Tag Archives: Visigothic Law

Burning the Law in Tenth-Century Castile

In today’s post I want to enlist the readership’s help in tracing a factoid. [Edit: and you have helped me find it! Thankyou to Psellos, whose help is now clear in comments. I've left the post as was otherwise, though.] This is something I came across in the book by Eugene Mendonsa I wrote about a few posts ago, which seemed to me most unlikely, and for which I then spent a little effort trying to trace to a source. I failed, but it’s not just my fault; I’ve run into many citational dead ends that shouldn’t be such, and since the effective source seems to be popular tradition, I wondered if anyone out there knows about it? Here is the quote from Mendonsa:1

“Reliance on written documentation to confirm repression was unique to Catalonia in Iberia. For instance, in neighboring Castile, Count Fernán González was so adamant in retaining traditional oral customs that he had all copies of the Liber Iudicum he could find in his country burned in the Cathedral of Burgos.”

As usual with Mendonsa’s book, as I said last time, there is no clear source for this,. The most likely thing in his chapter bibliography looks to be E. N. van Kleffens, Hispanic Law until the end of the Middle Ages, with a note on Continued Validity after the Fifteenth Century of Medieval Hispanic Legislation in Spain, the Americas, Asia, and Africa (Edinburgh 1968), but I don’t have access to that and Hathitrust’s search gives no instances of ‘burn’, so I’m not sure. There are obvious reasons to doubt such a claim, anyway. Here are the ones I could quickly think of:

  1. The Liber Iudicum, otherwise known as the Visigothic Law, was very much still in use in Castile in the thirteenth century, when it was translated by royal order into the text we now know as the Fuero Juzgo, so Fernán González’s Fahrenheit 451 episode couldn’t have been very effective.
  2. Almost anything written later on about things Fernán González did are shot through with legend, but those legends usually include him issuing a fuero of his own for Castile, the point being to separate it from royal legislation, not to reinforce orality.2
  3. The Forum Iudicum would have been older than any oral customs in Castile, since it predated the Muslim conquest of the Visigothic kingdom.
  4. The bishopric of Burgos was only revived in 1075, Castile was a county not a country, and we could go on, but I did this for Mendonsa once already and don’t need to again.

So instead I did some searching, and what I found can be grouped under two headings, writing that you’d think would mention this episode but significantly doesn’t, which is to say pretty much anything I could quickly open that mentions Fernán González in an actual tenth-century context but also works on actual law in medieval Castile, and then very venerable works that do mention this episode but only in passing. (There’s also an unreferenced mention in an almost unconnected Wikipedia article in Spanish whose English version omits it, just to complete the picture.) The most obvious of the first sort of works I’ve already referenced, but first of the second is nothing less than Amerigo Castro’s The Spaniards: An Introduction to their History, part of his side of the long-running polemic with that unfriendly but impressive figure, Claudio Sánchez-Albornoz, about what the real nature of Spanishness was.3 In its English version, on p. 512, Castro was made to say:

“Whether it is based on actual tradition or mere legend, it is a significant fact that those Visigothic laws were burned in Burgos by the Castilians as a sign of protest against the kingdom of León to which they were subject.”

This is exactly the kind of statement that means I tend to prefer Sánchez-Albornoz to Castro despite the former’s own particular problems – “whether it is based on… tradition or… legend, it is a significant fact”! – but the main thing of relevance here is that there is no citation. But it didn’t entirely surprise me when I picked it up again in the work of those two’s mutual senior, Ramón Menéndez Pidal, who in 1943 and 1944 wrote, in the same words both times:4

“Una tradición muy respetable cuenta que, al conseguir su autonomía los castellanos, reunieron todas las copias de ese Fuero Juzgo que pudieron hallar por su tierra y las quemaron en Burgos.”

As ever, my Castilian isn’t my strongest language, but I make that more or less:

“A very respectable tradition records that, in order to secure their autonomy, the Castilians gathered all the copies of this Fuero Juzgo that could be found in their land and burnt them in Burgos.”

Pretty much a match! So I guess that, while Menéndez Pidal wasn’t Mendonsa’s source, he was probably quoted by whatever that source actually was. But what was Menéndez Pidal’s source? “Una tradición muy respetable”, without reference, isn’t a lot to go on, and Menéndez Pidal is as far back I can trace it. So, over to you folks: does anyone else know this tradition, and if so, where it might have started?

1. Eugene L. Mendonsa, The Scripting of Domination in Medieval Catalonia: an anthropological view (Durham, NC, 2008), p. 130.

2. Two fairly modern examples: Michael P. McGlynn, “The Seven Laws of Fernán González: Castile’s Tenth-Century Legislative Beginnings” in Confluencia Vol. 25 (Greely 2009), pp. 93–100, where it would have been relevant almost anywhere, and María Angustias Alba Bueno and Manuel Rodríguez García, “La muerte en el Fuero Juzgo y tipos de enterramientos en el Reino Visigodo de Toledo” in Estudios sobre patrimonio, cultura y ciencias medievales Vol. 18 (Granada 2016), pp. 81–106, online here, where p. 82 runs quickly through the afterlife of the code with no mention of this.

3. Amerigo Castro, The Spaniards: an introduction to their history, transl. Willard F. King & Selma Margaretten (Berkeley, CA, 1971), translation of his España en su historia or La realidad histórica de España as it became in later editions. On the debate between him and Sáanchez-Albornoz a still-useful guide is Jocelyn N. Hillgarth, “Spanish Historiography and Iberian Reality” in History and Theory Vol. 24 (Oxford 1985), pp. 23-43.

4. Ramón Menéndez Pidal, “La Castilla de Fernán González” in Boletín de la Commisión Provincial de Monumentos de Burgos Vol. 22 (Burgos 1943), pp. 237-254, online here, at p. 242, and idem, “Caracter originario de Castilla” in Revista de estudios políticos Vol. 13-14 (Madrid 1944), pp. 383-408, online here, at p. 390, as I say in more or less the same words; I guess when you’re effectively writing for a Fascist dictator about how his province of birth was historically destined to provide the future rulers of Spain, you maybe cut a few editorial corners in favour of speed of production…

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.

From the Sources X: the most interesting document in the judicial administration of Carolingian Catalonia

Such is the claim that Josep María Salrach makes of the document below, and Senyor Professor Salrach does not say such things without basis so I thought I could do no better than put it before you!1 The matter is a hearing of 25th March 874, held before Count Miró I of Conflent, brother of Guifré the Hairy, though this is before either of them hit the sovereign big-time with their appointment to more counties in 878. Instead, what we have here is the working of a just-still-Carolingian judicial apparatus, and it goes like this.2

“In the court of Count Miró and the judges who were ordered to hear, determine and rightly judge the cases, that is, Langovard, Bera, Odolpall, Dodó, Esteve, Fulgenci and Guintioc, judges, on in the presence of many other worthy men, the priest Kandià, Rautfred, Cesari, Goltred, Mauregat, Sentred, Ennegó, Sesgut, Daneu, Llop, the Saió Enelari, everyone who was seated in that court, there came a man, Sesnan by name, the representative of Count Miró, and he said: ‘Hear me, how that same Llorenç, that he ought to be a fiscal slave from the descent of his parents and grandparents, with his brothers and kinsmen, and they did service to the lord Count Sunifred, father of my lord by voice of whom my lord ordered me his representative to enquire.’
“Then the abovesaid judges said to Llorenç, who was summoned on behalf of himself and his kinsmen: ‘What do you answer to this?’ And he said in response: ‘I ought not to be a fiscal slave, and neither should my kinsmen, by descent from our grandfathers or grandmothers in the paternal or maternal lines, since I and my kinsmen, just as it says in the Law of the Goths, for 30 or fifty years have stayed in the houses in which we who are present among you were born without any blandishment or servile yoke, in the villa of Canavelles, with no count or judge summoning us.’

Archives Départementales du Bas-Rhin, 151 J 50, fo. 1r., a fragment of the Visigothic Law

Here is a completely non-Catalan copy of the Law, a fragment from Lorsch now in Straßburg, but it is at least ninth-century and secondly dealing with enslavement (V.4.x), so that’s not bad is it? For full reference to the text see n. 4 below. The MS is Archives Départementales du Bas-Rhin, 151 J 50, fo. 1r.

“We the judges indeed said to the representative Sesnan: ‘Can you present witnesses or documents or any index of truth by which you may prove that this same Llorenç, his brothers or his kinsmen ought to be fiscal slaves to your lord, and that they have been subjected to service within those legitimate years that the response mentioned?’ And he said: ‘I have no other proof than that I found in an inventory of my lord that his father assigned to him the woman Ludínia who was related to this kindred whom I prosecute.’
“We the judges indeed said to Llorenç: ‘How did that same Ludínia, who was your grandfather’s sister, come to be in that inventory if she was not a fiscal slave?’ And Llorenç responded: ‘I don’t know why it says that, but I do know one thing, that she was not a slave subject to service; but if servile condition isn’t carried from someone in the kindred to which I am connected to their children, then the servile condition doesn’t apply to their children.’

Madrid, Biblioteca de la Real Academia de Historia, Cod. 34, fo. 43r

And here is the exact bit of the Law that is about to be quoted, V.7.viii, from a late-ninth or early-tenth-century copy now in the Real Academia de Historia in Madrid, to which I can now link you because PARES have finally enabled stable URLs! It is Biblioteca de la Real Academia de Historia, Cod. 34, fo. 43r.

“So we searched in the Law of the Goths where it says: ‘If anyone wishes to bring a free person into slavery, let him demonstrate by what rule the slave came to him. And if a slave should claim himself to be a free person, and shows to the selfsame person proof of his freedom in the same way’, and the rest which follows.
“Wherefore we asked that same Llorenç if he might be able to produce such witnesses as the law says, that he or his kinsmen ought to answer for nothing to the fisc. He said: ‘I can’. He introduced four legitimate witnesses without any crime, that is, Guitsèn, Adaulf, Belès and Viatari, who swore by a solemn oath just as is written there. Then we the abovesaid judges said to Sesnan: ‘Can you produce more or better witnesses, or name a crime that prohibits testimony in the law, today or later?’ And that man said in his answers: ‘I can produce neither witnesses nor documents nor any index of truth whereby I may defame those same witnesses, or to subject those same persons to service neither in those same three hearings nor at any other time, today or hereafter. I thus, by the interrogation of the judges and in the presence of worthy men do recognise and quit my claim in the villa of Vernet, in the church of Sant Sadurní, and recognise that I have received the oaths which those same witnesses made truly by the order of my lord, and those things that I have done rightly and truly I do recognise and evacuate in the judgement of you or the presence of those written above.’

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

Lastly let’s just bring out that Catalan copy of the Law one more time… Abadia de Montserrat ([1]) [Public domain], via Wikimedia Commons.

“Recognition or evacuation made on the 8th Kalends of April, in the 34th year of the reign of King Charles.
“Sig+nature of Sesnan, representative of the lord count Miró for fiscal cases needing answering, who have made this recognition or evacuation and handed [it] over [to] witnesses for confirming. Miró. Guintioc. […]
“Protasi, conversus if God should be his companion, who have written this document of recognition or evacuation on both the day and year as above.”

