo comite, genitore seniore meo, ad parte fisclai per preceptum quod precellentissimus rex Carulus fceit domno Suniefredo comite, cuius voce me mandatarium mandat inquirere senior meus».
“Tunc supradicti iudices dixerunt Laurentio, qui est inquietatus pro se et parentes suos: «Qui ad hec respondis?» Et ille in suis responsis dixit: «Non debeo esse servus fiscalis, nec parentes mei ex nascendo de bisabios vel visabias ex paterno vel ex materno, qui ego et parentes mei, sicut lex Gothorum continet, per XXXa vel quinquaginta annis in domois in qua nati sumus inter presentes instetimus absque blandimento vel iugo servitutis in villa CAnabellas, nullo comite vel iuduce nos inquietante.»
“Nos vero iudices Sesenando mandatario diximus: «Potes habere tests aut scripturas aut ullum indicium veritatisunde probare possis isto Laurentio, fratres vel parentes suosu, ut servi fiscale seniori tuo debent esse, ut infra istos legitimos annos quod responsum dedit servituti fuissent?» Et ille dixit: «Non habeo alia probatione nisi inveni in breve senioris mei quod pater suus ei dimisit femina Ludinia qui fuit parentes istius parentele quem ego persequor».
“Nos vero iudices diximus Laurentio: «Unde advenit ista femina Ludinia in isto breve, qui fuit soror abie tue si ancilla fiscalis non fuit?» Et Laurentius respondit: «Nescio quomodo hic resonat, set unum scio, quod ancilla inclinata in servitio non fuit; sed si aliunde ad filios suos conditio servilis non avenit, de parentes quod mihi coniuncta est, non pertinent ad filios suos servilis conditio».
Nos autem perquisimus in lege Gotorum ubi dicunt: «Si quis ingenuum ad servitium addicere voluerit, ipse doceat quo ordine ei servus advenerit. Et si servus ingenuum se esse dixerit, et ipsi simili modo ingenuitatis sue firmam ostendant probationem», et cetera que secuntur.
“Proinde diximus adisto Laurentio si potuisset tales habere testes sicut lex continet ut nullum ex fisco persolvere debeat ille aut parentes sui. Ille dixit: «Possum». Introduxit legitimos quattuor testes absque ullo crimine, id est, Guitesindo, Ataulfo, Beles et Biatarius, qui iuraverunt a serie conditione sicut ibidem insertum est. Tunc nos supradicti iudices Sesennando diximus: «Potes alios habere testes ampliores aut meliores, aut crimen quod in lege vetitum est testificandi dicere hodie aut postmodum?» Et ille in suis responsis dixit: «Non possum habere testes nec scripturas nec ullum indicium veritatis unde istos testes diffamiare possim, aut istos ad servitium inclinare neque isto trinos placitos nec ulloque tempore et hodie et deinceps. Sic me recognosco vel exvacuo ab interrogatione udiucm et presentia bonorum hominum in villa Verneto, in ecclesia Sancti Saturnini, et ut sacramenta fecerunt isti testes veraciter recepi per iussionem senioris mei, et ea qui feci recete et veraciter me recognosco vel excvacuo in vestrorum iuditio vel suprascriptorum presentia».
“Facta recognitione vel exvacuatione sub die VIII kalendas aprili, anno XXXIIII regnante Karolo rege.
“Sig+num Sesenandi, mandatario domno Mirone comite ad causas fiscalis requirendas, qui hanc recognitione vel exvacuatione feci et testes tradidi ad roborandum. Miro. Guintiocus. [...]
“Protasius, si Deus comes fuerit, conversus, qui hanc scriptura recognitionis vel exvacuationis iussus scripsi et die et annon quo supra.”


3. Salrach, Justícia i poder, pp. 126-134; see my very brief discussion in 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.

4. 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), online here, II.2.iii, which also invokes the thirty-year rule for getting out of such an inheritance if a slave happened to have one.

5. Salrach also attacks this question with different cases, including the Vall de Sant Joan hearing, in Justícia i poder, pp. 87-90, 110-112 & 242-243 (conclusions).

