Seminar LXXXIV: going to law in post-Visigothic Spain

On the 2nd February I had a great quandary. In London, at the Institute of Historical Research, the estimable Rosemary Morris was presenting what I understand was an excellent paper featuring charters and shouty peasants; you’d think I’d have been there. But at the same time in Oxford, which is after all where I live now, Graham Barrett was presenting to the Oxford Medieval Church and Culture Seminar about surprisingly similar matters, and his charters and peasants were Spanish not Byzantine. Because of this ability to actually read the documents in question, and the matter of the train fare and late night, and also because Graham is one of two or three people who I’m perpetually glad aren’t working on Catalonia, because if they were I’d have nothing left to say, I opted in the end to stay in town for his paper. It is possible that Professor Morris’s paper will be covered by someone else, and I’ll mention it if that happens; I certainly hope it will. But Graham’s paper was entitled “Visigothic Law after the Visigoths” and it was certainly jolly interesting. It was also rather a while ago, but Graham said afterwards that he was disappointed to see that I wasn’t podcasting it live to the web, so I feel that a slight delay is only just revenge for his taking the mickey…

Title page of a 1058 León codex including a copy of the Liber Iudicorum

Title page of a 1058 León codex including a copy of the Liber Iudicorum, from the Biblioteca Digital Hispanica, seriously would you look at this manuscript isn't it great?

If you don’t know, and why would you etc., after the Muslims toppled the Visigothic kingdom in what is now Spain over the period 711-714, both the parts of it now under Muslim dominion and those not continued to use the lawcode of the Visigothic kings, the Forum Iudicum, Forum of the Judges or Book of Judges (as mentioned just the other day in fact) to regulate their affairs, at least the Christian populations did. This applies as much to Catalonia, and indeed the old Visigothic province in Gaul, Septimania, as it does to Aragón, Castile, León and Asturias (ironically, in the latter case, given how much time it had spent fending off the Visigothic kings when they were around), and argh 25 years ago already now Roger Collins wrote a neat article about this for the English Historical Review which is still an excellent place to start with this stuff.1 (There’s also a bucketload of work in Castilian and Catalan of course, which I don’t know as well as I know I should.2) Since then there has been some work on these matters for Catalonia, but rather less in English than one might wish, and Graham is now moving in to close that gap.3 The Visigothic Code, as it’s also known (and as it’s online in translation), remains important because it is a a weird mixture of the archaic, four- to six-hundred year old rulings being cited in courts, and the current: in Castile and León we have eighteen manuscripts of the code dating to before the twelfth century, mostly from shortly before then, because it was still being copied. These copies are not all complete, and all vary in details, selecting what is useful and adapting accordingly. A detailed comparison of the manuscripts therefore gives a kind of index into what people in any given area were worried about coming up in court, at least it does if we can plausibly locate the manuscripts’ place of use (and Wendy Davies, present, suggested that trying to map usage and citation of the Code around the known manuscripts would be informative, which indeed it would).

A Leonese royal charter of 860

A Leonese royal charter of 860; it doesn't cite the Law, but I haven't got an image of one that does I'm afraid

It’s not just the copies of the law itself that tell us about its use, though, it is cited in dozens of charters, often actually cited with book, title and chapter, and very often these citations are correct. This is impressive, but it’s perhaps more interesting when they’re wrong, or the relevant law doesn’t even exist; here we are presumably seeing a mis-learnt citation or a strong belief that something is such old custom that it just gosh-durn must be in the law; but in the latter case, it’s that it’s in the law that they feel will validate it, not that it’s old custom. (It’s possible, of course, that these citations are intentionally false, since not many people are actually going to be in a position to look this stuff up and in any given assembly the people who are are probably writing the charter…) Not all these uses are even identified, however, which goes to show that to some extent the law genuinely had shaped the way some things were done, or at least the words in which those things were written about. (Graham’s handout has a number of examples of this choice of an otherwise unparalleled phrase to talk about, for example, adultery or homicide.4) These words, Graham hazarded, were probably not usually passing from person to person in the context of full copies of the Code, but just single sheets of the most useful cites perhaps, tucked into a folder of example charters and scraps of formulary that the average scribe might have had to work from, rather than anything as grand as a book. That copying without context could explain a lot of the apparent deviations, though again one would expect practice to dictate which way they deviated.