Again, there is an awful lot here to play with. I like especially the representation of direct speech that, it becomes clear, can’t be, because they talk in formulae and refer to things that haven’t been reported, like the exact nature of Ludínia’s relationship to Sesnan. I also note that here both sides, both the state representative and the undowntrodden peasant, cite the Law of the Goths, and the judges know that the peasant’s cite is justified. As I have said, people generally do seem to have known about the thirty-year rule. I am also fascinated by the suggestion that Count Miró I had an officer whose business was the pursuit of fiscal claims, though the complex phrasing that Protasi (who was at this stage in the business of drumming up support for a monastery at Sant Andreu d’Eixalada that would not end well, and was a serious person about the public sphere) seems to have loved may be making as much of that title as it does of his own (which is, I should make clear, very hard to translate, so I may be glossing what is actually incoherence). And of course, the count has an inventory! But as we have seen before (when talking of later, but so what?) it’s not a very good inventory; the claim hadn’t been pursued for years and the only data the count had went back a generation and was inherited, rather than compiled, by the current administration. As I said a couple of posts ago, just because the Carolingian and post-Carolingian state had ambitions to systematic record doesn’t mean that they were necessarily very good at it.

Saint-Saturnin de Vernet-les-Bains

And finally the actual location of the hearing, in its modern guise, Sant Sadurní de Vernet or as you would now find it in an atlas, It seems an impressive enough place to hold court! Saint-Saturnin de Vernet-les-Bains. By Baptiste Autin (Own work (Baptiste Autin)) [GFDL, CC-BY-SA-3.0 or CC-BY-2.5], via Wikimedia Commons.

For Salrach, what is most interesting here is the back and forth about service, servitium, which seems to be what defines slavery in practical terms here.3 There are several definitions floating around the case, it seems to me: the comital claim hinges on an argument by descent, and Salrach says that the relationship is found insufficiently close because of slavery not transmitting through the maternal line so that doesn’t work. They don’t actually say that, though, even though they could have because it too is in the Law of the Goths.4 And what they looked up in the Law doesn’t seem to relate either to that or what they did next, perhaps because although both sides were trying such arguments everyone knew that the thirty-year rule probably made them irrelevant anyway. The deciding factor was whether or not Llorenç’s kinsmen did servitium to the count in that time; they had people to say they hadn’t and Sesnan had nothing but the descent claim from a woman whose presence in a list of slaves wasn’t explicable. As I say, the comital archive wasn’t up to the job it was being asked to perform here.

From all this, anyway, and several other mentions of servitium, Salrach builds up a picture of the development of the obligations of the general populace to the count, seeing it as being a form of servitium generalised to all subjects of the public power (which the Vall de Sant Joan hearing qualifies as army service and the ‘lesser royal service’) and a more specialised, demeaning one that is what was at issue here.5 I’m not sure I would go as far as he does with this but it’s about the only attempt to work out what the counts could actually demand from their subjects that’s not based essentially on a template of Carolingian government assumed still to be running, so for me it still has great value as an idea to work with. Nonetheless, he’s right that this is a very interesting document, and it’s the hints, the drama of court and the attempts by people to swing old law in their directions in various ways and with various unexpected sorts of proof that make it interesting for me as much as the big point that Salrach believes it helps make.

1. J. M. Salrach, Justícia i poder a Catalunya abans de l’any mil, Referències 55 (Vic 2013), p. 128: “Aquest és, segurament, el document més interessant dels que coneixem de l’administració de justícia a la Catalunya Carolíngia.”

2. Pierre Ponsich (ed.), Catalunya Carolíngia VI: els comtats de Rosselló, Conflent, Vallespir i Fenollet, rev. Ramon Ordeig i Mata, Memòries de la Secció històrico-arqueolòico LXX (Barcelona 2006), 2 vols, doc. no. 81: “In iuditio Mirone comite seu iudices qui iussi sunt causa audire, dirimere vel recte iudicare, id est, Langobardus, Bera, Odolpaldus, Dodo, Stephanus, Fulgentius et Guintiocus, iudicum, vel in presentia aliorum multorum bonorum hominum, Kandiani presbiteri, Rautefredi, Cesari, Gultredi, Maurecati, Sentredi, Enneconi, Siseguti, Danieli, Lupon, Enalario saione, omnes qui in ipso iuditio residebant, veniens homo nomine Sesenandus, mandatarius Mirone comite, et dixit: «Audite me cum isto Laurentio qualiter servus fiscalis debet esse ex nascendo de parentes de abios suos, cum fratres vel parentes suos, et servicium fecerent domno Suniefredo comite, genitore seniore meo, ad parte fisclai per preceptum quod precellentissimus rex Carulus fceit domno Suniefredo comite, cuius voce me mandatarium mandat inquirere senior meus».
“Tunc supradicti iudices dixerunt Laurentio, qui est inquietatus pro se et parentes suos: «Qui ad hec respondis?» Et ille in suis responsis dixit: «Non debeo esse servus fiscalis, nec parentes mei ex nascendo de bisabios vel visabias ex paterno vel ex materno, qui ego et parentes mei, sicut lex Gothorum continet, per XXXa vel quinquaginta annis in domois in qua nati sumus inter presentes instetimus absque blandimento vel iugo servitutis in villa CAnabellas, nullo comite vel iuduce nos inquietante.»
“Nos vero iudices Sesenando mandatario diximus: «Potes habere tests aut scripturas aut ullum indicium veritatisunde probare possis isto Laurentio, fratres vel parentes suosu, ut servi fiscale seniori tuo debent esse, ut infra istos legitimos annos quod responsum dedit servituti fuissent?» Et ille dixit: «Non habeo alia probatione nisi inveni in breve senioris mei quod pater suus ei dimisit femina Ludinia qui fuit parentes istius parentele quem ego persequor».
“Nos vero iudices diximus Laurentio: «Unde advenit ista femina Ludinia in isto breve, qui fuit soror abie tue si ancilla fiscalis non fuit?» Et Laurentius respondit: «Nescio quomodo hic resonat, set unum scio, quod ancilla inclinata in servitio non fuit; sed si aliunde ad filios suos conditio servilis non avenit, de parentes quod mihi coniuncta est, non pertinent ad filios suos servilis conditio».
Nos autem perquisimus in lege Gotorum ubi dicunt: «Si quis ingenuum ad servitium addicere voluerit, ipse doceat quo ordine ei servus advenerit. Et si servus ingenuum se esse dixerit, et ipsi simili modo ingenuitatis sue firmam ostendant probationem», et cetera que secuntur.
“Proinde diximus adisto Laurentio si potuisset tales habere testes sicut lex continet ut nullum ex fisco persolvere debeat ille aut parentes sui. Ille dixit: «Possum». Introduxit legitimos quattuor testes absque ullo crimine, id est, Guitesindo, Ataulfo, Beles et Biatarius, qui iuraverunt a serie conditione sicut ibidem insertum est. Tunc nos supradicti iudices Sesennando diximus: «Potes alios habere testes ampliores aut meliores, aut crimen quod in lege vetitum est testificandi dicere hodie aut postmodum?» Et ille in suis responsis dixit: «Non possum habere testes nec scripturas nec ullum indicium veritatis unde istos testes diffamiare possim, aut istos ad servitium inclinare neque isto trinos placitos nec ulloque tempore et hodie et deinceps. Sic me recognosco vel exvacuo ab interrogatione udiucm et presentia bonorum hominum in villa Verneto, in ecclesia Sancti Saturnini, et ut sacramenta fecerunt isti testes veraciter recepi per iussionem senioris mei, et ea qui feci recete et veraciter me recognosco vel excvacuo in vestrorum iuditio vel suprascriptorum presentia».
“Facta recognitione vel exvacuatione sub die VIII kalendas aprili, anno XXXIIII regnante Karolo rege.
“Sig+num Sesenandi, mandatario domno Mirone comite ad causas fiscalis requirendas, qui hanc recognitione vel exvacuatione feci et testes tradidi ad roborandum. Miro. Guintiocus. […]
“Protasius, si Deus comes fuerit, conversus, qui hanc scriptura recognitionis vel exvacuationis iussus scripsi et die et annon quo supra.”

3. Salrach, Justícia i poder, pp. 126-134; see my very brief discussion in J. Jarrett, review of Josep María Salrach, Justícia i poder en Catalunya abans de l’any mil (Vic 2013) in The Medieval Review 14.09.16, online at http://hdl.handle.net/2022/18731, last modified 15 September 2014 as of 27 September 2014.

4. 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), online here, II.2.iii, which also invokes the thirty-year rule for getting out of such an inheritance if a slave happened to have one.

5. Salrach also attacks this question with different cases, including the Vall de Sant Joan hearing, in Justícia i poder, pp. 87-90, 110-112 & 242-243 (conclusions).

Inventing the Visgothic legal ordeal in Catalonia

The backlog in my posting is awful [he wrote in May], but there is obviously something in the period of delay that matches the rhythms of my scholarship: I keep finding that I stubbed posts to blog which I come to just as the thing they were about again comes up in my study. Perhaps this will be another, as I found in reading Josep María Salrach’s Justícia i poder a Catalunya abans de l’any mil that he touches on the issue I blogged about a while ago, that of judges in tenth-century Catalonia fabricating legal precedent for their decisions, and also on a much older post of mine elsewhere about the judicial ordeal, with a case that combines the two things. So obviously it’s necessary to follow those posts up with this one, and presumably by the time this goes up I shall have come up against the idea again! [As it happens, not this time; I have obviously caught up too much! But read on…]

Trial by the ordeal of hot water

The site I grabbed this from gave no source, so neither can I, but though wilfully Classicising it’s still a picture of the ordeal by hot water in ‘olden tyme’ and I can’t find another…

The case is interesting, which is why I blogged it before: it’s the only case of a judicial ordeal recorded in Catalonia before the year 1000, says Salrach, and this is true although the next one is from that year so it’s only just true.1 Never mind. There’s also an excellent clear report of it in Jeffrey Bowman’s book on Catalan justice around the year 1000, which as far as I can see Salrach did not use, which I paraphrase here.2 The events are in 988: one Sentemir was brought to court by the abbey of Sant Cugat del Vallès, who claimed that he had destroyed his brother’s will from which they should have had a large estate; they produced a witness to the will, but Sentemir refused to admit that he ever saw it and finally offered to go to the ordeal to prove his innocence. He chose the ordeal of hot water, in which the litgant plunged his arm full-length into a boiling cauldron and then the extent of his injuries and whether they were healing was assessed by a panel three days later. As Bowman points out, following Stephen White, the thing about ordeals is that the designed outcome almost never occurred as they’re recorded: here, the scribe says that Sentemir had intended to keep himself safe by incantantions and curses, but in fact as soon as his arm got near the cauldron his hand burst into flames, and he confessed. The court condemned him to penal servitude but the bishop let him off, though of course he lost the estate.

