Tag Archives: medieval law

Society for the Medieval Mediterranean 2015 (in Lincoln), parts 2 & 3

[Context: this post was half-written before I ground to a complete halt in hiatus last year. It’s clear that I can’t continue this scale of write-up, but because it was part-done, and because it involves the recently-lamented Simon Barton, I want to do this last one as it was meant to be done. I am, however, combining what would originally have been two posts, because this is an indulgence I can’t go on permitting myself. After this, we can talk about what happens next but I am hoping, hoping that this is the cough of the blogger’s virtual throat being cleared before saying something in a more regular fashion. We’ll see, but I have hopes and reasons to do it and that’s a powerful combination. This post’s still a composite hodge-podge, though, so I’ve added headings to show where its layers separate.]

The Voice of October 2016

This is, as grimly predicted, the busiest term ever in my life so far, and at some point in it I’m moving house! Yay! Before that point, I can at least crunch out a few more posts, though, I hope [Edit: ha!], and the next in the queue is a report on the second day of the conference of the Society for the Medieval Mediterranean, which as you will recall was in Lincoln in mid-July 2015. This post deals with the papers and so on from the 14th July, and then we’ll talk about something completely different before returning for the third and final day. [Edit: no we won’t, it’s all happening here.]

Brayford Campus of the University of Lincoln

The Brayford Campus of Lincoln University, just for context

There were up to five parallel sessions running at all times except during the keynotes in this conference and so there was always plenty to choose from, including plenty of early medieval. As it happens, I underestimated the time it would take me to get from my (rather good) bed and breakfast to the university and so missed the first paper I’d chosen to see, which was a shame but at least, as its presenter told me, it was substantially the paper I’d seen him give in Leeds. Nonetheless, the questions seemed to reach to different things and I was sorry I hadn’t seen this version. The session as it happened, even where I didn’t see, was like this.

Law in the Post-Roman West

  • Graham Barrett, “Legislation and Codification after Rome”
  • Michael Kelly, “Transhistoricality in Early Medieval Hispania: Law as Narrative and Cultural Episteme”
  • Thomas Gobbitt, “Framing the Laws: prologues, epilogues and peritext. The Liber Leges Langobardorum in the Eleventh and Twelfth Century”
  • So as said, I missed Graham pronouncing his wisdom, but it got a better hearing here than it had at the slightly odd session in which it had been aired at Leeds, and his paper dominated discussion, so it’s worth reprising its central point, that law after the end of Empire in the West was probably mostly used in small bits, which were occasionally recombined into codes but used quite differently in the field (or in court). Questions focused on issues of formality of, well, issue, and the audiences for the different sorts of law people were detecting bundled into codes like the Salic Law, and this discussion also included Graham asking what the difference is between a ‘capitulary’ and a ‘novel’, a question that could only matter to a legal historian you’d think but has everything to do with our confused relationship with the Roman Empire, both imitative and successive.

    I didn’t really understand Michael Kelly’s paper, I will confess. It may, from my notes, have been intended to argue that all our sources were constructed by their authors to convey a particular version of the past, not reality, and that our sources therefore are really only sources for their context, the Visigothic Law being no exception and very full of contemporary bias that belies its deliberate impression of antiquity, in which case OK, but phrases like, “transhistoricality must be a purely discursive phenomenon,” meant that I’m not sure.

    Lastly Dr Gobbitt gave us a spirited run-through of the survival of Lombard laws in the eleventh century in the form of a text known as the Liber leges langobardorum [sic], which gathered up the Edict of Rothari and various other bits of genuinely Lombardic legislation along with some laws of Charlemagne and a reasonable salting of historical material (much of it already travelling with Rothari), apparently all for study at or around Pavia in a kind of pre-Bologna legal college. He too emphasised variation: no two of the seven eleventh-century manuscripts gather quite the same materials or lay them out in the same way. This stuff was of interest to a range of people but their purposes were not all the same. Quite what those purposes were was work still to be done but the evidence base seemed well established.

Justice and Judicial Practices in Early Medieval North-Western Iberia (II): punishment and justice in Castile and León

  • Julio Escalona, “Follow the Money? Justice and Authority in the Sanction Clauses of Tenth-Century Castilian Charters”
  • Álvaro Carvajal Castro, “Authority and Liability in Ninth- and Tenth-Century North-Western Iberia: the evidence from the sanction clauses”
  • Igor Santos Salazar, “Rule Through Courts: the settlement of disputes in Castile and Tuscany during the tenth-century”
  • It would probably be hard to pick three Iberian-peninsula scholars who have worked harder to link up with other areas and fields, and especially the English-speaking world, than these three, but because of the occasion they had a substantially Iberian-peninsula audience too and this was probably as close as I shall get to attending a seminar in Spain until I can take a year out to improve my spoken languages or something, which is to say, valuable. Not least, of course, because this was effectively a charters session! Julio’s was illuminating: doing more or less the exercise I had done the previous year with Vic’s charters by going through the clauses in which they lay down what will happen to those who infringe the charter’s provisions, he noted that alongside the threats of excommunication, less common in sales than in donations as I too had found, there are many fines, levied largely in the name of the king. This being tenth-century Castile, however, the king was far away, and the count doesn’t turn up as much as you’d expect and was not clearly a royal delegate for these purposes. Instead, the money seems to have gone to local lords whom we otherwise struggle to identify, those much-vaunted ‘local élites’, domini, whom Julio argued should be the focus of our questions about community formation in these areas rather than the traditional village grouping of the alfoz. This paper had some seriously subversive connotations bubbling up out of those sanction clauses.

    Álvaro had meanwhile done something similar with charters from further west, in Asturias-León, and found a judicial system anchored in the same ideas but based very much on guarantee and surety, whether explicit or implicit; instructions on who was to pay if something went wrong show no particular regularity over whether actor or recipient, or either of their families, was expected to be liable. Instead, we have to assume that these situations were being judged, negotiated and arranged according to how people felt the various options which the traditional legal library gave them were best deployed in each case. Igor, meanwhile, lacking a precisely comparable charter base in Tuscany, looked instead at the actual trials there and in Castile, which was valuable because unlike in Julio’s documents, the counts of Castile rarely appear in actual court cases; instead, again, their roles were delegated down to locals, this presumably being one way in which the counts attached themselves to such communities via the local headmen whose station they thus enhanced.

I am absolutely fine with this, but what was interesting was the comparison with Italy, where Igor saw the same trick being played with a different deck of cards, a working system of public courts becoming less effective in the face of decentralising power and being met with a recentralisation via an overhaul of that system that linked local ‘judges’ to the kingship. There is here a bigger dynamic about what failing states do to regain traction in their localities, I think, and it’s one we could probably do with taking out and showing people. The role of the king was quite different in the two cases, being distant in Asturias and active in Tuscany, but then, the kings in Italy were already a local response to detachment from the bigger system of the Carolingian Empire to which, in its Ottonian form, attachment would soon resume… I think it works! And I’m also not sure I realised this at the time… That may of course have been because I had other things on my mind right then, not just lunch though that did indeed come next, but my own paper, because I was in fact up next, in this august company.

Medieval Iberia

  • Jonathan Jarrett, “Ceremonies of Property Transfer in Carolingian Catalonia: a model of documented transaction”
  • James d’Emilio, “The Formulaic Clauses of Charters: tradition, variation and originality”
  • Laura Cayrol Bernando, “« Hermana del emperador »: (re)constructing the memory of the Infanta Sancha Raimundez (d. 1159)”

The voice of January 2018 now takes up the story…

    Predictably, my own paper in this session is the hardest for me to remember because I wasn’t making notes, but I’ve just re-read it and gosh-darn if it isn’t actually one of my better ones and I should probably send it out. What I was doing was something I’ve stabbed at here already, gathering up all the various testimonies I know from Catalan documents to the phenomenon specialists call reparatio scripturae, the replacement of documents that had been lost, and arguing that there is here evidence that not just churches but lay people went to some effort to get their friends and neighbours to remember not just the existence of charters but their actual textual content, and wondering what those efforts might have looked like. Josep María Salrach has already thrown a sentence or two away on this, but in the words of the late Captain Beefheart, “there’s more.” As I say, I should do something with this. Any suggestions?