Seminar CL: Old English administration after the Norman Conquest

Moving now toward the end of March 2014 in the seminar report backlog, on the 26th of that month I was back in London for the Earlier Middle Ages Seminar at the Institute of Historical Research, because Professor Julia Crick was speaking. My work crosses very little with Professor Crick’s but despite this she has made a point of remembering who I am, I was still teaching Anglo-Saxon stuff at this point even if from much earlier and, after all, when one sees a paper title like “Who Were the Writers and Readers of Administrative English in the Century after the Norman Conquest?” it implies that there might be an answer and I wanted to know what it was. This was not least because, as Professor Crick made clear at the outset, the answer has until quite recently been basically negative: there were effectively none after about 1070, when central government switched from Old English to Latin for its writing. She exemplified this point of view with three quotes, one of which I’ll re-use:

“After the Norman Conquest the use of English for official, civil and ecclesiastical purposes was generally abandoned in favour of French and Latin, and the status of English as a literary language rapidly declined. Consequently, works from the twelfth century composed in English are exceedingly rare.”1

But the trouble with this statement is that increasingly it looks untrue. Palæographical and prosopographical work, including computer-aided work in both cases and much of that, I have to give them their due sometimes, from KCL’s Department of Digital Humanities, has identified more than a thousand scribes writing in Old English at some time in the eleventh century, by no means all of them in the first half, and several new Old English texts from both eleventh and twelfth centuries.2 What has been counted so far has largely been literary or homilectical (preaching) work, however, and Professor Crick was interested in those bits of this corpus that could be called administrative, glosses in working texts, memoranda, notes and occasional property records. We don’t, in fact, know who most of these writers were, but by their works we can know them at least a little bit.

The so-called Ely Farming Memoranda, British Library Additional MS 61735

An obvious, if early, example of the kind of marginal writing we’re talking about, the so-called Ely Farming Memoranda, British Library Additional MS 61735, complete with bonus portrait of Christ.

Saying anything useful about the quantity of this is quite tricky, because it’s one of these things like powerful medieval women where there’s quite a lot of it but proportionally to the rest it’s still negligible (the last fact, I have to say, only becoming clear in questions). It was widespread but rare, common but unusual and these other paradoxes that dog the study of marginal behaviours in the Middle Ages (er, no pun intended). One thing it does show, however, as Professor Crick pointed out, is that the idea that written Old English entered an immediate and terminal decline as soon as the Normans took over has to be abandoned; whatever it was being used for, that didn’t stop till the twelfth century. Perhaps we should have known this: the scribes who put together the legal assemblage known as the Textus Roffensis could copy and translate Old English quite happily and, as Professor Crick pointed out, there is only one twelfth-century cartulary which doesn’t contain any Old English, even if the main text and business is in Latin in all of them.3

Fo. 59r of the twelfth-century portion of the Cartulary and Register of Evesham, London, British Library, MS Harley 3763

Fo. 59r of the twelfth-century portion of the Cartulary and Register of Evesham, London, British Library, MS Harley 3763, with glosses at top right that could be in Old English? They’re so abbreviated I find it hard to tell, but I can’t easily read the abbreviations as Latin…

So what was keeping this going, when the centre was no longer interested in Old English administration? Professor Crick suggested that it might have been the use of the vernacular in court, when witness testimony was required to confirm boundaries, when oaths were made or writs and so forth were read out, when presumably after the switch to Latin they were translated. This would not be at the royal courts, but at hundred and shire courts. This would, Professor Crick argued, keep the language in use at a legal, and thus sort of official, language, though Susan Reynolds contended in questions that the hundred and shire courts were assemblies, not law courts, so not quite that kind of officialdom.4 I don’t think that would stop this being important, however.

St Petroc or Bodmin Gospels, London, British Library Additional MS 9381, fo. 13r.

Closing page of the canon tables from the St Petroc or Bodmin Gospels, London, British Library Additional MS 9381, fo. 13r., with a manumission record (in Latin, but it’s a good image) distributed between the leftover spaces.

More debated, perhaps, were the suggestions Professor Crick made based on her observation that quite a lot of this Old English extranea is to be found in Gospel Books. She thought that this might be partly down to the better preservation of Gospel Books than estate archives, but that it still needed accounting for. The problem I saw, and raised in questions, is that it is by no means just an English practice or a post-1066 one to write documents and administrivia in Gospel books, not even in the vernacular: the earliest written Scots Gaelic is in the Book of Deer, the earliest written Welsh is supposedly that in the Lichfield Gospels that I’d seen earlier that month, we could add Bavarian examples of Old High German too…5 To this Professor Crick answered that the Old English examples are largely in books much older than the writing, so it is obviously new to the English, but that, while true and something I’d never noticed, still needs some explanation, I thought. Professor Crick also saw the Gospel books as repositories for oaths and similar because those oaths would have been sworn on altars, where the Gospels were kept, so it made sense as a way to immortalise testimony (and perhaps new precisely because the change of language at law had removed whatever previous process for this had been employed, I might subversively suggest). Professor Crick saw here a tension between legal practice, conducted in the vernacular, and the liturgy with which these books and ‘Scripture’ more generally were associated, definitively in Latin, but Chris Lewis suggested that there was probably more cross-over of capability here than we might expect. What there isn’t, at least—Stephen Baxter asked and was answered—is any sign of written French in such contexts: whatever was going on here was at least a way of involving the natives, not the incomers. My sense here is, therefore, that Professor Crick has pointed out something large, variegated and potentially quite revealing and informative, but that characterising and explaining it is going to be a work in progress for quite a while still.6