Now there’s a range of ways this is interesting: was Sentemir really attempting magic? Was that instead an accusation that one might slander someone with in this period? Either’s interesting. There is also the question of what we are supposed to think actually happened. The last time I blogged this trial, I wondered if Sentemir might have been trying something like coating his arm in pitch or similar to protect it against the boiling, and just caught the cauldron fire, but obviously we’ll never be able to tell from this. But for our immediate purposes the interesting question is why they went to the ordeal at all. It is commonly assumed that this was just something that happened in the early Middle Ages but as I said, this is the first one we have from Catalonia, and Catalonia’s principal source of jurisprudence, the Visigothic Liber Iudicum, Book of Judges, doesn’t mention the ordeal of hot water (or really any others except to outlaw them). So where did the idea come from?

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

An actual Catalan copy of the Visigothic Law, Abadia de Montserrat MS 1109. By Abadia de Montserrat [Public domain], via Wikimedia Commons.

Well, you may remember that in the previous post where I was talking about judges customising their precedents there came up a tenth-century copy of a version of the Liber Iudicum called the Liber Iudicum Popularis, one of two made by one of the judges of the era, a chap called Bonhom about whom I’ve often written, and whose copy is now online in scholarly edition.3 As it turns out, his version of the Liber Iudicum does contain a procedure for the ordeal of hot water, still claiming of course to be the legislation of the Visigothic princes of three hundred years before. And who do you suppose was the judge and scribe at Sentemir’s trial? Who else but Bonhom! So we have another adaptation of the letter of the law to the needs of the day, and one that works out in decidedly suspicious circumstances.

Nonetheless, it seems unlikely that Bonhom just invented the idea in whole cloth, or how on earth would he have convinced Sentemir to do it? As Bowman points out, there’s no sense in the charter that there was dispute about this. That’s perhaps not surprising since Bonhom wrote the document, but this was a man who tells us in his documents when he was sleepy in case it looks odd, so I’d expect more words rather than fewer if there was a problem. Even if it was not usual this was apparently an idea that was known to people. But whence had it come? There’s a famous trial by battle involving Bera I, Count of Barcelona, accused of treason, which the biography of the Emperor Louis the Pious by the anonymous known as ‘Astronomer’ says was done because both parties were Goths, and people have argued that since the Gothic Law has nothing of this, it was really a Frankish idea that got carried into Catalan judicial practice.4 Salrach raises the idea instead that the ordeal was in fact the ‘popular’ practice that Bonhom’s law’s adapted title suggests, excluded from proper practice by the Visigothic kings but locally maintained or innovated and so added in to Bonhom’s text because he knew it was sometimes done. Hey, maybe Sentemir had introduced him to the idea in 988! (Salrach doesn’t suggest that, but as usual, on a blog I can push these things further than I would in print.) That in turn implies that we really ought to look closely at the Liber Iudicum Popularis to find out what had needed changing since the seventh century; it may not all have been invented as needed, even if some of it probably was. This is the kind of thing I read to learn, after all.

1. Josep María Salrach, Justícia i poder en Catalunya abans de l’any mil, Referències 55 (Vic 2013), pp. 37-38.

2. Jeffrey Bowman, Shifting Landmarks: property, proof and dispute around the year 1000 (Ithaca 2004), pp. 119-140, and here esp. pp. 122-124; Stephen D. White, “Proposing the Ordeal and Avoiding It: strategy and power in Western French litigation, 1050-1110” in Thomas N. Bisson (ed.), Cultures of Power: lordship, states and process in twelfth-century Europe (Philadelphia 1995), pp. 89-123, repr. in White, Feuding and Peace-Making in Eleventh Century France, Variorum Collected Studies 817 (Aldershot 2005), VII.

3. Jesús Alturo i Perucho, Joan Bellès, Josep M. Font Rius, Yolanda García & Anscari Mundó (edd.), Liber iudicum popularis. Ordenat pel jutge Bonsom de Barcelona (Barcelona 2003), VI.1.3.

4. Ernst Tremp (ed.), Thegan, Die Taten Kaser Ludwigs (Gesta Hludowici Imperatoris). Astronomus, Das Leben Kaiser Ludwigs (Vita Hludowici Imperatoris), Monumenta Germaniae Historica (Scriptores rerum Germanicarum in usum scholarum separatim editi LXIV (Hannover 1995), Astronomus cap. 32; A. Iglesia, El proceso del Conde Bera y el problema de las ordalías (Madrid 1980).

Because if that’s Gothic this must be Roman

Posted with apologies for the delay in both posting and in dealing with comments, for once not because of my life but because of WordPress being uncharacteristically useless in dealing with the Heartbleed bug I hope you heard about, let’s attack that easiest of targets, to wit, historiographical views on ethnicity. Here is a straw man: let us once more consider the Visigothic Law. Redacted principally in the reign of King Chindasuinth of what we know as the Visigothic kingdom of Spain on the basis both of ‘ancient’ law and subsequent royal edicts, in the form we have it it had been updated by several subsequent rulers and was intended to be widely owned and consulted, as indeed the numerous copies we have of it suggest it was.1 Surely this is the ultimate expression of a Visigothic identity, matured by years of rule and a full conversion to Catholicism? So if that’s Gothic, what went before must be Roman, no?

Paris, Bibliothèque nationale de France, MS Lat. 4404, a Narbonne copy of the <em>Breviary of Alaric</em> made between 804 and 814, fo. 1v and 2r I think

Paris, Bibliothèque nationale de France, MS Lat. 4404, a Narbonne copy of the Breviary of Alaric made between 804 and 814, fo. 1v and 2r I think

Well, no, obviously not, you may immediately say: firstly the premise is rubbish, but also the artwork is hardly Classical, is it, there is interlace, geometric ornament and the oval-eyed staring faces characteristic of pre-Romanesque portraiture of the earliest kind, or indeed of the earlier copies of the illustrated Commentary of Beatus on the Apocalypse.2 Also, it is, you know, the Breviary of Alaric, that being King Alaric II of the Visigoths, named after their most successful leader, the guy who actually sacked Rome… This is if anything more Gothic, you may say. But what is this text? It is a codification of Roman law. On the left-hand page of the spread you may even be able to read the name of the Emperor Theodosius, under whose orders the Codex Theodosianus, of which the Breviary is as the name suggests an abbreviation, was compiled, about fifty years after its issue. That’s him in the picture, not Alaric. That’s how Gothic this is.

Cathedral of SS Just & Pastor, Narbonne

Cathedral of SS Just & Pastor, Narbonne; the other kind of Gothic (from Wikimedia Commons)

Now, we can complicate matters further, because this is also Carolingian. That is, this actual manuscript, now in the Bibliothèque nationale de France, was made and illustrated in the Frankish city of Narbonne in the early ninth century.3 Admittedly, Narbonne had only fallen to the Franks in 759, when the local ‘Goths’ (as the Chronicle of Moissac does indeed call them) decided that between the Muslims inside the city and the Frankish army outside they’d rather take their chances with Charlemagne’s dad Pippin the Short, and threw the Muslims out and made terms. One of the terms was that they got to keep their own law.4 Which one, do you suppose, this one? or the ‘Visigothic’ one? Either way, this is at least two generations after the conquest and yet it was still being copied, a Gothic compilation of Roman law copied under Frankish rule in a city they’d freed from the Muslims depicting the Roman emperor who hadn’t issued it in a style some would happily call Mozarabic. Assign an ethnicity to that.

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

An actual Catalan copy of the Visigothic Law, Abadia de Montserrat MS 1109 once again, from Wikimedia Commons

In fact, the idea that use of the Visigothic Law, as we call it, represents a deep investment in the Visigothic past should be queried more often than it is. The text is only given that ethnic title by us, its name in the actual texts being the Forum Iudicum, more or less Judges’ Conventions. It also substantially erases any difference between Goths and Romans that earlier codes had maintained: the old difference only leaks through in one or two clauses where it is ruled against. The first issue of this lawcode was arguably the point at which its own users stopped seeing the point in marking customs and behaviours out as Gothic. It’s not a monument of that identity; it’s its tombstone. That is, admittedly, not how it is used even in my period, where the text is often called the Law of the Goths, but that is nonetheless not what its authors had intended.6 And for somebody in Carolingian ex-Muslim ex-Gothic Narbonne it was, in any case, not the law that was most worth copying; they wanted the one it had replaced. We’ve seen before that Gothic identity seems to have been something a very few people in Narbonne still made something of in this period; now as then I think that the evidence forces me to conclude that they only cared because mostly, other people did not. It would make a lot of things simpler if we sided with the majority here…

1. The canonical cite here is Aquilino Iglesia Ferreirós, “La creación del derecho en Cataluña” in Anuario de Historia del Derecho Español Vol. 47 (Madrid 1977), pp. 99-423, now revised in his La creación del Derecho: una historia del Derecho espa&ntidle;ol (Barcelona 1988), 3 vols, 2nd edn. (Barcelona 1989-1991), 3 vols.

2. The fullest study of these manuscripts is John W. Williams, The Illustrated Beatus (New York 1994-1998 & Turnhout 2000), 5 vols, but shorter introductions to the text and what it was doing can be found in Williams, “Purpose and Imagery in the Apocalypse Commentary of Beatus of Liébana” in Richard K. Emmerson & Bernard McGinn (edd.), The Apocalypse in the Middle Ages (Ithaca 1992), pp. 217-233 or Kenneth B. Steinhauser, “Narrative and Illumination in the Beatus Apocalypse” in Catholic Historical Review Vol. 81 (1995), pp. 185-210. References to it as Mozarabic are trivial to find, though almost any use of this word is misleading: see Richard Hitchcock, Mozarabs in Medieval and Early Modern Spain (Aldershot 2008).

3. It is Paris, BN MS Lat. 4404, and the attribution is from Jordi Camps (ed.), Cataluña en la época carolingia: arte y cultura antés del Románico (siglos IX y X) (Barcelona 1999), no. 129 (p. 382).

4. The best account of this is still Josep María Salrach i Marés, El Procés de Formació Nacional de Catalunya (segles VIII-IX), Llibres a l’Abast 136 & 137 (Barcelona 1978), 2 vols, I pp. 5-7, but I should also mention the new and useful summary in Cullen Chandler, “Carolingian Catalonia: the Spanish March and the Franks, c. 750-c. 1050″ in History Compass Vol. 11 (Oxford 2013), pp. 739-750. The Chronicle of Moissac is printed in Georg Heinrich Pertz (ed.), Monumenta Germaniae Historica… Scriptorum tomus I, Monumenta Germaniae Historica (Scriptores in folio) I (Hannover 1826), pp. 280-314.

5. E. g. 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), online here, III.1.2 ruling that mixed marriages are legal; slightly more respect for remaining differences in X.1.8, 9 & 16 & X.2.1 & 5 probably have to do wth the fact that here rights in land that could have been inherited are concerned. II.2.2 is adamant that everyone, even the king, is subject to the same law and II.1.8 refuses to recognise any other Roman law than what is compiled into the Forum.