    Monastery of San Julián de Samos

    It’s hard to think of images for a lot of these papers, given how much they were about concepts, but Professor D’Emilio’s one was at least partly located here at the monastery of San Julián de Samos, so here’s a picture! By José Antonio Gil Martínez from Vigo, GaliciaFlickr, CC BY 2.0, Link

    As to the other two speakers, James D’Emilio was on similar turf, but much later and in Castile; I was concerned about the apparent use of written formulae in my texts, but he can place some of his, from the Bible and Isidore of Seville. As that implies, his texts usually had grander aspirations and participants than mine, kings and bishops, but it’s still something to watch out for: who says charter formulae have to start in charters? Then Laura Cayrol Bernando looked at a different kind of creation of memory, using the vexed question of just what the infantado that royal heiresses in high medieval Castile held was, to expose quite late medieval processes of sanctification of female royal donors by their commemorating churches that have, basically, created the problems with that question. In the process, however, it showed how some family ties were remembered much longer than others because things like this hung upon them and so had active memorialisers. Because I was facing them, I don’t have much of a record of the questions from this session, and so without further ado I move on, as did we, to the second keynote address of the conference.

Keynote 2

Andrew Marsham, “Rituals of Accession in Early Islam: a comparative perspective”
With us all gathered in the same room again, Simon, may he rest well, introduced Andrew Marsham, who somewhat cautiously introduced his own attempt to imitate Jinty Nelson‘s early work on rituals of royal inauguration.1 Resting explicitly on that, he set out to try and compare her early medieval West to both Byzantium and Islam, using the moments at which a king, emperor or caliph assumed power to expose what people thought was most important about that office. He argued that all three political zones shared the Judæo-Christian inheritance of a conviction that power ultimately came from God, making the ruler in some way the representative of God on earth. In the West, this became a link that was mediated through the Church, by coronation and unction, even to the point where without the cooperation of churchmen kings could not in fact assume power sometimes; the same struggles do occur in Byzantium but the Church was never so clearly separate from the ruler’s control, and in Islam of course there is no Church, no liturgy as such, making other rituals like handclasping and popular acceptance much more significant, though they did operate in other areas too. Dr Marsham argued that what the caliphs lost, or saved themselves from, by not having that apparatus of religion to serve or obstruct them they however compensated for somewhat by also being the heirs of the Sasanian Persian monarchy, from which they could draw the representations of higher and divine power without which their office might have struggled to be free of direct interference from the ‘umma. I make this sound less tentative than I remember it being, but I didn’t think there was much wrong with it; Dr Marsham had been careful in stepping outside his own area and it was a thought-provoking lecture.

The Old Palace Hotel, Lincoln

The Old Palace Hotel, Lincoln

With that complete, we then wandered at varying length to the Old Palace, where a rather splendid dinner was set before us. I can remember thinking at point of registration that the cost of the dinner was fairly high, but the setting alone quickly explained why, and the food didn’t fall short either; looking back, I think that was probably money well spent. There were two sessions the next morning before we all dispersed, with hard choices to make about what to go to, but you’ll quickly see why I chose as I did. First up!

Justice and Judicial Practices in Early Medieval North-Western Iberia

  • Iñaki Martín Viso, “Authority and Justice in the Shaping of Asturleonese Monarchy”
  • Robert Portass, “Levels of Justice in Tenth-Century Northern Spain”
  • Fernando Luis-Corral & María Pérez Rodríguez, “Local Communities and the Uses of Justice in the Kingdom of León”
  • These are, as you can tell, my kind of questions and being asked of my period in a neighbouring area by some of the hot names in the field, so my choice was clear. Iñaki was looking at Asturias in its ninth-century expansion, and observing that while the kings are a big part of that so are counts and other nobles; he saw a difference between them in that the kings were always the highest court of judicial appeal, and managed often to claim overall hegemony in areas of new settlement even if they didn’t orchestrate it, but that even out there there were still areas where the kings held and could grant no lands because a count or a bishop had got there first; he pointed at Astorga and Coimbra for this. The following, and interesting, process, would thus be the one by which the various non-royal officers of justice in these areas were brought to recognise the king as their superior… Rob then brought out the judicial hearings from his pet area of Liébana, and argued that although office-holders like counts were visible in them they were often not the ones holding the court, which could be done by various individuals who had no ‘official’ right we can recognise except that they owned a lot of the local land; the local monastery was only one of these. Categories like ‘public’ and ‘private’ are really no use here, therefore. The paper involved a guy called Bagauda about whom I’ve written here before; I then thought that the obvious explanation of his position was that he owned the land the victims lived on, but Rob says that ain’t necessarily so. I need to read his book!2 And the last paper was a study of the enigmatic figures known as ‘worthy men’, boni homines, in the Iberian Peninsula’s charters, asking whether they were the tools of local communities or the means by which aristocrats asserted power over those communities. They concluded the latter, but without much attention to who the people in question actually were and how their position was manifested, and I felt quietly that if the speaker and his co-author had read, well, me, they’d have a more useful way of approaching this question.3

But the real worth of this session was the discussion, which was lengthy and erudite. I started by raising the point that power in Rob’s area need not have been solely economic, which Rob answered with a reflection about what actually made power here, and whether the ability to coordinate process or the ability to defy it was more ‘powerful’. I don’t think question an answer linked but both were good points if I do say so myself. Igor Santos asked if the fact that the winners write history means that we can’t see the weak in these trials, only the strong, but Iñaki asked if the Church, which is our source of record, must always be the strong party, and here again (as you may know) I agree. There then followed a lengthy tangle over what constituted the ‘public sphere’ in this area in this period, and specifically how the written law fitted into this, which was certainly not everywhere, and whether there was one ‘public sphere’ or many local senses of public practice, both questions raised by Julio Escalona. I suggested, as had Graham Barrett earlier, that law and custom were not necessarily separate either; the written law could be invoked as custom. But especially, because at this point I was still tangling with the questions about how someone powerful on the outside manoeuvered themselves into a local position of power in the frontier zones here at which I wrote at such length here a few years ago, I was interested in who set the limits of public office, and here Iñaki made a useful differentiation between sorts of royal property and rights that got me thinking, which Julio followed with the idea that kings and counts together tended to limit the number of people who could claim comital status. In both cases, it seemed to me (and seems) the crucial operation is to get other people recognising the rights you claim in your office. Afterwards, over coffee, Julio, Rob and I all agreed that this can be seen as convincing people that the public sphere you claim is the same one that they recognise. This is what the Asturian kings, and also the counts of Barcelona, achieved in the ninth and tenth centuries and I still want to know how. Then, onwards to the last session!

‘Del tuerto al dretto’: bridging the gap between lawcodes and society in the medieval Mediterranean world

  • Jeffrey Bowman, “Women Administering Justice in the High Middle Ages: a divergence of rule and practice”
  • Rodrigo García-Velasco, “Municipal Law at the Iberian frontier: the evidence of the fueros and cartas de población during the Iberian Reconquista, c. 1050-c.&nbsp:1150″
  • Belen Vicens, “Infançones, franchos, and Wannabees: rethinking status and identity in late medieval Aragón”
  • Here, of course, I had to be because I have learnt a lot from one of the participants, taught another and knew nothing of the third, all good reasons and the more so once combined. Professor Bowman was pointing out an obvious but neglected thing, that though as far as most of the rules on the subject we have from the Middle Ages say that women could not sit in judgement over men, they did nevertheless sometimes do so in the persons of countesses and viscountesses and probably more. Sometimes people argued about this: a legal specialist dealing with Matilda of Canossa wisely decided that her office carried the jurisdiction but in a case involving Ermengarde of Narbonne it went all the way to the king of France, who used it as a way to claim Narbonne as part of the French crown! There was, basically, usually a way to make it work whatever the rules said and fighting it as illegitimate doesn’t usually seem to have worked, which is worth keeping around to think with.

    Cathedral of SS Just & Pastor, Narbonne

    I like this picture of Narbonne Cathedral so much that even this weak excuse will do to use it again. By Benh LIEU SONG (Own work) [CC-BY-SA-3.0], via Wikimedia Commons.

    Rodrigo was looking at the various concessions of rights and local jurisdiction by kings that we group as fueros, a term that has come simply to mean ‘laws’ so commonly were these issued, and asking where the balance of power lay between the locals whose rights were here asserted and the kings who apparently granted them. He argued, however, that the texts we have represent a step after the balance had been found and agreed, and that the real processes of power lay in the circumstances that had led to the text’s issue. Again, the question of how to convince a potential subject you and they shared a sphere of power arises, which is of course why I cite Rodrigo’s work sometimes, but there was argument in questions about whether the fueros were somehow a bridge between the two public spheres or just an incentive dangled before the ungoverned by those who would govern them.4 Then the last paper looked at an episode of 1248 in which a number of people claiming free status were reduced to serfdom by royal judgement; the speaker argued that this was an exercise of consolidation of definitions of freedom which had previously been vague, imposing rules which left some people on the wrong side, and that trying to read the rules back from such cases was a mistake. That was why there needed to be a hearing! Well, maybe, but it was a good place to end.

