From the Sources XII: successful crime and vicarious enforcement

Just when you thought it was safe to assume this blog would all be science, numismatics and seminar reports for the foreseeable future, let me surprise you all with something from that corner of tenth-century Europe on which I actually work, or on this occasion actually just about eleventh-century Europe, to wit the year 1003, from which while researching the book I mentioned a while ago (and which, I have to confess, has advanced not at all since then what with endless teaching prep) I found an interesting trial, in the manner of the best scholarship on the area just now. It looks like this!

Barcelona, Biblioteca de Catalunya, pergamins 2079, recto

Now, you can probably see that this is a charter which has suffered somewhat, from damp where it’s been folded, from moth or mouse in several places and from the outright loss of its left-hand lower corner, and therefore the scribal signature, but quite enough remains to identify it as an act of the man I have previously called Ervigi Marc the Wonder Judge, and thanks to the good efforts of Pere Puig i Ustrell I don’t have to try and work out what it says, because I spent part of yesterday in the IHR transcribing his edition of it.¹ That is why this has taken a few days to appear, but also means that I can now also offer you this translation:

“Let it fall upon the ears of all the faithful that I, in the name of God Bishop Marc, also judge, came into the county of Manresa in the Vall de Nèspola and heard the petition by which the judge Borrell summoned Olibà, who was the surety of Delà, so that he might present himself in his court and settle everything according to the laws, and he did not want to and in no way did he come there. And afterwards he went into the mountains and in no way either inclined or acquiesced to my orders. And this is the case for which he sought the aforesaid surety in the presence of Baró, Godmar, Sunyer, Baió, Adroer, another Godmar, Gondeví, Adalbert, Guadamir, Salomó, the priest Miró, Tered, Marco and a great many other, namely that Delà proclaimed that the alod of Sant Llorenç was his own free property, that of which Sant Llorenç had had 30 years’ possession in their own right through a charter that the late Count Borrell made to the aforesaid house of Sant Llorenç. And the same Delà has himself worked it for 30 years for the house of Sant Llorenç and given taschas and labour services and special offerings, just as the other men of the selfsame alod hold, give and perform. And the officers of Sant Llorenç distrained him for his excess just like the others of his sort. And afterwards he got away and broke from the power of Sant Llorenç and he set another lord up there and made to attack Borrell the aforesaid officer of Sant Llorenç and managed to kill his mule. On this account was the aforesaid surety laid open.
“Wherefore I in the name of God Marc do consign and hand over the aforesaid alod into the power and lordship of Sant Llorenç and I order the aforesaid surety to compound with another such alod of his own, and all the movable property which be possible to find are to be handed over into the power of the aforesaid Borrell on account of his mule which he should have compounded to him fourfold, for that which the selfsame… and on account of what the late Count Borrell laid down in that same document, who should wish to interfere let compound twofold.
“Therefore I the abovewritten Marc, as I knew this authority to have been heard by him… that the aforesaid Delà gave taschas, and that he made another lord which he was not permitted to do, therefore I have consigned and I do consign, have handed over and do hand over the aforesaid alod into the power and authority of Sant Llorenç, as has been said. And all the movable property into the power of the aforesaid Borrell.
“The recognition and consignment or handover and removal from lordship done on the 2nd Ides of October, […] reign of King Robert.
“Sig+ned Olibà, who made this extraction and consignment and confirmed and asked for it to be confirmed. Sig+ned Baró. Sig+ned Baió. Sig+ned Adroer. […] Sig+ned Guadamir. These same men were witnesses and present in a solemn capacity. Ma+rk of Gondeví. Ma+rk of Adalbert. Ma+rk of Salomó. Ma+rk of Marco. Ma+rk of, again, another Godmar.
“[…]gi, by the grace of God Bishop, also known as Marco, also judge.
“[…] priest and he wrote with scratched-out letters in the third line where it says ‘supra’, SSS, the above-set day and year.”

