Immune from criticism

When I wrote this at the end of August 2013 I had just finished reading one of the very many books I really should have read a long time ago, partly because I’ve owned it since 2008 or something but mainly because of the number of people who told me I should during my doctoral work. The book is Barbara Rosenwein’s Negotiating Space, and I can’t help feeling I may have missed something.1

Cover of Barbara Rosenwein's Negotiating Space

Cover of that selfsame book

Professor Rosenwein writes agreeably and sets out an interesting stall by beginning with the old adage that ‘an Englishman’s house is his castle’ by way of instancing the idea of legal immunity, a position or extent within which the law cannot reach you. By the time of the adage, this could be claimed as a general right, but obviously ’twas not ever thus and in the period with which this blog is usually concerned, immunity was more something you got for your properties from local authorities, who by excluding themselves and their subordinates from your jurisdiction effectively made you lord of all you could claim in the limits they’d given you. Now, absolutely there has been a lot of stuff and nonsense hung off this idea, in which kings mortgaged away their rights for immediate support and weakened the state in consequence, and Professor Rosenwein goes a long way to showing, in the sixth, seventh, eighth and ninth centuries in Francia and the tenth in Italy, how this need not have been so, because going to ask for such a concession as well as being awarded one bound one tightly into a relationship with the issuer, to whom after all one would have to look to make it official. As Professor Rosenwein points out, the Carolingians made this explicit by linking such grants with their protection, placing the recipients under heavy responsibilities towards the kings if they wished that protection to be useful. That is all good, and it probably needed saying in 1999.

Royal immunity charter of King Charles the Simple for the abbey of Sant Joan de Ripoll

If I have such a thing as a favourite immunity it’s probably this one, King Charles the Simple’s 899 grant to Abbess Emma and Sant Joan de Ripoll

It may indeed be that the take-up of this book was just so rapid and thorough that, as with so many things although this time second-hand, I’ve met so many people using this work that I no longer find these ideas surprising.2 It may instead be that it doesn’t surprise me because it is an argument cognate with that that says that royal grants were made mostly because people asked for them, not because the king bestowed them at whim, and that any grant thus represents a successful and plurilateral negotiation concluded.3 But I can’t help feeling that it is also not surprising because it’s almost the only commonality that Professor Rosenwein was able to draw out of her material beyond the obvious one that what immunities were changed all the time and varied with each use. The extreme malleability of this political tool makes it hard to characterise and I felt at many points that paragraphs slipped from one definition to another rather than actually joining them up.4

Einsiedeln, Klosterarchiv Einsieden A BI 1, a confirmation of privuleges and immunity to the house from Emperor Otto I, 947

One has to admit that this is a bit more splendid, though, and not just because the seal is still attached. This is Emperor Otto I to the monastery of Einsiedeln, 947, Klosterarchiv Einsieden A BI 1.

It seems to me, from fourteen years down the line and benefitting from a lot of people’s thought about what the early medieval charter was actually for of course, that this may be a category error of sorts. Professor Rosenwein, when she wrote this book, clearly saw immunities as a category: she has appendices of exemplary ‘immunity’ documents, the whole book assumes that immunity is a diplomatic or legal thing that ranks alongside sale, donation, and so forth. Yet it seems to me that it is not so, that it is rather part of those categories. A royal precept of the kind I’m used to, which is to say, Carolingian, might include immunity, but that would be only one clause of several, and a grant of property without immunity would not look any different; you’d have to read it before you knew whether the special category applied.5 It would be late on in the document, too, after the goods had been conceded, described and all the rest, and there would be goods, even if they were only being confirmed rather than given. One could be forgiven, I think, for thinking that the goods were the main act and immunity only an aftershow. In fact one of the few things that would follow it apart from signatures might be the grant of free elections to a monastery (as in the Ottonian privilege above), often travelling with the privilege of immunity but not always. We don’t speak of election grants; why then does immunity need to stand separately from the donations and confirmations of which it always formed part in this period?6

1. B. H. Rosenwein, Negotiating Space: power, restraint, and privileges of immunity in early medieval Europe (Ithaca 1999, repr. 2000).

2. I didn’t get all of it second–hand, in fact: part of the lack of surprise may be coming from my having already read Rosenwein, “Property transfers and the Church, eighth to eleventh centuries. An overview ” in François Bougard (ed.), “Les transferts patrimoniaux en Europe occidentale, VIIIe-Xe siècle (I). Actes de la table ronde de Rome, 6, 7 et 8 mai 1999″ in Mélanges de l’École française de Rome: Moyen Âge Vol. 111 (Rome 1999), pp. 563-575 of pp. 487-972, online here, coming out of the same research.