And since thereafter we all said our goodbyes and dispersed, me towards the rather splendid cathedral—possibly the most impressive in the UK, but I sadly without my camera—and then the railway station, it’s where I have to end too, closing an era of far-too-intensive reporting in the hope that you can see why I found it all worthwhile to do. Next post: the new régime!

West front of Lincoln Cathedral

Likewise this one! Lincoln Cathedral’s west front, by Anthony Shreeve public domain via Wikimedia Commons

1. Collected in Janet L. Nelson, Politics and Ritual in Early Medieval Europe (London 1986).

2. It being Robert Portass, The Village World of Early Medieval Northern Spain: local community and the land market, Royal Historical Society Studies in History: New Series (Woodbridge 2017). In fact, two different journals have asked me if I wanted to review this, and I said no, partly because I know Rob too well, partly because I didn’t have time and mainly because I had already got myself a copy when I finally got round to paying my first subscription to the Royal Historical Society, which published it. Of course that still doesn’t mean I’ve read it, but I do intend to!

3. Specifically, if they’d read Jonathan Jarrett, Rulers and Ruled in Frontier Catalonia 880-1010: pathways of power, Royal Historical Society Studies in History: New Series (Woodbridge 2010), pp. 35-36 & n. 55.

4. The work of Rodrigo’s that I cite is his “Legislation and Resistance: limitations of royal power on the Catalan and Aragonese frontiers, 986–1134”, M.St. dissertation (University of Oxford 2013), which I had the fun of supervising, but I think he would say that his thinking has moved on a bit now and I await the completion of his doctoral thesis keenly! No pressure, Rodrigo…


Seminar CCXIX: before the canon of canon law

Finally leaving November 2014 but not yet catching up to the all-important line of a full year behind, my backlogged reporting now brings me back into the Institute of Historical Research’s Earlier Middle Ages Seminar, where on 3rd December 2014 Dr Danica Summerlin was speaking with the title, “The Afterlife of the ‘Old Law’: rethinking the role of pre-Gratian texts in later twelfth-century canonical collections”. I’ve been in occasional contact with Danica since early in her Ph. D. and so was there at least partly out of loyalty, to her and the seminar both; this is not my topic, and I have consequently little contribution to make in a blog post, but it seems to me that her big point is worth blogging anyway.

Sixteenth-century fresco depiction of the First Council of Nicæa, A. D. 325, in the church of Ayios Sozomenos in Galata, Cyprus

A sixteenth-century depiction of canon law in creation in the form of the First Council of Nicæa, A. D. 325, in the church of Ayios Sozomenos in Galata, Cyprus

If you’ve read about canon law at a textbook level you may have a picture that runs roughly like this: once we’re out of the era of great Church councils to which the West pays attention (because I feel it’s worth remembering that none of these concepts make any sense outside the Latin world), canon law is a disjointed area of knowledge in which the general opinion is so disparate that people can easily make stuff up and be taken seriously; come the eleventh century, when as we know ‘from nothing’ civilisation suddenly shakes off the supposed Dark Ages and gets with the Europeanizing program, people like Burchard of Worms start producing more systematic compilations of rulings of Church councils; but really, none of this counts as much as the work of Gratian, whose Harmonisation of Discordant Canons, usually known to us as the Decretum from the papal legal judgements it also compiles, which puts everything worth including in a sensible order and is then (after about 1150) made the basis for high-level education in canon law and so propagates across the Latin West in short order, job done, civilisation achieved.1

A page from a glossed fourteenth-century of the Decretum, Cesena, Biblioteca Malatestiana, Pluteo II sin. cod. 1, fol. 2r.

A page from a glossed fourteenth-century of the Decretum, Cesena, Biblioteca Malatestiana, Pluteo II sin. cod. 1, fol. 2r.

Inevitably—and above at least deliberately—this is over-simplistic, but it also, argued Danica, very much misrepresents what the first users of Gratian’s work wanted it for. It is not as simple as that Gratian provided them with an authoritative source of ‘old law’, because the compilations into which his early work was copied often included extra stuff from older texts, and in some cases the older texts were preferred precisely because of their antiquity. Many texts were copied with his work which a modern classification would not even call canons (or decretals). They often take only a small sample of Gratian and then edit it together with stuff from Burchard, or similar, and sometimes the extra material is then copied separately, by people who presumably had Gratian but thought that they needed this extra stuff which he had, in the modern view, supplanted. As Danica spoke it became clear that she could show, as many times as we liked, that this replacement was not total and that it was very slow, still incomplete by 1250 or even later when these variant texts were still being copied. More importantly, what shouldn’t have been surprising but still is, I guess because something like Gratian looks like a centralised set of rules to which all the Church might have been expected to subscribe, is the scale of variation between the texts. Everyone who made a compilation from or copied part of the Decretum had their own particular purpose. Well thankyou Captain Obvious, you may well say, but it has not been obvious; what has supposedly been obvious is this idea of the Decretum as the almost-immediately-definitive version of Western canon law, and what Danica made obvious was that that was not obvious to its initial audience and users, and that what should be obvious to us instead is the variation of their responses to it.

1. E. g. the one I keep around partly for its list of rulers but partly as a source of evidence for the textbook clichés I like to lampoon, Jo Ann Moran Cruz & Richard Gerberding, Medieval Worlds: an introduction to European history 300-1492 (Boston MA 2004), pp. 408-409: “… these courts rested on a body of ecclesiastical law called canon law. This church law had been effectively pulled together by lawyers and administrators in the wake of the Gregorian reform, and particularly in the 1140s by Gratian, a law teacher at Bologna, in his Decretum, an authoritative concordance of canon law (see Chapters 11 and 14)”. And… that’s it. Even in those other chapters it doesn’t give any clue what the sources of canon law actually were or anything that might dispel the impression here given that these lawyers and administrators and Gratian actually originated the law which they published. Here as in the various webpages I’ve linked, the story we’re able to tell starts with Gratian making it all much simpler. Well, a different story could be told.

Adding to the Law of the Goths once the Goths were gone

Joan Vilaseca has just mentioned, in comments on the post before last, an instance from Carolingian Catalonia where the pope was called on to amend the Visigothic Law. I had seen this before, at the beginning of my Ph. D., and been reminded of it occasionally since, but while I was looking at the lack of evidence for Carolingian-era liturgical enforcement I had come across it again, and it’s such a peculiar episode it’s worth writing about as an instance of the way that early medieval law was often much more about satisfying competing requirements from those demanding settlement than about following what a lawyer might now say should have applied.1

A Catalan copy of the Visigothic Law, Abadia de Montserrat MS 1109, from Wikimedia Commons

It’s time for the most available image of a Catalan copy of the Law again! Abadia de Montserrat ([1]) [Public domain], via Wikimedia Commons.

If you’ve been reading a while you’ll probably by now remember that as far as we can see, when the area that’s now Catalonia was adopted into the Frankish empire in the ninth century, it was allowed to continue using the Visigothic law that was still running in the area despite its originating kingdom having ceased to exist in the early eighth century.2 It is much cited and quoted in local documents and it covers most eventualities, but apparently not all, which left the governors of the late-ninth-century province with the question: what do you do when the law of the Goths needs modifying and there’re no Gothic legislators left to do it?

A fourteenth-century depiction of King Louis II of France

A fourteenth-century depiction of King Louis II of France, missing star of this story; as far as I know there is no earlier picture of him surviving. By Anonymous [Public domain], via Wikimedia Commons

We know that this problem arose because it was brought before the council of Troyes in 878. This was a tense time for the kingdom of the Western Franks under which what is now Catalonia then fell: Emperor Charles the Bald had died in Italy in 877 leaving his eldest, but deeply mistrusted, son Louis II, the ‘Stammerer’, to succeed not just to the kingdom but to the major revolt that Charles had been moving to suppress.3 By the time of the Council of Troyes much of this was quieted but the result was that major reassignments of offices had to be carried out; importantly for Catalonia, this seems to be when Count Guifré the Hairy was given Barcelona to run, because the previous incumbent, Marquis Bernard of Gothia, had been one of the rebels.4 Guifré himself wasn’t apparently present, but others were, including Archbishop Sigebod of Narbonne, who had a while before failed to find the relics of Saint Eulalie in Barcelona, and no less a figure than Pope John VIII. And it was Sigebod who brought up the problem of the law.