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

Law is what you make it: fixing documents in Catalonia in the year 1000 or long before

One of the things that marked Catalonia under Carolingian rule out from the rest of Charlemagne’s Empire was its continuing adherence to and use of the Visigothic Law that had run in the counties on the Franks’ arrival, and of course presumably since long before. We see this in two ways, procedural and textual. That is, people did things that we recognise from the law, such as the elaborate procedure of declaring a dead person’s will before judges or the losing party in a court case issuing a quitclaim or evacuatio disclaiming any right to take the suit up again; or else they invoke the law when doing things, often by specific chapter and verse but as often just as an idea, from which Roger Collins long ago got an article title, “Sicut lex gothorum continet“, ‘as is contained in the Law of the Goths’.1

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

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

A decade ago already, Jeffrey Bowman added to this a sharp analysis of how selective and free-handed that quotation could be, however.2 A particularly common deformation is what is ‘contained in the law of the Goths’ about inheritance. Book IV Title 2 Era 20 says, as Bowman translates it: “Every freeborn man and woman, whether belonging to the nobility or of inferior rank, who has no children, grandchildren, or great-grandchildren, has the unquestionable right to dispose of his or her estate at will.”3 This is quoted relatively often at the beginning of donations to churches, and sometimes of sales although they tend to invoke other parts of the law, but when it turns up it always turns up with the bit about children and their descendants omitted. Thus what was originally a law that formed part of a block of twenty strictly regulating inheritance so as to prevent property-owners disinheriting their heirs through pious donation (or anything else) winds up being invoked to cover exactly that possibility. Bowman has other examples of this selective quoting, but what he has none of is cases where the people using the law actually write their own provisions into it, and that seems to be what I found towards the end of Catalunya Carolíngia IV.

This should probably have been spotted, in fact, because the document is in a small way famous. It records a gathering at the church of Sant Julià de Manresa (hitherto unrecorded) in March 1000, when in front of the judge Guifré a chap called Odsèn brought three people to swear under oath what had been in nine charters by which he and his wife Sabrosa held property, charters which had recently been lost in a fire. The level of recall is quite surprising, frequently flipping into the narrative person of the actual documents as if actually quoting, and calls to mind an earlier case of similar replacements in which the receipient of the property was said to have got them read out three times at the places involved, although since as I’ve shown that case was using a written model from elsewhere I don’t know quite how we explain what looks like the results of its procedures coming out here, eighty miles west and a a century later.4

There is basically no trace of the church of Sant Julià in Manresa now so the best I can do is tell you roughly where we are for this story...

We actually do have a good few cases of this, however, and it’s clear enough that a procedure existed to handle such losses that it has been given a name by legal scholars, reparatio scripturae.5 It was perfectly legal as far as Guifré was concerned, anyway, as we can tell because he says:

“And after I had heard and seen their numerous testimonies, I the above-said judge looked in the Law of the Goths, in Book VII, Title 5, Era 2, where it says:

‘If indeed they shall have burned in a fire any scripture required by law or stolen and burnt such a scripture, they shall give their professions in the presence of a judge and those professions be confirmed by witnesses, so that the lost or destroyed scriptures may be given force, or if most evidently what the scriptures contained cannot be recalled, then to those whose scriptures they were shall be given licence to prove them by their oath or by testimony’.6

This is, you may think, slightly creative, in as much as what that law seems to have been about is people like the Lombard Pando who famously burnt a document and was then forced to admit by a judge that, “If it had been favourable to me, I would hardly have burnt it”, that is, people who had destroyed their own stuff and needed to be called on it.7 Still, it obviously served Guifré’s purpose as well. Exactly how far Guifré had gone towards fitting the law to the case is however only evident if you actually go and check his citation. For convenience, here’s the translation of S. P. Scott, but the Latin can be checked at the Digtal MGH and he seems to be on the mark here to me:

“If any person should steal, or deface, a document belonging to another, and should afterwards confess, in the presence of the judge, that he had stolen or defaced said document, and this confession should be corroborated by witnesses, said testimony shall have the same force in law as the destroyed or defaced document would have, if it still existed in its integrity. But if the contents of the document cannot be shown with certainty, he who drew it up shall be permitted to prove by his own oath, or by a witness, what said document contained.”8

Now, the differences are partly only in translation: Scott, seeing that the fifth Title of Book VII is called “On Forgers of Documents”, obviously went fully out to make it clear who was to blame for what, and has used ‘confession’ for the word I’ve translated ‘profession’ and so forth; actually the Latin is not so far apart, except that there is no mention of fire in the original. Not one. There is Visigothic Law about stuff that gets lost in fires, but it wouldn’t have helped here and Guifré didn’t quote it. Instead he bolted in some extra phrases to the law, to the very written model he was invoking to justify the outcome of the case, to make sure it applied. (Or the scribe did, this is also possible but doesn’t take away the point, I think, since Guifré is said to have looked it up and found it there.)

Well, you may say, in a saving throw for Y1K Catalan jurisprudence, perhaps there were updated copies of the Law out there that did have this in; perhaps a seventh-century Ur-text established by the best models of German philological editing in the nineteenth century is not the best guide to what people were actually using hundreds of miles from Toledo centuries later. And this is fair enough: what we would really need is, if not Guifré’s own copy of the Book of Judges (for so the Law was called), at least a contemporary one and ideally one from the same judicial milieu. And as it happens we have one of those, copied by Guifré’s occasional colleague Bonhom, my official favourite scribe.9 Even better, there is a recent critical edition of one of them and better still than that, because this is reckoned one of the foundational texts of Catalan law, no less an authority than the Parlament of the Generalitat de Catalunya has stuck it on the open web for free. And this is all very useful, because actually here the Latin is even closer to what Guifré quoted, except that the bit about fire still isn’t there.10

A manuscript of the Liber Iudicum Popularis in the Biblioteca de l'Escorial

A manuscript of the Liber Iudicum Popularis in the Biblioteca de l’Escorial, probably not MS Z.II.2 that we want here but all I can find on the web and probably nicer anyway

It’s hard to see this as forgery in our modern sense, or at least, it is for me. Guifré was not out to defraud anyone here: Odsèn and Sabrosa were in a pickle, they had no problem producing witnesses whose testimony was obviously more or less accurate, no-one seems to have been contesting their right to the lands, and it was Guifré’s job to put the cladding of proper legal process back onto their ownership of it. The law wouldn’t quite cover the case, so he edited it so that it would serve and so that everybody could have what they needed from the meeting. This is very much the model of medieval ‘forgery’ propounded by such luminaries as Christopher Brooke and Giles Constable long ago, where the intent was not necessarily to deceive but to supply evidence that was sincerely believed once to have existed for things everyone knew to be true.11 Here the evidence didn’t exist, but it was needed, so it was supplied. Nothing was lost from this, except perhaps the integrity of the law. But the big point here is that that is our idea of how texts and authorities work, not the medieval one in use here. So often we have to wonder whether ‘the medievals’ thought and reasoned the same way we did. It is useful, therefore, to be able to point at a concrete case and say: this was different, but it was different in a way that we can easily understand, if we choose.

1. Roger Collins, “‘Sicut lex Gothorum continet’: law and charters in ninth- and tenth-century León and Catalonia” in English Historical Review Vol. 100 (London 1985), pp. 489-512, repr. in idem, Law, Culture and Regionalism in Early Medieval Spain, Variorum Collected Studies 356 (Aldershot 1992), V; the milestone name in the Catalan historiography is Aquilino Iglesia Ferreirós, whose classic “La creación del derecho en Cataluña”, in Anuario de Historia del Derecho Español Vol. 47 (Madrid 1977), pp. 99-423, is now revised in his La creación del Derecho: una historia del Derecho español (Barcelona 1988), 3 vols, 2nd edn. (Barcelona 1989-1991), 3 vols; a shorter version of the early medieval part of his scheme is available as “El Derecho en la Cataluña altomedieval” in Federico Udina i Martorell (ed.), Symposium internacional sobre els orígens de Catalunya (segles VIII-XI) (Barcelona 1991-1992), also published as Memorias de le Real Academia de Buenas Letras de Barcelona Vols 23 & 24 (Barcelona 1991 & 1992) and thus online here, II pp. 27-34.

2. Jeffrey Bowman, Shifting Landmarks: Property, Proof, and Dispute in Catalonia around the Year 1000, Conjunctions of Religion and Power in the Medieval Past (Ithaca 2004), pp. 33-55.

3. 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), IV.2.20, quoted with modifications Bowman, Shifting Landmarks, p. 40.

4. The document here is Ramon Ordeig i Mata (ed.), Catalunya Carolíngia IV: els comtats d’Osona i Manresa, Memòries de la Secció històrico-arqueològica LIII (Barcelona 1999), 3 vols, doc. no. 1840; the previous case is ibid., doc. nos 33 & 34, on which see J. Jarrett, “Pathways of Power in late-Carolingian Catalonia”, unpublished Ph. D. thesis (University of London 2005), online here, pp. 49-53.

5. A term first coined by José Rius Serra, “Reparatio Scriptura” in Anuario de Historia del Derecho Español Vol. 5 (Madrid 1928), pp. 246-253; see now Bowman, Shifting Landmarks, pp. 151-164, pp. 155-156 covering the point I make here but not this case or its special characteristic.

6. Ordeig, Catalunya Carolíngia IV, doc. no. 1840: “Et posquam audivi et vidi sua plurima testimonia supradictus iudex inquisivi in lege gotorum in liber septimus, titulus quintus, ers secunda, ubid dicit: «Si vero alicuo iuri debitam scripturam ad ignem concremaverint aut eandem scripturam substraxisent vel concremasent coram iudicem suas professiones depronant quod professiones ad testibus roboratas, perdiates vel vinciatas scripturas robur obtineant, quod si evidentisime quod scripturas continebant recordare non potuerint, tunc illis quibus scripturas fuerint habeant licentiam comprobare per illorum sacramentum vel per testem».”

7. For details and analysis see Antonio Sennis, “Destroying Documents in the Early Middle Ages” in J. Jarrett & Allan Scott McKinley (edd.), Problems and Possibilities of Early Medieval Charters, International Medieval Research 19 (Turnhout 2013), pp. 151-169, the case instanced at p. 151 with reference.

8. Admittedly, the Latin can’t be checked at the dMGH right now, because it seems to be down, but when I first stubbed this post and did the checks for it at the end of July 2012 (argh) it checked out fine then. The translation is from Scott, Visigothic Code, VII.5.2.

9. On him see Bowman, Shifting Landmarks, pp. 84-99.

10. Jesús Alturo i Perucho, Joan Bellès, Josep M. Font Rius, Yolanda García & Anscarí Mundó (edd.), Liber iudicum popularis. Ordenat pel jutge Bonsom de Barcelona (Barcelona 2003), VII.5.2: “Si uero alicuo iuri debitam scripturam subtraxerint aut uiciauerint, eandem scripturam subtraxisse uel uiciasse coram iudice sua professione depronant, qua professio a testibus roborata, perditae uel uiciatae scripturae robor obtineant. Quod si euidentissime quid scriptura continuit recordare non potuerint, tunc ille, cuius scriptura fuit, habeat licentiam comprobare per sacramentum suum aut per testem…”

11. Christopher N. L. Brooke, “Approaches to medieval forgery” in Journal of the Society of Archivists Vol. 3 (London 1968), pp. 377-386, repr. in Brooke, Medieval Church and Society: collected essays (London 1971), pp. 100-120; Giles Constable, “Forgery and Plagiarism in the Middle Ages” in Archiv für Diplomatik Vol. 29 (München 1983), pp. 1-41.