Folio 64r of the 1058 Leonese copy of the Liber Iudicorum

Folio 64r of the 1058 Leonese copy of the Liber Iudicorum, showing Book IV Title 2 law 20

It has to be said that sometimes, when the laws were invoked, they were deliberately bent or mutilated. I think Graham used this example too, but I can’t pin it down in my notes so I’ll import it from Catalonia: there is a particular law in the code (IV.2.20, as shown above), which protects the rights of the heirs of a property-owner, as follows:

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; nor can any arrangement that either may make, be set aside by any relatives of theirs….

This turns up a lot in donation charters, but when it does, crucially, pretty much everything between ‘whether’ and ‘great-grandchildren’ inclusive is usually left out, so that it becomes a law guaranteeing the right of unrestricted alienation of property when its framer (the glorious Flavius Chindasuinthus, King, no less, as you see above in red) had intended precisely the opposite. Not everyone citing the Code knew this, most likely, but some certainly did because they’d copied it themselves.5 Here we’re nudging at questions about authority and written norms and what you could do with them in the Middle Ages that have troubled many of us and will trouble many more, but the kind of work that Graham is doing here certainly add to the detail we can try and answer such questions from.

Title page of a 1600 edition of the Castilian version of the Book of Judges

Title page of a 1600 edition of the Castilian version of the Book of Judges, from Wikimedia Commons

The way that Graham wound up framing the way these texts were used, then, was as a point of departure. Often, the law would be invoked to set a penalty for a certain thing, but then the document in question records that with that out in the open, a compromise was then reached that was more agreeable to all parties. (Of course, there is a preservation factor operating here, because one of the compromises we see most often was to give some land instead of paying an impossible fine or becoming a slave—those of you who have heard Wendy Davies speak on such matters, or indeed Graham himself in Kalamazoo last year, will recall this practice no doubt—and charters in which land was transferred are tremendously more likely to survive than those in which fines were paid, because land remains relevant long after a person’s criminal reputation or lack of one has disappeared into generational memory loss. On the other hand, we don’t have very many charters at all in which someone sells land to raise money to pay a fine, at least not in which they tell us that’s what they were doing, and precious few where they are actually enslaved (although I could find you one in which such a person was then freed, which may be more likely to be preserved since he would need it to prove he could alienate property legally and that, in turn, would lead to it being preserved with the property charters, etc.6) so it may yet be that the compromise was much more common than the actual sentence being imposed. If I remember rightly, Graham said he knew of one document only out of the thousands surviving (albeit that only hundreds are court cases) where a sentence seems to have actually been carried out as in the law. Even there, I might caution, we’re still just assuming, as other cases where verdicts were subsequently abandoned show. In either case, the law is the framework that the parties start with, but even though the verdict is pronounced by judges, as in the Code, and carried out by an official called the saió just as in the Code, it is very rarely with the Code that people finished. It shaped their world, yes, but they made their own shapes out of it. Authority may not be the word we want: due process may be. The Code determined what was due about the process, and the actual hearing hopefully determined what was fair and equitable. It’s not a bad model for law in a society where enforcement is hard to find.

King Vermudo II of León and Galicia, as depicted in the 12th-century Libro de las Estampas

King Vermudo II of León and Galicia, as depicted in the 12th-century Libro de las Estampas, from Wikimedia Commons

The other thing that interested me especially was a coda in which Graham returned to a throwaway remark with which he’d begun about a note in the Chronicle of Sampiro that records that King Vermudo II of León (985-999) confirmed the ‘Laws of King Wamba’ at some point during his reign. Wamba’s contribution to the Code was very small, and where it occurs lengthy and pompous and making me think more of Patrick Wormald’s warnings about what kings really wanted out of legislation (i. e. to look like real royalty, rather than to improve the affairs of the realm) than almost anything else in the thing, but he was certainly the last king to add to it and therefore the final version was in some sense his; it must be the Code referred to here.7 If so, that’s really interesting because it’s at almost exactly that time that over in Barcelona a certain count called Borrell II whom you’ve heard me mention before started recruiting a new cadre of highly-trained judges to run his courts, one of whom indeed copied a text of the Forum Iudicum that we still have. Why did both of these Iberian potentates at either end of the peninsula decide to revive this juristic form of status-building? For Vermudo, of course, the claim was implicitly to stand in succession to Wamba, as the Code itself says that only the prince may issue laws. To issue the old laws therefore made him a king in that same old style. For Borrell, it was more subtle I suspect: as with much of his policy, his new stress on law and the Code emphasised that his authority stood on ancient foundations that no-one now in power had the authority to deny. The Code was older than the caliphs of Córdoba to whom he sometimes pledged allegiance, older than the Carolingians who’d installed his grandfather, and certainly older than those upstarts in León whom he may once, all the same, have got to consecrate him an anti-Carolingian archbishop.8 I’m pretty sure about all the ways in which, for Borrell, the Code was old. But after hearing Graham’s paper I know that I also need to pay some more attention to the ways in which it was also being made anew.