Portrait of Pope John VIII

Pope John VIII, actual star of the story, in a no less anachronistic portrait

As the papal bull that records this tells it, Sigebod showed the pope a copy of ‘the book of Gothic law’, and stressed that there was nothing in it about sacrilege and that the book explicitly prohibited its judges from hearing cases about things that it didn’t cover (which indeed it does). We don’t know why Sigebod had brought this up now, but his complaint is clear: “thus the right of the holy Church was being suffocated by the provincial inhabitants of Gaul and Spain”. So they went to look for other law. First up, presumably because they were asking the pope, Bishop of Rome after all, was the “law of the emperor Justinian”, which laid down a penalty of five pounds of the best gold for sacrilege, but they found a more lenient prescription “that was constituted by the pious prince Charles”, a fine of thirty pounds of silver, “that is, 600 solidi of the purest silver”. There’s a range of reasons that’s odd, not the least of which is that that conversion is two-and-a-half times the usual reckoning of twenty solidi to the pound, but anyway, the pope preferred the lighter penalty, and further ordained that anyone not paying this fine will be excommunicated until they do. John concludes: “And we ordered that this law should be written at the end of the book of worldly law.”5

Archivo de la Corona de Aragón MS Ripoll 40, fo. 9r

Actual Carolingian legislation from Catalonia, the Ripoll copy of Ansegis’s collection of capitularies, Archivo de la Corona de Aragón MS Ripoll 40, fo. 9r, from the PARES portal

A theoretically-minded lawyer would quite possibly find this very frustrating. Firstly, Catalonia is under a Carolingian king at this point, and as this council reveals there is Carolingian legislation that covers this, to which surely this area was theoretically subject. It’s not as if Carolingian legislation wasn’t known and used in the area, or known at least; we have copies of it from this era, as you see at right.6 All the same, that apparently didn’t work for Sigebod; he needed to be able to cite the Visigothic Law. Now, that confines the right to make legislation to ‘the prince’, which term surely encompasses whoever is in charge of the secular government.7 That, at this point, was surely King Louis, in whose very court they now stand, but it is not him they consult. And when the pope is consulted instead, his first port of call is not any local law, but the law of a man who had never ruled this area, Justinian I (though it is interesting to see Justinianic law in use here so early rather than the Codex Theodosianus or its derivatives). Admittedly, what they wind up with in the end is Carolingian law, all the same, so you could if you wanted to squint see this as an elaborate confirmation that the Carolingians have indeed replaced the old rulers of the Roman Empire, and if so then there’s no-one more fitting than the pope, whose predecessors had crowned the first Carolingian and raised Charlemagne to the rank of emperor, to make it apparent. But I don’t think that’s what was happening here, because Louis didn’t get to occupy that rôle; it wasn’t he who issued the new decree. He was thus neither emperor-substitute, even though he was son of the last emperor of the West, nor ‘prince’ of what his son would later call ‘our Gothic kingdom’.8

Let’s be as clear as we can: the king still ruled the area, or the relevant people wouldn’t have been asking about this at his council. At this same council, indeed, he would issue a precept to Bishop Frodoí of Barcelona, who was apparently there and whom you might think would be concerned with this legislation given the problems he apparently faced, confirming the rights of Barcelona’s cathedral, that same text which is first to mention the relics of Saint Eulalie being there.9 So the royal word and ruling was worth something still! Apparently not enough, though, for the king to be allowed to add to the Law of the Goths like the real princes of yesteryear. Instead, the pope, whom no-one would yet call a princeps, and the assembled churchmen in council with him, got to add to the “codex legis mundanae”. It seems then that royal authority in Catalonia was already fading into the half-light it occupied for the next century-plus here: it was useful, prestigious and traditional, but passive; it could not now do anything new any more, so for that new solutions were required. The one that was improvised here was not decisive, but it’s surprising. It surprises me not least because apparently Louis accepted this replacement of what we might think should have been his authority; only four years before, after all, his father was still dispatching missi to the Spanish March to check up on the misuse of royally-granted privileges.10 Louis’s position was weaker, but would Archbishop Sigebod really have dismissed it if Louis had issued a capitulary enforcing his great-grandfather’s rules once more? I don’t understand why it was the pope who got to do this, but I think that that fact shows us that something crucial had changed here, very recently.

1. The classic exposition of this view of early medieval law is Patrick Wormald, “Lex Scripta and Verbum Regis: legislation and Germanic kingship, from Euric to Cnut” in Peter Sawyer & Ian N. Wood (edd.), Early Medieval Kingship (Leeds 1977), pp. 105-138.

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

3. Rosamond McKitterick, The Frankish Kingdoms under the Carolingians (London 1983), pp. 258-259; cf. Janet L. Nelson, Charles the Bald (London 1992), pp. 250-255 for a more positive reading of the sources.

4. Ramon d’Abadal in de Vinyals, Els Primers Comtes de Catalunya, Biografies Catalanes: sèrie hist&oagrave;rica 1 (Barcelona 1958, repr. 1980), pp. 53-72; cf. now Joan Vilaseca, “Onze de setembre de 878” in idem, Recerques en la Alta Edat Mitjana Catalana (II) (Terrassa 2013), pp. 97-118; I haven’t made up my mind about this yet!

5. Ramond 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), 2 vols, ap. IX:

“… venit ante praesentiam nostram filius noster Sigebodus primae sedis Narbonensis episcopus cum suis suffraganeis episcopis, & detulit nobis librum Gothicae legis, ubi nihil habebatur de sacrilegiis; & in eisdem legibus scriptum erat ut causae quas illae leges non habent, non audirentur a judicibus illius patriae. Atque ita jus sanctae Ecclesiae suffocabatur ab incolis Galliae & Hispaniae provinciis. Unde nostra serenitas cum praescriptis episcopis, inespectus legibus Romanis, ubi habebatur de sacriliegiis, invenimus ibi a Justininiano imperatore legem compositionis sacrilegii constitutam, scilicet in quinque libras auri optimi. Sec nos leniorem legem praecipimus esse tenendam qua a Karolo est constituta pio principe de compositione sacrilegii, videlicet in triginta libras examinati argenti, id est, secxentorum [sic] solidorum argenti purissimi. Ideoque quisquis inventus fuerit reus sacrilegii, istam leviorem compositionem emendet ipsis episcopis vel abbatibis sive personis ad quos sacrilegii querimonia juste pertinuerit. Et si ipse reus sacrilegii facere noluerit, tamdiu excommunicationi subjaceat usquequo praedictam compositionem sexcentorum solidorum persolvat. Et si in hac obstinatione mortuus fuerit, corpus ejus cum psalmis et hymnis non deferatur ad sepulturam. Et praecipimus ut in fine codicis legis mundanae scribatur haec lex.”

6. Barcelona, Archivo de la Corona de Aragón, Manuscrits Ripoll 40, on which see M. E. Ibarbaru Asurmendi, “Translatio Sancti Stephani ab Hierosolymis Constantinopolim. Capitularia Regum Francorum (Arxiu de la Corona d’Aragó: Ms. Ripoll 40)” in Antoni Pladevall (ed.), Catalunya Romànica X: el Ripollès (Barcelona 1987), pp. 291-292.

7. 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), II.1.XII.

9. Charles the Simple, in Abadal, Catalunya Carolíngia II, Elna IV.

9. Ibid., Barcelona: Esglesia Catedral de Santa Creu II.

10. Ibid., ap. VII.

Leeds 2014 Report IV and Final

The 2014 bookfair, International Medieval Congress, University of Leeds

I should, given that I’d missed the dance the previous night, have been up bright and early on the following and final day of the 2014 International Medieval Congress, but I confess I was not. I had had a couple of sessions in mind to go to, but in fact by the time I was fully operational it was just too late gracefully to get in, and so I gave into temptation and went to the bookfair to check along a few final stalls I hadn’t yet reached. With that achieved, and coffee consumed, I threw myself back into academia for the last two sessions.