3. Mark Mersiowsky, “Towards a Reappraisal of Carolingian Sovereign Charters” in Karl Heidecker (ed.), Charters and the Use of the Written Word in Medieval Society, Utrecht Studies in Medieval Literacy 5 (Turnhout 2000), pp. 15-25; of course that was already obvious to Ramon d’Abadal i de Vinyals, Els Primers Comtes Catalans, Biografies catalanes: sèrie històric 1 (Barcelona 1958, repr. 1980), since the Carolingian kings could not easily affect Catalonia for most of the time that area sought such documents from them, and thus to me who read Abadal long before I did Merswiowsky.

4. This may of course be my fault, for reading it in dribs and drabs and always while soaking up enough morning caffeine to function. I can’t help feeling that the fact that the book acknowledgedly (p. iv) reuses material from six separate previous article-length publications, none apparently wholly or unedited, probably also contributes to this feeling of conceptual and syntactical cæsura it gave me.

5. The ones I’m used to are of course most specifically the ones to Catalonia, edited together in Ramon d’Abadal i de Vinyals (ed.), Catalunya Carolíngia II: els diplomes carolingis a Catalunya, Memòries de la Secció històrico-arqueològica 2 & 3 (Barcelona 1926-1952), repr. as Memòries… 75 (2009).

6. Possibly different in Merovingian or post-Carolingian periods but Rosenwein, Negotiating Space, pp. 81-89 and 144-146 suggest that she had trouble with the refusal of rulers then to stick to her category. See esp. p. 145: “The word ‘immunitas’ does not appear in this charter. Nevertheless, the phrases are clearly patterned on an immunity….”

13 responses to “Immune from criticism

  1. Interesting thoughts, which beg the question: can the documents really be divided or sorted in any way that isn’t completely artificial and a consequence of our own preoccupations?

    It seems to me that the obvious answer is no. Sales and donations are no more clearly cut; how many times does one come across a grand and pious donation, with lines and lines of religious rhetoric, only to discover a single line near the bottom that states that the donor just happened to receive a large amount of money from the monks/bishop/etc. at exactly the same time? If two charters are drawn up in exactly the same way (format, language etc.) granting similar lands, but one includes a payment of rent while the other doesn’t, do they go in separate categories? (Lease and grant?) Or if one has a time-limit (say the lifetime of the recipient) and another doesn’t?

    It’s probably best just to admit this to ourselves and, because we recognise the categories as artificial, focus on what kind of categorisation helps us organise the documents to best understand medieval society, or whatever sub-section of it we happen to be examining.

    • I agree with that up to a point: the categories we use are often contradicted by the documents. Nonetheless, the documents themselves do use categories, calling themselves gifts, sales, largitiones, testamenta and so on that obviously expressed something, even if that may principally have been a fancy word for transaction. So I think a first answer could be that if we’re going to use shaky categories, at least we could use the scribes’ own. There is also some hint of categorisation in some cartularies and archives, especially visible where royal and papal documents are kept separately but also sometimes (rarely) by permanence of tenure. However, as anyone will know who’s tried to set up a filing system, it’s most often determined by what you have most of, not necessarily a system that covers everything… So I think I think that one of the things that medieval categories can help us remember is that we care more about systematic categories than they did, fine, but they still had some, they obviously worked well enough and part of what we may need to do is understand how.

  2. magistraetmater

    I think you’re being slightly unfair to Barbara Rosenwein here by ignoring the previous historiography on the subject. She’s treating immunities as a category because that is how they were traditionally seen, as a single legal institution. Indeed she points out (p. 5) that people spoke of “the” immunity. She explicitly says she’s trying to see what immunities are in practice, which is why her emphasis is on the social context behind particular instances of granting immunities and how varied those the circumstances can be. Apart from Paul Fouracre in 1995, I can’t think of many people who had done that beforehand (and Paul just covered Merovingian Francia).

    If we’re going to talk about Carolingian terminology, meanwhile, immunities may not be a type of document, but they are certainly a category. In fact, having just analysed more than 170 of Charlemagne’s charters the “emunitas” is one of the few relatively stable categories of rights that are granted by him.

    • The social context is what Rosenwein adds to the literature, certainly, and that is the value of the book just as it had been the value of her previous one, but as I say, I think that having done the same work I would have concluded that the historiography was just wrong that ‘the immunity’ was a thing rather than try and maintain it as a category over an even longer period and wider spread than before… As for your second objection, I can see how that makes immunity an object, like free elections, villae, rights to a market or anything else one might concede by precept, but not a category. Indeed, if it never varies (and I agree that from what little I’ve seen, not 170 documents but not just Charlemagne either, it hardly does) then it’s a category with one member anyway!