Seminar CX: words in use in the other part of Christian Spain

I have mentioned Graham Barrett here before, not least as one of those people whom I fear would, if they’d done my doctorate, have done it a good deal better than I did (though, y’know, I’m happy with my outcome). When I mention him, moreover, people pipe up saying how impressed they’ve been with his papers and wanting him to publish on slates, so, you probably want to know about when he presented one called “The Literate Mentality and the Textual Society in Early Medieval Spain” to the Oxford Medieval History Seminar on the 21st November last year, especially since this was kind of a mission statement for his soon-to-be-finished doctorate. So, okay, here I am to tell you about it!

Frontage of León cathedral

Frontage of León cathedral; there are worse places to have to work...

The main question Graham was addressing here was the social level of literacy in Northern Spain, 711-1031, not including Catalonia (though less because of me, I imagine, than because of Michel Zimmermann, whose monster work covers this kind of ground; Professor Zimmermann probably has more to fear from Graham than I do). This gives him some 4,000 charters to play with, of which roughly a quarter are now in the cathedral archive of León. Some useful figures followed, characterising the sample: 61% cartulary copies, 21% originals, 6% loose copies; 54% donations, 36% sales, 10% ‘other’, and so on. He then stressed, however, that these categories aren’t necessarily useful for his kind of enquiry: more relevant may be that only 19% of them are transactions between lay-persons. That’s a lot, by early medieval standards, but the vast majority of the material here still concerns the Church. Preservation peaks at around the year 970, which makes a kind of sense in terms of war and stability but surely needs a better explanation than frequency of randomised destruction; we are instead, Graham argued, probably seeing a sea change in the social uses of writing.

Tower and scriptorium of the monastery of Tábara de León, from its copy of Beatus's Commentary on the Apocalypse, c. 970

Tower and scriptorium of the monastery of Tábara de León, from its copy of Beatus's Commentary on the Apocalypse, c. 970, complete with scribes busy altering the social fabric

[Edits to the first sentence of this paragraph, with apologies] At this point there was a pause to address the historiography, whose various offerings on what early medieval societies were doing with writing Graham didn’t find entirely helpful in his case, and the material he brought to bear more or less proved his point. For example, the boom in document preservation is in non-royal ones, so not driven by government directly.1 Instead he sees the pressure to write as having come from the Church, with monasteries and so forth being set up in new areas and effectively archiving community memories in such terms as boundary clauses, names of witnesses and knowledgeable persons, and so forth, and defending themselves at law in such ways that meant others needed documents too, when without that outsider pressure the whole thing might have rested on the community’s collective memory. (The references to documents the monastery didn’t make and didn’t preserve of course indicate that other people could write as well as the monks, and he would come to this.2) The fact that documents were valued at law – and Graham said that he has no court cases where a side with documentary proof ever loses, which surprised me and must, I think, despite its totality, be a factor of preservation as we’ve seen here before – meant that people were willing to forge them, store them, copy them and if necessary, destroy them.

Title page of a 1058 León codex including a copy of the Liber Iudicorum

Title page of a 1058 León codex including a copy of the Liber Iudicorum, from the Biblioteca Digital Hispanica

The law, which is the Visigothic Code on which Graham was presenting when reported here the time before last, even governed to an extent what documents were supposed to be written, and was itself a form of socially-active writing, albeit one that could be modified or ignored, and referred to silently, i. e. without saying that that’s what it was; it was, at least, a starting point and suggestion for how to deal with the situations it covered.3 One could argue—Graham did not, quite—that the Bible was used the same way, even though its status was rather different, and higher; nonetheless, it too was a source from which the writers of these documents drew their ideas of how things should be arranged (and, indeed, what would happen to those who disarranged them). These two texts were treated with at least some respect; other, lesser, ones were apt to be recycled, modified, edited or miscopied in fruitful ways, and the last part of the paper focused on their writers.

Three scribes, from the Codex Vigilanus of San Martín d'Albelda, circa 976, from Wikipedia

Three identified scribes, from the Codex Vigilanus of San Martín d'Albelda, circa 976, from Wikipedia

Scribes are surprisingly rarely identified in Graham’s documents (it surprises me, anyway, but then I am used to a corpus that is mostly originals) but those who are can be broken down into royal, episcopal, monastic, aristocrats’ and village scribes, almost all clerics or likely to be so. One third of these, roughly, only wrote a single document that survives, but as the period went on it became more usual for a few people to write a lot of charters, which I think probably tells us something about towns becoming spaces of public action and possibly, given its presence in the preservation, the development of León as a capital. These people had written models, of which at least one was the Formulae Visigothicae or, presumably, a version of those texts’ ancestor, with regional variations visible in the detail, and the documents they made could be done at the time of the transactions concerned, although sometimes they would come later. (This must be harder to judge with fewer individuals and I would want to leave some conceptual space for writing them before the ceremony too.)

Archivo de la Catedral de León, no. 978

Grant by King Ordoño I to Bishop Fronimio of León, 28 June 860, Archivo de la Catedral de León, no. 978; slightly bigger version linked through

What the ceremony at which the text was deployed, witnessed, signed and given to the property’s new (or new-again) owner did, argued Graham, was to embed the act of writing and its encoding of an action in society. The increase in specialised scribes, as he saw it (contrary to my suggestion above) was a recognition of this by the powers-that-were, monopolising the authority of text and the ability to make it. Here again is supposed a world where for a while, writing got ‘out’ into a wider social plane, but where before that, it had been mostly élite and rare. Michel Zimmermann would, I think, agree with this, but I’m still struggling to see that boom in access to text in the 970s, which I have in my material too albeit maybe a decade or two earlier, as a phenomenon of society rather than of preservation. I’m not sure that when documents are rarely preserved it necessarily implies that few people of that era could write, rather than just that they were not writing things that get preserved. The Visigothic Law and the Formulae Visigothicae envisage far far more things being written down than we have from the tenth century, and the very limited preservation on slate, rather than parchment, from that era seems to show that in action, with accounts, lists and so on far outnumbering solemn documents.4 I, instead, find it easier to imagine a continuity in attitudes to writing from seventh to ninth centuries and that what changed after that was less more people finding it necessary to get at quills and more a greater number of institutions surviving, due to economic growth and so on, that would preserve a certain sort of document better for us. And for that case I would cite girls being taught to write at home, the incredible scale of loss of documentation from the societies of the Peninsula who didn’t have the good fortune of a continuous Church presence through to the modern era and the apparent survival of Visigothic norms of writing, including to an extent the script (something which is a lot truer for Graham’s area than mine5). All the same, I would certainly have to admit, firstly, that Catalunya no es Espanya, secondly, that the evidence we don’t have is obviously impossible to characterise, and thirdly, that Graham’s more complicated version of the history of text in his area would, indeed, look just the same as my simpler one in terms of evidence that we now have.

1. Compare, most obviously, Michael Clanchy, From Memory to Written Record: England, 1066-1307 (London 1979, 2nd edn. Oxford 1993), for a governmentality-driven thesis.

2. And until this work gets published, there’s Roger Collins, “Literacy and the Laity in Early Medieval Spain” in Rosamond McKitterick (ed.), The Uses of Literacy in Early Mediaeval Europe (Cambridge 1990), pp. 109-133, repr. in Collins, Law, Culture and Regionalism in Early Medieval Spain, Variorum Collected Studies 356 (Aldershot 1992), XVI.

3. Compare Roger Collins, “‘Sicut lex Gothorum continet’: law and charters in ninth- and tenth-century León and Catalonia” in English Historical Review Vol. 100 (London 1985), pp. 489-512, repr. in idem, Law, Culture and Regionalism, V, and Jeffrey A. Bowman, Shifting Landmarks: Property, Proof, and Dispute in Catalonia around the Year 1000, Conjunctions of Religion and Power in the Medieval Past (Ithaca 2004), pp. 33-55, just to stick to the English-language literature.

4. I am used to consulting the slates in Ángel Canellas López, Diplomática hispano-visigoda (Zaragoza 1979), but Graham informs me that I would find many more in Isabel Velázquez Soriano, Documentos de época visigoda escritos en pizarra (siglos VI-VIII) (Turnhout 2000), 2 vols, where there are also pictures, for which you otherwise have to go back to Manuel Gómez Moreno, Documentación goda en pizarra: estudio y trascripción (Madrid 1966), with the reproduction standards of that era.

5. On which see Anscari M. Mundó, “Notas para una historia de la escritura visigótica en su periodo primitivo” in Bivium: Homenaje a Manuel Cecílio Díaz y Díaz (Madrid 1983), pp. 175-196, though cf. Collins, “Literacy and the Laity”. I’m sure Graham could provide far more up-to-date references than all of these but they are where my views came from.

Seminar LXXXIV: going to law in post-Visigothic Spain

On the 2nd February I had a great quandary. In London, at the Institute of Historical Research, the estimable Rosemary Morris was presenting what I understand was an excellent paper featuring charters and shouty peasants; you’d think I’d have been there. But at the same time in Oxford, which is after all where I live now, Graham Barrett was presenting to the Oxford Medieval Church and Culture Seminar about surprisingly similar matters, and his charters and peasants were Spanish not Byzantine. Because of this ability to actually read the documents in question, and the matter of the train fare and late night, and also because Graham is one of two or three people who I’m perpetually glad aren’t working on Catalonia, because if they were I’d have nothing left to say, I opted in the end to stay in town for his paper. It is possible that Professor Morris’s paper will be covered by someone else, and I’ll mention it if that happens; I certainly hope it will. But Graham’s paper was entitled “Visigothic Law after the Visigoths” and it was certainly jolly interesting. It was also rather a while ago, but Graham said afterwards that he was disappointed to see that I wasn’t podcasting it live to the web, so I feel that a slight delay is only just revenge for his taking the mickey…

Title page of a 1058 León codex including a copy of the Liber Iudicorum

Title page of a 1058 León codex including a copy of the Liber Iudicorum, from the Biblioteca Digital Hispanica, seriously would you look at this manuscript isn't it great?