1607. Law and Empire: editing the Carolingian capitularies, II

The earlier one of these sessions was one of those I had been thinking of going to, and once I’d been to the second I regretted my failure, as it was very much on my interests. It was, I gathered, part of a thread coming out of the ongoing work to re-edit the disparate body of texts emanating from the Carolingian empire which we call ‘capitularies‘, because they are arranged by capitula, headings or articles. This covers everything from programmatic law through sermons to meeting agendas and so many problems arise, which the speakers were variously facing. This was the running order:

  • Jennifer R. Davis, “Manuscript Evidence of the Use of Capitularies”.
  • Matthias Tischler, “Changing Perceptions of a Carolingian Constitution: the legal and historiographical contexts of the ‘Divisio regnorum’ in the early 9th century”.
  • Karl Ubl, “Editing the Capitula legibus addenda, 818-819, of Louis the Pious: text and transmission”.
  • The first problem tackled was : did anyone ever actually use the legislation that the Carolingian kings issued like this? Doubts have been raised, even though they were later compiled into something like a new lawcode for Emperor Louis the Pious (814-840), because however interested the court may have been in them, only one citation of them is court has so far been located, making them vulnerable to an old argument by the late Patrick Wormald that early medieval law-making was about performance, not about actually trying to govern people’s behaviour.1 Professor Davis had however found a private manuscript that collects capitulary legislation, perhaps, given its contents, made for a courtier bound for Italy who needed to know about the laws there, and she argued that this was the tip of a lost iceberg of people making their own legal handbooks of the bits they needed from the central law-bank at the court.

    Part of Charlemagne’s789 capitulary, the Admonitio Generalis, in St. Gallen, Stiftsbibliothek, Cod. Sang. 733, DOI: 10.5076/e-codices-csg-0733, f. 13r. (http://www.e-codices.unifr.ch/en/list/one/csg/0733), Professor Davis’s chosen manuscript.

    This was in part supported by Dr Tischler’s paper, which found several manuscripts collecting one capitulary in particular, that by which Charlemagne promulgated the division of his empire which he planned in 806, before the death of his two elder sons. Since Louis the Pious, the remaining son, had three sons of his own, this text retained a worrying relevance and Dr Tischler thought he could identify several of the people worrying from the provenance and contents of the manuscripts; they too went back to these texts for models of how things might be done even after the moment of the text itself had passed. Lastly Professor Ubl spoke of the difficulty of categorising his chosen text, the Capitula legibus addenda, ‘articles for adding to the laws’. If lawcode and capitulary were really separate categories, as their initial editor believed, what are we to do with a capitulary that updates the lawcodes? And again, the manuscripts show us that this is indeed how it was used: of 32 surviving copies, two-thirds also contain one of the Frankish law-codes, the Lex Salica and an overlapping third contain the other, the Lex Ribuaria. The people writing these manuscripts didn’t necessarily know which king had issued the capitulary but they knew what it was for and wanted it available.

There was heated discussion after this, because who loves categories more than legal historians? And who loves questioning them more than modern social historians? But one of the questions that was being asked throughout, but especially by Professor Ubl, was just what kind of an edition one can make of a text like the Capitula legibus addenda, of which there are thirty-two different versions none of which are evidently definitive and all of whose constructions are, as these papers had shown, potentially informative. Professor Ubl wanted a born-digital edition but it wasn’t quite clear how it would work yet. I thought that a kind of database of clauses, from which a website could cook you up any given manuscript, would still actually give you a form of text to print, but there were reasons my notes don’t let me recall why this wouldn’t answer. I still like it, though. Anyway, then there was lunch and then it was the final straight.

1715. Networks and Neighbours, VII: relationships of power in the Early Middle Ages

I have a certain loyalty to the Networks and Neighbours strand at Leeds, mainly out of self-interest since I am in the journal, or will be, but also because the organisation behind it is quite the creation for a then-bunch of postgraduates, and it is doing several quite important things in terms both of methods and of subject of publication. This session was no longer being organised by the same crew as are behind the journal, however, and I should have realised that. The order of ceremonies was this:

  • Paulo Henrique de Carvalho Pachá, “The Visigothic State and the Relations of Personal Dependence: transition, transformation, and domination”.
  • Michael Burrows, “Lower Class Violence and the End of the Roman Empire”.
  • Renato Rodrigues Da Silva, “Donation of Land and State Building in 7th- and 8th-century Northumbria”.
  • Senhor de Carvalho set up for us a separation of aristocracy and state in Visigothic Spain: he argued that king Wamba had tried to bring it about and that Ervig, his successor, was able to gain power by conceding a rôle in government to part of the aristocracy, thus splitting them while still looking conciliatory. This is certainly one way to read the texts, but not perhaps a new one, and was reacting to a book published in 1978, what may no longer need doing.2 Mr Burrows picked up the terms of his sources in distinguishing a ‘more humble’, lower class from a ‘more honest’, upper class in the late Roman Empire, and asked what our sources, written largely by the latter, thought of the former resorting to violence. You would think the answer obvious but Christianity, because of its founder’s interest in the poor and because of the way that mob action sometimes brought about what seemed to our writers like the will of God, made some of those writers find a space for rightly-guided popular violence, thus making some of it seem legitimate in the terms of the time. Lastly Senhor Rodrigues tried to put the limited evidence that donations of land were made in pre-Viking Northumbria (we don’t have any charters, but we have some sources that talk about them existing) into the context of political turmoil in that kimgdom in the eighth century. Since we don’t have any of the relevant donations, the links between them and events never really crystallised for me here, and I was left wondering how Senhor Rodrigues thought it all joined up.

Any unsympathetic feelings I had for the panellists, however, evaporated in horror during a five-minute mini-lecture that a commentator delivered to Senhor de Carvalho, condemning him for not having read many things which got listed and bombarding his argument with a supposedly-revisionist view of the development of Spain that was clearly based on the even older work of Claudio Sánchez-Albornoz. Senhor de Carvalho had spine enough to point this out, whereupon the commnetator, who was from Valladolid as he told us although I never identified him, dismissed Senhor de Carvalho contemptuously as a Marxist. This was quite the rudest attack I’ve seen an academic deliver upon a junior scholar, and I felt I had to go and reassure Senhor de Carvalho afterwards that we had all met such people and that they should not be allowed to triumph. I had had my own reservations about the paper, yes, but this was a whole circle of Hell below anything I would ever say, or mean, in a postgraduate session or indeed elsewhere. Professor Ian Wood exemplified how this could be done by also offering Senhor Rodrigues a reading list, but one couched as possibly-helpful suggestions, and the other questions were also, I think, intended to guide and suggest rather than demolish. I understand rage at wrongness as much as anyone, but I also regard such anger as a sign that it’s not views of the early Middle Ages that are threatened… To remember that was, alas, and through no fault of the panellists, the most striking lesson of this final panel, and pondering it I departed southwards, many books the richer and another International Medieval Congress down.

Books I bought at the International Medieval Congress, Leeds, 2014

The Leeds 2014 bookhaul, reconstructed for this post. What is now mainly evident is how very sure I was that I would still be teaching Anglo-Saxon England whatever happened, which I shall somehow have to contrive to do even now, because the sunk costs of my library are just awful otherwise!

1. An eloquent statement of doubt on this score, and the lone legal citation, can be found in Christina Pössel, “Authors and recipients of Carolingian capitularies, 775-829” in Richard Corradini, Rob Meens, Pössel & Peter Shaw (edd.), Texts and Identities in the Early Middle Ages, Forschungen zur Geschichte des Mittelalters 12, Denkschriften der phil.-hist. Klasse 344 (Wien 2008), pp. 253-274, online here. The work of Wormald referred to is “Lex Scripta and Verbum Regis: legislation and Germanic kingship, from Euric to Cnut” in Peter Sawyer & Ian N. Wood (edd.), Early Medieval Kingship (Leeds 1977), pp. 105-138.

2. That book being none other than Abilio Barbero & Marcelo Vigil, La formación del feudalismo en la Península Ibérica, 2nd edn. (Barcelona 1978), which of course even I thought worth many blog posts, so I am conscious that I would have done little better at that stage. Still, on this subject I’d probably have started with Roger Collins’s Visigothic Spain 489-711 (Oxford 2004) and gone on with the commentary in Joaquín Martínez Pizarro (transl.), The story of Wamba: Julian of Toledo’s Historia Wambae regis (Washington DC 2005) before I got back to Barbero and Vigil. These were, signally, not among the suggestions made by the commentator mentioned below…

Leeds 2014 Report II: the edges of many different empires

Returning to the backlog on reporting what others think about the Middle Ages finds me now at the second day of the International Medieval Congress 2014, on 8th July 2014, and faced with some hard choices between sessions. In the end, I chose this one because I knew one of the people in it, had reviewed the work of another and Wendy Davies was moderating, and this is what I got.