1. Patrick P. O’Neill, “The English version” in Margaret T. Gibson, T. A. Heslop & Richard W. Pfaff (edd.), The Eadwine Psalter: texts, image and monastic culture in twelfth-century Canterbury (London 1992), pp. 123-138 at p. 136.

2. Here was cited Peter A. Stokes, “The problem of Grade in English Vernacular Minuscule, c. 1060-1220″ in Elaine Treharne, Orietta Da Rold & Mary Swan (edd.), Producing and Using English Manuscripts in the Post-Conquest Period, New Medieval Literatures Vol. 13 (Turnhout 2011), pp. 23-47.

3. The stock reference for Old English in manuscripts, so stock it’s not even in Professor Crick’s otherwise comprhensive handout, is Neil R. Ker, English Manuscripts in the Century after the Norman Conquest (Oxford 1960), which is obviously the survey from which the negative picture with which the audience began largely comes but still might be all right for the cartularies. We now have to add to it, however, David A. E. Pelteret, Catalogue of English Post-Conquest Vernacular Documents (Woodbridge 1990), but as he himself freely acknowledged in questions, this is no longer adequate to cover the sample, and Donald Scragg, A Conspectus of Scribal Hands Writing English, 960-1100 (Cambridge 2012) is where most of the evidence presented in this paper could ultimately be found.

4. I would still tend to refer to Henry R. Loyn, The Governance of Anglo-Saxon England, 500-1087 (London 1984), but I should probably cite something more modern like John Hudson, “Order and Justice” in Julia Crick & Elisabeth van Houts (edd.), A Social History of England 900-1200 (Cambridge 2011), pp. 115-123; also probably worth mentioning in this connection are Elaine Treharne, “Textual Communities (vernacular)” and Julia Crick, “Learning and Training”, ibid. pp. 341-349 & 352-372.

5. Arkady Hodge, “When Is a Charter Not a Charter? Documents in Non-Conventional Contexts in Early Medieval Europe” in Jonathan Jarrett & Allan Scott McKinley (edd.), Problems and Possibilities of Early Medieval Charters, International Medieval Research 19 (Turnhout 2013), pp. 127-149, DOI:  10.1484/M.IMR-EB.1.101680.

6. Other references that seem worth emphasising from the handout are Mark Faulkner, “Archaism, Belatedness and Modernisation: ‘Old’ English in the twelfth century” in Review of English Studies New Series Vol. 63 (Oxford 2012), pp. 179-203; Kathryn A. Lowe, “Post-Conquest Bilingual Composition in Memoranda from Bury St Edmunds” ibid. 59 (2007), pp. 52-66; and Elaine Treharne, Living Through Conquest: the politics of early English, 1020-1220 (Oxford 2012), and not from the handout, Julia Crick, “The Art of Writing: scripts and scribal production” in Clare A. Lees (ed.), The Cambridge History of Early Medieval English Literature (Cambridge 2013), pp. 50-72.

Managing without an archive in c. 1000 Barcelona

There’s a story I’m fond of and that I’ve told you here before, in which a woman came to the court of Marquis Ramon Borrell of Barcelona in 1005 claiming that the monks of Sant Cugat del Vallès were moving in on her land.1 There’s all kinds of strange things going on in the background of this case, and I do urge you to read the older post, but the bit that interests me on this occasion is the basis on which the plaintiff lost her land, which is that Ramon Borrell and his tame judge decided that the land was in fact the count’s, by virtue of having recently been wasteland, “just as other waste lands belong to the right of the prince”.2 It’s a pretty mean claim given that most people got to hold onto lands they’d cleared, and if the monastery hadn’t also had a claim I doubt very much this bit of casuistry would have been perpetrated upon her. When I’ve looked at this case before, therefore, I’ve either seen it as an instance of the importance of back-story in this legal environment when one was fixing a verdict, or else as an instance of the fact that these rights the counts were claiming over waste lands were not in fact regular and were probably therefore new, which bears heavily on the theory that this was an ancient and long-respected right of the public power.3 Y’see, it’s a very rich case. But what I want to focus on today is the appearance that the document gives that the count didn’t realise, until the problem arose, that this could be claimed as his land. Up till now I have always figured this was simple exigency, that ordinarily he’d never have pressed such a claim unless it was of immediate political use, and I would still think that if what I was reading when I wrote this hadn’t just presented me with another case.4

