A Cultural History of Law in the Middle Ages Volume 2 9781474212533, 9781474206617, 9781350079274

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A CULTURAL HISTORY OF LAW VOLUME 2

A Cultural History of Law General Editor: Gary Watt

Volume 1 A Cultural History of Law in Antiquity Edited by Julen Etxabe

Volume 2 A Cultural History of Law in the Middle Ages Edited by Emanuele Conte and Laurent Mayali

Volume 3 A Cultural History of Law in the Early Modern Age Edited by Peter Goodrich

Volume 4 A Cultural History of Law in the Age of Enlightenment Edited by Rebecca Probert and John Snape

Volume 5 A Cultural History of Law in the Age of Reform Edited by Ian Ward

Volume 6 A Cultural History of Law in the Modern Age Edited by Richard K. Sherwin and Danielle Celermajer

A CULTURAL HISTORY OF LAW

IN THE MIDDLE AGES Edited by Emanuele Conte and Laurent Mayali

BLOOMSBURY ACADEMIC Bloomsbury Publishing Plc 50 Bedford Square, London, WC1B 3DP, UK 1385 Broadway, New York, NY 10018, USA BLOOMSBURY, BLOOMSBURY ACADEMIC and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © Bloomsbury Publishing Plc, 2019 Emanuele Conte and Laurent Mayali have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as Editors of this work. Cover image: ITALY – CIRCA 2002: Cardinal Virtues, Allegory of Justice, detail of the mosaic floor, the presbytery of the Basilica of San Savino, Piacenza, Emilia-Romagna. Italy, 12th century. (Photo by DeAgostini/Getty Images) All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. Bloomsbury Publishing Plc does not have any control over, or responsibility for, any third-party websites referred to or in this book. All internet addresses given in this book were correct at the time of going to press. The author and publisher regret any inconvenience caused if addresses have changed or sites have ceased to exist, but can accept no responsibility for any such changes. A catalogue record for this book is available from the British Library. A catalog record for this book is available from the Library of Congress. ISBN: HB set: 978-1-4742-1285-4 HB: 978-1-4742-1253-3 ePDF: 978-1-3500-7927-4 eBook: 978-1-3500-7928-1 Series: The Cultural Histories Series Typeset by Integra Software Services Pvt. Ltd To find out more about our authors and books visit www.bloomsbury.com and sign up for our newsletters.

CONTENTS

L ist

of

N otes

F igures on

C ontributors

vi viii

S eries P reface

x

Introduction Emanuele Conte and Laurent Mayali

1

1 Justice Joshua C. Tate

11

2 Constitution Emanuele Conte, Laurent Mayali and Beatrice Pasciuta

23

3 Codes Elsa Marmursztejn

45

4 Agreements: The Discovery of the Market and the Control of the Guilds Jonathan Garton

61

5 Arguments Beatrice Pasciuta

77

6 Property and Possession Tyler Lange

95

7 Wrongs: Towards a Cultural History of a Medieval Legal Concept Karl Shoemaker

113

8 Legal Profession Sara Menzinger

125

N otes

140

B ibliography

145

I ndex

165

LIST OF FIGURES

INTRODUCTION 0.1 Forms of justice and games. Floor mosaic, presbytery of the Basilica of San Savino, Piacenza. 12th century.

1

0.2 Trial by combat (detail of fig. 0.1).

2

0.3 Trial by law (detail of fig. 0.1).

2

0.4 Game of dice (detail of fig. 0.1).

3

0.5 Game of chess (detail of fig. 0.1).

3

0.6 Mosaic center (detail of fig. 0.1).

4

JUSTICE 1.1 Henry II and Virtues. Miniature in the Gospel of Henry II. Rome, Vatican Library, ms. Ott. lat. 74. 1014–24.

13

1.2 Allegory of Bad Government. Ambrogio Lorenzetti, Siena, Palazzo Pubblico. 1339. 14 1.3 Allegory of Good Government. Ambrogio Lorenzetti, Siena, Palazzo Pubblico. 1339.

14

1.4 Last Judgment (Fra Angelico). Florence, Museo San Marco. 1440.

14

CONSTITUTION 2.1 Palace of Theodoric, Ravenna. Basilica of Sant’Apollinare Nuovo. 6th century. 25 2.2 The Donation of Constantine. Rome, Church of Santi Quattro Coronati. 1248.

28

2.3 Roger II being crowned by Christ. Palermo, Church of La Martorana. 12th century.

31

2.4 St Nicholas crowning Roger II. Bari, Museo Nicolaiano, 12th century.

32

2.5 King Roger portrayed as an Arab caliph. Picture on wood. Palermo, Palatine Chapel. 12th century.

33

2.6 Throne of King Roger in the Palatine Chapel, Palermo. 12th century.

34

CODES 3.1 Moses receiving/breaking the Tablets of the Law. Paris, Bibl. Mazarine, ms. 870. 1295.

47

List of Figures

vii

3.2 Gratian, Decretum with the Gloss of Bartholomew of Brescia. Paris, Bibl. Mazarine, ms. 1290, fol. 173. 1380–1395.

51

AGREEMENTS 4.1 Craftsmen at Work. Miniature in the book of Leonardo Dati, De Sphaera. Modena, Biblioteca Estense. 1470.

62

4.2 Thomas Aquinas. Unknown artist.

64

4.3 Aristotle. Roman copy, made in the 1st century CE, of a bronze by Lysippus, 4th century BCE.

66

4.4 Guild Ordinances of the Bakers of York, 1595–1596. From J. R. Green, Short History of the English People (1893).

70

ARGUMENTS 5.1 God confronts Adam and Eve. Mosaic. Monreale (Sicily), Cathedral of S. Maria la Nuova. 12th–13th century.

79

5.2 The Last Judgment. Miniature in the Queen Mary Psalter. London, British Library, ms. Royal 2.B.vii, fol. 302v. 1310–20.

82

PROPERTY AND POSSESSION 6.1 Seal of Gilbert de Clare, Earl of Gloucester and Hertford. 1218–1230.

109

6.2 Arms of Jean IV de Beauvau, d. 1468.

111

WRONGS 7.1 Feud. London, British Library, ms. Royal 13.B.viii. 13th century.

118

7.2 The beheaded body of King Saul displayed by the Philistines. Miniature in a French manuscript of the Bible. New York, The Morgan Library and Museum, ms. M.638, fol. 35v. 1244–54.

123

LEGAL PROFESSION 8.1 Judgment given by the Pharaoh (as in Gen. 41.1–13) portrayed as the Anglo-Saxon king with his noblemen. London, British Library, ms. Cotton Claudius B.iv, fol. 59. 11th century.

126

8.2 A lecture to university students in Bologna. Laurentius de Voltolina, miniature. Berlin/Staatliche Museen Preussischer Kulturbesitz, Min. 1233. 14th century.

132

8.3 Alfonso X as a judge. Miniature in the Libro de los Juegos. Madrid, Biblioteca de El Escorial, ms. T.i.6. Second half of the 13th century.

134

8.4 The just judges. Hubert and Jan van Eick, altarpiece (detail). Ghent, Flanders. 1432.

136

8.5 Saint Lucy before the judge Paschasius. Altichiero da Zevio, fresco. Padua, Oratory of Saint George. Second half of 14th century.

138

NOTES ON CONTRIBUTORS

Emanuele Conte is Professor of Legal History at the University Roma Tre and Directeur d’Études at the École des Hautes Études en Sciences Sociale in Paris. His publications include Servi medievali. Dinamiche del diritto comune (1996) and La fuerza del texto. Casuística y categorías del derecho medieval (2016). His research interests range from legal philology to the role played by historical research in the legal theories. Jonathan Garton is Professor of Law at the University of Warwick. His research focuses on the law and history of civil society organizations, particularly charities and medieval guilds. His books include The Regulation of Organised Civil Society (Hart 2009), Public Benefit in Charity Law (Oxford University Press 2013) and Moffat’s Trusts Law (Cambridge University Press 2015). Tyler Lange is Secretary of the Board of Regents of the University of Washington. He has taught at the University of California, Berkeley, and as a visiting professor at the École Normale Supérieure in Paris, and has held research positions in Frankfurt and Berkeley. His publications include Excommunication for Debt in Late Medieval France (Cambridge University Press 2016) and The First French Reformation: Church Reform and the Origins of the Old Regime (Cambridge University Press 2014). He is currently researching the intersection of law and the liturgy in the late Middle Ages. Elsa Marmursztejn is Senior Lecturer in Medieval History at the University of Reims and associated researcher of the Centre de Recherches Historiques at the École des Hautes Études en Science Sociales in Paris. Her publications include L’Autorité des maîtres. Scolastique, normes et société au XIIIe siècle and Le baptême forcé des enfants juifs. Question scolastique, enjeu politique, échos contemporains. Her research interests range from medieval scholasticism to the history and historiography of the Jewish-Christian relationship. Laurent Mayali is Lloyd M. Robbins Professor of Law at the University of California, Berkeley and holds the chair “Romanité chrétienne et sources du droit moderne” at the École Pratique des Hautes Études, Sciences religieuses in Paris. His research interests range from medieval jurisprudence to comparative law. His publications include Droits Savants et Coutumes. L’exclusion des filles dotées (1985); Identité et Droit de l’Autre, with M. Mart, (1995); Le façonnage juridique du marché des religions aux Etats Unis (2002); Japanese Family Law in Comparative Perspective with Harry Scheiber, (2009); Current Issues in Korean Law, with John Yoo (2014). Sara Menzinger is Professor of Legal History at the University Roma Tre. Her research focuses mainly on medieval public law, on fiscal theories of the twelfth and the thirteenth century, and on the concept of citizenship in the Medieval West. Her publications include

NOTES ON Contributors

ix

(with Emanuele Conte), La Summa Trium Librorum di Rolando da Lucca (1195–1234). Fisco, politica, scientia iuris, Roma 2012; Cittadinanze medievali. Dinamiche di appartenenza a un corpo comunitario, Roma 2017. Beatrice Pasciuta is Professor of Legal History at the University of Palermo. Her publications include Il Diavolo in Paradiso. Diritto, teologia e letteratura nel Processus Satane (XIV secolo) (2015; also in spanish: El Diablo en el Paraiso), and From Ethnic Law to Town Law: The Customs of the Kingdom of Sicily from the Twelfth to the Fifteenth Century (2016). Her research interests range from history of trial and civil procedure to institutional and legal history of the kingdom of Sicily. Karl Shoemaker is Professor of History and Law at the University of Wisconsin, Madison. His publications include Sanctuary and Crime in the Middle Ages, 400–1500, as well as articles including “Regarding Untimeliness: Medieval Legal History and Modern Law,” and “Criminal Procedure in Medieval European Law: A Comparison Between English and Roman-Canonical Developments after the IV Lateran Council.” Joshua C. Tate is Professor of Law at Southern Methodist University in Dallas, Texas. He is an Academic Fellow of the American College of Trust and Estate Counsel, serves as the Selden Society’s Honorary Treasurer for the USA, co-chairs the Uniform Acts for Trust and Estate Law Committee for the ABA Real Property, Trust and Estate Law Section, and is a past chair of the Sutherland Prize Committee for the American Society for Legal History. He is currently engaged in a study of the development of property rights and remedies in medieval England, focusing on issues of jurisdictional conflict with regard to rights of presentation to churches.

SERIES PREFACE

The six volumes in A Cultural History of Law present a panorama of law’s cultural significance over the span of several centuries, especially as it relates to the place of law in the arts and humanities. Each volume focuses on a distinct time period from antiquity to modernity and in each volume a chapter is devoted to one of eight legally significant themes: “Justice,” “Constitution,” “Codes,” “Agreements,” “Arguments,” “Property and Possession,” “Wrongs” and “The Legal Profession.” The collection does not seek to provide encyclopedic coverage, but rather to present cultural case studies that highlight how particular cultural artefacts express and explore the key legal—and inevitably the key political and social—concerns of their time. The authors have picked flowers from their field of expertise—a play, a painting, a mosaic, a book, a film—which bring into close focus the cultural and legal flourishing of the time. The volume editors are internationally distinguished scholars with a passion and deep appreciation for the law and culture of their chosen period. Together with the experts that they have assembled to contribute chapters on the eight themes, they are reliable guides not merely to the facts about each period but to the feel of each period. Every volume has an ethos and a style that immerses the reader in the distinctive quality of its era. The series is indebted to the archivist’s concern to discover and catalog historical materials, but what sets it apart is its concern to show how the materials of history are materially meaningful. In this way, our retrospective of more than 2,000 years continues to have relevance for lawyers and for all culturally concerned citizens today. Sometimes we find that artefacts have lost the cultural meanings that first produced them. Likewise, we sometimes we find that artefacts are culturally meaningful today in ways that they were not at the time of their creation. Take the example of Magna Carta— The Great Charter of King John of England sealed at Runnymede on the Thames in 1215. Today, in the United States in particular, Magna Carta has been hoisted to totemic heights in the cultural imagination. It might therefore seem strange to us that William Shakespeare’s play King John makes no reference at all to this great artefact. The reason for its omission is that for Shakespeare and his early modern contemporaries, the most dramatic historical event in the reign of King John was his surrender of the crown to the papal legate and his receiving it again as a papal vassal. The modern significance of Magna Carta is largely a post-Enlightenment invention and its principal promoters were the great myth-makers who framed the American constitution and created the idea of the United States. It is some proof of this that the Magna Carta memorial which stands at Runnymede today was erected by the American Bar Association. The small-scale temple, like the much larger Jefferson Memorial in Washington DC, has become a place of secular pilgrimage; a sanctuary to the values of political freedom and human rights under law. In 2015, to mark the 800th anniversary of the sealing of Magna Carta, sculptor Hew Locke’s “The Jurors” was installed at Runnymede. It comprises twelve bronze chairs, each of which (according to the official narrative) “incorporates symbols and imagery representing concepts of law and key moments in the struggle for freedom, rule of law and