515. On The Fringes of Empire: local and supra-local identities beyond the Carolingian realm, I

    • Frode Iversen, “Impact of Empires: the Scandinavian fringe AD 200-1300”.
    • Letty Ten Harkel, “On the Edge of Empire: early medieval identities on Walcheren (the Netherlands)”.
    • Margarita Fernández Mier, “Peasant Communities and Distant Elites in Early Medieval Asturias”.

As you can see, the unifying thread here was Carolingian periphery, but this didn’t always make it through. Dr Iversen gave a very rapid run-through of significant bits of the settlement history of Norway, and when he began to speak of how urbanisation fitted to a new structure as if he’d described change, I realised I must have missed something. I also struggled with Dr Fernández’s paper, although the sites she was talking about, rural sites whose material culture might tell us something about the links from elite to peasants in early medieval Asturias, were very interesting-looking, but as it turned out known much more from place-names than anything more material. She drew a picture of competing local identities visible in funerary archæology and developing church sites that would be familiar in Anglo-Saxon England, however, and looked worth chasing in more places. Both of these papers had a tendency to argue for connection between sites that seemed to me from their maps to be a good distance from each other, in the former case up to 50 km, however, and I wasn’t sure that either case had been demonstrated.

Aerial view of Middelburg in Walcheren

Middelburg in Walcheren, one of those cases where it could hardly be clearer where the original settlement was and how the church was inside it[Edit: although I am informed by Dr Ten Harkel herself that the church inside the ring is actually the Nieuwekerk, which being twelfth-century is actually the newest of the three at the settlement. The other two were outside the walls, which is in many ways a more ancient way of arranging things…]

Letty Ten Harkel was also arguing for very local identities in her study area, however, and in particular in what has apparently been seen as a chain of associated ringforts along the Netherlands coast that have been blamed placed either in the reign of Emperor Louis the Pious of the Franks (814-840) from texts or the 890s from radio-carbon. The latter is problematic, because by then the area was split between two kingdoms, but Letty argued that there is such variation in size of and finds at these forts that they actually make more sense read as very local lordship centres, erected independently of each other. If there was outside influence, for Letty it was coming from the reviving bishopric of Echternach, not in the era of its Carolingian foundation but in the twelfth century. For me this paper connected most closely to the theme of the session, but only by disputing it!

Nonetheless, my interest was piqued enough to come back for more once caffeinated, as follows.

615. The Fringes of Empire: local and supra-local identities beyond the Carolingian realm, II

    • Alex Langlands, “Empire and Infrastructure: the case of Wessex in the ninth and tenth centuries”.
    • Iñaki Martín Viso, “Local Communities and Kingship South of the Duero, 9th-11th Centuries”.
    • Álvaro Carvahal Castro, “The Astur-Leonese Power and The Localities: changing collective spaces (9th-10th centuries)”.

This session played a lot closer to my usual interests. Dr Langlands was chasing a word, ‘herepath’, literally ‘army-path’ but using a word for army that usually means raiders’ bands, not the army you serve in, and one would think that a path wide enough to carry an army might in fact be a road anyway, so it’s a funny term. Most of the references are in Anglo-Saxon charters, and while Dr Langlands argued convincingly that these paths appear mainly as links between sites rather than routes as such (though now I write that I am no longer seeing the difference) I wasn’t really sure that we could be sure they were anything to do with either roads, bridges or army-service, all of which had come into the argument.

The track of an ancient herepath near Avebury

Wikimedia Commons believes this to be an actual herepath, near Avebury, and who am I to say different? “Herepath Avebury England” by Chris Heaton. Licensed under CC BY-SA 2.0 via Wikimedia Commons.

Professor Martín then took us into the almost-unknown territory of the southern Duero valley in the centuries either side of the year 1000. Somewhere in this period, and with setbacks due to the final, red giant phase of Muslim rule in Córdoba, the kings of Asturias-León acquired a dominant control in this area and most of what we have is to figure it out with is archæology. With it, Professor Martín depicted a process by which the king used military service, and his ability to demand it (or possibly to convince local élites to join in with it) to elbow those élites into a position of obligation to him. He tied this to a particular sort of fortress with square towers and sloping walls that seems to be Andalusi workmanship but in a zone that was never under Andalusi control; I myself thought that that was a very unsafe thing to say, but the general proposition could fit round what I think happens in such zones.

The Porta dos Cavaleiros in Viseu

A location of military service in Viseu, one of Dr Martín’s example sites, even if that service would have been a bit later: this is the Porta dos Cavaleiros. “Nt-Viseu-Porta dos Cavaleiros“. Licensed under Public Domain via Wikimedia Commons.

Lastly Álvaro, whom in this session I realised I had known while we were both at Oxford but never quite fixed his name in my head, looked for those same local élites a bit closer into the Asturo-Leonese core where we have charters to play with, and found them manifest in assemblies, often as small power groups within likewise small communities, the kind of people who make deals for their communities and so on, who must have existed in these zones before our sources, generated by the making of those kinds of links, show them to us.1

The memorial to the founders of Sant Andreu de Tona on the Turó del Castell de Tona

The memorial to the founders of Sant Andreu de Tona on the Turó del Castell de Tona, one group of ‘local élites’ we can name

I’ve gone into some detail with this because these questions, of why people on the edge of polities decide to join in with them, are meat and drink to me and my frontier interests, and as Charles Insley rightly pointed out in discussion, the crucial questions here are ones of agency: who makes anyone in these situations do stuff? All three speakers offered answers, although Professor Martín’s was mostly a judicious refusal to guess where there was no evidence. Only Álvaro seemed to me to have a clear eye on what sort of people these local élites actually were, however, a problem we’ve discussed before, and I offered the answer I even then had in press and alas still do, to wit that we can at least see them in church consecrations, leading their communities.2 Alas, this is a category of evidence that only exists in Catalonia, so Professor Martín remained obdurate, only suggesting that the fueros of the twelfth century indeed suggest some continuities that we can’t, all the same, prove. He’s right, of course!

Anyway, that was all fun and put me back on some Castilian radars I think, but there wasn’t much time to capitalise on it as there was another lunchtime keynote lecture, and again personal and institutional loyalties drove me to attend, as well as the expectation that it would be very interesting, as indeed it was, which I tried not to spoil by noises of eating my packed lunch again. (I’m glad they dropped this arrangement this year.)

699. Keynote Lecture 2014

    • Naomi Standen, “A Forgotten Eurasian Empire: the Liao dynasty, 907-1125”.
The Fugong Temple Pagoda, built in 1056 by Emperor Daozong of Liao

The Fugong Temple Pagoda, built in 1056 by Emperor Daozong of Liao. By Gisling (Own work) [GFDL or CC BY-SA 4.0-3.0-2.5-2.0-1.0], via Wikimedia Commons.

      Naomi introduced what was for many people an unfamiliar area by setting up the familiar dichotomy of civilisation versus nomads, a way of classifying society probably familiar to most people in the West from

the work of Ibn Khaldūn

      but very common in Chinese sources too, especially when the Mongols are at issue. On one side, bureaucracy, tax, education, cities, a professional class and so on, on the other personal hierarchy, tribute and plunder, and a life for which warriors trained in the saddle, you know the deal. Naomi then pitched her subject area of the moment,

the Liao Empire

      , as a third way that breaks this dichotomy, using archæology wherever possible to vie with the impression of the Liao given by Chinese writers who were determined to put them, and their cities too, in the nomads box. But they didn’t fit either, Naomi argued: they had a structured élite but it was maintained by family succession, they had a trade network which we can see in ceramics finds along routeways but no sign that the state tapped it, the empire was stable and not expansionist and held to long treaties with inner China, the citizens were called nomads but lived in cities, and people in the empire invested hugely in religious patronage. It also comprised more than two hundred ‘peoples’ as the Chinese geographers counted it but made no legal distinction between them. It had not borrowed all this from central China or been civilised by contact, or so Naomi claimed; it was a different sort of empire. I’m sure that some might contend with this or find it idealistic but the thought experiment of substituting a trinary for one of the binaries with which

Western historiography is famously dogged

      is probably worthwhile even so, and the detail is meanwhile still coming together as the pottery series and the architectural history of the zone get worked out by

Naomi’s super project

    , so we will either way know more before long.

Thus refreshed both physically and mentally, I headed some of the way back west.