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), which is what I had in fact been reading when this post got written

This one’s from 1013, and it’s Ramon Borrell again, at court with his good lady wife when a delegation arrived from a placee called Villalba near Cardedeu, complaining that the count had some time ago been persuaded by one Rigoald to sell him a meadow next-door to Villalba in what the document has the count call “an innocent and unreflexive manner”, and that Rigoald and his wife and son had started making encroachments into the villagers’ common land.5 Rigoald now being dead, the villagers dared at last come to the count, and he and Countess Ermessenda apparently called the widow and son, Quixol and Ramon, to court, had their charter examined and found it, “made in a fraudulent and deceptive manner, alien to right and to all justice.” Therefore the charter was destroyed in court, and Quixol and Ramon fined thirty sheep, which by a coincidence is exactly what the villagers gave the count in gratitude for the justice he had done them.

Chapel of SS Corneli & Cebrià de Cardedéu

It turns out in searching that Cardedéu has a rather nice Romanesque chapel sitting in its midst, so although I can’t make any direct connection between it and the post I think it will do for illustration anyway don’t you? I’m so glad. By Miquel vico (Own work) [CC-BY-SA-3.0], via Wikimedia Commons.

It’s hard to see how anyone but the count and countess won here. Quixol and Ramon presumably felt they were secure enough with their charter, even if they had maybe overstepped its bounds; instead they lost all title to their lands, and what happened to them is not clear, and they lost thirty sheep as well, while the villagers had to pay the same just to get what they had argued was rightfully theirs. What good sixty sheep did the count and countess of Barcelona is less easy to see, but it is reasonably clear, as Josep María Salrach says in his discussion of this case, that Ramon Borrell got a considerable height of moral high ground, defending the loyal peasantry against oppressors even when those oppressors were in fact himself, correctly broadcasting an adherence to right over advantage, even if that right was best paid for. I’m more interested in the thread that seems to me to tie these two cases together, however, which is that Ramon Borrell apparently had only the sketchiest idea of what property he actually controlled.

Arxiu Fidel Fita d'Arenys de Mar, Mas Gelat de Santa Susanna, Mas Bellvehí de Vidreres 91.0.1

This isn’t from the comital archive, but it is a charter of Ramon Borrell, with Ermessenda, Arxiu Fidel Fita d’Arenys de Mar, Mas Gelat de Santa Susanna, Mas Bellvehí de Vidreres, 91.0.1 of 1001. Their signatures, done by the scribe I think, are dead centre of the last full line of text.

In some senses this may not surprise anyone who’s spent much time with the documents from this area, because one of the noticeable things about them is the scale of comital property, which is, tiny and widespread. It is at least arguable that the counts held some really big estates and, because they kept them, we have no transaction evidence in which to see them—there’s a huge complex at Palau de Gurb that we only ever see because it was slowly and reluctantly given to Santa Maria de Ripoll, but it would never have got there had it not originally been part of a comital son’s entry-gift, for example6—but they certainly also held an immense variety of tiny stuff. There’s almost no castle term in which some comital property doesn’t show up, even if it’s just a couple of meadows or similar, and of course they presumably considered the actual castles theirs in some way, too, but that’s not what I mean. Keeping track of this mess of busy little farms and smallholdings would have been beyond most administrations, and yet on the other hand the reason we know about this land is because people near it knew it was the counts’ and said so when called on to detail property boundaries. We know here not to underestimate the ability of tenth-century lords to take inventories and make lists, I think, so there seems little question that the counts could, just about, have known what they owned. So why does Ramon Borrell seem not to have?

Arxiu de la Corona d'Aragó, Cancilleria, Pergamins Ramon Borrell 2

This, on the other hand, is from the comital archive, is in fact Arxiu de la Corona d’Aragó, Cancilleria, Pergamins Ramon Borrell 2, but is nothing to do with the counts and doesn’t feature the man under whom it’s indexed! Funny old world, archives.