SERIES Preface

xi

equal rights.” In this respect, it performs a similar function to the eight bas relief panels by sculptor John Donnelly Jnr that adorn the great bronze doors of the United States Supreme Court in Washington DC. Shakespeare would have appreciated the performative purpose of these “solemn temples” but he would surely be surprised to see today how much has been made of Magna Carta. The rise of Magna Carta as an artefact of cultural history would certainly have amazed the landed aristocrats who first compelled King John to set his seal to the charter in the culturally Christian, monarchal and feudal context of the High Middle Ages. The narrative accompanying “The Jurors” alerts us to the licence that the sculptor has taken with the history of law. We are told that it is “not a memorial, but rather an artwork that aims to examine the changing and ongoing significance and influences of Magna Carta.” It is, in short, a cultural reworking of an artefact that owes its great status to creative cultural appropriation. The actual provisions of Magna Carta that survive in law are impressively few, but the three survivors are perhaps all the more significant for their small number. Much is still made of the survival of the right to trial by jury. Rather less is made, nowadays, of the provisions that preserve the “liberties of the English Church” and the “privileges of the City of London.” One of the most important contributions we can make to the appreciation of history is to show where cultures are selective in what they present as fact. The artefacts of history are always presented in the cabinets of culture. The word “fact” comes, in fact, from the Latin facere (“to make”) and it can be helpful to think of historical facts as things that are produced by the action of culture and as things which, in turn, produce cultures. Even where a society is collectively in error in its understanding of historical fact, a commonly held mistake inevitably becomes part of the cultural history of that society. The story becomes the history. One of the mistakes we often make, as the shifting status of Magna Carta indicates, is to suppose that the modern commentator can claim a monopoly in the present moment to determine “true” history from “false.” Today’s official history is only ever the history of the present. The past had its own histories. Cultural history allows an appreciation of the cultural stories that give meaning to societies in time and across time. From a cultural perspective, myths can be more meaningful, and in that cultural sense more “true,” than many a cold matter of fact. Another great and oft-repeated mistake that this book series seeks to remedy is the supposition that law can be meaningfully separated from the culture in which it exists. In Law as Culture, Lawrence Rosen observes that law: … never stands apart from life—some refined essence of professional inquiry or arcane speech. Rather, it forms the conscious attention we give to our relationships. Like art and literature, through law we attempt to order our ties to one another … However it is displayed, however it is applied, we can no more comprehend the roles of legal institutions without seeing them as part of their culture than we can fully understand each culture without attending to its form of law.1 There is an historical aspect to this understanding of law as culture. Pierre Legrand writes, for example, that: French law is, first and foremost, a cultural phenomenon, not unlike singing or weaving. The reason why the French have the chanteurs they have lies somewhere in their history, their Frenchness, in their identity. Similarly, the reason why the French have the legislative texts or the judicial decisions they have, say, on a matter of sales law, lies somewhere in their history, their Frenchness, in their identity.2

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SERIES Preface

There are obvious limits to the mechanistic metaphor by which we talk of cultural history as something manufactured or fabricated. Human hands fashion historical artefacts, but legal artefacts grow out of a culture in a way that makes it hard to know where the artefact starts and the culture ends. It might be better to take the “culture” metaphor seriously and to suggest that laws grow out of a society organically and that the artificial intervention of human hands are like those of the gardener—taming, tending and ordering wild growth. Thus the cultural history of law becomes something like a horticultural history. This is not such a strange thought when one considers that the English word for the “court” of law is derived from the Latin hortus (garden). Malcolm Andrews has suggested that “one could write an illuminating, if oblique, history of a nation’s cultural development by examining its changing conception of the garden’s scope, design and function.”3 The gardening metaphor may be especially useful in helping us to understand the cultural history of law, given the complex relation between natural justice and artificial laws in human society. Dress is another artificial creation of human craft which, as a cultural outworking of the complex relation between nature and human ordering, serves well as a way to understand the artificial and creative nature of law’s contribution to culture. Laws are produced in society in much the same way that gardens, dress and other products of complex cultural systems are produced in society. When we have completed our journey through the six volumes of this series we may conclude that the chief legislator across the ages has been no parliament nor any body of the people politically represented, but that the great lawmaker has always been the deep, rich and creative power of human culture. Gary Watt, Professor of Law, University of Warwick, UK

Introduction EMANUELE CONTE AND LAURENT MAYALI

The bichromatic mosaic on the title page of this book was discovered in 1902–1903, on the floor under the main altar of the Piacenza cathedral. Similar in style to the larger mosaic preserved in the crypt of the same church, our mosaic bears no date. Art historians have proposed various dates: from 1107, when the church was consecrated, to the middle or the last part of the same century (Vaccaro 2007). The present image displays only a section of a more complex composition that is centered on the figure of Atlas, sitting in the fulcrum of a wheel of fortune. On each side of the central wheel, four panels display various contrasting scenes.

FIGURE 0.1  Forms of justice and games. Floor mosaic, presbytery of the Basilica of San Savino, Piacenza. 12th century. Source: De Agostini/Getty Images.

The two top panels contrast the violence of a trial by combat (see Figure 0.1) to the reason of a higher justice delegated by a sovereign to a judge (see Figure 0.2). Kneeling in front of the king, the judge is looking at legal rules written down in a book. The panels below contrast two games. The representation of the dice game (see Figure 0.3) corresponds to the trial by combat, while the chess game (see Figure 0.4) parallels the king’s justice.

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A CULTURAL HISTORY OF LAW IN THE MIDDLE AGES

FIGURE 0.2  Trial by combat (detail of fig. 0.1). Source: DEA PICTURE LIBRARY/Getty Images.

FIGURE 0.3  Trial by law (detail of fig. 0.1). Source: DEA PICTURE LIBRARY/Getty Images.

INTRODUCTION

FIGURE 0.4  Game of dice (detail of fig. 0.1). Source: De Agostini/Getty Images.

FIGURE 0.5  Game of chess (detail of fig. 0.1). Source: Photo: akg-images.

3

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A CULTURAL HISTORY OF LAW IN THE MIDDLE AGES

FIGURE 0.6  Mosaic center (detail of fig. 0.1). Source: De Agostini/Getty Images.

The representations of these two games illustrate the procedures of dispute resolution which are opposite to those depicted in the first set of images. The viewer of this mosaic might thus conclude that the rational and predictable outcome of a chess game is opposed to the unpredictable and precarious outcome of a dice game. But this differentiation of dice and chess was not obvious to medieval people. One of the first mentions of chess, comparing it to dice, is a letter written in 1058 in which Peter Damian chastised the bishop of Florence for playing chess at night. Peter quoted the canonical prohibition on bishops playing dice. When the Florentine bishop replied that chess differed from dice, Peter declared that this prohibition on dice also included chess.1 As a consequence of Peter’s interpretation, the playing of chess was included within the ecclesiastical condemnation of gamblers (aleatores), which dated back to late antiquity and the treaty de aleatoribus of the pseudo-Cyprianus (Pseudo-Cipriano 2006: 88–94). It was confirmed by secular law (Justinian’s Novella 123.10 = Epit. Jul. 115, cap. 439) and inserted in several canon law collections. However, a century after Peter Damian, the English theologian Alexander Neckam described chess as a noble game even if it was mostly vain because it used the intellect for purely recreational purposes (Neckam 1863/1967: 323–326). In his work de naturis rerum (written around 1190), Alexander dedicated separate chapters to chess and to dice. In contrast to chess, he described dice as a source of sin and ruin for the players. He thus opened the door to a new representation of the game of chess as a metaphor for an ordered political society, as opposed to the irrational and precarious dice game that was condemned as downright gambling. This moral and political representation of the game of chess became very popular during the thirteenth century (Wollesen 1990). It reached the highly cultured court of a king legislator such as Alphonse the Wise of Castilla (Musser Golladay 2007); it was the object of a treatise

INTRODUCTION

5

written in Italy by one Jacobus de Cessolis. His work enjoyed amazing popularity all over Europe. It was copied in more than 300 manuscripts and translated into Italian, German, French, Spanish, Catalan, Dutch, Swedish and Czech (Adams 2006: 22). The various chess pieces provided the perfect allegory for a well-ordered society, structured according to a carefully organized set of functions, represented by the various figures, each with its prerogatives and obligations. Just as the rules of the game assigned a distinct role to each piece, medieval society tended to rule itself by defining the respective roles of the public authorities, the political elite, and the different social groups that composed the people. But the game of chess also provided an important symbolic feature. It was considered to be a highly rational exercise that required the combination of a clear understanding of the game with sound strategy and effective actions. Accordingly, in the eyes of lawyers, the game of chess differed greatly from dice and gambling. It relied on intelligence and not just luck, as noted in Accursius’ glossa ordinaria to the Justinian’s Codex2 around the middle of the thirteenth century. As observed above, the dating of the Piacenza mosaic is somewhat uncertain. Art historians consider that its style is compatible with similar artworks from the twelfth century, while the literary sources about chess and dice games date from the thirteenth century. However, if the opposition of the two upper panels presents a choice between chaos and violence on the one side and rationality and justice on the other, as the two games’ panels would suggest, a dating in the twelfth century fits very well with the overall sense indicated by the composition. In our opinion, these panels suggest a broader meaning than that assumed by art historians. The panels do not simply contrast violence and order; they clearly parallel that opposition with the juridical option that exists between trial by combat, an ordeal that was most used in Lombardy, and the rational trial based on procedure and legal actions. During the twelfth century, the reformed Church introduced a renewed attitude towards customary procedures that entrusted to God the task of proving innocence or guilt in uncertain disputes. Robert Bartlett connects this trend in ecclesiastical thought to the change in the theology of sacraments, particularly with the reinvigoration of the practice of lay confession (Bartlett 1986: 79). After some centuries of ambiguity, during which the official prohibitions of the duel (monomachia) (Fiori 2004) did not succeed in eradicating the widespread use of combats (Bougard 2003), things began to change significantly. Twelfth-century canonists and theologians kept insisting on the wrongness of any judicial practice that was not based on the careful review and evaluation of proofs. This assumption became more and more accepted by the Church, leading to the famous canon of the Fourth Lateran Council (1215) that prohibited clerics from participating in ordeal (Baldwin 1961). Peter the Chanter, for example, observed that in a trial by combat, each champion relies either on his force or ability, or—if innocent—on the intervention of God who will protect him to avoid injustice. In the first case, he added, the decision rests on the use of force, and not on justice; in the second case, this is a diabolica temptacio, inspired by the Devil in order to impose on God a supernatural intervention.3 There are good reasons to believe that the mosaic on the floor of the Basilica of San Savino in Piacenza reflected the campaign for the abolition of the judicial duel. It supported the introduction of a radically different judicial process that was based upon the wisdom and knowledge of the judge who exercised the power delegated by the sovereign in accordance with the law. Away from the violence of the battlefield, the rational and learned procedure of this new form of trial was illustrated by reference to the game of chess and to the book of law which should be the proper focus of the judge’s attention.

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A CULTURAL HISTORY OF LAW IN THE MIDDLE AGES

Let us observe, however, that, within a period of fifty years, from the Assize of Clarendon (1166) to the Fourth Lateran Council (1215) the significance of the reforms of the judicial process was not limited to the legal field. These legal developments reflected broader cultural changes that influenced political practices, religious beliefs, and social attitudes toward justice and its role in the shaping a well-ordered Christian society. Our mosaic’s deliberate opposition of the trial by combat with a learned decision-making process also underscored the contrast between use of force and legal reason that was redefining the legitimacy of the political powers in the feudal system.

WHAT LED MEDIEVAL EUROPE TO THIS EXTRAORDINARY CULTURAL CHANGE? By the end of the eleventh century, demographic growth, new methods of farming and economic expansion were transforming the socio-political landscape of many rural and urban communities. The existing legal order was mostly structured upon ancient customs, social practices and feudal values. It regulated communities that were operating in autarchy within the barter economy of a manorial system of production. These traditional norms could not support the emergence of a monetary economy that rested upon complex business deals. The opening of new markets and the resulting increase in wealth transfer prefigured the decline of the local barter economy. Economic growth relied heavily on the development of new legal instruments that unified contractual practices and upheld the force of binding agreements. The production and exchange of goods and the resulting increase in financial transactions required new types of standardized contracts and commercial agreements while various forms of labor organization united members of the same profession. First among them, craft and merchant guilds played a fundamental role in the economic expansion and regulation of labor practices. The guilds’ regulation and control of the markets contributed to the development of trade. They insured the indispensable security of transactions and the resolution of conflicts of laws that regulated the main trade centers across Western Europe. They promoted the enforcement of agreements in accordance with respect for a just price. The combination of ethical values, equity and new legal practices contributed to the emergence of a distinct law of merchants (ius mercatorium) that expressed their socio-professional identity. This law also reflected a significant cultural change of attitude toward legal rules that were not limited to the regulation of distinct communities on a demarcated territory. It also performed the function of an international language and transnational system of communication in medieval Europe and even as far as the outward reaches of Christendom. After almost a century of reforms that renewed its spiritual authority and strengthened its institutional governance, the Church’s preaching of the First Crusade expanded the borders of the Western Christian world. Travel to the Holy Land renewed contacts with the Byzantine empire and redrew the boundaries of religious practices that had been confined to the limited territories of rural communities clustered around their local churches and monasteries. Rome reclaimed its significance as the seat of the papacy that rested upon the city’s historical legacy as the former center of imperial power. Ecclesiastical provinces and dioceses reapportioned the space left open by the collapse of the past imperial administration. The extension of the church’s jurisdiction redrew territorial boundaries. This administrative division of space challenged the traditional