There’s lots of little cool things about this for the charter geek with which I probably shouldn’t bore you. I will, though, obviously. Had you noticed that the solemn witnesses all sign in the nominative, which I’ve rendered ‘signed X’, whereas the witnesses of the current ceremony sign in the genitive, so, ‘mark of X’? I’ve never seen that so clearly separated before and at first I thought that it was probably something to do with the fact that the second set of signatures are in darker ink. On inspection, though, you can see that actually the ink is darker all the way down the old fold, and the hand looks the same to me so I think that’s just coincidence in the form of moisture damage. Then I note the kind of half-quote of Borrell’s charter by Ervigi Marc, which he had clearly seen, and that needn’t surprise us since not only was at least one of its witnesses present, it also still exists and therefore so can we (below).² Lastly, also, I feel it’s worth mentioning that although Ervigi was, apparently, a bishop, he wasn’t actually bishop of anywhere: we know who all the bishops of the Catalan sees were at this time. The Church or the count of Barcelona (at this time Ramon Borrell, who did in one charter call himself ‘inspector of bishops’) seem to have decided that Ervigi was just that great and promoted him to bishop without portfolio.³

Borrell’s original grant of the property, Barcelona, Biblioteca de Catalunya, pergamins 3766

More obviously, though, this being just over the line of the year 1000 has escaped Josep María Salrach’s recent excellent book but suddenly exposes to us a judicial mechanism well known from elsewhere in Spain, if not very common, but possibly not previously attested in Catalonia, the surety.⁴ In case it’s not clear how this worked I’ll break down the narrative of the case in the way I usually do; it’s not actually quite obvious until one does and several important bits are skipped over in the actual text.

1. We begin, of course, with Count Borrell, who in 973 as we know from the previous charter gave an estate in the Vall de Nèspola to the monastery of Sant Llorenç del Munt, in Terrassa, as part of a general bolstering of monastic commitments to putting the frontier to work with which we’ve seen him busy before. The monastery then put in charge of it this man Delà, who rendered labour services and an annual levy of produce to them that signified their lordship over him as well as constituting monastery revenue.
2. Subsequently and presumably much more recently as of 1003, the monastery decided that Delà and a number of their other farm managers were being ‘excessive’ in some way and removed him, indeed, arrested him, presumably with intent to hold him responsible for whatever losses he’d caused them. It must have been at this point that Delà was made to name a surety for his actions, Olibà, a man who would have to make good if Delà failed to. The idea of this is that social obligation of the kind that the surety can exercise is strong enough that rather than offend his supporter in court the guilty party will pay up. As we can see here, this doesn’t always work.
3. Because, indeed, Delà escaped the monastery’s custody! Neither did he stop there: recognising that his previous bridges were now burnt, he handed the estate and his loyalty over to another lord, which as Ervigi says “he was not permitted to do”, though you’ll note that the lord is never named here and so was presumably someone too well-placed for the monastery to embarrass and also apparently sufficient to keep Delà out of the grip of justice, unfortunately for Olibà…
4. Sant Llorenç now got one of their enforcers, the judge Borrell, who was a patron of theirs, out onto the case and he must have got close to Delà because Delà apparently attacked him, and managed to kill his mule, which you know, suggests quite a serious assault as well as telling us that Borrell was not quite horse-riding levels of gentry.
5. So at that point the somewhat ineffective wheels of justice really began to spin, and Borrell called in the surety Olibà to do what he was supposed to do, which Borrell seems to have decided included paying for the mule fourfold. Olibà, however, not liking the look of things and presumably actually having no more suasion over Delà than anyone else, legged it to the mountains and defied both Borrell’s summons and that which Ervigi, called in from Barcelona with extra authority (not least because as bishop, presumably he could excommunicate) then sent next.
6. Somehow, however, Olibà got caught, because here after all he is being made to sign this document which no-one could classify, though I say that but it’s obviously the scribal hand still. Anyway, that is the point at which all this angry procedure is rolled out against him, Ervigi repeatedly states (as if Olibà could do anything about it!) that the estate should go back to Sant Llorenç and Olibà was actually made to fulfil a charter’s sanction, paying double the amount that someone had tried to steal from the monastery, and also all the movable property in that estate to make up for the missed payments on the mule. And there the matter rested, which is to say not so much that we don’t know if Olibà actually paid up but that I didn’t think to look onwards in the charter edition while I was still in the IHR, sorry, I’m a bad researcher.