Well, there is one fairly obvious excuse in the form of the sack of Barcelona by a Muslim army in 985.7 Lots of documents got lost in that, and because preservation from the Barcelona comital archive is so patchy for the early period, it has been assumed that the counts were among the losers that day.8 I’ve always struggled with this, however, because while it is patchy it is very far from non-existent, so either they didn’t lose it all, or some of the documents that later came to the archive were held elsewhere in 985 despite being about comital property, in which case we’re already looking at a rather less centralised administration than the kind of property tracking we’re looking for might have needed.9

Besides, it’s not just Ramon Borrell who seems to have had this problem: a remarkable case from the reign of his father Borrell II, which Salrach also explores, shows the same issues coming up. This is a hearing from a place in Manresa called Vallformosa, in 977 so that the “day Barcelona died” can’t yet have affected things.10 Borrell was presiding over this court, which makes it all the more surprising what happened: his agent summoned the men of Vallformosa (some of whom were women, but fairly few, so probably the communty’s heads of houses) and claimed that their land was comital property because it had been so in the times of Borrell’s father Count Sunyer. The villagers however claimed that no claim had been made on them for more than thirty years, which under the Visigothic Law was the limit of any outstanding property claims, and so the lands were now theirs whatever the past situation might have been. The judge asked Borrell’s man Bonhom if he had any evidence to refute this, he had none, and so he had to make a quitclaim in front of his boss admitting the collapse of the comital claim, and that document then went into the comital archive.

Sant Salvador de Servitge de Vallformosa

Sant Salvador de Servitge de Vallformosa, which though much modified is possibly the oldest building standing in the village as far as websearching can tell me. Photograph by Antonio Mora Vergés.

Speculation about this has tended to go two ways, and Salrach covers both of them.11 Firstly, it can be seen as proof that the counts could lose, and that they did not have the will or resources always to force a verdict in their favour against determined opposition. Point against this view: why would you have the trail? Bonhom must have known he had no evidence to present, yet he sued the villagers anyway. It would have looked better for his side not to bother. Thus, a second point of view has been that the comital side must have intended to lose, the point being to establish publically the villagers’ rights; that is, that this was what is known in the scholarship of Italy and Germany as a Scheinprozess, a show trial. Point against this view: why must the count lose to do this? Why could he not just grant them a franchise or immunity? These documents were made by others, and indeed by Borrell himself before long, so this seems a very odd way to do it.

So I wonder if in fact they did all know what the outcome must be, or whether in fact no-one was really sure whether Vallformosa’s inhabitants would be able to raise a group of oath-swearers or that Bonhom would not be able to until too close to the trial to call it off. I wonder if, in fact, a trial like this was how both sides settled a question of ownership that beforehand they could not answer. A point for this idea, unlikely though it may seem, and a point against both the other two theories, is that the Vallformosa and Villalba documents survive in the comital archive. What I have called ‘Winner’s preservation’ here before ought to militate against this: why would the counts be keeping records of what they had not been able to claim? These documents ought to have gone to the villagers, so that they could be produced if the matter was ever raised again. The fact that what we have is the counts’ copies suggests to me an archive that barely existed, that was being assembled by chancing this kind of case and filing the results so that if, in the future, someone in Barcelona went, “That place Vallformosa, up north-west of Manresa, that’s ours isn’t it? Bishop says it’s not his…” someone checking would then be able to say, “Ah. No.”

ACA Cancilleria Pergamins Borrell II 63

I seem not to have images of anything from the comital archive from before the sack of 985 that doesn’t hail from Sant Joan de les Abadesses, whose stuff got added in later. There are some, all the same, but this is ACA Cancilleria Pergamins Borrell II 63, a Barcelona sale of 992 that, again, doesn’t feature the count and presumably arrived in the comital archive for some other reason

I admit that there is a nastier possibility, that the counts might lose the case but claim the right to keep the record, far away in Barcelona where no-one from Vallformosa could easily get at it. I would have to admit the possibility of that: but a comital administration with that kind of plan surely wouldn’t be as confused about its rights as it in fact seems to have been. I don’t want to let go of my older idea that Borrell and his son were actually trying to push for new rights under old legal cladding, and that what they attempted to get was sometimes unobtainable precisely because no-one had asked before. (This chapter of Salrach’s book is really good at adding texture to this idea, for a start.) However, I do now think that we probably ought to realise that a governmentalising apparatus with all kinds of strategies for power still doesn’t have to have been very good at them or well-equipped to carry them out…


1. J. Rius Serra (ed.), Cartulario de «Sant Cugat» del Vallés vol. II (Barcelona 1946), online here, doc. no. 464.

2. Ibid.: “Propterea iudicatum est in ipso iudicio melius et verius esse hec terra iuris principalis, sicut et cetera spacia heremarum terrarum…”.