Introduction

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feudal structures with their land-based hierarchy. It also transformed people’s own sense of space and sense of belonging to a physically defined community. The acceptance of legal borders altered the perception of physical boundaries, promoted legal communities and eventually renewed the subjective criteria of people’s self-awareness. The pairing of wealth and power was contingent on direct and individual legal claims on real and personal properties that were promoted by the emergence of new concepts of property rights and long-term possession. Early medieval forms of landholding were based on formalist rituals of transfer and repeated acts of possession and re-possession. They were progressively abandoned as the legal bond between personhood and land became increasingly apparent. This legal bond furthered the cultural change in people’s attitudes toward land and space in general. Land could be sold, donated, transferred as security, mortgaged or inherited through a series of legal instruments that expressly recognized the existence of a right of ownership. In this regard, ownership was less the expression of physical power over a distinct territory than the recognition of a juridical right that became more absolute as people sought to preserve their landed wealth and to control its transmission to the person or the group of their choice. By the end of the Middle Ages, in most of Western Europe, feudal practice and traditional ties to the land were replaced by individuals’ exercise of a direct right in the land. The legal rules of property and ownership governing the use and transfer of land resonated with the new economic elites that controlled access to power in the urban centers as they challenged the ancient claims of the landed nobility. The rediscovery of the compilation of Roman legal sources that had been promulgated in Byzantium by the emperor Justinian in the first half of the sixth century opened up a new legal era. Following the first learned exegesis of these texts in Bologna, the diffusion of Roman legal rules rapidly spread across Western Europe. Their success rested ultimately upon the social rise of legal experts who were trusted with important administrative and judicial functions by their communities. The jurists, canonists and civilians alike, readily provided timely and illuminating references to Justinian’s compilations as the source for the historical vindication of urban statutes, pontifical decretals and royal legislation. The legal acculturation of medieval society owed much to these legal actors. They were united by their knowledge of an authoritative language that cemented the corporate identity of their profession. Princes and prelates, merchants and landowners, as well as the councils and inhabitants of cities relied upon the jurists’ expertise in aspects of both their private and public lives. The rise of the legal profession promoted the recognition of law as a distinct sphere of knowledge. It was no longer the product of an ancient wisdom passed on orally from one generation of elders to the next. Along with theology, philosophy, grammar or rhetoric, law was the subject of written treatises and commentaries based on compilations and critical interpretations of various texts. The authority of the written legal rules that were often presented as “written reason” (ratio scripta) furthered the cultural shift from orality to literacy and the resulting transformation of the cognitive process that increasingly relied upon legal categories to express social interactions and political strategies. In addition to commercial and financial practices, contractual obligations shaped the structure and future of families with the enforcement of marriage contracts that regulated couples’ relationship, their respective wealth and their future inheritance. Last wills and testaments gave new meaning to the passage from life to death as they empowered the deceased to decide the consequences of their death as well as their presence in the life of their descendants and the community they had just left. Death itself was not immune to the consequence of this legal culture as

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the concept of civil death blurred the physical barrier between the dead and the living. In this case, legal fictions allowed jurists and the people at large to normalize and manage issues such as death that were otherwise out of the reach of human power. They also reshaped the ancient distinction between the sacred and the secular. Popes, emperors and kings competed for the primacy of their edicts within the normative hierarchy of texts which, like Justinian’s codex and the holy Scriptures, were preserved in the form of books. The convergence of jurisprudence and theology was achieved in the normative synthesis of the canon law. It stressed the supremacy of natural law as expression of the divine will at the top of a hierarchy of norms. Medieval leaders and their legal advisers reinterpreted the Roman threefold distinction between the law of nature (ius naturale), the laws of the people (ius gentium) and the law of the Roman citizen (ius civile) as the expression of a harmonious Christian order. Thus, legal compilations were part of a sacrosanct system of norms that reflected people’s beliefs in the authority of the written rules. This sacralization of law was not surprising in a society where individuals as well as communities thought of themselves as being part of a divine order. Law’s sacralization was perhaps nowhere more pronounced than in the series of procedural arguments that were endowed with the task of leading society towards ‘true’ justice, that is towards an idea or ideal of justice equivalent to the authority of justice divinely-ordained. As reliance upon God’s justice faded, the belief in the firm authority of human judicial decisions which “should be accepted as truth,” required the development of a system of rigorous legal argumentation. By the middle of the twelfth century, theologians and philosophers had successfully tested the reliability of the scholastic method of inquiry into the true meaning of texts. To resolve textual contradictions and to choose between conflicting opinions was also a familiar challenge for jurists and judges who were entrusted with the task of adjudicating disputes and meting out justice. Trials were replete with conflicting stories presented by the plaintiffs and the defendants. In courts, respect for legal procedure produced judicial narratives that cemented the correlation between human justice and truth—the birth of a distinctive trial culture did not reflect an increased litigiousness but reflected rather, and also led to, the “judicial” as a model for the representation of diverse forms of human and divine interactions. The people’s acceptance of new legal principles influenced in turn the representation of justice as the result of a process of adjudication that owed more to secular law than to the divine manifestation of truth. In this change of paradigm, justice was the product of human judgment. Despite the inherent flaws of human nature, justice found its justification in the prince’s commitment to “give to each person their due rights” according to law. The Roman definition of law as the “art of what is good and fair” (“ars boni et aequi”) figured prominently in the teachings of the first jurists who devoted their attention to the compilations of Roman law promulgated centuries earlier by the Byzantine emperor Justinian. In medieval Christian society, this teaching echoed Saint Augustine’s call for the benevolent justice that combined mercy with rigor. The enforcement of legal rules and procedure confirmed the cultural shift from God’s judgment to human justice. It expressed the political legitimacy of the new generation of rulers, both ecclesiastical and secular, who donned the robe of judicial authority as the emblem of good government. Nevertheless, beneath the veneer of Christianity, Rome’s imperial model of government survived in the legacy of Justinian’s compilations. The emperor’s decree that he should be considered the living law on earth underscored the significance of law as the essence of his power. The idea of sovereign governance became synonymous with the highest

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imaginable standard of political power and accordingly it became synonymous also, with the earthly font of justice and law. This model influenced kings and emperors. It also echoed the papacy’s perception of its pontifical authority not only in the administration of the Church’s institutions but also in the government of Christian society. The German sovereign, Frederick Barbarossa, had affirmed his political ambitions over Northern Italy with the full legal force of the ancient Roman imperial model. His determination to assert his power over the Italian cities challenged the teachings of the Bolognese jurists who took to heart the defense of their communities’ legal autonomy. They used the same Roman sources to create and expand the doctrine of sovereignty and applied the doctrine to both the imperial crown and to the legitimate government of their cities. In this idea of sovereign authority we see the founding legal principle of the modern state. Outside legal circles, powerful images of sovereign authority shaped the collective psyche. Coronations were formidable displays of dignity and royal magnificence. The powerful political and symbolic force of the ceremonials traced their roots back to the cultural syncretism that blended Islamic and Christian religious rituals with practices borrowed from the Byzantine emperors. By these means the iconographic representation of the coronation of the Sicilian kings, to take one example, successfully reproduced images of power that proclaimed the king’s autonomy and emancipation from papal control. Public manifestations of this independence underscored the central role of the monarchy in the political cosmogony of the medieval world and the perpetuation of the constitutional order based upon the sacred functions of justice and legislation. Medieval political culture was also profoundly shaped by the emergence of communal power in various urban centers that were keen to assert their legal and social distinctiveness. By the second half of the twelfth century, the surge of urban legislation and statutes definitively changed the existing feudal order and its system of governance. Urban statutes reflected the ambitions and social concerns of urban elites that claimed their autonomy from local lords along with the power to make law and to dispense justice. These independent and vibrant communities attracted a diverse population seeking liberty and opportunities within their walls. Urban statutes and written customs were the most visible expression of the city’s legal identity. They fulfilled a constitutional function in providing legitimation for the new political order and in facilitating the integration of its diverse population into one citizens’ group. According to the famous fourteenth-century jurist, Bartolo da Sassoferrato, each city reproduced the model of the Roman ius civile and adopted its basic axiom for the implementation of its own legislative program. Despite their claim to the contrary, the city’s customs did not reflect the ancient traditions and norms that were de facto if not de iure obsolete and no longer adapted to the needs of their inhabitants. They also included new rules borrowed from Roman law or from the laws of neighboring cities with privileged economic and political ties. The dispute over the rightful exercise of universal power lay at the heart of this debate. It put empire and papacy in opposition with each other for more than two centuries. This tension was productive in more than statutes and rules. Powerful images of sovereign authority shaped the collective psyche and influenced culture and the arts. The contributions included in this volume cast new light on the cultural significance of law in the Middle Ages. As it evolved from a combination of religious norms, local customs, secular legislations and Roman jurisprudence, medieval law came to define a normative order that was more than the sum of its parts. It promoted new forms of individual and social representation. It fostered the political renewal that heralded the transition from feudalism to the early modern state and it contributed to the diffusion of a common legal

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language with the emergence of the ius commune. This process of legal acculturation encompassed diverse aspects of people’s private and public lives. As the Piacenza Mosaic, with which we began this introduction, clearly displays, the pairing of the king and the law is completed by the figure of the judge who presides over formal trials and decides according to formal laws and legal rights. This relation, and the tensions within it, played out not only within the public realm but in private commerce and in developed notions of private property and with it the emerging modern sense of personal, individual liability for private and public wrongs. Perhaps, above all, the fundamental change in legal culture in the Middle Ages is attributable to the rise of a professional group of legal experts. In the great drama that was played out on the medieval stage, lawyers were the legal actors and, as one scholar has recently observed (Witt 2012), they were the leaders of the great renewal that led Europe to the Renaissance and to the Modern.

CHAPTER ONE

Justice JOSHUA C. TATE

JUSTICE IN MEDIEVAL CULTURE In the thirteenth century, the author of the treatise known as Bracton attempted to explain the term iustitia, or justice.1 Justinian’s Institutes had famously defined iustitia as the “constant and perpetual will to give to each his right (constans et perpetua voluntas ius suum cuique tribuens) (Inst. 1.1).” According to the author of Bracton, however, this could be interpreted in two ways. On the one hand, justice could come from God, who neither erred nor varied in treating his creations according to their just deserts. On the other hand, justice could be done by men, whose decisions were less reliable. For human judgments, “to give each his right refers to what is intended not to what is done, as the emperor is called Augustus not because he always augments his empire but because it is his intention to do so” (Bracton, f. 2b, II, pp. 22–23 – trans. Thorne). Thus, human justice was fallible, but could be called constant nonetheless so long as it was done with good intentions. Throughout the Middle Ages, men of all sorts—poets, sculptors, and illustrators; lawyers, philosophers, and theologians; kings, monks, and bishops—were confronted with this fundamental distinction between divine and human justice. Their efforts to come to grips with this dichotomy both shaped, and were shaped by, medieval culture. Artists often depicted the figure of justice as a heavenly inspiration for the virtuous ruler, but also showed how justice on earth might fall short of that ideal. Canonists and civilians debated the possibility that the will of a prince, having the force of law, could nonetheless be lacking in reason. Meanwhile, real-life kings and bishops developed parallel systems of justice that at times complemented each other, and at other times competed for legitimacy. These developments in thought and action helped produce one of medieval Europe’s most famous contributions to the history of justice: the Great Charter of King John of England, commonly known as “Magna Carta.”

IMAGES OF JUSTICE In medieval art, the figure of Justice is often represented pictorially alongside the other cardinal virtues. The arrangement of the scene can give important clues as to the artist’s understanding of divine and human justice and how they relate to one another. A dedicatory miniature in the Book of Gospels of Henry II, dating to between 1014 and 1024, is a good traditional example of how the figure of Justice might be portrayed (Katzenellenbogen 1939: 36). At the center of the image sits the emperor, holding the orb in his right hand and raising his left hand in a sign of benediction. Above his head is a descending dove symbolizing the Holy Ghost, blessing the emperor (“Spiritus

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alme Deus regem benedicto clemens”). The figures of Justice and Piety appear in the upper left and right corners of the frame, while Wisdom and Prudence appear at the emperor’s right and left. The most interesting elements of the miniature appear at the bottom of the frame. At the bottom left and right are figures representing Lex and Ius, statute and general law. Between these figures, and at the emperor’s feet, a scene of judgment is depicted. A figure with his sword drawn awaits the emperor’s command to behead a prisoner or “tyrant” (“Caesaris ad nutum dampnant lex jusque tyrannum”), who kneels at the swordsman’s feet with outstretched hands, begging for mercy. Looking down from the top of the frame, the image conveys the message that God will bless the emperor as he decides the prisoner’s fate, and he will be guided by wisdom and prudence, but will rule according to statute and general law. In this scheme, the figures of Justice and Piety appear somewhat superfluous, observing the proceedings from a distance but not in a position to sway the emperor’s decision. Images of emperors and other princes dispensing justice were often incorporated into illuminated manuscripts of legal texts. Illustrations from a Durham manuscript of the Institutes and Code, for example, depict the enthroned emperor Justinian sentencing and rendering judgment, surrounded by various jurists, advisers, scribes, and other servants (L’Engle and Gibbs 2001: 81). The famous opening phrase of the prologue to the Institutes, stating that imperial majesty ought to be armed with laws as well as graced with arms (“Imperatoriam maiestatem non solum armis decoratam, sed etiam legibus oportet ese armatam”), is illustrated in the Durham manuscript by an image of Justinian flanked by armed warriors in chainmail at his right and lawyers and jurists at his left (L’Engle and Gibbs 2001: 87). In these images, the emperor is shown seated, and he is also depicted with his right leg crossed over his left, a traditional posture associated with the rendering of judgment. These depictions of Christian emperors suggest an idealistic notion of divinely inspired kingship. However, another story may be seen in representations of martyrs in religious texts. Some of these manuscripts depicted the judges who condemned the martyrs as evil, giving them ugly features, having them cross their legs the “wrong” way (left over right, rather than vice versa), depicting them with sabers of the sort used by Saracens, or otherwise discrediting them with unconventional imagery (Billoré and Dehoux 2015: 181–185). However, most images of secular princes passing judgment over martyrs depict them in conventional fashion, seated, wearing a full cloak, with the right leg crossed over the left (Billoré and Dehoux 2015: 185–189). The illustrators might have been using traditional imagery without thinking about its ramifications, but it is also possible that they believed the judge’s decision condemning the martyr to be in accordance with God’s plan, and not necessarily reflecting a flaw in the judge’s character. Over the course of the Middle Ages, traditional depictions of justice gave way to more complex and sophisticated imagery. In two famous frescoes painted around 1339 in the Palazzo Pubblico in Siena, Ambrogio Lorenzetti used the figure of Justice to illustrate the differences between bad and good government (Resnik and Curtis 2011: 26–28). The frescoes have been given the modern titles Allegory of Bad Government and Allegory of Good Government. Medieval visitors to the Palazzo would have seen the Allegory of Bad Government on the west wall as they entered the building (Starn and Partridge 1992: 18). This fresco showed a frightening scene of the Court of Tyranny, in which a tyrant with horns and fangs sat enthroned with his feet resting on a goat. The female figure of Justice lay bound at the tyrant’s feet, while scenes of robbery, assault, and murder played out in the wings. An inscription in Italian explains that tyranny prevails when justice is bound

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(“Là dove sta legata la giustizia, nessuno al ben comun giammai s’accorda né tira a dritta corda, però convien che tiranni sormonti.”). The Allegory of Good Government, which graced the north wall, depicts a far happier scene, in which the figure of Justice actually appears twice. At the far left of the fresco, Justice sits on a throne balancing scales held by a figure representing Wisdom. She appears again at the right of the fresco, along with several other virtues who are shown to be advising the ruler. The message is reinforced by another inscription, praising Justice as the source of unity among the citizens (“Questa santa virtù, là dove regge, induce ad unità gli animi molti”), always giving to each his right (“la qual sempr’a ciascun suo dritto rende”) (Starn and Partridge 1992: 262–266). In late medieval art, the classic representation of justice was the scene of the Last Judgment itself, when Christ would sit enthroned in glory to separate the blessed from the damned (Edgerton 1985: 22–23). While early medieval depictions of the Last Judgment emphasized apocalyptic elements, later medieval artists depicted Jesus as a

FIGURE 1.1  Henry II and Virtues. Miniature in the Gospel of Henry II. Rome, Vatican Library, ms. Ott. lat. 74. 1014-24. Source: PHAS / Contributor / Getty Images.