1. R. 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; you could also see his “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; both are reprinted in Collins, Law, Culture and Regionalism in Early Medieval Spain, Variorium Collected Studies 356 (Aldershot 1992), V & VI respectively.

2. The things I can most obviously think of are all by Aquilino Iglesia Ferreirós, specifically his “La creación del derecho en Cataluña” in Anuario de Historia del Derecho Español Vol. 47 (Madrid 1977), pp. 99-424 and more recently La Creación del derecho: una historia de la formación de un derecho estatal español : manual (Barcelona 1992) and (I gather from Dialnet) Max Turull, Aquilino Iglesia Ferreirós, Oriol Oleart Piquet, Mònica González Fernández, Historia del derecho español (Barcelona 2001).

3. For Catalonia, I can go no further without mentioning the excellent 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), of which pp. 33-55 cover this stuff.

4. And since there has so far been no late Latin in this post at all, let me take one of his examples here: the Law says, “If a freeborn woman mixes herself up in adultery with her own slave or freedman, or else wishes to have him as her husband, and she is convicted of this by clear proof, she should be put to death”, “Si ingenua mulier servo suo vel proprio liberto se in adulterio miscuerit aut forsitan eum maritum habere voluerit et ex hoc manigesta probatione convincitur occidatur”, text from 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), Book III Chapter 2 Title 2, emphasis Barrett’s. Then, we find in a charter preserved by the nunnery of Sobrado from 858 the confession, “I mixed myself up in adultery with the slave of Hermegildo named Ataulfo”, Commiscui me in adulterio cum servo Hermegildi nomine Ataulfo”, ed. P. Loscertales & G. de Valdeavellano in their (edd.) Tumbos del Monasterio de Sobrado de los Monjes (Madrid 1976), doc. no. 75, emphasis and transl. Barrett. Note, of course that firstly, that was not the woman’s slave but someone else’s, and secondly, that she was not put to death as the law prescribes. More on that below…

5. Here I run shamelessly off the back of Bowman, Shifting Landmarks, pp. 39-43. One of the people we know knew this stuff was my official favourite scribe, the judge Bonhom (or Bonsom, often, in the literature), whom Bowman discusses ibid. 84-99 along with his fellows. We know Bonhom knew it because we still have his own, heavily-glossed, copy of the Law, it being Biblioteca del Monasterio del Escorial, MS z.II.2, and recently fully edited as 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). And, now that I look at Graham’s handout more closely, I see he has an example of just this kind of misuse of the same clause from Emilio Sáez (ed.), Colección documental de la Catedral de León (775-1230), vol. I (775-952), Fuentes y estudios de historia leonesa 41 (León 1987), doc. no. 256.

6. In fact, I will: it’s Eduard Junyent i Subirà (ed.), Diplomatari de la Catedral de Vic (segles IX i X), ed. Ramon Ordeig i Mata (Vic 1980-1996), doc. no. 161, also ed. in Ordeig (ed.), Catalunya Carolíngia IV: els comtats d’Osona i de Manresa, Memòries de la Secció històrico-arqueològica LIII (Barcelona 1999), doc. no. 392, in which a priest called Nectar buys someone out of penal slavery enjoined upon him for homicide. The relevance of this example is that the priest, whose name was Nectar, yet, already, says in the document that one sentenced to slavery cannot redeem himself, which looks like a legal citation but is actually not in the Law.