3. J. Jarrett, “A Likely Story: narratives in charter material from early medieval Catalonia”, paper presented to the Medieval History Seminar, University of Oxford, 18th October 2010; idem, “Settling the King’s Lands: aprisio in Catalonia in perspective” in Early Medieval Europe Vol. 18 (Oxford 2010), pp. 320-342, DOI: 10.1111/j.1471-8847.2010.00301.x.

4. Josep María Salrach, Justícia i poder en Catalunya abans de l’any mil, Refeències 55 (Vic 2013), here pp. 114-118.

5. Gaspar Feliu i Montfort and Josep María Salrach (edd.), Els pergamins de l’arxiu comtal de Barcelona de Ramon Borrell a Ramon Berenguer I: estudi i edició, Diplomataris 18-20 (Barcelona 1999), 3 vols, doc. no. 105. I’m working off Salrach’s account cited in the previous note here, which only quotes the document in Catalan translation, but he did edit the thing so I’m guessing it’s OK.

6. 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. nos 419 & 420, show the dissection of the Palau de Gurb estate.

7. On which see Gaspar Feliu, La Presa de Barcelona per Almansor: història i mitificació. Discurs de recepció de Gaspar Feliu i Montfort com a membre numerari de la Secció Històrico-Arqueològica, llegit el dia 12 de desembre de 2007 (Barcelona 2007), online here, last modified 15 September 2008 as of 3 November 2008.

8. Federico Udina Martorell, El Archivo Condal de Barcelona en los siglos IX-X: estudio crítico de sus fondos, Textos XVIII (Barcelona 1951), pp. xxxii-xxxiv.

9. Ibid., doc. nos 9, 12, etc.

10. Ordeig, Catalunya Carolíngia IV, doc. no. 1229 (or Udina, Archivo Condal, doc. no. 181, because it too is in the comital archive of before).

11. Salrach, Justícia i poder, pp. 109-111.

Inventing the Visgothic legal ordeal in Catalonia

The backlog in my posting is awful [he wrote in May], but there is obviously something in the period of delay that matches the rhythms of my scholarship: I keep finding that I stubbed posts to blog which I come to just as the thing they were about again comes up in my study. Perhaps this will be another, as I found in reading Josep María Salrach’s Justícia i poder a Catalunya abans de l’any mil that he touches on the issue I blogged about a while ago, that of judges in tenth-century Catalonia fabricating legal precedent for their decisions, and also on a much older post of mine elsewhere about the judicial ordeal, with a case that combines the two things. So obviously it’s necessary to follow those posts up with this one, and presumably by the time this goes up I shall have come up against the idea again! [As it happens, not this time; I have obviously caught up too much! But read on...]

Trial by the ordeal of hot water

The site I grabbed this from gave no source, so neither can I, but though wilfully Classicising it’s still a picture of the ordeal by hot water in ‘olden tyme’ and I can’t find another…

The case is interesting, which is why I blogged it before: it’s the only case of a judicial ordeal recorded in Catalonia before the year 1000, says Salrach, and this is true although the next one is from that year so it’s only just true.1 Never mind. There’s also an excellent clear report of it in Jeffrey Bowman’s book on Catalan justice around the year 1000, which as far as I can see Salrach did not use, which I paraphrase here.2 The events are in 988: one Sentemir was brought to court by the abbey of Sant Cugat del Vallès, who claimed that he had destroyed his brother’s will from which they should have had a large estate; they produced a witness to the will, but Sentemir refused to admit that he ever saw it and finally offered to go to the ordeal to prove his innocence. He chose the ordeal of hot water, in which the litgant plunged his arm full-length into a boiling cauldron and then the extent of his injuries and whether they were healing was assessed by a panel three days later. As Bowman points out, following Stephen White, the thing about ordeals is that the designed outcome almost never occurred as they’re recorded: here, the scribe says that Sentemir had intended to keep himself safe by incantantions and curses, but in fact as soon as his arm got near the cauldron his hand burst into flames, and he confessed. The court condemned him to penal servitude but the bishop let him off, though of course he lost the estate.