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FIGURE 1.2  Allegory of Bad Government. Ambrogio Lorenzetti, Siena, Palazzo Pubblico. 1339. Source: DEA/G. DAGLI ORTI/Getty Images.

FIGURE 1.3  Allegory of Good Government. Ambrogio Lorenzetti, Siena, Palazzo Pubblico. 1339. Source: DEA / G. NIMATALLAH / Getty Images.

FIGURE 1.4  Last Judgment (Fra Angelico). Florence, Museo San Marco. 1440. Source: Wikimedia / The Yorck Project / GNU Free Documentation License.

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judge presiding over a divine courtroom. In one such painting, made by Fra Angelico in 1440 for the church of Santa Maria degli Angeli in Florence, the Virgin Mary and St. John the Baptist are depicted at Jesus’s right and left, in positions that might be occupied by attorneys in a courtroom scene. The damned are tortured at the Savior’s lower left, while the blessed enter heaven through a meadow at his right (Edgerton 1985: 23–26). Manuscripts of Gratian’s Decretum often incorporated an image of the Last Judgment. One of the most interesting examples was completed in the late fourteenth century by the artist Nicolò de Giacomo de Bologna. The illustration shows two parallel scenes, one directly above the other. The upper image depicts the enthroned Christ at the Last Judgment separating the blessed from the damned. Immediately below is an image of a pope judging or condemning various criminals, including a heretical bishop who is shown naked and engulfed in flames. Two accomplices are shown being led into jail (Edgerton 1985: 30–32). The artist’s intention to draw a parallel between divine and human justice is clearly expressed. Also notable is the fact that, in both images, the judge (Christ above or pope below) sits not in the center, but toward the left of the image, with most of the space devoted to the damned souls or condemned criminals.

JUSTICE IN POETRY Justice as divine punishment was a strong theme not only in the visual arts, but also in literature. For example, as Dante and Virgil pass through the gates of hell in the Inferno, they pass an inscription declaring justice to be the inspiration for the “woeful city” (Sullivan 2007: 131). At several stages in his journey, Dante describes the sinners as being punished by divine justice, such as the sinners in the fourth circle of hell suffering pains and troubles for their sins (“Ahi giustizia di Dio! Tante che stipa nove travaglie e pene quant’ io viddi? e perché nostra colpa sí ne scipa?”), or the counterfeiters in the eighth circle of hell, punished by unerring justice (“infallibil giustizia, punisce i falsador che qui registra”) (Inferno, vii. 19–21, xii. 127–138; Sullivan 2007: 131–132). Dante envisioned hell as organized hierarchically into nine circles, with the upper circles reserved for those whose sins were less severe, and the lower circles for progressively worse offenders. The first circle was reserved for the unbaptized, including infants as well as virtuous pagans such as Virgil, Dante’s guide. Carnal sinners overcome by lust occupied the second circle, while gluttons filled the third. The fourth, fifth, and sixth circles were occupied by those who were overcome by the sins of avarice, anger, and heresy. The lowest three circles, for those whose sins involved violence, fraud, or treachery, are themselves subdivided multiple times. Those who have committed violence against others are classified in a different ring from suicides, while those guilty of violence against God occupy a third ring. The eighth circle is divided into no fewer than ten Bolgie, and the ninth circle is divided into four rounds, with the last round devoted to sinners who were treacherous to their masters, including Judas Iscariot and Brutus and Cassius. These last three suffered the pain of being gnawed by Lucifer’s teeth for all eternity, with Judas suffering the most by virtue of having his head, rather than his feet, inside Satan’s mouth (Inferno, xxxiv. 52–67). Given the overriding theme of divine justice, Dante’s finely graded and hierarchical classification of sin required some explanation. As Virgil guides Dante into the foul circles of lower hell, he explains the distinction in philosophical terms, citing Aristotle’s Nicomachean Ethics (Inferno, xi. 7–80). Aristotle had distinguished in the Nicomachean

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Ethics between those who are merely incontinent and become carried away in the excessive pursuit of normal pleasures, and those who are intemperate and choose to act wickedly because doing so is in their nature (Nicomachean Ethics, vii. 8). This distinction, Virgil explains to Dante, explains why some sinners were punished in the lower circles of hell, while others were treated more leniently (“Se tu riguardi ben questa sentenza,/e rechiti a la mente chi son quelli/che sù di fuor sostegnon penitenza,/tu vedrai ben perché da questi felli/sien dipartiti, e perché men crucciata/la divina vendetta li martelli.”) (Inferno, xi. 85–89).

SOME THEOLOGICAL IDEAS In his Nicomachean Ethics, Aristotle distinguished between justice in the general sense and in the particular sense (Nicomachean Ethics, v. 1). Particular justice was further subdivided into distributive justice and corrective justice (Nicomachean Ethics, v. 2). Expounding on Aristotle’s classifications in the late thirteenth century (Briggs 1999: 9), Giles of Rome distinguished three categories of justice. The first category, iustitita legalis, required obedience to the law, without which no government could endure (De regimine principum, i.2.xi). The other two categories were iustitia commutativa, justice among the citizens, and iustitia distributiva, a hierarchical form of justice that required men to be treated in accordance with their social status (De regimine principum, i.2.xi). Dante’s classification of sin reflects iustitia legalis in that the sinners were being punished for violating God’s commandments. At the same time, the theme of iustitia distributiva is also evident, such as in the especially harsh treatment of the betrayers of Christ and Caesar among the traitors. The two themes of iustitia legalis and iustitia distributiva are also evident in Chaucer’s Canterbury Tales, as Stephen Rigby illustrates in his study of the Knight’s Tale (Rigby 2009: 39–41). Iustitia legalis is evident in the discussion of the release and subsequent return of Arcite, one of the two knights held captive by duke Theseus of Athens who serve as the principal antagonists in the tale. Duke Theseus agreed to release Arcite on the condition that Arcite depart from Theseus’s country and never return, on pain of death (“That if so were that Arcite were yfounde/Evere in his lif, by day or night, o stounde,/In any contree of this Theseus,/And he were caught, it was accorded thus:/ That with a swerd he sholde lese his heed.”) (I: 1211–1215). When Theseus discovers Palamon fighting with Arcite in the grove, Palamon admits to having “broken wikkedly” from the Duke’s prison and accepts that death is the punishment, but requests that Arcite suffer the same fate (“Wherfore I axe deeth and my juwise./But slee my felawe in the same wise,/For bothe have we deserved to be slain.”) (I: 1734–1741). Duke Theseus decides to pardon them upon their oath that they will do his country no further harm (I: 1821–1825). Although Palamon and Arcite might deserve equal justice, there are many instances of iustitia distributiva in the Knight’s Tale where justice is defined through unequal treatment. Duke Theseus is careful to treat the participants in the great tournament according to their status (“everich at his degree”) (I: 2192). Seating arrangements at the table, the order of the riding procession, and the bestowal of gifts are all determined in accordance with the proper hierarchy (I: 2200, 2573, 2731–2739; Rigby 2009: 40–41). When Arcite dies, Duke Theseus frets over “wher that the sepulture/Of good Arcite may best ymasked be,/And eek moost honorable in his degree” (I: 2853–2856). Status mattered in death, whether for Chaucer’s heroes or Dante’s sinners.

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THE EXAMPLE OF LAY PATRONAGE OVER CHURCHES: IUS PATRONATUS The concepts of iustitia legalis and iustitia distributiva were woven deeply into the fabric of medieval legal analysis. Gratian’s Decretum, the final recension of which probably dates to the mid-twelfth century (Winroth 2000: 144), begins with a general statement that all laws are divine or human, and divine laws are determined by nature while human laws arise from custom (D.1 c.1). Nevertheless, as canon law evolved into a separate system governing many different subjects, it became difficult to disentangle from human law and human society. One context in which notions of divine and human justice came into conflict was in the complex jurisprudence relating to patronage of churches. Disputes over patronage were the subject of a jurisdictional conflict between ecclesiastical and secular courts, and lawyers and judges were forced to reconcile abstract principles of canon law with the reality of a hierarchical society. Before the tenth century, many churches were founded by private persons, ostensibly to serve the spiritual needs of the people living on their estates (Wood 2006: 66–91). Having built and paid for these churches, their founders expected to select the priests and control the churches’ finances. Patrons of such churches often appointed priests without seeking the approval of the local bishop, and invested them with their own hands. Bishops were generally unhappy with the proprietary church system, as the power exercised by the lay founders threatened the bishops’ control over the clergy in their dioceses. In the eleventh and twelfth centuries, as the papacy began to assert greater control over the church and a great controversy raged over the power of kings to invest bishops with the symbols of their authority (Berman 1983: 99–107; Blumenthal 1988: 64–65), a series of ecumenical councils proclaimed that priests should not receive churches from lay patrons without episcopal consent.2 These councils aimed to make the bishop, rather than the lay patron, the ultimate source of the priest’s authority (Addleshaw 1956: 17). At the same time, the church engaged in a fairly successful campaign to stop the custom of hereditary benefices, which made the right to choose the priest all the more significant (Newman 1977: 281–282). Nevertheless, given the increasing importance of the right of presentation, laymen would not permit the church to usurp their longstanding prerogatives completely. As a middle ground, a practice developed whereby the lay patron presented the clerk to the bishop, who examined him and, if he passed muster, installed him in the church. Beginning with the twelfth-century first recension of Gratian’s Decretum, and especially in the latter half of the twelfth century and the early thirteenth century, canon lawyers and legislating popes developed a system of rules relating to patronage of churches. Papal legislation and canonistic commentary limited the benefits that patrons could receive from patronage rights; defined the concept of inheritance; delineated the period within which a vacancy had to be filled; imposed restrictions on the ability to sell or give away a right of patronage; and attempted to restrict the jurisdiction of the secular courts. Canon law imposed restrictions on the ability of a lay patron to receive income from the church to which he had the right of patronage. Laymen were not allowed to appropriate tithes to their own use,3 and clerks who paid money for ecclesiastical office committed the grave sin of simony, for which they could be deprived of their benefice.4 Canon law did allow a patron to receive “tribute” from the church; however, the tribute had to have been established by long custom and (in the view of some canonists) the bishop had to have approved (Landau 1975: 130–136). Apart from this limited right to

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tribute, the patron could not receive any income from the church. However, patronage rights could be used to reward a clerk who had served the patron faithfully in the past, or to encourage such a clerk to provide service in the future. The administration of a great estate required a private civil service (Denholm-Young 1937: 2–3), and some of those who served wealthy lords were clerks who had taken holy orders (Newman 1977: 281). Lay magnates needed literate men to keep track of the expenditures, income, and debts of their manors. Holding out the prospect of a lucrative appointment to a parsonage was a good way to persuade bright, motivated clerks to enter one’s service. Thus, while the value of the benefice ultimately lay in the tithes, the lay patron did not have to keep the tithes himself in order to benefit from the right of patronage. Another benefit that a lay patron might receive from a right of patronage was the ability to present a male relative to the benefice, assuring a stream of income for a younger son, brother, or nephew. Canon law did not specifically prohibit a patron from presenting a relative to the benefice, although two decretals of Alexander III cast some early doubt on the practice.5 Some canonists, however, were of the opinion that when the holder of the benefice, who in his time had been presented by his father, acquired the patronage at the father’s death, renounced the ecclesiastical benefice, and presented it to his son by a legitimate marriage, this was not to be allowed lest benefices be seen to be hereditary (Landau 1975: 179–180). Apart from this unusual case, however, presentation of sons was considered acceptable. Although canon law prohibited hereditary benefices, the right of patronage itself was generally understood by the canonists to be inheritable. The Summa Parisiensis, an early French decretist work most likely dating to the 1160s, stated that the right of presentation did not pass to heirs, although the church owed the heirs a limited duty of support (“Non autem legitur quod ius istud repraesentandi transeat ad heredes, quamvis teneatur eos alere, ut tamen primo loco ministris suis necessaria deducat.”).6 This was contrary to the views expressed by most canonists. There was widespread disagreement, however, as to whether the patronage right could be devised or given to nonrelatives, or only inherited by “blood-heirs (heredes sanguinis).” Rufinus (fl. 1150–91), for example, thought that only blood-heirs could inherit a right of patronage, thus ruling out devises or gifts to nonrelatives other than “churches of equal or greater religion (vel equalis vel maioris religionis).” His view was shared by other early decretists. Huguccio (fl. 1180–1210), on the other hand, thought that all heirs, including extraneous heirs, could inherit a patronage right (“Potest ergo ius patronatus transire ad omnes heredes, nec assignari potest ratio quare potius transeat ad heredes sanguinis, quam ad alios.”).7 Huguccio’s theory prevailed in the early thirteenth century (Landau 1975: 56–57). When several individuals shared the right of patronage, as when daughters inherited it from their father, some rule was required to resolve what would happen when the co-patrons could not agree on a candidate. Canon 17 of the Third Lateran Council provided that, if the “founders” of a church preferred different candidates, “the one would be preferred who has the greater merit and is chosen and approved by the greater number (si forte in plures partes fundatorum se vota diffuderint, ille praeficiatur ecclesie, qui maioribus iuvatur meritis et plurium eligitur et probatur assensu).” Some canonists, including Huguccio, interpreted this to mean that the candidate chosen by the majority would be preferred unless the co-patrons were equally divided, in which case the worthiest candidate would be preferred.8 Other canonists, however, denied that the decision of the majority was authoritative, and thought that the bishop should always choose the worthiest candidate regardless of the numbers of votes (Landau 1975: 184–185).