If you don’t know, and why would you etc., after the Muslims toppled the Visigothic kingdom in what is now Spain over the period 711-714, both the parts of it now under Muslim dominion and those not continued to use the lawcode of the Visigothic kings, the Forum Iudicum, Forum of the Judges or Book of Judges (as mentioned just the other day in fact) to regulate their affairs, at least the Christian populations did. This applies as much to Catalonia, and indeed the old Visigothic province in Gaul, Septimania, as it does to Aragón, Castile, León and Asturias (ironically, in the latter case, given how much time it had spent fending off the Visigothic kings when they were around), and argh 25 years ago already now Roger Collins wrote a neat article about this for the English Historical Review which is still an excellent place to start with this stuff.1 (There’s also a bucketload of work in Castilian and Catalan of course, which I don’t know as well as I know I should.2) Since then there has been some work on these matters for Catalonia, but rather less in English than one might wish, and Graham is now moving in to close that gap.3 The Visigothic Code, as it’s also known (and as it’s online in translation), remains important because it is a a weird mixture of the archaic, four- to six-hundred year old rulings being cited in courts, and the current: in Castile and León we have eighteen manuscripts of the code dating to before the twelfth century, mostly from shortly before then, because it was still being copied. These copies are not all complete, and all vary in details, selecting what is useful and adapting accordingly. A detailed comparison of the manuscripts therefore gives a kind of index into what people in any given area were worried about coming up in court, at least it does if we can plausibly locate the manuscripts’ place of use (and Wendy Davies, present, suggested that trying to map usage and citation of the Code around the known manuscripts would be informative, which indeed it would).

A Leonese royal charter of 860

A Leonese royal charter of 860; it doesn't cite the Law, but I haven't got an image of one that does I'm afraid

It’s not just the copies of the law itself that tell us about its use, though, it is cited in dozens of charters, often actually cited with book, title and chapter, and very often these citations are correct. This is impressive, but it’s perhaps more interesting when they’re wrong, or the relevant law doesn’t even exist; here we are presumably seeing a mis-learnt citation or a strong belief that something is such old custom that it just gosh-durn must be in the law; but in the latter case, it’s that it’s in the law that they feel will validate it, not that it’s old custom. (It’s possible, of course, that these citations are intentionally false, since not many people are actually going to be in a position to look this stuff up and in any given assembly the people who are are probably writing the charter…) Not all these uses are even identified, however, which goes to show that to some extent the law genuinely had shaped the way some things were done, or at least the words in which those things were written about. (Graham’s handout has a number of examples of this choice of an otherwise unparalleled phrase to talk about, for example, adultery or homicide.4) These words, Graham hazarded, were probably not usually passing from person to person in the context of full copies of the Code, but just single sheets of the most useful cites perhaps, tucked into a folder of example charters and scraps of formulary that the average scribe might have had to work from, rather than anything as grand as a book. That copying without context could explain a lot of the apparent deviations, though again one would expect practice to dictate which way they deviated.

Folio 64r of the 1058 Leonese copy of the Liber Iudicorum

Folio 64r of the 1058 Leonese copy of the Liber Iudicorum, showing Book IV Title 2 law 20

It has to be said that sometimes, when the laws were invoked, they were deliberately bent or mutilated. I think Graham used this example too, but I can’t pin it down in my notes so I’ll import it from Catalonia: there is a particular law in the code (IV.2.20, as shown above), which protects the rights of the heirs of a property-owner, as follows:

Every freeborn man and woman, whether belonging to the nobility, or of inferior rank, who has no children, grandchildren, or great-grandchildren, has the unquestionable right to dispose of his or her estate at will; nor can any arrangement that either may make, be set aside by any relatives of theirs….

This turns up a lot in donation charters, but when it does, crucially, pretty much everything between ‘whether’ and ‘great-grandchildren’ inclusive is usually left out, so that it becomes a law guaranteeing the right of unrestricted alienation of property when its framer (the glorious Flavius Chindasuinthus, King, no less, as you see above in red) had intended precisely the opposite. Not everyone citing the Code knew this, most likely, but some certainly did because they’d copied it themselves.5 Here we’re nudging at questions about authority and written norms and what you could do with them in the Middle Ages that have troubled many of us and will trouble many more, but the kind of work that Graham is doing here certainly add to the detail we can try and answer such questions from.

Title page of a 1600 edition of the Castilian version of the Book of Judges

Title page of a 1600 edition of the Castilian version of the Book of Judges, from Wikimedia Commons

The way that Graham wound up framing the way these texts were used, then, was as a point of departure. Often, the law would be invoked to set a penalty for a certain thing, but then the document in question records that with that out in the open, a compromise was then reached that was more agreeable to all parties. (Of course, there is a preservation factor operating here, because one of the compromises we see most often was to give some land instead of paying an impossible fine or becoming a slave—those of you who have heard Wendy Davies speak on such matters, or indeed Graham himself in Kalamazoo last year, will recall this practice no doubt—and charters in which land was transferred are tremendously more likely to survive than those in which fines were paid, because land remains relevant long after a person’s criminal reputation or lack of one has disappeared into generational memory loss. On the other hand, we don’t have very many charters at all in which someone sells land to raise money to pay a fine, at least not in which they tell us that’s what they were doing, and precious few where they are actually enslaved (although I could find you one in which such a person was then freed, which may be more likely to be preserved since he would need it to prove he could alienate property legally and that, in turn, would lead to it being preserved with the property charters, etc.6) so it may yet be that the compromise was much more common than the actual sentence being imposed. If I remember rightly, Graham said he knew of one document only out of the thousands surviving (albeit that only hundreds are court cases) where a sentence seems to have actually been carried out as in the law. Even there, I might caution, we’re still just assuming, as other cases where verdicts were subsequently abandoned show. In either case, the law is the framework that the parties start with, but even though the verdict is pronounced by judges, as in the Code, and carried out by an official called the saió just as in the Code, it is very rarely with the Code that people finished. It shaped their world, yes, but they made their own shapes out of it. Authority may not be the word we want: due process may be. The Code determined what was due about the process, and the actual hearing hopefully determined what was fair and equitable. It’s not a bad model for law in a society where enforcement is hard to find.

King Vermudo II of León and Galicia, as depicted in the 12th-century Libro de las Estampas

King Vermudo II of León and Galicia, as depicted in the 12th-century Libro de las Estampas, from Wikimedia Commons

The other thing that interested me especially was a coda in which Graham returned to a throwaway remark with which he’d begun about a note in the Chronicle of Sampiro that records that King Vermudo II of León (985-999) confirmed the ‘Laws of King Wamba’ at some point during his reign. Wamba’s contribution to the Code was very small, and where it occurs lengthy and pompous and making me think more of Patrick Wormald’s warnings about what kings really wanted out of legislation (i. e. to look like real royalty, rather than to improve the affairs of the realm) than almost anything else in the thing, but he was certainly the last king to add to it and therefore the final version was in some sense his; it must be the Code referred to here.7 If so, that’s really interesting because it’s at almost exactly that time that over in Barcelona a certain count called Borrell II whom you’ve heard me mention before started recruiting a new cadre of highly-trained judges to run his courts, one of whom indeed copied a text of the Forum Iudicum that we still have. Why did both of these Iberian potentates at either end of the peninsula decide to revive this juristic form of status-building? For Vermudo, of course, the claim was implicitly to stand in succession to Wamba, as the Code itself says that only the prince may issue laws. To issue the old laws therefore made him a king in that same old style. For Borrell, it was more subtle I suspect: as with much of his policy, his new stress on law and the Code emphasised that his authority stood on ancient foundations that no-one now in power had the authority to deny. The Code was older than the caliphs of Córdoba to whom he sometimes pledged allegiance, older than the Carolingians who’d installed his grandfather, and certainly older than those upstarts in León whom he may once, all the same, have got to consecrate him an anti-Carolingian archbishop.8 I’m pretty sure about all the ways in which, for Borrell, the Code was old. But after hearing Graham’s paper I know that I also need to pay some more attention to the ways in which it was also being made anew.

1. R. Collins, “‘Sicut lex Gothorum continet‘: law and charters in ninth- and tenth-century León and Catalonia” in English Historical Review Vol. 100 (London 1985), pp. 489-512; you could also see his “Visigothic Law and Regional Diversity in Disputes in Early Medieval Spain” in Wendy Davies & Paul Fouracre (edd.), The Settlement of Disputes in Early Medieval Europe (Cambridge 1986), pp. 85-104; both are reprinted in Collins, Law, Culture and Regionalism in Early Medieval Spain, Variorium Collected Studies 356 (Aldershot 1992), V & VI respectively.

2. The things I can most obviously think of are all by Aquilino Iglesia Ferreirós, specifically his “La creación del derecho en Cataluña” in Anuario de Historia del Derecho Español Vol. 47 (Madrid 1977), pp. 99-424 and more recently La Creación del derecho: una historia de la formación de un derecho estatal español : manual (Barcelona 1992) and (I gather from Dialnet) Max Turull, Aquilino Iglesia Ferreirós, Oriol Oleart Piquet, Mònica González Fernández, Historia del derecho español (Barcelona 2001).

3. For Catalonia, I can go no further without mentioning the excellent Jeffrey Bowman, Shifting Landmarks: Property, Proof, and Dispute in Catalonia around the Year 1000, Conjunctions of Religion and Power in the Medieval Past (Ithaca 2004), of which pp. 33-55 cover this stuff.

4. And since there has so far been no late Latin in this post at all, let me take one of his examples here: the Law says, “If a freeborn woman mixes herself up in adultery with her own slave or freedman, or else wishes to have him as her husband, and she is convicted of this by clear proof, she should be put to death”, “Si ingenua mulier servo suo vel proprio liberto se in adulterio miscuerit aut forsitan eum maritum habere voluerit et ex hoc manigesta probatione convincitur occidatur”, text from 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), Book III Chapter 2 Title 2, emphasis Barrett’s. Then, we find in a charter preserved by the nunnery of Sobrado from 858 the confession, “I mixed myself up in adultery with the slave of Hermegildo named Ataulfo”, Commiscui me in adulterio cum servo Hermegildi nomine Ataulfo”, ed. P. Loscertales & G. de Valdeavellano in their (edd.) Tumbos del Monasterio de Sobrado de los Monjes (Madrid 1976), doc. no. 75, emphasis and transl. Barrett. Note, of course that firstly, that was not the woman’s slave but someone else’s, and secondly, that she was not put to death as the law prescribes. More on that below…

5. Here I run shamelessly off the back of Bowman, Shifting Landmarks, pp. 39-43. One of the people we know knew this stuff was my official favourite scribe, the judge Bonhom (or Bonsom, often, in the literature), whom Bowman discusses ibid. 84-99 along with his fellows. We know Bonhom knew it because we still have his own, heavily-glossed, copy of the Law, it being Biblioteca del Monasterio del Escorial, MS z.II.2, and recently fully edited as Jesús Alturo i Perucho, Joan Bellès, Josep M. Font Rius, Yolanda García & Anscarí Mundó (edd.), Liber iudicum popularis. Ordenat pel jutge Bonsom de Barcelona (Barcelona 2003). And, now that I look at Graham’s handout more closely, I see he has an example of just this kind of misuse of the same clause from Emilio Sáez (ed.), Colección documental de la Catedral de León (775-1230), vol. I (775-952), Fuentes y estudios de historia leonesa 41 (León 1987), doc. no. 256.