7. The chronicle reference is J. Pérez de Urbel, Sampiro: su crónica y la monarquía leonesa en el siglo X (Madrid 1968), cap. 30, Silense redaction, and when I invoke Patrick Wormald I mean his “Lex Scripta and Verbum Regis: legislation and Germanic kingship, from Euric to Cnut” in Peter Sawyer & Ian Wood, (edd.) Early Medieval Kingship (Leeds 1977), pp. 105-138.

8. On Borrell’s management of the past I hope you will soon be able to see J. Jarrett, “Caliph, King or Grandfather: strategies of legitimisation on the Spanish March in the reign of Lothar III” in The Mediaeval Journal Vol. 1 (Turnhout forthcoming); on the archbishop, meanwhile, see idem, “Archbishop Ató of Osona: false metropolitans on the Marca Hispanica” in Archiv für Diplomatik Vol. 56 (München 2010), pp. 1-41 at pp. 13-16, and refs there.

37 responses to “Seminar LXXXIV: going to law in post-Visigothic Spain

  1. Thanks for this – it sounds like a most interesting paper that I hope makes it into print soon. I’m struck particularly by the potential similarities with the evidence that Alice Rio has found in the Frankish formulae collections for law being treated (and cited) flexibly, sometimes right down to admitting quite flatly that ‘the law says x, but we do y’.

    • Exactly, yes. Mind you, I think that to an extent that perspective is stated in Settlement of Disputes or even something older, the idea that medieval judicial practice is about equity not an abstract justice, and this is why compromise is more common than real juristic sentencing. I can’t remember where I got this from but have a lurking feeling it may be in Susan Reynolds’s work somewhere. I certainly read it a long long time ago!

      • Yes, that sounds like something that may well go back to Reynold’s ‘Kingdoms and Communities’, which is full of all sorts of good common sense analysis.

  2. Interesting – and seems to follow the Visigoths adopting a whole bunch of Roman laws into theirs – or at least Liuvgild and Euric. Isabel Velázquez has an interesting essay on that in The Visigoths from the Migration Period to the Seventh Century, Peter Heather, ed.

    Then again, that was the theme with the barbarian law codes – a whole lot of Romanizing going on, if not as radical as Theoderic’s, “If a Roman commits a crime against Romans let him or her be judged by Roman Law.”

    It also works nicely with the general concept of rulers being rulers of peoples. If you’re going to be that, you might as well keep the same laws.

    Graham’s pretty impressive. I was disappointed to see he wasn’t presenting at Kalamazoo. Last year was very good and the year before he gave a presentation on slate finds in the Meseta which was excellent.

    • We’re still waiting for that slates paper, indeed, it’s a subject of occasional teasing round here.

      The Forum expressly sets out to make one law for both Romans and Goths in its introduction, so it saw itself as one step beyond that kind of separation. (Two centuries before Charlemagne collected all the barbarian codes!) The point for both Graham and myself, though, is I think that despite this framing in a historical moment it’s still used long after that moment is past, and indeed parts of it were still being cited in courts in Castile in the 1800s at least! (In Catalonia it is replaced by the Usatges de Barcelona in the mid-twelfth-to-early-thirteenth century.)

      • Oh look, WordPress appears to have eaten my avatar image. Hopefully shortly to reload…

      • Say – I hope you don’t think when I wrote the above that I was in any way implying that you didn’t know all that, better than I do. As soon as I posted it I read it and thought, “Gosh, that reads like I think he doesn’t know this.”

        Any clue where Guy Halsall’s blog has gone? Any clue you’re able to share, that is.

        • There is actually stuff in what you said with which I wasn’t familiar, but I’m not admitting what! As for Guy’s blog, no, I have no information I’m afraid, only speculation that doesn’t really belong here.

          • Hope it wasn’t my inference that what I put in quotes was from any of Theoderic’s laws since he didn’t actually write any (don’t think his edict went quite that far). I’m 99.9% certain this or something very similar comes from one of Cassiodrus’ Variae.

          • Isn’t it here:
            Looks current to me…? Or did you mean some other site?

            • Yes – it was gone for a while yesterday and now it’s back.

              • Oh good! Now if I only had a cache of it I’d be strongly tempted to try and automatically compare them to see what he’s had to delete… But I’m glad that whatever problem there was was negotiable.

