An example of the sort of thing I mean, cunningly disguised as a story. At the consecration of the monastery of Sant Benet de Bages in 972, one of the endowment gifts was a piece of land in la Néspola that was given them by a priest whose name was Danlà.1 It was to become theirs when he died, but unfortunately for Sant Benet, Count-Marquis Borrell II, local bigwig and Barcelona main man, repossessed it on we know not what grounds, and passed it on to his main man in la Néspola, the Vicar (a secular office in Catalonia, that basically means you run a castle for the count) and judge Guifré.
The monastery didn’t forget this, however, and after Guifré died, in 999 they sued his widow Aió for the lands. And they won, because their charter, which Borrell had also signed, predated the one her husband had had from him.2 Harsh but fair, you may think, but the widow refused to give up the lands, because it would have left her unable to support herself and her children perhaps, though Guifré ought really to have left her more than that, he was a big man locally. (He turns up in eight and maybe nine charters that I know of, and in two of them is said to be holding a castle, different one each time, from Borrell. One of these he owns outright with a colleague and they later give it to the Pope.3 But obviously the Pope is unlikely to pop by and visit, so this basically makes it entirely independent territory. Funny isn’t it? Anyway.)
Mainly Aió held on to the fact that she had a charter, from the late count, the highest power in the land, and that ought to mean something, even though the monastery did too. So in 1000 there was another hearing, at which the judge, a very learned and careful man who went by the name of Ervigi Marc, tried to find a compromise.4 Yes, he admitted, the land was Sant Benet’s, but because it wasn’t Adelaide’s or even her husband’s fault that the land she held had been wrongfully acquired, he said it was unlawful that she and her children should be disinherited without compensation. Unusually for Ervigi Marc, he didn’t cite any law in support of this, which would be because there’s absolutely nothing in the Visigothic Code to defend such a position… but it has equity about it. No-one however was willing to pay the compensation, and so eventually it was agreed that Aió and sons would be allowed to stay on the land, but that firstly they should pay a tascha to Sant Benet annually, that is an eleventh (usually) of all produce, secondly that the revenue from the mill on the estate would be split fifty-fifty between family and monastery, and secondly that at Aió’s or her children’s deaths, whichever should be the later, the lands would revert to the monastery.
The point of all this being: the monastery’s endowment act is not seen as finally binding or immutable, despite its heavy divine sanction and multiple signing bishops enjoining excommunication on violators. No-one is thinking of excommunicating Aió. Borrell may have wrongfully appropriated the land, meanwhile, making his grant illegal, but that charter is still valid enough to be recognised; neither legal nor illegal. This is because it is not a document that either has legal force or doesn’t; it is a witness that states that Aió has good reason to hold the land. The second time round, that witness is heard more sympathetically. Lastly: the document that records the outcome of the first suit still survives at Sant Benet—presumably because it gives a better claim than the later one—but even though it was awarded in a court of law after due process an’ ting, it can be put aside and a new verdict pronounced. In other places such a document might have to be destroyed; Sant Benet were presumably cleverer than that. But basically: these charters do not state a legal truth that must be adhered to. They are competing claims in a clamouring court and any of them can be heard or not heard as not just the judge, but those assembled, think fairest and most balanced. Because the aim of the game is not to defend right or wrong to the end, it is to make sure the quarrel stops and that means that you have to ignore the law sometimes because to follow it would be unfair. From this idea of law follows the idea of what the charter’s worth, and that is, as much as it’s made to be by its audience, no matter how solemn it may be and how many curses it threatens. So there you go.
1. Most recently edited in R. Ordeig i Mata (ed.), Catalunya Carolíngia IV: els comtats d’Osona i Manresa, Institut d’Estudis Catalans: Memòries de la Secció Històrico-Arqueològica LIII (Barcelona 1999), 3 vols, doc. no. 1127.
2. Ibid., no. 1825.
3. Ibid., no. 1290.
4. Ibid., no. 1864. On Ervigi Marc and the coterie of judges with whom he worked, see J. 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. 81-99.
Thanks, both these posts have been quite interesting.
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