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CONFLICTS BETWEEN ECCLESIASTICAL AND SECULAR JUSTICE Canonists and papal decretals generally took the position that disputes over rights of patronage to churches belonged in ecclesiastical courts, making exceptions only when the patronage right was appurtenant to an estate and the secular court had jurisdiction over the estate (Helmholz 2004: 478–479; Landau 1975: 207–210). However, kings often took the position that patronage disputes belonged in secular courts, at least in some circumstances. After conquering Normandy, for example, Philip Augustus preserved a modified lay patronage jurisdiction in that region, and the Capetian kings subsequently extended secular authority in patronage disputes to other parts of France (Soudet 1925: 321–326). In England, Henry II proclaimed in the first clause of the constitutions of Clarendon, promulgated in 1164, that controversies concerning presentation to churches, whether between laymen, between clerks and laymen, or between clerks, were to be decided in his own courts (Whitelock et al. 1981: 878–879). This sweeping statement set the stage for centuries of royal litigation over patronage of churches in the English royal courts. Patronage rights were simply too valuable and too important to the king and his subjects to grant the ecclesiastical courts exclusive jurisdiction over them. As the common law developed, the two parallel English legal systems worked out a rough compromise, whereby the church courts would retain jurisdiction over disputes involving possession of benefices, while the royal courts would deal with patronage.

JUSTICE IN ENGLAND UNDER HENRY II Henry II is known, for good reason, as the founder of the English common law. During Henry’s reign, the English royal courts dramatically expanded their jurisdiction, creating a national legal system that would eventually supplant the preexisting framework of local and seigniorial courts. Historians have debated whether legal remedies such as the assize of novel disseisin, the assize of mort d’ancestor, and the writ of right were meant to upset or strengthen the existing feudal framework (Biancalana 1988: 435–441; Brand 1992: 203– 225; Milson 1976). A consensus seems to be emerging that, although the assize of novel disseisin and other inventions of Henry II’s reign may not originally have been intended to supplant the seigniorial courts, the creation of those inventions was a manifestation of royal authority (Biancalana 1988: 435–436; Hudson 1994: 254, 262–271). The writ of right for land was one of the earliest writs developed during Henry II’s reign, and it had antecedents going back to the reign of William the Conqueror (Van Caenegem 1959: 206–221, 413–424). At the time the treatise known as Glanvill was written, there were in fact two principal writs of right for land. The first, the writ precipe, ordered the defendant to render a certain tract of land to the plaintiff; if the defendant failed to do so, he was to be summoned by good summoners to appear before either the king or his justices at a specific place and on a specific day, at which point he could explain why he had failed to follow the command in the first clause of the writ (Glanvill, I, 6, p. 5). The second, the writ of right patent, was directed not to the sheriff, but to a particular lord, and commanded that lord to “do full right without delay” with respect to a certain parcel of land which A claimed to hold of the lord and of which B was deforcing A (Glanvill, XII, 3, p. 137 [trans. Hall]). If the lord did not do this, the writ warned, the sheriff would, “that I may hear no further complaint for default of right” (Glanvill, XII,

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3, p. 137 [trans. Hall]). The writ had to be directed against the lord of whom the plaintiff claimed to hold, “not to anyone else, not even to the chief lord” (Glanvill, XII, 8, p. 140 [trans. Hall]). The basic idea behind the writ was that, when a lord failed to do justice to one of his tenants, the king had the right to intervene. Unlike the writ of right patent, the writ of novel disseisin was addressed to the sheriff, not the plaintiff’s lord. In the writ, the king informs the sheriff of A’s complaint that B “unjustly and without a judgment has disseised him of his free tenement in such-and-such a vill since my last voyage to Normandy.” The king then orders the sheriff to restore the chattels seized from the land and hold the tenement and the chattels in peace for a specified period of time. The tenement would then be viewed by “twelve free and lawful men of the neighbourhood,” called the recognitors, who would then be summoned to appear before the king or his justices at the appointed time (Glanvill, XIII, 33, pp. 167– 168 [trans. Hall]). In one of the most influential studies on the early history of the common law, Milsom drew a useful distinction between upward-looking claims—claims by a tenant against his lord—and downward-looking claims, claims by a lord against his tenant (Milsom 1976: 80–102). The writ of right could initially be used to make either upward-looking claims or downward-looking claims. Under Henry II, however, the writ of right came to include a clause that the plaintiff claimed to hold the land in question from the addressee (Biancalana 1988: 445–449). The writ could no longer be brought by a lord against his tenant to force the tenant to plead in the lord’s court. Instead, it was a writ to be brought by a tenant when someone else had got into the land under the lord’s authority. The writ was addressed to the lord, but the defendant was the rival tenant. According to Milsom’s explanation, the assize of novel disseisin also had an upwardlooking aspect, insofar as it was brought by the tenant against the lord. But the tenant would only bring the assize after the lord had already taken action against him by disseising him. Thus, the dispute as a whole would have a downward-looking dimension: the lord wants to get rid of the tenant and has taken action to dislodge him. Here the dispute is between the tenant and his lord, not between the tenant and a third party. It is possible, therefore, to explain the difference between the writ of right and the assize of novel disseisin in terms of upward-looking and downward-looking claims. The former is an upward-looking claim by a tenant, while the latter is the tenant’s reaction to a downward-looking claim by his lord, even though both actions are upward-looking at the time the action is brought. Before the reforms of Henry II had their corrosive effect on the old system of seigniorial justice, ordinary disputes over freehold land were generally decided in the lord’s court, not in the court of the king. Henry II’s reforms gradually shifted much litigation into the royal courts, which eventually became the sole venue for disputes regarding freehold land. Milsom argues, however, that in order to understand the original purpose of the assize of novel disseisin, it must be seen not through the prism of later developments, but as it would have fit into a world where the lord’s court was still the dominant venue for land litigation. Created by men who lived in this world, Milsom reasons, the assize of novel disseisin must have been designed not to destroy the seigniorial court system, but to provide a remedy for tenants in cases where its guidelines were being disregarded. Milsom’s arguments from the wording of the assize have been challenged. Brand notes that, under Milsom’s reading, the word “unjustly” in the phrase “unjustly and without a judgment” would be superfluous, “since for him the real target was lords who disseised without obtaining a proper judgment.” Brand believes that the phrase was “intended

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simply to ensure that the assize was not used to remedy supposedly unjust judgments,” for which a separate form of action was necessary. As for the reference to putting back the chattels, Brand explains, a neighbor, as well as a lord, might take the chattels off of the land for purposes of storage. Most importantly, nothing in the writ of novel disseisin states that the plaintiff claims to hold the land of the defendant, as was the case in the writ of right. Brand considers it more likely that the assize was concerned from the beginning with public order, and the limitation to free tenements marked the sphere of the king’s competence. Brand also takes issue with Milsom’s contention that the writ of right was meant only to put back those dispossessed during the so-called Anarchy, as there is no evidence of this in the wording of the writ (Brand 1992: 221 -224). Brand is not the only scholar to have questioned Milsom’s view of the early common law. Sutherland concluded that, although feudal lords might often have been defendants in actions brought under the assize of novel disseisin, we cannot assume that they were the only defendants that Henry II and his advisors had in mind when they created it. “If feudal lords were … the usual disseisors against whom tenants needed new protection, the designers of the assize made their work not one whit different on that account, but cast it in the form of an action good against all the world” (Sutherland 1973: 31). About ten years after the assize of novel disseisin was created, Henry II and his advisers created the assize of mort d’ancestor, designed for situations where a lord prevented an heir from inheriting land of which his ancestor had been seised (Biancalana 1988: 484–485). Another important innovation of the reign of Henry II was the precipe writ of dower, which gave widows who had none of their dower a remedy in the royal courts (Biancalana 1988: 514). In several different contexts, therefore, Henry II and his advisers intervened in matters that had previously been the province of the seigniorial courts, increasing the authority of the king and the royal courts while simultaneously strengthening the hand of freeholders against intermediate lords.

ARCHBISHOP BECKET’S CASE While some scholars since Milsom have treated the assize of novel disseisin in the general context of Henry II’s reforms, others have discussed the relationship of the assize in particular to concerns of the church. Cheney has argued that litigation between the royal courtier John Marshal and Archbishop Thomas Becket in 1164 may help to explain the development of the assize of novel disseisin. Under canon law, bishops and abbots had a duty to recover lost possessions of their churches, and Archbishops Theobald and Thomas Becket acted vigorously in the mid-twelfth century to recover properties that allegedly belonged to the see of Canterbury, many of which had been lost during the civil war of Stephen’s reign. Around 1164, Becket put John Marshal out of possession of one such estate, and litigation ensued to determine whether Marshal held of Archbishop Thomas or the archbishop held the estate in demesne. Becket was victorious, for, as one of Becket’s biographers pointed out, Marshal “had no right as the law then stood (nullo iure munitus, quod tunc lex erat)” (Cheney 1984: 16–17). The phrasing of this comment is telling: “as the law then stood” implies that the law had changed by the time Becket’s biographer was writing. This 1164 litigation, according to Cheney, may have been the immediate impetus behind the creation of the assize of novel disseisin. It is puzzling why the magnates of England passively accepted the infringement on their seigniorial jurisdiction that the assize represented. The puzzle is solved, however, if we can assume that some of the

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magnates were tenants in John Marshal’s position who wanted a procedure to prevent churchmen from evicting them from their lands without a judgment (Cheney 1984: 24). Papal privileges granted during the 1140s often contained a novel clause specifically authorizing English bishops to recover lost church lands, many of which had fallen into lay hands during the chaos of King Stephen’s reign (Cheney 1984: 19). If the church was more likely to recover its lands during the years leading up to the assize of novel disseisin by disseising lay tenants than vice versa, that might explain why the assize did not meet with resistance from the great English barons. Another possible explanation for the development of the assize of novel disseisin also depends upon conflicts between churchmen and laymen over property (Macnair 1999: 581–582). Macnair points out that, prior to the development of the assize, the main tool for deciding property disputes was the writ of right. Trial by battle was unacceptable to the church as a means of dispute resolution. The church preferred proof by documents and witnesses in a church court, but this was unacceptable to the king and the laymen involved in the disputes. Perhaps, then, the assize of novel disseisin, with its trial by a jury of recognitors, emerged as a compromise between the procedural needs of the church and the desire of laymen such as John Marshal for an effective remedy. Jury trial was a very popular innovation, and the English king was able to lure plaintiffs from the church courts and manorial courts into his royal courts. However, Henry II’s younger son John came close to undermining the great achievement of his father. Unlike his brother Richard I, John spent a great deal of time in England, particularly after he lost his possessions in France. King John decided to personally preside over some of the cases in the royal courts. This was disconcerting for the royal judges, who were used to deciding cases without the king’s involvement. A good example of John’s interference may be seen in a lawsuit over the church of Wimpole from 1207, which is recorded as having been dismissed because “dominus rex non vult quod loquela illa procedat (the lord king doesn’t want the lawsuit to proceed) (1 CRR 442 [Pas. 1201]).” Nevertheless, despite his desire to intervene personally in individual disputes, King John was constrained by pressure from his barons, and ultimately by Magna Carta, not to abandon the jury and other traditional common-law institutions. Justice is mentioned several times in Magna Carta, most notably in Clause 40 of the original Charter, in which John promised, “To no one will we sell, to no one will we deny or delay, right or justice (Nulli vendemus, nulli negabimus, aut differemus, rectum aut justitiam) (Magna Carta (1215), clause 40).” This majestic promise would admittedly have been of little use to actual litigants in 1215, since it is broad enough to support virtually any argument, yet vague enough to be rejected in every case (Tate 2015: 132). Nevertheless, careful study of Magna Carta’s provisions shows that the Charter offered important and meaningful guarantees of fundamental rights, such as the right to be protected against wrongful disseisin of one’s property, as vindicated through the assize of novel dissesin and other royal writs that made use of jury trial (Magna Carta (1215), clauses 17–18; Tate 2015: 132–134). The language of Magna Carta had a strong influence in the ensuing centuries on those who were devoted to the cause of justice and the rule of law. Unlike Augustus, John failed to augment his temporal empire: but by virtue of that failure he succeeded in promoting justice in ways that he could not possibly have imagined.

Chapter Two

Constitution EMANUELE CONTE, LAURENT MAYALI AND BEATRICE PASCIUTA

MEDIEVAL CORONATION AND MEDIEVAL CONSTITUTION On the morning of June 18, 1155 Frederick, known as Barbarossa (red beard), entered the city of Rome via the Porta Aurea, on the Janiculum Hill. He came via the Leonine City, protected by walls built in the mid-ninth century by Pope Leo IV, and headed for St. Peter’s Basilica. He entered the church and listened to the Mass celebrated by Pope Adrian IV who then crowned him emperor of the Holy Roman Empire. The 1155 coronation was not a peaceful event. Frederick’s army had to occupy the basilica during the night and protect the route followed by the sovereign through the city. After the coronation, a violent battle pitted the imperial soldiers against the people of Rome as hundreds died in a single day.1 Why was Rome such a dangerous place for the imperial procession? The people of Rome had tried to form an alliance with the young German king against the pope (Conte 2004). For some years they had waged a battle to assert their autonomy from the pope’s power, recalling the authority that came from the ancient glory of the city. They had celebrated the majesty of its Senate (Petersohn 2010), and followed for a few years the preaching of Arnold of Brescia, a disciple of Abelard, who argued that the people of Rome, not the pope, should crown the emperor. But Frederick captured Arnold, condemned him to the stake and scattered his ashes in the Tiber. He also refused the invitation of the Romans to become allies, and turned instead to the pope. The battle of June 18 was just the latest episode in a difficult and violent campaign that had led the emperor through Italy on a very slow march towards Rome. During the journey Frederick encountered various cultural influences that we can probe in order to capture some aspects of what we may call “a medieval constitution” as we follow the story written by Otto of Freising, Frederik’s official biographer. Italy, where Frederick headed as soon as he was elected emperor in Frankfurt, presented the young ruler with different perspectives: a rapidly changing society, which had kept some Roman elegance despite the barbarian invasions.2 In this Italy, despite the remnant of the past centuries under the Lombard domination, the ancient structure of the Roman Empire remained strong. The long absence of imperial power in Italy had allowed Italians to develop institutions that were unknown north of the Alps. The territory from the Alps down to Rome was largely controlled by the cities in these regions and there was no aristocratic power that was not subject to the city.3 Italian citizens loved freedom so much that they rejected the imperial jurisdiction, preferring instead to be governed by consuls representing the different social groups that made up the cities.

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Despite a certain admiration for this love of freedom, Frederick’s policy of imperial restoration could not accept such a state of affairs. It was necessary to assert that any exercise of power, even the power of the apparently autonomous cities, stemmed from the empire, and therefore had to be based on a delegation granted by the emperor. But how to proclaim this political principle before the Italians rebels? Otto of Freising tells us that the main theoretical argument was to invoke the ancient Roman imperial sovereignty. But the Italians, so proud of their ancient civilization, refused to recognize that the Roman laws were still in force.4 Therefore they did not comply with the principles of Justinian’s Roman law according to which the imperial power descended directly from God and authorized the prince to repeal with a law any existing custom.