719. Were the Umayyad Caliphates Empires? I

    • Andrew Marsham, “In What Respects Was the Umayyad Empire an Empire?”
    • Harry Munt, “The Umayyad Imperial Rationale and Hijazi Cities”.
    • Hannah-Lena Hagemann, “Rulers and Rebels: Kharijite Islamic resistance to Umayyad authority in early Islamic historiography”.

This was an interesting and tightly-focused session, even if again about the category of ’empire’ as much as the actual materials of the presenter’s study. Dr Marsham invoked the work of Michael Mann (which I should know better3) and used its categories to argue that the early Islamic caliphate, with its emphasis on dynastic succession, its religious qualities attached to state office, its structured hierarchy of that office and its tax system, was as much an empire as the late Roman one it replaced, which given the inheritance perhaps shouldn’t be surprising but still often is. The other two papers focused on opposition to the Umayyad Caliphs, but from two different sources, in the case of Dr Munt from the cities in the Hijaz area of modern Saudi Arabia and most notably Medina, whose ruling class never aimed at separation from the state but frequently rebelled to achieve better inclusion in it. In the case of Dr Hagemann, however, the rebellion came from the Kharijites, a sect of early Islam who declared, according largely to their opponents, that there were no legitimate successors to the Prophet and therefore rejected all attempts at command in his name; she pointed out that even some of those enemies still used them, in pleasingly Roman style, as a foil for criticism of the Umayyad régime where those writers felt it had gone so far wrong as almost to justify the reaction of the supposed ‘heretics’. It all gelled very nicely and in discussion I witnessed, for the only time I can remember, someone successfully defend their point against a question about the economy from Hugh Kennedy, no small achievement.

This was all grand, therefore, but I sorely needed caffeine by now, and hunting in the bookfair, always dangerous, found myself deep in conversation with Julio Escalona about the need to get Castilian and Catalan scholars around the same table. Thus it was that I was late for the next session, nothing to do with books honest…

812. Empire and the Law

    • Vicky Melechson, “From Piety to the Death Penalty: new capital crimes in the Carolingian Empire”.
    • Graham Barrett, “Legislation and its Afterlife in Early Medieval Europe”.
    • Sharon Fischlowitz, “Laws of an Empire: after the Romans, what were the leges barbarorum?”

So I was late for the start of Ms Melechson’s paper but caught her point quickly, it being that while the Romans really only imposed the death penalty for crimes against the emperor, and the various barbarian laws attempted to divert people from vengeance for murder to compensation payments, nonetheless the influence of the Old Testament in the way the Carolingian kings presented themselves made capital punishment an appropriately Biblical step for increasingly many things. There are arguments one could have with several parts of that but the basic argument seemed well-founded. I got rather less out of Dr Fischlowitz’s paper, which was given largely from the perspective of teaching modern law using the ‘barbarian’ laws as examples. It sounded as if she was having great fun doing it but the paper nonetheless really only told us what she found the most striking bits of late Roman and Frankish law.

Paris, Bibliothèque Nationale de France, MS Latin 4404, fo. 2v

The opening of the text of a manuscript of the Breviary of Alaric, one of the earliest ‘barbarian’ collections of Roman law (Paris, Bibliothèque Nationale de France, MS Latin 4404, fo. 2v)

But it was all worthwhile for Graham’s paper, which was him absolutely on form: he was arguing that although we know and read late Roman and early medieval law as codes, big books of more or less organised and collected legislation, it could almost never have been used like that, especially not the huge late Roman codices. It was also hardly ever issued like that: the late Roman codes explicitly compile decisions, largely reactive rather than proactive, fragmented and disparate, from centuries apart by many different emperors, the Visigothic Law does some of the same work and citations like this also appear in the Salic and Burgundian laws. What this means is that capitulary legislation like that of the Carolingians would actually have been the primary form of law, and the codes we think of as definitive only its secondary collection, which could have very little to do with law as it would have been used, as dockets and loose gatherings of relevant edicts, rescripts and proclamations. This was one of those papers that seemed to make everything very obvious which before had not been, and I hope as with almost all of Graham’s work that we get to see it in print before very long. It provoked a lot of discussion, also, with Paul Hyams wisely pointing out that law that got written relates only to the problems that couldn’t be solved more locally, and is therefore always outstanding. There was also some discussion about law that gets made as part of a treaty process, to which Dr Fischlowitz offered the Lex Romana Burgundionum, intended to regulate the relations of the Romans of what is now Burgundy to the newly-arrived military group after whom it got named, and I proffered the Treaty of Alfred and Guthrum, after which, probably wisely, the moderator drew the session quickly to a close.

Again I can’t remember how the evening went, but the day had been pretty full and this post is certainly full enough, so I shall leave it here for now and pick up after a couple of smaller posts that don’t take me days to write. I’m sure you’re already looking forward to it…

1. On such groups see now Robert Portass, “Rethinking the ‘small worlds’ of tenth-century Galicia” in Studia Historica: Historia Medieval Vol. 31 (Salamanca 2013), pp. 83-103, online here.

2. Few better statements of this line of thought are available for Spain than Álvaro’s own “Superar la frontera: mecanismos de integración territorial entre el Cea y el Pisuerga en el siglo X” in Anuario de Estudios Medievales Vol. 42 (Madrid 2012), pp. 601-628, DOI: 10.3989/aem.2012.42.2.08, but I hope soon to be adding to it in “Engaging Élites: Counts, Capital and Frontier Communities in the Ninth and Tenth Centuries, in Catalonia and Elsewhere” in Networks and Neighbours Vol. 2 (Leeds forthcoming for 2014), pp. 202-230, preprint online here.

3. Presumably most obviously M. Mann, The Sources of Social Power Volume 1: a History of Power from the Beginning to AD 1760 (Cambridge 1986)? I wonder if this will supply something I found myself in want of in a dissertation supervision a few weeks ago, too, a cite for the conceptual differentiation of ‘intensive’ and ‘extensive’ lordship. If anyone reading happens to have one handy, however, I’d be glad of it!

Seminar CXCV: more Anglo-Saxon feud and punishment

I’m not sure I’ve blogged two successive versions of one paper except inadvertantly, and I’ve certainly decided not to do so before now, but I will make an exception for Dr Tom Lambert and his paper, “Crime, Community and Kingship”, which I wrote about here when it was presented in Oxford but which on 12th February 2014 was also appearing, with modifications, at the Earlier Middle Ages Seminar at the Institute of Historical Research. You may remember from the earlier write-up that whereas the standard picture of Anglo-Saxon law has been that it develops from feud to royal enforcement, Tom argues for a two-part system from as far back as we can see up till the twelfth century at least, in which there was injury and crime.1 The former was to be compensated for or avenged and the latter, because it had no obvious worldly victim—things like sacrilege, failure to do public works, and so on where the victim is the whole community or no-one—falls to the king to prosecute. He sees the Anglo-Saxon period as a long process of increasing regulation and efficiency management of a system that basically fitted that description throughout. So, that was the Oxford pitch, what had changed by the time it came to London?

The first page of the Laws of King Æthelberht as preserved in the Textus Roffensis at Rochester

The first page of the Laws of King Æthelberht as preserved in the Textus Roffensis at Rochester, image from Wikimedia Commons

I suppose that one point I hadn’t properly taken on board before is that when we see Anglo-Saxon law for the first time, in the Laws of Æthelberht, there is no sovereign paradox in them.2 The issue of the king’s right to make law or decided compensation isn’t really touched upon, but his rights are in the code, and they are of a different grade but not a different order; he is just a ‘big freeman’ with some extra duties. He is not outside the system as later royal legislators have to be in order to say what the system is or does; instead the code shows us a bigger system of which the king is also part. This includes feud, in as much as the king receives compensation for the death of a free man, perhaps (I considered) because he has lost the resource of that man’s military service or similar.

Wayland the Smith as depicted on the Franks Casket

What this men is about to do was messy but completely legal, OK?

Tom was also working a bit harder to make this argument fit with his earlier work arguing that theft was one of the most serious offences in the Anglo-Saxon world of misdeeds because of its secret nature, which more or less prevents people taking vengeance; how can you if you don’t know whodunnit? The whole village becomes suspect; the cohesion of the community is placed under threat until the matter is resolved.3 A good honest slaying is easy to settle by comparison! And it’s in the area of pursuing thieves and protecting the Church especially, Tom argued, that we see royal expansion, rather than in attempts to limit feud. The king’s business was the kind of offences that people can’t punish themselves, and so it remained right up to the Conquest and beyond. In questions, Susan Reynolds, with her typical insight, pointed out that what we are talking here is ‘punishment’ versus ‘damages’, that is, exactly the difference between criminal and civil law that England still maintains… Since homicide is now definitely criminal not civil, however, there’s a change to be explained still, and Tom puts it later than 1066.

