The making of judges in tenth-century Northern Iberia

In 2009 Wendy Davies, of whom I so often write here, gave the annual lecture in memory of the late Timothy Reuter in Southampton. I could not go, but it was published in 2010 and some time in early 2011, Wendy kindly gave me an offprint, and I’d already downloaded it by then, knowing that I very much needed to read it.¹ Somehow, it was not till late 2014 that a combination of interest and shame found me resorting my to-read shelves in such a way as to bring it to the top, though, and then of course I found it really interesting. There’s two things in particular I thought made for blog material, and this is the former of them.

A farm in Soutelo, near Braga, like the one with which Wendy’s opening case dealt

Wendy’s aim was to explore what people who went to court in northern Iberia in the ninth and tenth centuries were hoping for: a compromise arrangement that settled all parties’ feelings and healed social rifts, or definitive justice based on rules and a judgement of the true situation? As she explains, scholars of the early Middle Ages have got very used to the idea that almost all justice in them was probably more negotiated than determined, and yet the language of the documents from her area (Northern Iberia from Galicia to Aragón and Navarra) is very much of truth and justice, “veritatem et iustitiam”.² By way of exploring what is up with this, she worked through what we can say about the people who judged these cases and who let them do so, and then what, as far as we can tell, they thought they were supposed to do. This involves pulling together a sample, of course—one of the reasons I love Wendy’s work is that she is someone who can start a section of a paper with the non-sentence, “Firstly numbers.”—and she has 250 records of disputes with 160 people named as judges (iudices), of whom only 15 or so occur more than once.³ Using that, she determines what we usually find judges doing (“… ordering what happens next, making primary investigations, reviewing evidence, and making decisions”) and then, the point I want to pick up here, notes that it is not just people named as judges who do such things in court:

“While the label iudex was attached to some of the judges… it was not applied to all. The group doing the judges, the group of iudices in the plural, might include, or indeed be entirely composed of, indiviudals who carried the label iudex, but it might also include others…. The apparent inconistencies in this usage are quite easily explained: being called a iudex was a marker of status—the label was applied to such people when, for example, they witnessed uncontested sale transactions; to do the judging you did not need to be a iudex, although you might be; in other words, the label iudex and the act of judging are separable. A iudex (in the singular) was a person of special status and skill—a kind of professional; he must usually have been literate (given the number of cases in which a scribe is termed iudex) and he is likely to have known some law. Doing the judging was something in which other leading men of a locality could participate; hence the common references to iudices in the plural, as the people doing the judging….”⁴

This intrigues me a great deal. As long-term readers will know there are plenty of judges in my evidence, and I am particularly grateful to one or two of them for the amount of detail they would cheerfully go into in explaining the cases they oversaw, but many of the others are complete obscurities, never seen in judgement or only once.⁵ These latter are trouble for some of the laudatory things that have been said about judges in early medieval Catalonia, who are famous for having been literate, educated, clerical and publicly-appointed disinterested judicial practitioners guided primarily by the written law.⁶ Jeffrey Bowman, among others, has exposed how carefree they could be about how to use that written law, and I’ve blogged an example here, but the idea that they were educated and publicly appointed has never really been challenged.⁷ Bowman’s work is especially interesting here because he sees a difference between the educated comital judges of Barcelona and the rather more homespun and independent judges of very southern France, and I have suggested that this is a distinction made over space which should actually be made over time, because plenty of the latter seem to me to exist in Catalonia too.⁸

Judges are never depicted in this period and area as far as I know, and i certainly can’t find one from in-area and in-period. On the other hand, this fourteenth-century depiction from James le Palmer’s Omne Bonum does also illustrate the word iudex, of which this is the historiated initial… It’s from London, British Library, MS Royal 6.E.vii, fo. 345r.

One way to advance this is to ask who appointed judges. In Catalonia it’s almost always assumed to have been the count, but there is really no evidence of this that I know of. Judges appear with the count, receive gifts from the count, hand out judgement in courts over which he presides, and some of the more outstanding ones do this for several counts.⁹ It’s not even only the educated ones; Borrell II of Barcelona had a castellan called Guifré who was also a iudex, although we have no records of him actually judging, and that is at least a recognition of his title by the count.¹⁰ Still, we don’t have anyone who helpfully calls themselves iudex comitis or comitalis and the actual process of nomination is not recorded. Now, Wendy does have some answers to this question, not least because she does have royal judges, iudices regis.¹¹ But that’s the top of the pile, and the bottom is different. The chunk I’ve quoted above goes on as follows:

“… in [a case previously discussed], the additional three judges were selected from the assembled court to probe the witness evidence. Very occasionally there are references to choosing the judges from assembled boni homines, that is ‘worthies’, although that is rare (and the texts do not specify who made the choice).”¹²

This is practically being made a judge for the day, isn’t it? And it’s a mile away from the idea of such persons as carefully trained and professionally active, even if those chosen would probably have had a lot of relevant knowledge. If we have such cases in Catalonia, I don’t know about them as yet. But the problem is not that we have a different pattern attested there, but that we have no pattern; we have judges with no origin, beyond the fact that we can see that some of the more educated ones were members of the Barcelona chapter.¹³ Given this absence of evidence, the kind of variety that Wendy attests is as plausible as anything else, and then what does that do to the idea of Catalan justice as a model of early medieval statecraft? Well, she has an answer to that too:

“What is interesting, given that the state was undeveloped, is that there was a public system, from east to west, north to south, which had recognised procedures, experts, written law, officers, scales of penalty, counts with potestas (in these contexts, legitimate capacity to hold a court). There was a strong sense of the public, although differently conceptualised from either ancient or modern notions.”¹⁴

It is that difference in conceptualisation I am still struggling with here, I think. But as so often, it is easier if one compares, and Wendy has made that much easier.

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1. W. Davies, “Judges and Judging: truth and justice in northern Iberia on the eve of the millennium”, The Reuter Lecture 2009, in Journal of Medieval History Vol. 36 (Amsterdam 2010), pp. 193-203, DOI: 10.1016/j.jmedhist.2010.07.001.

2. Ibid. pp. 194-195, citing inter alia Warren C. Brown and Piotr Górecki (edd.), Conflict in Medieval Europe: changing perspectives on society and culture (Aldershot 2003) and various studies now reprinted in Stephen D. White, Feuding and Peace-Making in Eleventh-Century France, Variorum Collected Studies 817 (London 2005); the quote is from a León charter of 952 printed in Ernesto Sáez (ed.), Colección documental de la Catedral de León (775–1230), I (775–952), Fuentes y estudios de historia leonesa 41 (León 1987), doc. no. 256, which it turns out I have cited here before.

3. Davies, “Judges and Judging”, pp. 195-201, quote on p. 199.

4. Quotes ibid., pp. 201 and 200 respectively, punctuation as in the original.

5. See Jonathan Jarrett, Rulers and Ruled in Frontier Catalonia, 880-1010: pathways of power (Woodbridge 2010), pp. 42, 133, 139 & 152, inter alia.

6. The classic statement of this maximum case is Roger 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, repr. in idem, Law, Culture and Regionalism in Early Medieval Spain, Variorum Collected Studies 356 (Aldershot 1992), V, to which add his “Literacy and the Laity in Early Medieval Spain” in Rosamond McKitterick (ed.), The Uses of Literacy in Early Mediaeval Europe (Cambridge 1990), pp. 109-133, repr. in Collins, Law, Culture and Regionalism, XVI; more nuanced, but still fundamentally affirmative, is Josep María Salrach, Justícia i poder en Catalunya abans de l’any mil, Referències 55 (Vic 2013), pp. 143-178, which does very much the same job as Wendy does in “Judges and Judging” but with different starting questions.

7. Jeffrey A. Bowman, Shifting Landmarks: Property, Proof, and Dispute in Catalonia around the Year 1000 (Ithaca 2004), pp. 33-55.

8. Jarrett, Rulers and Ruled, p. 133; I go into more detail in the next book, now under work and about which I shall blog ‘ere long honest.

9. Guifré Ausonensis, despite his byname, seems to turn up first of all judging for Count-Marquis Oliba Cabreta of Cerdanya, and only to move into Borrell II of Barcelona’s territory (mainly Osona and Urgell) later in his career. I give some references for him ibid.

10. Ibid., pp. 152 & 153.

11. Davies, “Judges and Judging”, pp. 199-200.

12. Ibid. p. 201.

13. See Josep M. Font i Rius, “L’escola jurídica de Barcelona” in Jesús Alturo i Perucho, Joan Bellès, Font, Yolanda García & Anscari Mundó (edd.), Liber iudicum popularis. Ordenat pel jutge Bonsom de Barcelona, Textos jurídics catalans 23 (Barcelona 2003), pp. 67-100.

14. Davies, “Judges and Judging”, p. 202.