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
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.
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.
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?
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.
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.”
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.