THE EMPEROR AND THE ROMAN LAW Thus, in the mid-twelfth century, a fundamental principle of the medieval constitutionalism appears: the continuity between the Roman Empire and the medieval empire, which justified the adoption of the Roman law in medieval Europe (Mayali 2000). The idea that the medieval empire assumed Justinian’s law as its regulatory system has been the focus of two traditional and opposite interpretations. On the one hand, some historians have seen in Justinian’s law a powerful weapon of oppression of peoples who were artificially subjected to a despotic law imposed from above.5 On the other hand, other scholars have considered that the adoption of the Roman law by the empire was a major boost to the legal civilization of medieval Europe. “If the Roman law was a hundred times more perfect than we want to recognize in its praise, not a single student would have been attracted to Bologna and the school of glossators, if that law had not been the law of the Imperium Romanum” (Koschaker 1947: 80). According to Otto of Freising, Frederick intended (even before the coronation in 1155) to impose obedience on the Italians in the name of the Roman law (the “leges”). However, historians have always considered that the use of Roman law was first made explicit a few years later, at the Diet of Roncaglia in 1158. Several Italian and German sources refer to this episode, that historiography has considered fundamental for many decades.6 At Roncaglia Frederick convened the four Bolognese Legum doctores, who were, according to tradition, the direct students of the founder of the Roman law school, Irnerio. The presence of Bulgarus, Martinus, Jacobus and Ugo at the imperial court for a few days in November 1158 attests to the particular role of the new legal science borne out of the ancient books of Justinian’s compilations of Roman law in imperial politics. In reality, however, it is appropriate to separate the two phenomena, and the two different uses of antiquity by Frederick and by the scholastic culture that gives rise to legal thinking. Towards the end of 1158, the Emperor wanted to take advantage of the best connoisseurs of the Corpus Juris Civilis to support the main political issues of the empire against Italy. Bologna’s jurists on the other hand, saw the Roman law entirely differently, as we will see shortly. Frederick wanted the local authorities to recognize that every power of jurisdiction was established in the empire, and must therefore be granted by the emperor. He wanted also the recognition of the imperial right to collect taxes from the rich Italian city. Thus he asked the lawyers to summarize the Justinian legislation on these points, and promulgated four new laws that reaffirmed these principles of Roman origin. There are some doubts on the text of these laws, which have a problematic textual tradition,7 yet it is certain that they were promulgated, and their symbolic meaning is very important.

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The first law laid down the powers of the sovereign, the so-called iura regalia, i.e. the rights that pertain exclusively to the prince. Only the emperor or his officers may dispose of navigable rivers, ports, exercise the power to coin money, to levy certain taxes, and to confiscate the goods of people found guilty of high treason.8 The second law stated that any power of jurisdiction resided with the prince, and could only be exercised in his name. The third law gave the prince the right to have his palaces wherever he wanted. It was an important provision because the palatium was a symbol of the sovereign power, both in the capital and in the many places where the court would move for a few days. But even when the emperor was not present in the palace, the palace itself was the physical representation of his power. It was the reason why the imperial power could be exercised. When Frederick enacted this brief constitution on the palaces he followed an ancient tradition, dating back to the reign of Theodoric in Italy and the empire of Charlemagne that was centered on the great palace of Aachen (Airlie 2014; McLean 2014). The fourth law concerned the prerogative that, next to the power of jurisdiction, defines the essence of medieval power: the collection of taxes. If the text that has survived is the original (but we could doubt it), it reveals the influence of the new legal culture based on the Corpus Juris Civilis, because it recalls Justinian’s general principles of tax law. The decision to assert Justinian’s law as the law of the German Empire was not an obvious political choice at all: the Swabian sovereign Frederick was the heir to the Carolingian imperial model, receptive to the memory of the greatness of Antiquity, but rather indifferent to the adoption of a system of norms unified for the whole empire. While deliberately assuming the title of “Imperator Romanorum,” Charlemagne had not bothered to reclaim Justinian’s law. The compilations of Roman norms which were made

FIGURE 2.1  Palace of Theodoric, Ravenna. Basilica of Sant’Apollinare Nuovo. 6th century. Source: De Agostini/Getty Images.

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during his time were the product of ecclesiastical bodies for the specific need of the clergy.9 The emperor, who was sacred and Roman, did not even bother to collect his own laws in a corpus. His various Capitularia were assembled after his death in a private collection by Ansegise who wrote an incomplete and unofficial compilation. Frederick himself, despite his references to Antiquity, never thought of compiling a collection of laws and promulgating it as emperor. By the end of the century, when his son Henry VI ascended the throne for a short period (1191–1197), codification had spread as a legal model. Europe witnessed the emergence of the first official collections of sovereign laws, issued by the pope or the territorial sovereign in the first half of the thirteenth century (Conte-Ryan 2014, and cfr. Marmursztejn, Codes, in this volume).

BALANCING LAW AND POWER When Henry VI ascended the imperial throne, it seemed that the ambitious political project of his father was truly realized. The young emperor had entered into agreements with many powerful Italian cities. He developed good relations with the Pope, and managed above all to take possession of the great and rich kingdom of Sicily, which he acquired through his marriage with Constance of Altavilla, heiress to the Norman dynasty. Henry succeeded his father to the imperial throne in 1191. He was crowned king in Palermo on Christmas Day in 1194, with an even more sumptuous ceremony than the imperial one. The next day, on December 26, his wife Constance gave birth to their son Frederick II. Henry’s success, however, was to be short-lived, because the young king died in 1197, leaving his son Frederick as the sole heir to both the imperial and the Sicilian crown. Frederick was destined to revive the idea of sovereignty, but before his coronation in 1220, European jurists developed a doctrine that limited the power of the emperor and framed it within the limits imposed by the legal order. In Lucca, around 1195, the judge Rolando wrote a substantial work on public law. Although dedicated to Henry VI, the whole work is inspired by a “constitutionalist” conception of power and “the rule of law.” It defines the emperor as a member of the legal order which must use its power in accordance with the laws. For example, the emperor should not impose unreasonable taxes, and citizens have the right to resist the unjust demands of the tax collectors. He may not seize the property of his subjects without just cause and without compensation. In short, he must be first and foremost the defender of the law (Conte-Menzinger 2012: lxxxv). The authority of Justinian’s compilations induced jurists of the late twelfth century to develop a theory of legal norms that sought to balance two contradictory principles that were both expressed in Roman law. On the one hand, the binding force of the law derived only from the will of the lawmaker, which sufficed to impose and enforce it (Quod principi placuit legis habet vigorem, D. 1.4.1 = Inst. 1.2.6). On the other hand, the power of the prince must submit to the laws (C. 1.14.4). Facing these opposing principles, medieval jurists proposed a delicate balance between the force of the will that was essential to give effect to the law, and the need for a ratio, as a rationality that was inherent to the text of the norms (Cortese 1962–1964; Post 1972). The most effective limitation of imperial power came, however, from the Church’s politics. In 1198, one year after the death of Henry VI, Lothar of Segni became Pope as Innocent III. He had studied theology in Paris and canon law in Bologna. Canon law then became the main instrument for the affirmation of spiritual power. The canonists elaborated a doctrine that recognized the pope’s supremacy over the secular power while the Church became also the protagonist of the resumption of legislative activity.

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In 1209, Innocent III issued for the first time after many centuries, an official collection of sovereign rules: the so-called Compilatio tertia that, unlike previous compilations, was not a private work but came directly from the ecclesiastical legislator. The pope promulgated it and recognized the essential function of the doctrine that created the dialectic model of medieval law by bringing together single norms into one legal system (Count-Ryan 2014: 84). A few years later, the same Innocent III convened in Rome an ecumenical council, which took the name of Lateran IV. This council is one of the most important political moments of the Middle Ages: the great assembly of Christianity, which took place in the papal palace, established innovative principles for society and the law. It profoundly reformed criminal procedure. It prohibited the participation of the clergy in the administering of ordeals, which could no longer stand as a “judgment of God”; it instituted the inquisitorial procedure for criminal trials. It regulated the procedures for the election of clerics and the access to ecclesiastical dignity, as well as defined the rules for the payment of tithes and tributes to the churches. It regulated judgments, the appeals procedure, the preparation of court documents, and the sentence of excommunication; it renewed the discipline of marriage; it imposed on Jews and Muslims the wearing of clothes that distinguished them from Christians; and it regulated the practice of usury. With Lateran IV, Innocent imparted a fundamental impulse to Europe that he regarded as a Christian society subject to the supreme power of the Vicar of Christ. In his vision, the pope had received from God the two swords of spiritual and temporal powers whereas the emperor was elected by the German princes and received his power only from the pope, and not directly from God. This doctrine allowed the Church to dictate constitutional principles which should be followed by all, as happened with the Council in 1215.

THE USE OF IMAGES TO COMMUNICATE CONSTITUTIONAL CONTENTS: THREE ROMAN EXAMPLES (1125; 1248; 1346) These complex balances of power, which formed an important part of the medieval constitution, were the subject of a communication program through the visual arts. Let us consider, for instance, three pictorial representations of the relationship between the Pope, Rome and the empire that were created within a century of each other. The first of these was painted around 1125 but was destroyed in 1155. The second is still visible today—it dates back to 1248. The third is also lost—the Romans could admire it in 1346. During Frederick’s tumultuous stay in Rome for his coronation, his followers had destroyed a fresco that was painted in St. John Lateran thirty years earlier. Pope Honorius II had ordered it to celebrate the coronation of Emperor Lothair II, which took place on August 30, 1125. The image depicted the emperor placed submissively in front of the pope, and an inscription made clear that the imperial crown was conferred by the pope, only after the king had sworn to respect the honor of the city of Rome. This combination of the power of the pope and the city of Rome is at the center of another important series of paintings of the next century in the oratory of San Silvestro near the church of the Four Crowned Saints, not far from the Colosseum. Painted in 1248, when Rome and the papacy were threatened by Frederick II, the oratory scenes tell step by step the story of the Donation of Constantine. The forged text was probably produced in the eighth century and was then accepted into the most fundamental book

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of canon law of the twelfth century, the Decretum of Gratian.10 The text provided Emperor Constantine’s description of his own conversion to Christianity, the leprosy that had struck him and the miraculous healing received through Pope Sylvester. Therefore he had decided to give the city of Rome and the imperial power to the pope. For several decades popes and jurists had quoted this text with some moderation, but shortly before the painting of the frescoes, the great lawyer pope, Innocent IV, offered a more radical interpretation. In 1245 Innocent wrote to Frederick II, who had been excommunicated, to affirm that the donation was nothing more than a return to the Church of a power that belonged to Christ. Innocent IV expressed his views in technical and legal terms: the emperor’s absolute power was a “tyranny not subject to any order,” and not regulated by higher norms. Demonstrating humility, Constantine had returned this unlimited power to the Vicar of Christ, to receive it back from him as “potestas ordinata” that is a power limited by legal and moral norms.11 The impressive cycle of frescoes in the Four Crowned Saints Church illustrates and relates precisely these theoretical positions. Let us jump one century later when we find once again the use of painting as propaganda. Between 1344 and 1346, various completely different images were proposed to the Romans by Cola di Rienzo who acted as a sort of “revolutionary” and expressed views based on a specific political and constitutional model. Despite being the son of an innkeeper and a washerwoman, Cola had received an excellent education in literature and history. He was a great orator, knew Latin and the classics, and had spent two years as ambassador of the People’s Government of Rome at the papal court in Avignon, where he had met Francesco Petrarca. Back in Rome, Cola conceived the political project to regain the people’s sovereignty over the city, relying on the memory of its ancient glory. His political success is characterized by the use of painting

FIGURE 2.2  The Donation of Constantine. Rome, Church of Santi Quattro Coronati. 1248. Source: Photo by Fine Art Images/Heritage Images/Getty Images.

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to communicate political ideas to the people. He drew upon allegorical paintings to illustrate the decadence of Rome and the rapacity of the nobles who had taken over the government.12 Cola is “a unique figure in the history of Italy and also the medieval West” (MaireVigueur 2010: 341): he was capable of organizing grand ceremonies in which the political and the religious, the ancient and the modern, were mixed with sound and images in order to spark the public imagination. In 1346, a year before seizing power, Cola organized one of these ceremonies in the Basilica of St. John Lateran, where the bronze table with the inscription of the Lex Regia Vespasiani was preserved. This Lex Regia Vespasiani was the act of the Roman Senate which conferred imperial powers upon the Emperor Vespasian (between 69 and 70 AD). Cola di Rienzo used his great knowledge of Roman antiquities to provide a “democratic” interpretation of political power to his audience, which consisted of peasants and merchants, but also of judges and lawyers. The inscription, he observed, proved beyond doubt that sovereignty did not come from the Pope, but came from the people of Rome. The intellectual fascination caused by the presence of the ancient and majestic relic was “vulgarized” through paintings that depicted the Roman Senate appointing the emperor. These images were quite different from those painted exactly a century earlier in the Oratory of San Silvestro.

