What’s in an immunity? II

I have just been picking the brains of Paul Fouracre on this question, via the means of his 1995 paper in Davies & himself’s Property and Power. It’s a very odd piece, trying to step a very precise line between giving a specialist answer and general conclusions, but a couple of bits definitely stand out for insight: firstly pointing out that, although when a king concedes an immunity he is certainly giving away fiscal, or public as some might say, rights even if no-one can agree how much. But who’s going to enforce this privatisation of power when the new owner has trouble exercising it? The king, of course, so you’ve got public defence of a private power holding public rights and private and public and private and public and please, let’s use some different words now. The problem is still the same though, why do people get these concessions when the king can’t enforce them? What’s that connection to the royal power of yesteryear worth to my Catalan monks, eh?

Confirmation of the privileges of the Abbey of St-Denis by King Clovis II, 22 June 653, on original papyrus

The other much more important point though is one wisely made, that though immunities have long been placed at the root of the weakening of royal authority in favour of local lords, really, there are no known immunities to laymen (except actually there are, but Paul as do so many people has a footnote saying Catalonia is too weird to count—O RLY!) and no lordships of that kind that we know of built on an earlier concession of immunity. Except in Italy. Oh, and in Germany. But really only France counts for the feudal transformation scholarship, as Tim Reuter mordantly observed the same year.

Actually, that’s the third thing, I love how the Bucknell group were so cheerful about disagreeing with each other. Chris Wickham gets cited three or four times in this paper and almost every time Paul is dismissing his view as ridiculous. I’m sure Chris will have done the same in reverse in his paper later in the volume, because of course they were all at the discussions out of which the book came… Seeing Patrick Wormald arguing with Jinty Nelson at the IHR had the same thing going on; both very sharp and both completely enjoying it, because they’d been practising these arguments for years. Such a pity that he and Tim are gone, I enjoyed what little I caught of them a great deal.

Paul Fouracre, “Eternal Light and Earthly Needs: practical aspects of the development of Frankish immunities” in Wendy Davies & Paul Fouracre (edd.), Property and Power in Early Medieval Europe (Cambridge 1995), pp. 53-81.


5 responses to “What’s in an immunity? II

  1. Well, to answer your question with a question, that means that immunities “matter,” right — maybe ESPECIALLY if everyone knows that the king really can’t do anything about it?

    I think of Philip I confirming immunities for Charroux in the 1080s. Now, there’s no way in heck-fire that Philip could actually enforce anything and certainly, I’d think, no way that the monks of Charroux thought he could. Yet, the abbot and his minions went all the way up to Compiegne in 1085 to find Philip. Why?

  2. One argument I’ve seen is that it’s nothing to do with the actual privilege and its terms, but more to do with local competition for status. “Yeah, well, we got an immunity from the king, that’s how venerable we are!” But the extent to which Catalonia seems to envisage its origins and its rulers as deriving their force from the kings may make such a claim more intense there. I have some suggestions, as you know; but I don’t have a good answer, not yet anyway.

  3. The immunity and lordship relations is complicated because even in places where lordships do develop from immunities, they sometimes take a long time to do so. I happen to come across some brief bits in Francois Bougard, La justice dans le royaume d’Italie: de la fin du VIIIe siécle au début du XIe siécle (1995) and he says (p 260) that in Italy, clear delegation of rights of justice in immunities is rare before 960. As he points out (I seem to remember is in Power and Property as well, though it’s a long time since I’ve read it), that initially what the immunist normally gets is the negative right not to have the royal agents come onto the property – but instead the immunist has to hand over the suspect to the normal courts. So I always took it as initially a response to the practical problem that once you get the count and a gang of men on horses in, they will trample the crops and generally trash the place in the hunt for a criminal.

    Bougard also points out that while you can see the beginnings of ‘seigneurial’ justice in ninth and tenth century Italy, there are not only different ways of doing this, but the most common (and presumably most effective) is that you have a normal public placitum, except that you have the patronus prominent among the judges.

    I think what the Carolingian system does provide is quite an effective facade of justice, law, right and other morally positive abstract nouns, which people buy into at a formal level, even while subverting the system in practice. I’d say you can see it in marriage disputes (my particular field of interest), where people in the Carolingian era who want a divorce make elaborate attempts to explain why indissolubility shouldn’t apply in their particular case (whereas Deorges Duby argues that laymen simply ignore the rules in Capetian France). Whether more generally, people get bored with the effort in keeping up the facade of legality, or they just start thinking of their society differently or what, I’m not sure. (For some reason, probably the posses of men on horses, I always start thinking about the Wild West at this point, and the complexities of situations in which the law is bent and on which it is simply ignored).

  4. Despite a growing number of people who argue for a grand strategy that actually worked, I would agree with you, Matt. From what I can tell, at least east of the Rhine, there’s what is supposed to happen, and then there’s what people *do* — and this includes the Carolingians themselves, sometimes. An awful lot of eastern Carolingian politics at the local level seem to be reactive and ad hoc, rather than well-planned out.

    Jonathan, thanks so much for reminding me about this paper — I’m in the middle of being stumped on this stuff, because I’ve got a project going that requires that I actually know much more about legal documents, especially Immunities, Privileges, and various kinds of land grants, than I do. But so much (even a lot of Davies and Fouracre’s stuff) seems to be just enough later than the stuff I’ve been working with that I wonder whether the difference I see are because they represent a sort of transitional phase. Ergh. And now I need to write a chapter that goes much later as well.

    Don’t suppose you’ll be in London at all in July, will you? Beer and an acknowledgment await you!

  5. Magistra, I think Barbara Rosenwein would say that the immunity is at least partly symbolic, establishing a sacred space where the worldly power does not have jurisdiction. I haven’t done more than skim Negotiating Space, so I don’t know whether she argues that that’s more important than the practical effects for income that Paul quite rightly says the documents seem to emphasise, but I would definitely argue that immunities do bring actual profits in at least some cases. As I’ve repeatedly said, it’s just weird that Catalonia seems to be one.

    ADM, I’ve responded to your cry for reference help on your own blog but seeing what you say here too, makes me think that the name Peter Classen may also be necessary to mention, if only because very little goes earlier than him. I believe that his Kaiserreskript und Konigsurkunde: diplomatischer Studien zum Problem der Kontinuitat zwischen Altertum und Mittelalter is the locus classicus, though I also have to confess a moment of mutual shame among the group that organises my Leeds sessions when one of us said of his next year’s proposal, “I guess I’ll finally have to read Classen” and we all fell guiltily silent… There are lesser works, including “Fortleben und Wandel spätrömischen Urkundenwesens im frühen Mittelalter” in idem (ed.), Recht und Schrift im Mittelalter, Vorträge und Forschungen 23 (Sigmaringen 1977), pp. 13-54 which is what lots of people seem to cite for this idea that early medieval private charters are Roman private charters gone native. Again, I may be telling you things you know perfectly well and if so I apologise. I’ll try and have more together by July. I bloody well should have as Leeds is halfway through it…

    I will indeed be in London in July, or can certainly arrange and may even need to be there, so do drop me a mail with details in. Likewise, if you need access to things or introductions in Cambridge, happy to help with that also.

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