                • I was worried that his Nenius post might be gone since I hadn’t had the chance to look at it closely yet but it’s still up.

                  • I would guess it’s the nature of the way he refers to other scholars that will have changed, but, eh, I’m completely conjecturing here. That said: Google only turns up two hits for the word ‘idiot’ in the blog now, and none for either of ‘bone-headed’ or ‘boneheaded’, and I’m sure I remember the occurrences as being more frequent than that. But it’s not, as I say, as if I kept a cache of the old version to compare. A lesson in source criticism there, or something.

          • I think I’ve used up the number of replies in one thread for WP so I’m plugging this in here. I’d thought it might be that he’d put something on his blog that was in pre-pub somewhere and that the publishers didn’t want out.

            Interestingly, at least one of people he refers to in that way has been known to treat others similarly in public. Ah well, la vie continue.

  3. Mark Handley

    On the other hand why is it so unusual for old laws to still be cited. Modern English court cases on state power or wrongful imprisonment will still sometimes refer to Magna Carta. Modern Scots law is based on Roman law, and so Roman authorities are sometimes cited in current cases. Certain indisputable aspects of modern English law date from 17th-century cases or statutes (such as what constitutes an assault, or certain powers of a trustee, not to mention the Bill of Rights, or the Habeas Corpus Acts of 1641 and 1679). Unless the law is overturned or repealed, why not cite and use it – it remains the law. The same can be said for the long nachleben of the Theodosian Code in parts of the West.

    Of course over time some laws become silly and anachronistic. These can be quietly, or if needs be noisily, forgotten even though they retain the force of law. In England examples such as a Freeman of London’s right to herd sheep over Tower Bridge, the requirement of a citizen of York to attend annual archery practice, or a pregnant woman’s right to use a policeman’s helmet as a toilet, abound.

    • Only two clauses of Magna Carta remain in law in England, it’s actually much easier to find it in use in the USA, weirdly. Someone should have taken a copy down to the White House under the last presidency. You’re quite right generally, of course. The thing that distinguishes these cases from the survival of the Visigothic Law is that your cases are not the only law, however, whereas for the Christian kingdoms of Northern Spain, some Carolingian capitulary material whose use we can hardly demonstrate aside, there is no other law than the Forum Iudicum, the Codex Eurici very occasionally and a certain amount of canon legislation. In practice, of course, there’s any number of decisions which have the character of law; but there’s no state or royal legislation until the Usatges, in Catalonia, and well, the Siete Partidas in Castile? Fueros apart, I suppose. Certainly the nineteenth century uses of the Libro Juzgos are of the type you describe, a still-relevant relict in an otherwise new tradition. It’s one of the odd things about the Catalan case that they replace their outdated law wholesale with the new one.

      • Mark Handley

        US constitutional jurisprudence often looks to the state of English law in 1789 to explain/elucidate the US Constitution – which may explain the more frequent Magna Carta usage on that side of the pond.

        Now the Code of Euric being used in 9th/10th-century Spain – that IS interesting, and not something I knew before. Is it lip service, or do they actually have the text? The evidence for its use in Visigothic Spain is pretty slight, so fairly remarkable that it rears its head centuries later.

        I seem to recall that the one Spanish manuscript we have of the Breviary of Alaric is 9th or 10th century as well, so they are getting old Visigothic law from all sorts of places.

        • Code of Euric – errr, don’t quote me on it. I’m away from the books right now but will check back in later with a reference if I can find one or else admit I probably misremembered. I may well mean the Breviary.

          As to the US thing, yes, my source is Ralph Turner’s book on it which I reviewed here. He puts its frequency of use down firstly to its Constitutional rôle, and secondly to the fact that it was still top of the Statute Book when most of the State Constitutions were written in the US, and a lot of them deliberately incorporated existing English law at that point. And of course that too lies behind the federal Constitution’s drafting process.

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  6. Michael J. Kelly

    Dear all,

    Does anyone know if Graham has published his work on the Visigothic slates, or if it is viewable somewhere? I’m working on the epistemological-aesthetic connections between Isidore and the Lex Visigothorum, and what these can tell us about the functionality of Visigothic Law. His research on the slates would of course be very helpful. Thanks everyone.



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