6. In fact, I will: it’s Eduard Junyent i Subirà (ed.), Diplomatari de la Catedral de Vic (segles IX i X), ed. Ramon Ordeig i Mata (Vic 1980-1996), doc. no. 161, also ed. in Ordeig (ed.), Catalunya Carolíngia IV: els comtats d’Osona i de Manresa, Memòries de la Secció històrico-arqueològica LIII (Barcelona 1999), doc. no. 392, in which a priest called Nectar buys someone out of penal slavery enjoined upon him for homicide. The relevance of this example is that the priest, whose name was Nectar, yet, already, says in the document that one sentenced to slavery cannot redeem himself, which looks like a legal citation but is actually not in the Law.

7. The chronicle reference is J. Pérez de Urbel, Sampiro: su crónica y la monarquía leonesa en el siglo X (Madrid 1968), cap. 30, Silense redaction, and when I invoke Patrick Wormald I mean his “Lex Scripta and Verbum Regis: legislation and Germanic kingship, from Euric to Cnut” in Peter Sawyer & Ian Wood, (edd.) Early Medieval Kingship (Leeds 1977), pp. 105-138.

8. On Borrell’s management of the past I hope you will soon be able to see J. Jarrett, “Caliph, King or Grandfather: strategies of legitimisation on the Spanish March in the reign of Lothar III” in The Mediaeval Journal Vol. 1 (Turnhout forthcoming); on the archbishop, meanwhile, see idem, “Archbishop Ató of Osona: false metropolitans on the Marca Hispanica” in Archiv für Diplomatik Vol. 56 (München 2010), pp. 1-41 at pp. 13-16, and refs there.

Seminar LXXXII: tiny laws and constraining categories

The lecture that had swallowed me is done and so I can tackle some backlog. In order to make some ground I’m going to reluctantly skip over two Oxford papers I went to about which, for one reason or another, I just don’t have anything useful to say,1 and skip straight on to Tom Faulkner presenting at the Institute of Historical Research Earlier Middle Ages Seminar on 26th January 2011, with the title “Peoples and Legal Practice in the Carolingian Minor Law-Codes”. Now, I dithered about skipping this one too, not because it wasn’t fascinating, but because again Magistra et Mater has got in ahead of me and covered it excellently already. But there remain a point or two that it’s still worth drawing out. You may want to read her post first, though, because she’s done a better job of explaining what the paper was actually about than I’m going to have time to do.

Opening of a 793 copy of the Lex Salica

Opening of a 793 copy of the Lex Salica, says the originating website

In 802 a couple of Carolingian sources record that Charlemagne had all the ‘laws of the nations’ in his empire written down and thus fixed.2 And we have a number of texts of such laws, the most obvious one being the Law of the Salian Franks or Salic Law, but also the Laws of the Burgundians, Laws of the Lombards, Laws of the Bavarians, and so on (and of course the Law of the Goths, which is different, not least because it’s actually called the Forum of the Judges—that is, it’s not ethnic in its presentation).3 Some of these things had been out there for a long time but that endeavour of 802 probably has a lot to do with the state of the current texts, Goths aside, not least because recent work by such as Christina Pössel is emphasising how new some of the apparently ‘ancient’ practices in the Salic Law might have been. But if so, there are some weirdnesses to tackle. There had been no independent Burgundian kingdom for nearly three hundred years by this time. Who called themselves a Burgundian any more and on what could that claim rest? And similar problems arise for texts Tom was talking about, not least the Ripuarian Franks, a group who appear in basically no sources other than this law. Ripuaria as an area does occasionally get mentioned, but it’s a pagus, not a regnum, a district not a kingdom. Tom argued that really, it might be little more than the territory of the see of Cologne. But this lawcode of a basically illusory people is one of the more copied ones of the group, perhaps just because it had useful stuff which could be raided for means with which to make decisions in the very (very!) few cases where we have reasons to suppose such lawcodes were actually used, rather than just stored up as tokens of nationality.

Map showing probable location of Amor

Map showing probable location of Amor

Such dilemmas get even more pronged when dealing with a text called the Ewa ad Amorem. This is a very different sort of law text, though it has been associated with this big endeavour: Tom laid it out for us and it seems pretty clearly like a set of rules being agreed in a community for how they’re going to handle various affairs, like land sales and thefts. It seems to relate to a little place in Frisia called Amor, and it is extensively referential to other codes (which is nice, because, as Tom had pointed out, Lex ribuaria actually quotes modified Salic law quite a lot too) and peoples, so that you get frankly unhelpful statements like: “… about ecclesiastical affairs and about the servants of God who serve there, we have the same, as the Franks have.” Which Franks? Salic, Ribuarian or real? And so on. Although Levi Roach found parallels in Anglo-Saxon laws (some of which are actually usually called treaties) and someone else in Venetian treaties with foreign powers, the whole thing put me in mind of nothing so much as Spanish fueros, which were civil law codes constructed for new towns in the frontier zones, by the locals in agreement with the king. The counts of Catalonia do the same sort of thing sometimes, too. A central authority and its rights are recognised, but the actual day-to-day stuff is left local, and the implication there is that that’s because they’re rather on their own and central help and involvement will be hard to come by. In that last respect, though, Ewa ad Amorem is different; it’s clear from a reading that this code has become necessary precisely because king’s officers, counts and so on have been in the area a lot and there are problems making this mesh with the local way of doing things, not least because until this was written probably there was limited agreement on what that way was. So, though Tom didn’t really make much of this point, this little code is more interesting to me than the big ones because it seems to have the same sort of ad hoc necessity as some of the capitularies, and may show us how being on the more-or-less-willingly receiving end of Carolingian administrative reform worked out in practice.

A folio of the Capitulare de Villis, from Wikimedia Commons

A folio of the Capitulare de Villis, from Wikimedia Commons

More could be done with this, but only if we spread the categories we have for Carolingian law more thoroughly away from the binary of codes and capitularies (or proscriptive and responsive, ethnic and royal, regional and central… always with the diads, as Susan Reynolds has observed, when triads (or arrays!) might be more helpful) into something a bit more slippery. As Susan herself said, it’s not that there are no categories that work for this: all these things are sets of rules, of some sort, but putting them into a particular ‘sort’ has often distorted our subsequent thinking about them. And we have the same problem with a lot of other categories in this area: the capitularies themselves are so-called solely because they are arranged in headings, capitula (chapters, capitals…). They cover an immense range of topics, however, and are in form anything from minutes of meetings or even agendas for meetings that maybe didn’t happen through case-law being worked out into general knowledge to grand-scale moral state-of-the-empire preaching addresses.4 Not even the process is the same here and a different word or words for some of them might help us think. And even I could adjust: `charter’ is a good catch-all for the documents I want to study but only with exactly the right definition.5 But my category covers sales, donations, wills, securities, homage agreements, pledges, manumissions and basically most stuff, and people have put a lot of work into worrying if these things all work the same way and much of it has made useful distinctions.6 So Tom deserves all credit for making what could have been a dry and technical field accessible an of lively interest to an audience many of whom specialise in other things, but he has also given me some useful tools with which to try and enlarge my own, er, toolbox. (Pity he didn’t give me some new metaphors too, right?)

1. Mark Williams, “Stormy Weather: divine women and the figure of sin in Aided Muirchertaig meic Erca“, Oxford Celtic Seminar, 20th January 2011, was as engaging and entertaining as Mark always is, where I’ve seen: he tells good stories about good stories. But aside from the fact that it is a good story, I really wouldn’t know what to say about the paper: it was all new to me. I probably can’t spell most of it, even. And Richard Allen, “Life before Lanfranc: the careers of three archbishops of Rouen, 942-1054/5”, Oxford Medieval History Seminar, 24th January 2011, was an expansion of the earlier paper of Richard’s I reported on last year and I don’t think I can think of anything extra to say this time round.

2. Specifically Einhard’s Vita Karoli and the Annals of Lorsch, the former of which is edited in the MGH and thus online here and more accessibly to the Anglolexic, at the cost of some appreciation of how cunning his Latin is I am told, and more on that later, by Lewis Thorpe in his Two Lives of Charlemagne: Einhard and Notker the Stammerer (Harmondsworth 1969, many reprints), and the latter edited by Ernst Katz in Georgius Heinricus Pertz (ed.), Monumenta Germaniae Historica inde ab anno Christi quingentesimo usque ad annum millesimum et quingentesimum: Scriptores tomus I (Hannover 1839), pp. 19-39, and mostly translated by P. D. King in his Charlemagne: translated sources (Lancaster 1987), pp. 137-145.

3. As well as the snippets from the Internet Medieval Sourcebook I’ve linked to above, most of these texts exist in some kind of translation, thus I know of: Katherine Fischer Drew (transl.), The Laws of the Salian Franks (Philadelphia 1991) and eadem (transl.), The Lombard Laws (Philadelphia 1996), though I also know that I somewhere read a review of the former by Patrick Wormald (in English Historical Review or Speculum I think, something I could hit by accident on JSTOR anyway) in which he said, roughly, “well, we’ve been needing a decent translation of the Salic Law for a long time and guess what, we still do”. Not a man to mince his words, dear Mr Wormald. There’s also Theodore John Rivers (transl.), The Laws of the Salian and Ripuarian Franks (New York City 1986), which I guess didn’t meet his exacting taste either. Still plenty more to do though. For the Goths, there’s S. P. Scott (transl.), The Visigothic Code (New York City 1910, 2nd. edn. 1922), online here. The Latin of all these texts and more is edited in the various volumes of the MGH’s Leges series. On how the Visigothic Law survives in this period, you can see Roger Collins, “‘Sicut lex Gothorum continet‘: law and charters in ninth- and tenth-century León and Catalonia” in English Historical Review Vol. 100 (London 1985), pp. 489-512, & idem, “Visigothic Law and Regional Diversity in Disputes in Early Medieval Spain” in Wendy Davies & Paul Fouracre (eds), The Settlement of Disputes in Early Medieval Europe (Cambridge 1986), pp. 85-104, both of which are reprinted in R. Collins, Law, Culture and Regionalism in Early Medieval Spain, Variorum Collected Studies 356 (Aldershot 1992), V & VI respectively, but now also Jeffrey A. Bowman, Shifting Landmarks: Property, Proof, and Dispute in Catalonia around the Year 1000, Conjunctions of Religion and Power in the Medieval Past (Ithaca 2004), pp. 33-55.

4. Best now approached via Rosamond McKitterick, The Carolingians and the Written word (Cambridge 1989), pp. 23-37, and now Christina Pössel, “Authors and Recipients of Carolingian Capitularies, 779-829” 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.

5. And that definition is: “A document constructed as if for public reference, by which one party affirms the rights of another”, for which if you like you can quote J. Jarrett, “Pathways of Power in late-Carolingian Catalonia”, unpublished Ph.D. thesis (University of London 2005), p. 27. I think it’s the only one that works.

6. Not least of course Wendy Davies, Acts of Giving: Individual, Community, and Church in Tenth-Century Christian Spain (Oxford 2007), which deliberately covers only one sort of document and is really interesting about it.