London, British Library, MS Cotton Nero a.I, fo. 88v.

The opening of the Laws of Edmund in London, British Library, MS Cotton Nero a.I, fo. 88v.

As for the people’s action, even the royal legislation is full of references to assemblies and local courts; in fact, it tries to make them do more and make justice the affair of lower-level assemblies, moving prosecution of offences down from towns to hundreds! This is, you have to admit, not the kind of appropriation of right of court to royal justices we see under Edward I. What is is, however, Tom now conceded, is a universalisation of practice across a much wider area as the kings of Wessex brought the rest of what is now England under their control. There was some tension there, I thought, since Tom’s picture was being extrapolated from laws from several kingdoms in the first place, but it’s sort of got to be true anyway; the king decides which set of local customs he endorses, and to say anything at all that puts him in charge (which shows that I have not entirely left Wormald behind) he has to do something other than tell everyone to go on with what they were doing. Some communities must have experienced royal demands for how they did things as cancellations or abrogations of ‘their ways’. This is true of far more things than just crime and punishment, of course, but it does tend to be where my sympathies always go when the extension of royal power turns up in argument (as in Oxford it so often did). The thing about a big society is that it normalises all the little ones…

1. That standard picture is now canonically enshrined in Patrick Wormald, The Making of English Law: King Alfred to the twelfth century, 1. Legislation and its limits (Oxford 2003).

2. The sovereign paradox, that he who would change the law must be above it, is repeatedly explained by Kathleen Davis, Periodization and Sovereignty: how ideas of feudalism and secularization govern the politics of time, The Middle Ages (Philadelphia 2008), pp. 7, 34, 59, 73, 79-80 & 83, though once is really enough.

3. See T. Lambert, “Theft, Homicide and Crime in Late Anglo-Saxon Law” in Past and Present no. 214 (Oxford 2012), pp. 3-43.

Seminar CLXXXIII: community law enforcement in early medieval Britain

My relentless progress through my seminar report backlog now finally leaves me looking at the last seminar I went to in Oxford, something of a milestone. The person who had the dubious honour of that slot in my academic life was the estimable Dr Alice Taylor, one of Kings College London’s regiment of Alices and an acquaintance of long standing from the Institute of Historical Research but here presenting to the Medieval History Seminar at All Souls with the title “Lex scripta and the Problem of Enforcement: Anglo-Saxon, Welsh and Scottish law compared”. This was a version of a paper she’d given in Oxford the previous year, but I’d missed it then and there was plenty of debate this time round…

Edinburgh, National Archives of Scotland, MS PA5/1, fo. 59v

The opening of the text of Leges Scocie, as close as there is to an early medieval Scottish lawcode, in Edinburgh, National Archives of Scotland, MS PA5/1, the so-called Berne Manuscript, fo. 59v.

It has so far been Alice’s most widely-recognised achievement to convince people that there even was such a thing as early medieval Scottish law, which she has had to retrieve from contextually-undatable references in much later manuscripts, but when you’ve done that, as she explained, you start to wonder about how the system worked and since, if that was your best evidence, you have no case-law or documentation by which practice might be examined, you have to start comparing. So, after a brief run-through of the different schools of historical thought on how written law relates to what people actually do to maintain social order in their communities, from the minimalist Patrick Wormald thesis that legislators of such law were not after judicial effects so much as the promotion of the legislators’ position above society to the somehow more spiritual one that written law reflects the wider community ideology as it was lived, she adopted a position for debate that written law was in these cases the top of an iceberg of unwritten legal practice, both part of the same corpus of social ideology, but more similar between her areas at the bottom than at the top.1

The three corpora do certainly differ, not least in preservation—Wales has various thirteenth-century redactions of what purports to be a royal lawcode of the tenth century, the Laws of Hywel Dda, Anglo-Saxon England has a large corpus of summative royal lawcodes with additional provisions also largely issued in royal council in what we now recognise as a fairly Carolingian way and in Scotland, as said, there are thirteenth- and fourteenth-century references to laws that in some cases probably go back rather further—but also in the legislative process: Welsh law names a king but its real developers were specialist lawyers, Anglo-Saxon England places the king first and foremost and Scotland is somewhere between the two. Alice argued, however, that all three corpora have references in that imply strongly that the legislators expected the initial action against criminals to come from the communities in which the crimes were committed, and the royal or state process would only creak into operation when that failed. The English laws are full of communal obligations for default of which the king can penalise, at what after the tenth-century is usually a flat fine of 120 shillings; Welsh law has a whole set of pay-scales for abetting crimes, which are charged at the same rate as the crimes themselves but to the state, rather than the victims; and the more shadowy Scottish references still assume posses who might hang a thief if he was caught, in a style quite similar to the Anglo-Saxon laws. All, or so Alice argued, expected the most immediate action to be taken in community, leaving royal justice as a superstrate over a bustle of quite various local enforcement of communal solidarities. For this reason, the main focus of the laws in all three areas is on persons, not communities, who have broken out of their social bonds by reason of their actions.

Swansea, National Library of Wales, MS Peniarth 28, fo. 2r

An illustrated page from the Laws of Hywel Dda in Swansea, National Library of Wales, MS Peniarth 28, fo. 2r

This met with some opposition and refinement in discussion. Paul Brand pointed out that despite the texts’ focus on individual actions, royal enforcement was carried out against whole communities, such as the harrying of Worcestershire in 1041 by King Harthacnut’s orders to pick just one.2 Mark Whittow suggested that the real rôle of law in these cases was to penalise action on behalf of the kindred, i. e. feud, as opposed to action on behalf of the community; and Wendy Davies evinced scepticism that the local community existed in these areas as a group so clearly defined as that it could be expected to act as a body. To the last, Alice (correctly, it seems to me) said that the texts nevertheless envisage such a group with mutual knowledge, though this doesn’t remove Wendy’s objection that it’s hard to show that was really there on the ground. Thomas Charles-Edwards and Tom Lambert both raised the question of change, however, and here there seemed to be more room for modification at least about what the royal law was for: Tom has after all argued something not dissimilar to this but both he and Professor Charles-Edwards emphasised that the lawcodes we have (i. e. the English ones) develop new terms over the course of the tenth century, as the kings try and open up space for themselves in what had previously been community action.

My notes no longer make it clear to me exactly how the three positions differed here, but the focus of disagreement seems to have been on whether the legislators, in all three cases, were trying to use what the communities over whom they legislated already did, to support it or to change it. I think Alice was arguing for the first two options, but for England the swell of opinion elsewhere around the table seemed much more on the first plus the third. It did seem to me (what my notes do reflect) that the English laws have as a big part of their agenda to regularise and eliminate local variation in custom, and the detailed provisions of the Welsh laws look like that to me also; the Scottish stuff I know much less well, but since we don’t have it as issued (if it was) it’s harder to say. The differences in practice here may not matter very much, but the Oxford scholarship seems even now to be very keen on knowing the minds of rulers, and it does seem as if law should be a way one can do it; to that way of thinking, Alice’s paper was probably more subversive than it initially appeared…

1. Alice here contrasted Patrick Wormald, The Making of English Law: King Alfred to the twelfth century. 1: Legislation and its limits (Oxford 2001) with Ruth Mazo Karras, Slavery and society in medieval Scandinavia (New Haven 1988). Patrick’s book is certainly where to start for more on any of the lawcodes mentioned in this post. As for Alice, her beacon work so far might be “Leges Scocie and the lawcodes of David I, William the Lion and Alexander II” in Scottish Historical Review Vol. 88 (Edinburgh 2009), pp. 207-288, but this paper itself is out, since last month only, as “Lex Scripta and the Problem of Enforcement: Welsh, Scottish and Anglo-Saxon Law Compared” in Judith Scheele & Fernanda Pirie (edd.), Legalism: justice and community, Legalism 2 (Oxford 2014), pp. 47-76!

2. So recorded in The Anglo-Saxon Chronicle in its entry for the year 1041. in whatever edition or translation you prefer to use; mine of resort is Michael Swanton (transl.), The Anglo-Saxon Chronicle (London 1996, repr. 1998).