  3. I would like to add yet another possibility to ancien or current documental categorization practices. Number crunching, the statistical approach. Lets examine those documents as examples of an unkown set of categories and design quantified measures on them to discover what those categories could be – I could not resist, just making this kind of things this month -.

    • That’s very interesting, Joan, with a whole range of possibilities. The last paper I gave was an explicit comparison of Catalan and Provençal documents, and one problem I had was in expressing the degree of relation-but-difference between the phrasing of the two corpora. Now it strikes me that one could analyse OCR’d PDFs of cartularies across a whole spread of Europe like this and hope to do something a bit more definitive than “it must all be local reflections of late Roman usage”, which is where I have tended to wind up. This is worth thinking about…

      • Logical, you need to know about textual statistical analysys first. You can do a lot of things with a big enough corpora. From classification to topic detection. For example, in the previous url, you can find a – not very complex – mechanical classificier that detects early medieval judicial documents – on a very heterogeneous corpora – without even have to depend on filological knowledge. The plus of those methodes is not that they are more or less definitive, is that they are quantifiably objective.

  4. Allan McKinley

    There is a small corpus of (literally) Merovingian immunities, that is documents which only grant immunity. Of course, being a historian Ewig subdivided this into big and small immunities to make two categories. These documents, on two basic templates (and of course with variation from these) can properly be classed as immunities. There seems to be an eighth-century change from using this particular diplomatic form to using immunity clauses (interestingly this seems to happen amongst the Anglo-Saxons as well) presumably because the practice of granting immunity became a norm. So from a seventh-century perspective immunities are a useful category; from a tenth-century perspective perhaps not, even if some charters still only granted immunity, as these were only a variation on a theme around the range of rights which could be granted within a diplomatic framework.

    As I’d question the benefits of categorisation here rather than studying the context of individual documents (spot the early early medievalist…) I’m not sure if this is a problem. My reading of Rosenwein has always been that she was studying a phenomenon not a strict class of documents, with her use of immunity being a reference to the right granted not the type of document. This could however be because I read her book in conjunction with looking at Anglo-Saxon immunities, which definitely fit this description, studying with Nicholas Brooks; this could influence a reading. That said, I don’t think Rosenwein’s thesis would make sense if she was only talking about a class of documents: after all, where is the document guaranteeing me, an Englishman, my home shall be a castle (I think some turrets would improve it to be honest)?

    • That document is whatever legislation replaced the relevant bit of Magna Carta, I suppose. Crenellation might be a separate privilege, though :-)

      I suppose that I wouldn’t want to deny that there are documents that grant only immunity—indeed, there’s even an argument, pursued by Rosemary Morris in the second Bucknell Group volume, that such things existed in the Byzantine Empire as well—but even then, I don’t think that that establishes this as a category of document. If I was databasing such things, it would be a lot easier to consider them as type:donation with object:immunity, just as another document might be type:sale with object:modiata-of-vines [N. B. this is not supposed to be real database syntax!], than consider them their own thing. All grants are grants of rights of use rather than of actual physical property, after all…

      • Allan McKinley

        No problem with that, but I suspect said database would have a pattern of documents which were type:donation and object:immunity only before the object became more widespread. Would that not constitute a recognisable group of documents? Although other than providing a possible corpus of comparators for diplomatic analysis, not sure what good this grouping actually does…

        • Well, as we know a transaction can involve many objects! Most Carolingian immunities to monasteries include grants of free election, after all, as I said. Surely there both immunity and elections are the objects of a donation, rather than there being sorts of immunity that do or don’t include elections. If you disagree, where to fit in those where landed property is also conferred and then covered in a blanket immunity?

          In database terms, of course, you could still classify our immunity grants as a group WHERE ((document.type Is donation) AND (object.type Is immunity)), to use actual SQL or something like this time. That’s still a category, but it’s a subcategory of donation and the argument above is why I think it belongs there.

          • Allan McKinley

            I’ll take subcategory of donation as an accurate description should categorisation be required. But surely a subcategory can be studied – and this perhaps does pinpoint an issue with Rosenwein (from memory and a quick flick through this morning) in that she does not really consider the relationship between the subcategory and the overall category – which I might argue is charter rather than donation as I can cite immunities from Mercian kings which are drafted as sales, insofar as Anglo-Saxon charters have distinctions of type. This is probably what you were originally saying, but at least a lot shorter…

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