Kalamazoo and Back, IV: in which I am substantially preceded

We apologise for the delay. Trust me, there have been good reasons for this which will be vouchsafed in due course. Anyway, this is about the Saturday of Kalamazoo, in which the weather improved, there was a dance at evening and in which almost everything I went to was from before my period. The result of this is that it has largely been covered by Curt Emanuel, but I’ll add my two penn’orth anyway, because, well, of consistency and self-importance largely I suppose. So then!

Session 409: Early Medieval Europe II

I had been to bed very late the previous night, but somehow found the trick of deep sleep once more. This unfortunately meant that I was late to the first session of the day, largely because I was still dozy and took a stupid route up the hill to where it was. I was however less chagrined about this than I might have been because I heard an earlier version of this paper in a graduate seminar here in Cambridge, and you can be less chagrined about the gappy coverage because as mentioned this one is already written up in detail at Medieval History Geek. It was in fact:

  • Margaret McCarthy, “Louis the Stammerer and the Development of a Kingly Identity”. Margaret’s basic contention, and a soundly-founded one, is that Louis should not be seen as a poor successor to Charles the Bald; starting from a very bad situation that Charles had largely engineered, he was as far as we can now tell doing all the sensible things someone in his position could do to garner support and establish himself as an accepted and legitimate Carolingian ruler, and had he not died so soon he might have gone places. Interestingly, the charters he did have time to issue included some not to places not in his own kingdom; whether this says something about territorial ambitions or about pan-Carolingian status, especially at a time when non-Carolingians were raising their neo-royal heads, is something we can probably never resolve, though.
  • Margaret was followed by Karl Heidecker, who is rarely less than controversial and was here talking to the title, “Carolingian Government and Social Practice: designs of imperial and Christian reform and their consequences in people’s lives”, which was more specifically, firstly, about how far the reform of marriage under the Carolingian kings actually had an effect on the everyday person. He pointed out that the kings themselves did not define marriage, only ruled certain sorts out as illicit; the definition came out of a subsequent process, almost of exegesis, of the legislation and conciliar rulings, by various clerics across the successor kingdoms. Very often cases were decided on a political basis rather than an ideological basis, and in fact the definitions were probably largely created around these troublesome cases where competing agendas meant that normal practice couldn’t be followed. The second part of the paper examined office-holding in Carolingian-conquered Alemannia and pointed out that there are some zones where a ‘regular’ practice of assimilation was followed, some where locals were left in place and some where all vestiges of the local élite were squashed out. This fit perfectly with my picture of variable pathways of power from élite to ground so I was happy to hear it from another area, an area moreover where very similar techniques to mine are being employed by the researchers.
  • Third paper in the session was Justin Lake, speaking to the title “Pompatica scientia in the tenth century”. He was talking about attitudes to learning in the tenth century, which should be bang on my period especially since my particular area in that period is, at its upper levels, keen on Greek and may well have introduced the astrolabe to the west, via a man renowned for his knowledge but also drummed out of every job he held except the last one and later regarded as a Muslim-trained wizard. All the same, in actual historian’s terms I don’t think I’ve much to add to the Medieval History Geek’s coverage for this one so I suggest you go look there.

Session 457. Early Medieval Europe III

(Also covered at Medieval History Geek here.)

  • After lunch, I got to have the particular thrill that is finding someone working on a subject almost but quite one’s own in ways one hadn’t thought of. He was however preceded by none other than Ralph Mathisen, speaking to the title “Desiderius of Cahors and the End of the Ancient World”. This was a light-hearted paper with a serious core; its ostensible purpose was to find a candidate for the last of the Romans, in an intellectual-cultural sense, and justify the choice (which was Desiderius). Of course there’s no way to do this without tackling serious issues of what distinguishes antique from medieval and that was the real point of the paper: Ralph saw in Desiderius and his cronies the last generation of an élite who saw themselves as inheritors of the culture of Virgil, letter-writers and Classicists, who did not however train up a following generation. Of course, the Carolingianists could and did put up arguments for a framing of intellectuals like Einhard (whose letters are really not very different in content) as the same sort of thing, but the absence of a continuity between the 560s and the 780s for this kind of culture of letters does seem to be arguable, albeit necessarily from silence which is the real issue I think. Even Einhard’s letters are something of a lucky survival, alongside Alcuin’s and Theodulf’s poems (which are, indeed, not quite of the same flavour, which is perhaps a good time to remember that unlike those two Einhard was (a) Frankish and (b) a layman…). What else might have been out there that subsequent monastic archives didn’t have a use for?
  • Ralph Mathisen presenting an earlier Kalamazoo paper

    There are some surprising things to be found on W. Mich's image server if you dig. Here is Ralph Mathisen himself presenting a Kalamazoo paper from I think 2008

  • Second up was Graham Barrett (I get this name wrong because of other Barretts more local to me, but have checked it against his handout), who was talking to the title “Literacy, Law and Libido in Early Medieval Spain”. Now, though you might assume that this would be a paper based on Visigothic law and Councils, actually it was a charter paper: Graham was focussing on 30 cases of prosecution for adultery that survive in the archives of non-Catalan Northern Spain from 954-1081. These are preserved because, despite the law that they cite prescribing penance for the crime, they impose fines, which are paid in land that then becomes some preserving institutions. Certain rulers seem to take advantage of the fact that the Visigothic Law saw adultery as a public crime, which could therefore be prosecuted by anyone, not just the other spouse, to extract lands from those unable to keep continent. As you can see Graham is working some very similar veins to mine here, which I hadn’t realised at all when last we’d met, so I was not only extremely interested but rather glad he’d omitted Catalonia, where however we have nothing of the kind that I’ve yet seen.1
  • Last paper in the session was by David Dry, and was entitled, “Episcopal inheritance: replicating power in the Merovingian Gaul”; it was largely a treatment of episcopal election and the interests that governed it in the Merovingian period, primarily from the work of Gregory of Tours because that’s so much of what here is. Particulaly emphasised was the amount of trouble the bishops could make for a king, and the high status they enjoyed, which we somehow have to reconcile with the need they had for royal patronage. I should make more of Merovingian bishops in this way than I do because they illustrate so clearly the power that being a negotiator that both sides need can accrue for a person; Dry brought this out nicely.

A certain amount of confused wandering around the Fetzer building trying to find coffee and get back for the next session left me eventually deciding that the latter would have to take precedence and I snuck in through the introductory remarks of the convenor of…

520. Beyond Bede II: later Anglo-Saxon England

    A Kalamazoo session in a room in the Fetzer Center

    I'm pretty sure this is the same room or one functionally equivalent, but it's probably also from 2008

    I am something of a fan of Saint Bede, as the keen reader here may have noticed, and although I have no research contribution to make about Anglo-Saxon England I like to keep my mind in with it, as it were, so for this and other reasons I’d stopped in here to hear what turned out to be two papers about almost exactly the same material, Alice Olson presenting to the title “The Legacy of Bede in the Anglo-Saxon homilies” and Helen Foxhall Forbes to that of “Bede and Goscelin”, with a response by Allen Frantzen. Alice was interested in proving Æfric’s use of Bede by picking on a more or less unique piece of material that he borrows, the fourfold vision of Hell set out in a homily of his known as the vision of Dryhthelm. She mentioned some other possible sources and some theological complications of it but thought that the case for derivation was fairly obvious. Helen then set out the schema in detail, artfully reprising a Powerpoint presentation she’d not been able to use because of an absence of a projector solely with whiteboard markers, and showed how Bede’s version of this is unique, although he has two variants of it: before the Judgement the division is between Heaven, where the saints are already with God; Paradise, a sort of anteroom where those who will be saved at the last Judgement but were not quite express Heaven-goers await; Purgatory, where those sinners who can be saved are punished before their upward passage to Paradise, and Hell where the utterly damned are confined for eternity with no hope of escape. At the Judgement, however, he sees the Perfect, who will judge, the Good, who will be judged and admitted to Heaven, the Wicked, who will be dismissed to hell, and the unbaptised and apostates who receive no judgement. It is this latter bit that is the other sources Alice had mentioned, but the previous interim is all Bede’s own. So these two papers wound up complementing each other rather well, though I think both speakers would have changed their material somewhat if they’d known how close they were working. Frantzen’s response stressed the position of Bede with respect to heresy, which as Bede saw it was in the past, leaving him free to originate interpretation; Frantzen wisely asked whether Æfric would have approved of this schema of Bede’s, which is at the least unusual, if it had been in another writer less revered. He and the convener also reminded us that it is very unusual for theological work of Bede’s to enjoy this kind of reuse; although his impact was huge in historical terms, the other works circulate much less and the homilies hardly at all, at least not under his name. This would all doubtless be a bit abstruse for the general listener, but I think that even that listener would have been temporarily enthralled by a scheme of damnation that you can draw on a board; the power of the visual aid was made very clear by this. I enjoyed the session a lot.

And then it was the evening, and at this point I confess that I briefly ran out of up. I had food in my room to finish so I retired there and nearly didn’t go out again. Eventually, however, I recovered myself and somewhat grimly set out for the dance knowing that I’d regret not going more than I would going, and this was quite right. I don’t know that the dance is better than Leeds’s, now, though that’s only because Leeds’s has got a lot better in the last two years and because good heavens the beer at Kalamazoo’s dance is expensive, but it has a far better space to be in and the music ranges slightly more widely. This suits me because my music taste is largely (like myself) at the fringes of a dancefloor, and at Leeds just gone, despite the encouragement of Stuart Airlie, there was only really one song that got me properly,2 whereas at Kalamazoo there were three, and the last of them was the Sex Pistols which I can’t imagine ever being played at Leeds. I suspect a more heavily Anglophone constituency probably partly explains this but it could just be that all British discoes are firmly stuck in the nineties and imagine their entire attendance is hen parties. I may possibly over-generalise.

Simon Trafford at the Saturday dance at Kalamazoo in some year past

Headbanging! This man wasn't there so I had to step in

Anyway, I went, I drank lightly, I was dragged onto the floor by three different charming women,3 I threw my hair around and then I quit while I was ahead and went home to bed. In this, I admit, I was disobeying the dictum given me in the very early hours of that morning by Elizabeth MacMahon as we wended our briefly coincidental ways to our separate abodes, so it’s probably now time that was told. I’d complained of being short of sleep, and she wisely responded:

Sleep? There is no sleep. This is the
Bataan death march of scholarly fun!

Even with that statement ringing in my ears, however, I was still presenting early next morning and then flying across the Atlantic, so I disobeyed orders and went and slept, but with a much better day behind me than I’d expected a few hours previously.

1. He thus joins Eduardo Manzano Moreno and of course Wendy Davies as people who could obviously have done my project and probably faster if they’d been minded to and to whom I am therefore grateful for leaving me space. The difference so far is that Manzano’s two English articles actually started me on the whole project and Wendy’s Small Worlds showed me how I was going to do it; I rather imagine, though, that Graham will start similar fires under people in a few years.

2. ‘Blue Monday’ by New Order, since you ask.

3. All members of the group of women with whom I am most popular, which is, those who are already happily attached to someone else…