Now there’s a range of ways this is interesting: was Sentemir really attempting magic? Was that instead an accusation that one might slander someone with in this period? Either’s interesting. There is also the question of what we are supposed to think actually happened. The last time I blogged this trial, I wondered if Sentemir might have been trying something like coating his arm in pitch or similar to protect it against the boiling, and just caught the cauldron fire, but obviously we’ll never be able to tell from this. But for our immediate purposes the interesting question is why they went to the ordeal at all. It is commonly assumed that this was just something that happened in the early Middle Ages but as I said, this is the first one we have from Catalonia, and Catalonia’s principal source of jurisprudence, the Visigothic Liber Iudicum, Book of Judges, doesn’t mention the ordeal of hot water (or really any others except to outlaw them). So where did the idea come from?

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. By Abadia de Montserrat [Public domain], via Wikimedia Commons.

Well, you may remember that in the previous post where I was talking about judges customising their precedents there came up a tenth-century copy of a version of the Liber Iudicum called the Liber Iudicum Popularis, one of two made by one of the judges of the era, a chap called Bonhom about whom I’ve often written, and whose copy is now online in scholarly edition.3 As it turns out, his version of the Liber Iudicum does contain a procedure for the ordeal of hot water, still claiming of course to be the legislation of the Visigothic princes of three hundred years before. And who do you suppose was the judge and scribe at Sentemir’s trial? Who else but Bonhom! So we have another adaptation of the letter of the law to the needs of the day, and one that works out in decidedly suspicious circumstances.

Nonetheless, it seems unlikely that Bonhom just invented the idea in whole cloth, or how on earth would he have convinced Sentemir to do it? As Bowman points out, there’s no sense in the charter that there was dispute about this. That’s perhaps not surprising since Bonhom wrote the document, but this was a man who tells us in his documents when he was sleepy in case it looks odd, so I’d expect more words rather than fewer if there was a problem. Even if it was not usual this was apparently an idea that was known to people. But whence had it come? There’s a famous trial by battle involving Bera I, Count of Barcelona, accused of treason, which the biography of the Emperor Louis the Pious by the anonymous known as ‘Astronomer’ says was done because both parties were Goths, and people have argued that since the Gothic Law has nothing of this, it was really a Frankish idea that got carried into Catalan judicial practice.4 Salrach raises the idea instead that the ordeal was in fact the ‘popular’ practice that Bonhom’s law’s adapted title suggests, excluded from proper practice by the Visigothic kings but locally maintained or innovated and so added in to Bonhom’s text because he knew it was sometimes done. Hey, maybe Sentemir had introduced him to the idea in 988! (Salrach doesn’t suggest that, but as usual, on a blog I can push these things further than I would in print.) That in turn implies that we really ought to look closely at the Liber Iudicum Popularis to find out what had needed changing since the seventh century; it may not all have been invented as needed, even if some of it probably was. This is the kind of thing I read to learn, after all.


1. Josep María Salrach, Justícia i poder en Catalunya abans de l’any mil, Referències 55 (Vic 2013), pp. 37-38.

2. Jeffrey Bowman, Shifting Landmarks: property, proof and dispute around the year 1000 (Ithaca 2004), pp. 119-140, and here esp. pp. 122-124; Stephen D. White, “Proposing the Ordeal and Avoiding It: strategy and power in Western French litigation, 1050-1110″ in Thomas N. Bisson (ed.), Cultures of Power: lordship, states and process in twelfth-century Europe (Philadelphia 1995), pp. 89-123, repr. in White, Feuding and Peace-Making in Eleventh Century France, Variorum Collected Studies 817 (Aldershot 2005), VII.

3. Jesús Alturo i Perucho, Joan Bellès, Josep M. Font Rius, Yolanda García & Anscari Mundó (edd.), Liber iudicum popularis. Ordenat pel jutge Bonsom de Barcelona (Barcelona 2003), VI.1.3.

4. Ernst Tremp (ed.), Thegan, Die Taten Kaser Ludwigs (Gesta Hludowici Imperatoris). Astronomus, Das Leben Kaiser Ludwigs (Vita Hludowici Imperatoris), Monumenta Germaniae Historica (Scriptores rerum Germanicarum in usum scholarum separatim editi LXIV (Hannover 1995), Astronomus cap. 32; A. Iglesia, El proceso del Conde Bera y el problema de las ordalías (Madrid 1980).