There’s lots to think about here, though. In the first place, while he may indeed have been excessive, one can see why Delà and then Olibà tried to run for it or get powerful help; what chance did they have in the court, if it was going to be run by Sant Llorenç’s tame judge? Delà, in particular, was obviously what we once called a desperate man, and was at the point of trial presumably still with his new lord safe from justice. That may then explain why Sant Llorenç actually insisted on the penalty clause in their charter being enacted; they weren’t going to get control of their estate back, so could only grab at Olibà’s instead. One does wonder how much choice Olibà had about being Delà’s surety… As I have many times before observed, it’s tough to be up against The Man in first-millennial Catalonia.

And in this instance The Man’s House looks like this, though probably didn’t yet in 1003, lots of this being twelfth-century. It’s still pretty imposing though, and must have been then too. I’m not sure whether it would comfort Delà and Olibà to know that it is now “the highest restaurant in the Vallès“. «Sant Llorenç del Munt 2» per Mikipons – Treball propi. Disponible sota la llicència CC BY-SA 3.0 via Wikimedia Commons.

The trouble with only having one of these cases is that one doesn’t know if it’s something new. You’ll notice that this is not a system of reparation that the charter penalty implies: it should have been the infringer who paid up according to that, with the original and the same again. Neither, as far as I remember, is there any provision for sureties in the Visigothic Law, which duly never gets cited by this famously learned judge. And the fact of the violent self-defence, the adoption of non-legal means of enforcement, the apparent irreducibility of the fugitive criminal and the implication of an untouchable lord keeping him safe could all easily be used as evidence for a so-called ‘feudal anarchy’, were it not about thirty years early for that here by most accepted schemes.⁵ But we are, remember, on the frontier here, and close to the mountains to boot, and as I have said in many a call for papers and research proposal, that gives people choices they don’t have elsewhere, places to run where The Man actually can’t yet follow you and alternative lords who are considerably more alternative than just the count’s cousins in Berguedà (or wherever the mountains that failed to hide Olibà were).

The Serra de l’Obac, which lies between Terrassa and la Nèspola, is an obvious candidate where it is, you know, possible to imagine there being some good hiding-places… By Fugi-bis (Own work) [CC BY-SA 3.0], via Wikimedia Commons

OK, that’s obviously my favourite point but there are others, which make the monastery look even muddier. Note first of all the chronology. Borrell seems to have given Sant Llorenç this alod in 973. Here we are in 1003, therefore, thirty years later, which timespan grants the monastery unassailable legal right which is why they make sure to say that, right? Well, but hang on. Had this situation all blown up, every step there from (2) to (5) happened in the four months since the monastery crossed that line? Or had Delà rather seen that line coming and reckoned his chances of claiming thirty years’ possession were as good as his bosses’, if he made his move now? Worse, did the monastery fear that and boot him and his ‘consimiles’ out before they could claim they’d been in post that long like universities booting out their temporary staff at the four-year limit whereafter they are entitled to permanent contracts? Well, we can’t know, but one thing we can is that someone’s rights had been trodden on, because Borrell’s original grant had included life reservation to two of his followers, a priest Constabile and one Ervigi (presumably no relation?) and his children. So in 973 Sant Llorenç didn’t even own the estate, just the promise of it! Unless they just flat ignored those terms or Constabile and Ervigi and his kids almost immediately died, it’s a very special definition of thirty years that Sant Llorenç were claiming in 1003, therefore, and one that has no good implications either for their management strategies or for the truth of what they were claiming. So Delà and Olibà may have had better reason even than just the tame judge to know there was no point coming to court. The monastery wrote its own charters and it could ignore them too, with the right backers. But as Delà showed, out here that was a game that two could play.

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1. P. Puig i Ustrell (ed.), El monestir de Sant Llorenç del Munt sobre Terrassa: Diplomatari dels segles X i XI, Diplomataris 8-10 (Barcelona 1995), 3 vols, doc. no. 110:

Pateant aures fideles qualiter ego in Dei nomine Marcus episcopus qui et iudex accessi in comitatu Minorisa in ualle Nespula et audiui peticionem qua Borrellus iudex apetituit Olibane, qui fuit fideiussorem de Dela, ut in placito suo se presentasset et iuxta leges omnia difinisset, et noluit et extraxit se de ipso placito et non ibi ullo modo accessi. [sic] Et postquam accessit montus et iussionibus meis nullo modo obtempeauit nec adquieuit. Et hec est causa unde apetiuit fidemiussorem supradictum in presencia Baroni, Gondemari, Suniari, Baioni, Adroari, alio Gondemari, Gondeuini, Adalberti, Guadamiri, Salomoni, Mironi sacerdoti, Teredi, Marchoni et alii quamplures, scilicet quale Dela proclamauit alaudem Sancto Laurenti suum esse proprium et franchum, quem Sanctus Laurencius xxxta annos abebat possessum iure proprio per cartam quem condam comes Borrellus fecit ad predicta domum Sancti Laurenti. Et idem ipse Dela per hos supradictos xxxta annos seruiuit illum ad predicta domum Sancti Laurenti et donauit taschas et oblias et eceptiones, sicut ceteri omines de ipsum alaudem tenent, donant et seruiunt. Et distrincxerunt eum ministri Sancti Laurenti pro suo excessu sicut alii sui consimiles. Et postea ille exuasit et disrumpit de potestate Sancti Laurenti et fecit ibi alium senioraticum et fecit assalire ministrum Sancti Laurenti supradictum Borrellum et fecit ei tollere suum mulum. Propter ea fuit apertus istum fideiussorem.
Idcirco ego in De nomine Marcus consigno et contrado predictum alaudem in potestate et dicione Sancti Laurenti et iubeo componere supradicto fideissore aliut tantum alaude de suo, et omnibus mobilibus rebus quod ibi inueni tradidi in potestate predicti Borrelli propter suum mulum quod in quadruplum ei conponere debuerat, eo quod ipse […………..], et in propter quod condam comes Borrellus instituit in isto scriptura, qui hinrumpere uoluerit componat in duplo.
Igitur ego pretextus Marcus, ut agnoui istum directum ei audii [………… quo]d predictum Delanem dedisse tascas, et quia fecit alium seniorem que non licebat ei facere, ideo consignaui et consigno, [….]tradidi ac trado predictum alaudem in potestate et di[rectum Sancti Laurent]i, ut dictum est. Et omnes mobiles res in potestate predicti Borrelli.
Facta recognicione et consignacione uel tradiccione et extradiccione II idus octuber […………… reg]nante Roberto rege.
Sig+num Oliba, qui ista extraccione et consignacione fecit et firmauit et firmare rogaui. Sig+num Barone. Sig+num Baio. Sig+num Adroario. […………….] Sig+num Guadamir. Isti testes et presenciales fuerint. Sig+num Gondeuini. Sig+num Adalberti. Sig+num Salamoni. Sig+num Marchoni. Sig+num item alium Godmar. [……………..]
[……………. Erui]gius Dei gracia episcopus cognomento Marcho qui et iudex.
[………………] sacer et scripsit cum literas fusas in uerso III ubi dicit «supra», SSS die et anno prefixo.

2. Ibid. doc. no. 89.

3. For Ervigi, 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 at pp. 82-87. Ramon Borrell is “inspector episcopiis dante Deo nostræ ditioni pertinentibus” in Petrus de Marca, Marca Hispanica sive Limes Hispanicus, hoc est geographica & historica descriptio cataloniæ, ruscinonis, & circumiacentium populorum, ed. Étienne Baluze (Paris 1688; repr. Barcelona 1972, 1989), ap. CLXXII.

4. There is no mention of sureties in Josep María Salrach, Justícia i poder en Catalunya abans de l’any mil, Referències 55 (Vic 2013), which is of course the book to which I refer; see instead Wendy Davies, “On Suretyship in Tenth-Century Northern Iberia” in Julio Escalona & Andrew Reynolds (edd.), Scale and Scale Change in Early Medieval Europe, The Medieval Countryside 6 (Turnhout 2011), pp. 133-152.

5. Classically written up of course in Pierre Bonnassie, La Catalogne du milieu du X^e à la fin du XI^e siècle : croissance et mutations d’une société, Publications de l’Université Toulouse-le-Mirail 23 & 29 (Toulouse 1975-1976), 2 vols, II pp. 539-574, and followed in Josep María Salrach i Marès, El Procés de Feudalització (segles III-XII), Història de Catalunya 2 (Barcelona 1987), pp. 291-324, and see also idem, Justícia i poder, pp. 213-234 for examples from the judicial sphere specifically. He doesn’t use this one, but he obviously could have.