KINGDOM: THE EXAMPLE OF SICILY Between the eleventh and twelfth centuries, around the affirmation of the universal powers—the papacy and empire—that placed their roots in a divine legitimacy and their origin in a distant past, Europe began to experiment with new models of governance that were characterized by direct control of the territory, by the exercise of official authority— justice, tax collection—and the legislative function. The political model of the monarchy appears almost simultaneously in England, France, the Iberian Peninsula and in Southern Italy. The cultural models that sustain public royal power in its various manifestations are all defined by sacredness. What distinguishes the king from other territorial lords is not so much the extent of his jurisdiction and powers as being legitimized by charisma. The royal constitution, therefore, differs from other forms of legislation by the cultural roots which characterize it. The command, i.e. the establishment of a new order—which extends from justice to administration and to the relations between individuals—is usually accompanied by references drawn from the Holy Scriptures and the text of Roman law par excellence, the Corpus Juris Civilis of Justinian. The Sicilian case is paradigmatic but figures at the same time as an exception. The birth of the kingdom, its administrative structure and its early legislation are in line with what happens in other monarchies, and especially the Anglo-Norman one. And yet, its cultural matrix—Latin, Muslim, Greek and Lombard—shapes a distinct feature in the very image of the sovereign independently from the establishment of the new regime. This difference is even more pronounced with Frederick II’s ascent to the throne. Swabian on his father’s side and Norman on his mother’s side, grandson of both Frederick Barbarossa, the Holy Roman Emperor, and Roger II, first king of Sicily, Frederick was placed under papal protection. In the course of his long reign he met with four popes, was the subject of numerous excommunications and shaped the contours of a new constituent power. Being simultaneously emperor and king, he promulgated the Liber Augustalis, one of the most important texts of Western

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legal culture. To understand this highly unusual destiny, we must take a step back to the origins of the Norman kingdom. On Christmas Day 1130, in the Cathedral of Palermo, Roger II of Altavilla was crowned as the first king of the Kingdom of Sicily. In his chronicle, Alexander of Telese devotes special attention to the detailed description of the coronation ceremony and the events that preceded it (Alexander of Telese: 78–79). Roger when he was still Duke of Apulia, had convinced himself that, given his power and the vastness of the lands under his personal control (throughout southern Italy and Sicily), he should be conferred with the maior dignitas of a king. He also decided that the capital of the new kingdom should be Palermo, which in the past had been the legendary capital of a kingdom but had been deprived of it for a very long time “for inscrutable will of God” (occulto Dei disponente iudicio). Having convened an assembly of proceres in Salerno, Roger entrusted them with the realization of this project that was met with common approval. The coronation was set in Palermo on Christmas Eve 1130. The ceremony was very solemn and magnificent, in the presence of an immense crowd, coming from every part of the island and summoned by Roger. The coronation gave the new king tanta virtutis potentia to enable him to punish evil and preserve justice, “for the glory of God and for the advantage of the Church.” The pomp deployed during the ceremony was extraordinary. It seems that “all the riches and honors of this world were present.” The palace was lavishly decorated with obvious references to Oriental culture: “The royal palace was on its interior walls gloriously draped throughout. The pavement was covered with multi-colored carpets and displayed a flowing softness to the feet of those who trod there”; the gigantic and rich banquet was served in dishes made of gold and silver; servants wore silk clothes and “The glory and the wealth of the royal abode was so spectacular that it caused great wonder and deep stupefaction—so great that indeed it instilled a little fear in all those who had came from so far away. For many saw there more things even that they had heard rumored previously.” This description of the coronation by Alexander of Telese may be taken as a paradigm of the idea of kingship, or at least its outward manifestation: glamour and power that served to distinguish the sovereign from his subjects and to inspire in them feelings of admiration and fear. The depictions of the crowned king reflect the cultural diversity that presided over his court. The Martorana mosaic (fig. 2.3) depicts the monarch dressed in the full-length robes of the Byzantine Basileus. The mosaic dates from 1146 to 1151. It is likely that Roger had seen it. George of Antioch, Admiral of the Kingdom, who possessed a strong Greek culture had founded the church. He was also responsible for the mosaic decoration. It should be observed that the clothing of the sovereign is typical of the Byzantine emperors, but not of the ones who were Roger’s contemporaries: the scarf with the cross (loros), the garment woven with gold, the crown with pendants of pearls were part of the clothing of the emperors until the tenth century. Roger’s portrayal on the Bari enamel (fig. 2.4) adopts a more Occidental style. The ruler is shown next to St. Nicholas holding the crown that is round and with a diadem; the clothing is Byzantine, but painted with less care than in the Palermo mosaic. Roger is claiming the title of rex but displays the symbols of imperial power. The resemblance between the face of the sovereign and the face of Christ who crowns him reveals clearly the political message that supports the iconographic representation: the kingdom was received by divine oblatio and not through the intermediary of the pope. (Houben 2002).

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FIGURE 2.3  Roger II being crowned by Christ. Palermo, Church of La Martorana. 12th century. Source: De Agostini/Getty Images.

Beside the Imperial image—which reflects elements of both the Byzantine and German emperors, at least according to the Ordo coronationis that should have been followed for the coronation, and was the same for the German sovereigns (Elze 1973, 1990)—Roger assumes also the image of the Muslim ruler. In a famous depiction on the ceiling of the

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FIGURE 2.4  St Nicholas crowning Roger II. Bari, Museo Nicolaiano, 12th century. Source: British Museum

Palatine Chapel, the king is shown dressed as a caliph with his legs crossed and wearing the Arab crown (Figure 2.5). The conception of the power of the sovereign as a mirror of the power of the ChristKing is perfectly illustrated in the architecture of the west part of that same church. The mosaic depicts Christ in Majesty and underneath, where Roger’s throne was placed, we can find the symbols of the imperial majesty: the lions and columns in porphyry (Figure 2.6). This cultural syncretism provided various references for the representation of political power. They were assembled from a mixture of Byzantine, Western and Arab cultures and were used to produce a comprehensive image of power both inside and outside the kingdom. They were especially set against the pontifical power. The parasol that Norman sovereigns adopted as a symbol of their power was one of these emblematic items. According to the testimony of the Arab chronicler Ibn Ḥamādu (1220), the Norman kings were the only ones, beside the Fatimid caliphs, to use

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FIGURE 2.5  King Roger portrayed as an Arab caliph. Picture on wood. Palermo, Palatine Chapel. 12th century. Source: Wikimedia / The Yorck Project / GNU Free Documentation License.

al-miẓallah, the parasol. He described it as a leather shield placed on a spear, and adorned with precious stones, so beautiful as to “dazzle the sight and fill with wonder those who look at him.” The parasol was brought by one of the most valiant knights to protect the king from the heat: “No kings are known to have adopted this parasol, other than the Banu Ubayd (the Fatimid caliph of Egypt) and the king of Europeans (Rum) in Sicily. I believe that he received it with the other gifts that they used to send [the Fatimid caliphs of Egypt]” (Johns 1986: 33). This symbol of power appears in the frescoes of the Four Crowned Saints Church in Rome, depicting the meeting between the Emperor Constantine and Pope Sylvester (see Figure 2.2.). Thus the parasol and its symbolism were adopted from the “Norman practice by the Roman Curia despite

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FIGURE 2.6  Throne of King Roger in the Palatine Chapel, Palermo. 12th century. Source: funkyfood London - Paul Williams/Alamy Stock Photo.

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the papal court’s marked hostility toward the Sicilian kings and their elusive cultural syncretism” (Elze 1993: 120). “King Roger however established peace and good order in his kingdom, and to preserve that peace he instituted chamberlains and justiciars throughout the land, promulgated laws which he had newly drafted and removed evil customs from their midst.” (Romuald of Salerno: 259). From a symbolic and cultural perspective, the new legislation was certainly one of the most significant expressions of the strength of the new political power. The combination of the pacification of the kingdom, achieved by the king right after his coronation and implemented through a military crackdown, with a new production of norms that were intended primarily to maintain a peace conquered by blood, is a topos of the medieval monarchies. The so-called Assizes of Ariano were promulgated by Roger. They are mentioned by Romuald of Salerno and the chronicler Falco of Benevento (Chronicle of Falco of Benevento: pp. 244–245). These norms are transmitted as corpus in two manuscripts (Cod. Vat. Lat. 8782, end of the 12th centruy, and cod. Cassinese 468, the first half of thirteenth century.) Roger promulgated them at a meeting of proceres probably held in 1140. There is some doubt about the actual coincidence of the rules contained in the two codes—however, differing in many points—with those given in Ariano (Santini 1996; Trombetti Budriesi 1996). What we should observe, besides the philological concerns that generated much discussion without reaching any definitive conclusion, is the image of the constituent power that is drawn by the law. The preface of the work is fundamental for understanding the role of this legislation. It stated that these laws were offered to God in return for having given the kingdom to Roger. Gratitude toward God required the king to give laws to his kingdom and thus legitimating his action. The constitutional activity would be guided by divine command and inspired by the virtues of justice and mercy that were the essence of God and all legislators on earth. The explicit reference to the direct relationship between God and the king reflects the sacral legitimation of power: it is the origin of the king’s powers and not their extent that makes him king. The sacredness of the crown allows the king to make laws binding on his subjects. With the coronation sacrament the king becomes sacerdos iusticiae, and the judge of laws and customs; he has the duty—as well as the power—to change customs if they are unjust. The sacredness of his task as a legislator connects the figure of the king-legislator to both figures of the religious priest and that of the priest of the law. The rhetoric of the language of the preface is inspired by the sacred texts and the compilations of Justinian. It reaffirms, through cultural references, the sacred and absolute nature of the king’s sovereignty in his realm, as it was already represented by the Norman monarchy in the iconography that was clearly visible to its subjects. The constitutional function is embodied in the preservation of equity, the maintenance of order and combating crime. Justice and the law, which in the modern theory of the state are entirely separate functions, constitute in the Middle Ages an inseparable pair as the foundation of royal power. Contrary to what has been said (Kern 1919–1939), the Norman king declares as its task the enactment of new legislation, which is a function of its power of jurisdiction. The normative order consists of a plurality of sources that Roger formally maintains in force, but that are hierarchically submitted to the royal legislation. The guiding principles of his actions were essentially three: control of customs, intervention on “special” orders, feudal and ecclesiastical; definition of matters which are submitted to exclusive royal prerogative: treason, crimes against public faith, offenses committed by royal officials, injury, murder, theft, assault, violence, slander, fire, plagiarism, harboring fugitive slaves, apostasy, desecration of sacred places, pandering, and adultery.

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Frederick II The righteous king and dispenser of justice is a topos that is also clearly highlighted in the other great preface that marks the history of the kingdom of Sicily in the Middle Ages: the preface to the Liber Augustalis of Frederick II. King of the Regnum Siciliae and Emperor of the Holy Roman Empire, Frederick kept the two crowns separate and gave to his kingdom a new and substantial legislation. The so-called Liber Augustalis, was promulgated in 1231 and amended by new rules up to 1248 (Stürner 1992, 1996; Houben 2013; Enciclopedia Federiciana). The link with the Norman past—of which Frederick II was a direct heir (grandson of Roger II and cousin of William II)—was for the new ruler a further element of the legitimacy of its constitutional accomplishments. Already in 1230, during the preparatory phase of the Liber Augustalis, Frederick ordered justiciars of the kingdom to convene with him, as soon as possible. Four men from each jurisdiction should be chosen from among the older and more learned. They should know “the laws of our ancestor Roger, the customs established at the times of Roger and Wiliam II.”13 Frederick explicitly transposed many of those norms in the Liber Augustalis. He promulgated them de novo with a renewed constitutional force (Trombetti Budriesi 1996). The basis of the new legislation was stated with a new and more solemn rhetoric in the opening of the preface. The new constitution was directly linked to cosmogony. It was presented as its continuation and logical consequence. Its model was provided by the image of the perfect society of the paradise on earth. After creating the universe, God created man and woman, made them immortal and subjected them to a law: here was the foundation of power. The law, given by God the lawmaker, bound the subjects and brought them happiness. It all ended with their disobedience and their resulting mortality. Thus disobedience was the source of mankind’s ills. Discord was born out of the division of property that was common to all according to natural law. Only a government of worldly matters could put an end to all these discords. The sovereign who was endowed with the task of governing, had the duty to promote justice and to make laws, so that the gift of the kingdom received directly from God could be multiplied, as in the Gospels’ parable of the talents. Frederick’s preface was even more explicit than Roger’s one. It connected lawmaking to justice. According to the political theology expressed in the Liber Augustalis, law was the tool used by the king to maintain order and ensure justice in the kingdom. References to the constitutional power of the sovereign and its exclusive prerogative to make the law in the kingdom were based on legal and theological references. On the one hand, Frederick directly invoked God as the source of his legitimacy. On the other hand, he specifically alluded to Roman law as the secular foundation of power. In the famous constitution Non sine (LA I, 31) the sovereign cited the Lex regia de imperio, with which the Roman people had given away their power to make laws to the prince. In the Middle Ages this provision, mentioned in a Ulpian’s fragment (D 1.4.1, pr.) and in other passages of the Justinian corpus (Inst. 1.2.6 and C. 1.17.1.7), had become the foundation of the legitimation of royal and imperial powers, in an attempt to free them from the exclusive and pervasive doctrine of the divine origin, and thus exempting them from papal mediation (Pio 2011). The search for constitutional models as opposed to pontifical models, albeit substantially similar, led Frederick II to accept taking part in the crusade demanded by the Fourth Lateran Council in 1215. It is known that although he had sworn to Pope Innocent III that he would participate in the expedition against the infidels, Frederick delayed his

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participation for so long that two other popes, Honorius III and Gregory IX would be elected before seeing him eventually leave for the crusade. Frederick finally departed in 1228, but his crusade was nothing short of remarkable: the agreements with the Sultan al-Malik al-Kamil allowed him to secure, among other things, the peaceful return of Jerusalem to the Christians. He proceeded to proclaim himself king of Jerusalem after his triumphal entrance in the city (Huillard-Bréholles 1852: 100–109). The dignity of king of Jerusalem, to which he was entitled through his marriage to his second wife Isabella of Brienne, was also recognized by the pope. But Frederick II was still under yet another sentence of excommunication promulgated by Pope Gregory IX. It made the sacramental coronation impossible. The contrast with the Church was also expressed in the extraordinary mix of cultures that was visible in the various symbols that were promoted in Frederick II’s court, as in the court of his Norman predecessors. Following the practice of his grandfather Roger, Frederick wore at his coronation a cape made by Muslim craftsmen in the workshop of Palermo’s Royal Palace. The so-called crown of Constance which, according to Elze’s disputed hypothesis, was worn by the king for his coronation was a kamelaukion, the Byzantine imperial crown, already visible in the mosaic’s depiction of Roger II (Elze 1990). The diplomatic, cultural and commercial relations that connected the emperor to the Muslim world made the conflict with the papacy even harsher. Back from the crusade, Frederick initiated the preparation for new legislation that provoked Gregory IX’s strong reaction. The conflict focused on the constitutional power that the Pope claimed as its exclusive prerogative. “We heard that you, by your decision or seduced by foolish advice of perverse men, intend to enact new constitutions and from that it necessarily follows that you are the persecutor of the church and the destroyer of public liberty.” The Pope officially asked the sovereign not to adopt new laws “because innovations of this kind usually generate serious scandals” (Pennington 1989: 59). In a letter addressed to Bartholomew, Archbishop of Capua, and member of the commission in charge of drafting the new rules, the pope expressed his discontent in much sharper terms: “we know for a fact that you suggested to Frederick the text of the new constitutions […] that are destroying salvation and generating enormous scandals, and that you hide behind the fig leaf of the weak excuse of not being the one who dictates the laws but the one who simply writes them.” The pope ordered him to immediately abandon his project and take action to prevent the scandal of new laws (Pennington 1989: 61). The conflict with Pope Gregory IX was mainly based on the dispute over the primacy or exclusiveness of the constitutional power. In 1234 the pope promulgated his great legislative work, the Liber Extra. Thus the legislative activity of the two rivals would develop in parallel throughout their lives just like the conflicts between the emperor and successive popes. During the last years of his life, having sentenced Frederick with a second excommunication (1239), Gregory IX, in the famous encyclical Ascendit de mari, denounced Frederick as the beast of the Apocalypse. He described the actions of the king in Sicily as a politics of pilfering and destruction (Rodenberg 1883–94: 646–654, nr. 750). Frederick replied promptly, returning the accusations, with other quotes from the Apocalypse (Huillard-Bréholles 1857: 348–349). In Frederick’s response, however, the political arguments were much more rigorous than the violent and not always consistent pontifical claims (Delle Donne 2014; Potestà 2013). They outlined with extraordinary effectiveness, the boundaries of the jurisdictions and hence the extent of the constitutional power.