Seminar CXLV: more Anglo-Saxon feud and punishment

I’m not sure I’ve blogged two successive versions of one paper except inadvertantly, and I’ve certainly decided not to do so before now, but I will make an exception for Dr Tom Lambert and his paper, “Crime, Community and Kingship”, which I wrote about here when it was presented in Oxford but which on 12th February 2014 was also appearing, with modifications, at the Earlier Middle Ages Seminar at the Institute of Historical Research. You may remember from the earlier write-up that whereas the standard picture of Anglo-Saxon law has been that it develops from feud to royal enforcement, Tom argues for a two-part system from as far back as we can see up till the twelfth century at least, in which there was injury and crime.1 The former was to be compensated for or avenged and the latter, because it had no obvious worldly victim—things like sacrilege, failure to do public works, and so on where the victim is the whole community or no-one—falls to the king to prosecute. He sees the Anglo-Saxon period as a long process of increasing regulation and efficiency management of a system that basically fitted that description throughout. So, that was the Oxford pitch, what had changed by the time it came to London?

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

I suppose that one point I hadn’t properly taken on board before is that when we see Anglo-Saxon law for the first time, in the Laws of Æthelberht, there is no sovereign paradox in them.2 The issue of the king’s right to make law or decided compensation isn’t really touched upon, but his rights are in the code, and they are of a different grade but not a different order; he is just a ‘big freeman’ with some extra duties. He is not outside the system as later royal legislators have to be in order to say what the system is or does; instead the code shows us a bigger system of which the king is also part. This includes feud, in as much as the king receives compensation for the death of a free man, perhaps (I considered) because he has lost the resource of that man’s military service or similar.

Wayland the Smith as depicted on the Franks Casket

What this men is about to do was messy but completely legal, OK?

Tom was also working a bit harder to make this argument fit with his earlier work arguing that theft was one of the most serious offences in the Anglo-Saxon world of misdeeds because of its secret nature, which more or less prevents people taking vengeance; how can you if you don’t know whodunnit? The whole village becomes suspect; the cohesion of the community is placed under threat until the matter is resolved.3 A good honest slaying is easy to settle by comparison! And it’s in the area of pursuing thieves and protecting the Church especially, Tom argued, that we see royal expansion, rather than in attempts to limit feud. The king’s business was the kind of offences that people can’t punish themselves, and so it remained right up to the Conquest and beyond. In questions, Susan Reynolds, with her typical insight, pointed out that what we are talking here is ‘punishment’ versus ‘damages’, that is, exactly the difference between criminal and civil law that England still maintains… Since homicide is now definitely criminal not civil, however, there’s a change to be explained still, and Tom puts it later than 1066.

London, British Library, MS Cotton Nero a.I, fo. 88v.

The opening of the Laws of Edmund in London, British Library, MS Cotton Nero a.I, fo. 88v.

As for the people’s action, even the royal legislation is full of references to assemblies and local courts; in fact, it tries to make them do more and make justice the affair of lower-level assemblies, moving prosecution of offences down from towns to hundreds! This is, you have to admit, not the kind of appropriation of right of court to royal justices we see under Edward I. What is is, however, Tom now conceded, is a universalisation of practice across a much wider area as the kings of Wessex brought the rest of what is now England under their control. There was some tension there, I thought, since Tom’s picture was being extrapolated from laws from several kingdoms in the first place, but it’s sort of got to be true anyway; the king decides which set of local customs he endorses, and to say anything at all that puts him in charge (which shows that I have not entirely left Wormald behind) he has to do something other than tell everyone to go on with what they were doing. Some communities must have experienced royal demands for how they did things as cancellations or abrogations of ‘their ways’. This is true of far more things than just crime and punishment, of course, but it does tend to be where my sympathies always go when the extension of royal power turns up in argument (as in Oxford it so often did). The thing about a big society is that it normalises all the little ones…


1. That standard picture is now canonically enshrined in Patrick Wormald, The Making of English Law: King Alfred to the twelfth century, 1. Legislation and its limits (Oxford 2003).

2. The sovereign paradox, that he who would change the law must be above it, is repeatedly explained by Kathleen Davis, Periodization and Sovereignty: how ideas of feudalism and secularization govern the politics of time, The Middle Ages (Philadelphia 2008), pp. 7, 34, 59, 73, 79-80 & 83, though once is really enough.

3. See T. Lambert, “Theft, Homicide and Crime in Late Anglo-Saxon Law” in Past and Present no. 214 (Oxford 2012), pp. 3-43.

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.