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Frederick’s rhetoric reclaimed also the theme of the cosmogony. Divine providence, in exordio nascenti mundi, had placed two lights in the sky, a larger one to brighten the day, and a smaller one for the night. It had placed them in two different areas of the sky so that they would not disturb each other despite the fact that the largest could transmit its splendor to the smallest. Likewise God had placed in the earth’s firmament two regimina, the papacy and the empire, the first ad cautelam and the second ad tutelam, in order to ensure peace on earth. The role of the sovereign was emphasized in Frederick’s language with the use of legal vocabulary: if cautela generally reflected wise behavior, aimed at avoiding the damage caused by intemperance, tutela, to which mankind was subjected, reflected the legal status of minors, in which precisely the subject protected by the guardian enjoyed a substantial expansion of his capacity. So the king was the guardian of his subjects, and as such should act to improve their capacity when deemed necessary. Frederick’s statement borrowed almost literally, simply upending its contents, from an epistle of Pope Innocent III that was inserted in the compilation of Decretals promulgated by his great rival, Gregory IX. In that letter, addressed to the Emperor of Constantinople, Innocent expounded the theory of duo luminaria, the two lights. He declared that the greater light, the sun that illumines the day, was in charge of the spiritual sphere and was the pontificalis auctoritas, while the lesser light, that illumines the night or the material things, was the regalis potestas (Decr. Solitae benignitatis affectu: X 1,33,6 c.4). The legal vocabulary— encapsulated in the two pairs cautela/tutela and auctoritas/potestas—lent itself well to give certainty and concreteness to the political diatribe that was initially built with the tools of rhetoric and theology (Cortese 1995; Delle Donne 2014; Quaglioni 2005).

CUSTOMS AND THE “ASCENDING THEME” OF GOVERNMENT IN THE LATE MIDDLE AGES Despite many criticisms, the general interpretation proposed by Walter Ullmann in 1961 is still useful to understand the complexity of medieval constitutions. In Ullmann’s simplified model, medieval politics was defined by the struggle between two contradictory principles: a “descending model” of government, of which we have given two important examples (Empire and the Kingdoms), and an “ascending model,” expressing the idea that sovereignty and power came from the people up to the ruler that they empowered. Customary law is one of the most distinctive features of the legal landscape during the last centuries of the Middle Ages. Its dominance shaped the cultural matrix of the Western legal tradition as it translated social attitudes and beliefs into a normative order. In many parts of Europe, the protean nature and adaptability of customs made possible the successful transplant of rules borrowed from foreign or more ancient legal systems such as Roman law. From the twelfth century on, the rapid success of Roman law did not undermine the influence of customs on people’s life but gave it instead a new authority as it facilitated the dressing up of ancient habits and repeated practices in the legal clothing of customary law. This cultural process is perhaps nowhere more apparent than in the functional dualism of charters and urban statutes that defined public institutions and regulated various aspects of private life through the combination of people’s communal values with the premises of a constitutional order. By the second half of the twelfth century, the expansion of urban centers transformed the political and social landscape of medieval Europe. This unprecedented movement resulted in large part from the demographic expansion and the economic growth that signaled the turn of the century. The socio-economic transformations required in turn legal and political

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innovations to accommodate the new complexity of people’s interactions. The rise of towns as commercial and administrative centers challenged the legal shape of the established feudal order (Lopez 1976). Their expansion signaled the emergence of independent and powerful city-states that permanently altered the political landscape of medieval Europe. The power of the vast majority of rural and urban communities never achieved this level of political magnitude. But their more modest sizes and ambitions did not prevent them from pursuing a similar path to a legal autonomy based upon the distinctiveness of their laws. Customary norms defined the identity of each community as they reflected social beliefs and fostered public and private expectations. Deeply rooted in the groups’ self-consciousness, customs enjoyed a unique authority as they anchored the groups’ life in the reassuring permanence of past practices while addressing the challenge of future innovations. At the turn of the fourteenth century, in the foothills of the Pyrenees mountains, in the province of Bearn, a region sandwiched between modern Spain and France, an unknown lawyer undertook to write down the local customs. His compilation mixed ancient usages with more recent legal provisions. It comprised diverse customs that had governed the towns and villages of the province for the past three centuries. Aware of the historical significance of his task, our jurist prefaced his work with the record of the various attempts made by the people of Bearn to select their own lord. When the chosen local knight did not meet their expectations they killed him and went searching for the right person outside the borders of their province, first to the North in Auvergne then, after yet another unsuccessful attempt, to the South in Catalogna where they found the lord they had hoped for. Thus wrote our lawyer: Here are the customs of Bearn where it is said that in the past in Bearn, there was no lord. During this time, people from Bearn heard favorable reports on a knight from Bigorre; they went to meet him and made him lord of Bearn for one year; afterwards this lord did not want to preserve their customs. The assembly of Bearn met in Pau and asked him to uphold the customs. He refused. Thus they killed him. Afterwards, they were told about some knight from Auvergne who was a wise man. They went to meet him and took him as their lord for two years. He was so arrogant that he refused to uphold their customs and they had him killed on the Osserain’s bridge by a knight who ran him through with his spear. This lord was named Centulle. Afterwards, their heard much praises about a knight in Catalogna whose wife had just given birth to twins. People from Bearn met and deliberated to send two wise men from the province to ask to take one of these sons as lord. When they arrived, they went to see the children who were asleep. One child slept with closed hands while the other child slept with open hands. They came back [to Bearn] with the child who had his hands open. (Ourliac-Gilles 1990) The political overtones of this narrative reflect a conception of the people’s status and self-determination that was commonly voiced in various legal charters and documents during the last centuries of the Middle Ages. The first articles of the customs, dating from 1288, outlined the respective rights and obligations of the lord, by then viscount of Bearn, and the people. We find similar concerns expressed in a variety of legal charters from the Usatges of Barcelona (1096) and Pisa’s Constitutum usus to the Magna Carta (1215) and various French Chartes de Franchises and coutumes as well as numerous Italian Statuti in the thirteenth and fourteenth centuries (Ascheri 2005). In most of the cases, these statements were the result of political compromises that aimed at the

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restoration of peace in the community (Poudret 2009). Concerns for the recognition of legal rights and privileges also accredited implicitly the new legal foundation of a model of governance that was previously grounded on a de facto feudal legitimacy. In this sociopolitical context, practical necessities dictated the size and substance of provisions that did not purport to comprise all customary practices and past usages nor solve all the legal issues that besieged diverse communities and interest groups. Urban legislation and local customs soon mixed ancient privileges with new rights. They also combined home-grown usages and recently adopted Roman law principles into a legal patchwork of rules that were not always consistently enforced nor observed in the daily governance of the cities. Despite these incongruities, these charters retained the normative coherence that explains their lasting legacy in Western legal culture. For instance, writers on the Magna Carta are careful to point out its piecemeal mixture of baronial grievances, feudal claims and legal provisions. Yet, this conceptual disorganization and relative initial success did not diminish the Carta’s “talismanic character”(Helmholz 1990) as one of the first expressions of a model of governance based on the rule of law. As disorganized as they might seem to today’s audiences, medieval statutes clearly fulfilled important functions in the creation of public institutions and the elaboration of private law’s rules. Yet they never assumed the shape of a systematic codification; nor should we consider them as the medieval equivalent of today’s constitutions, notwithstanding the obvious constitutional character of some of their provisions. Medieval customs and statutes did not outline clear programs of government based on the principle separation of power nor did they develop a comprehensive system of rights and obligations for the regulation of all aspects of human life. They nevertheless provided the predictability and the stability that are two of the most essential benefits of codified law and constitutional order. From Barcelona to Runnymede, in Pisa or elsewhere in Italy, up to the remote valleys of Bearn and France where Paul Ourliac observed that “in the 13th century the dominance of custom is universal” (Ourliac 1985), these charters promoted consistency in law by stressing normative continuity while fostering legal innovations. The declared reverence for past practices did not prevent legal changes. It made them more acceptable. References to the antiqua consuetudo civitatis allowed for the introduction of Roman legal transplants and foreign usages in the city’s legal heritage. New rules rarely sanctioned an open rupture with the past as their success resided in their ability to pass for ancient usages. They did not challenge the preeminence of the social order but they accommodated its main inclinations by providing the legal instruments required for its preservation. In sum, the authority of custom resulted from a complex combination of timeless practices, opportune reforms, social conventions and people’s implicit adherence to a set of common values. This normative structure could result from a variety of compromises as each community had to contend with its own particular values but all customs were concerned with the preservation of a distinct cultural legacy (Gouron 1978). Most customs and urban charters never achieved the level of Magna Carta’s institutional scope. The baronial drafters had little in common with the compiler of the Bearn customs or the social forces behind the political ambitions of Italian urban elites. Yet the legalistic representation of baronial demands at Runnymede definitely imprinted the Great Charter’s constitutional inclinations in people’s minds (Helmholz 1999). Its political significance resided perhaps less in the mixed consequences of its direct aftermath than in the expression of a legal culture that transformed the modes of representation of individuals—people, barons and king alike—and institutions in the civil society (Baker 2017). The English barons’ conception of the political order shared

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a common discourse of nascent constitutionalism with the specific demands of the urban and regional elites across Europe. This symbolic significance was certainly not lost on the people who often referred to their customs as liberties. The liberties of a town or a borough did not sanction the independence of the community from weaker seigniorial or royal control but distinguished its particular status as shown in the generous use of this term to describe diverse legal provisions such as immunities, exemptions from taxes and other privileges. New social and political forms of solidarities centered upon the rights and privileges that cemented the cohesion of the community (Elites urbaines 1997). The legal transformation of the cultural framework promoted the constitutional role of customs as factors of integration and process of legitimation: two functions that are nowadays commonly associated with modern constitutions in the formation of the nation-state (Preuss 1995). Integration was a necessary response to the communities’ new cosmopolitan scene. Cities, ancient or newly founded, attracted a diverse population. On the one hand, demographic and economic factors contributed to the diversification of professional activities that consolidated the interactions of diverse interest groups in the governance of local affairs. On the other hand, the effects of socio-professional diversity on the community’s original social homogeneity were amplified by people’s migrations from rural areas to urban centers where they sought refuge from feudal serfdom. These movements of population were combined with the influx of new residents who were attracted by the economic opportunities offered by thriving commercial centers. Religious centers attracted also a constant flow of pilgrims. By harboring refugees running away from the oppressive power of feudal lords, cities quickly acquired an aura of freedom that supported their people’s quest for self-governance. The citizen’s diverse social and cultural origins were reflected in the urban customs. Statutes cast a broad legal net woven with ancient usages and new rules that brought together old and newer inhabitants into a distinctive new demos (Ullman 1966). Legal concord invigorated in turn cultural unity that was promoted by the multiple religious references to the populus christianus. The quest for harmony from dissonance, as Stephan Kuttner observed, inspired the actions of the medieval church and the works of its jurists. It also permeated the secular legal process (Kuttner 1960). By the mid twelfth century, Gratian’s Concordia discordantium canonum provided the model for developing a coherent legal system out of diverse normative sources and authorities of the past. The presence of the Church’s institutions in the life and governance of the communities offered further concrete examples of unifying regulations and coordinated administrative structures that reorganized urban and rural spaces around distinct places of worship. The affirmation of the cities’ autonomy relied upon the authority of their laws and the reliability of newly created institutions. It expended and justified the foresight and power of their magistrates who “pro salute iustitie et honore et salvamento civitatis, tam civibus quam advenis et peregrinis et omnibus universaliter in consuetudinibus previderent.” (preamble of Pisa’s Constitutum usus (1160) Classen 1977). The integration of residents of diverse origins into one community ruled by the same custom restored the long-forgotten Roman concept of citizenship that distinguished the city’s inhabitants from temporary residents, foreigners and travelers. Its legal significance often determined popular participation in the city’s governance. It also reshaped the groups’ traditional forms of social solidarity. This integrative function relied upon the legal perception of public space (Mayali 1994). Customs construed space as territory, a distinct place where customary norms were observed and enforced. Multiple references to the consuetudines terrae and the consuetudines patriae pointed to the territorial significance of customs and

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statutes and their role in infusing a legal life into the physical reality of geographic space. The extension of urban legislation outside the walls of the city combined the physical and legal characters of space into the concept of jurisdiction that united the town and its adjacent countryside. The people’s integration in a new spatial entity signaled the emergence of the legal reason that later contributed to the development of the modern idea of the nation-state. The power of customs as agent of integration was further strengthened by their cultural function as the vessels of collective memory. From their inception, customary rules were part of a narrative that transmitted from one generation to the other sets of ancient practices that had become shared values cuius non extet memoria. They connected people with a past that extended beyond the reach of existing generations and gave them the opportunity to partake in its common legacy. The normative authority of customary practices encouraged conformity to the group’s main goals and values. It also provided the community with its own history in a legal language that was understood by all its members. As he wrote down the coutumes du Beauvaisis, around the last decades of the thirteenth century, Philippe of Beaumanoir, royal officer of the county, justified his work on the grounds that “nous devons mieux avoir en memoire ce que nous avons veu usier et jugier de nostre enfance en nostre pais que d’autre pais dont nous n’avons pas appris les coustumes et les usages.” Philippe’s statement reflected the people’s belief in preserving their customs as the evidence of their own historical relevance. People’s awareness of their past as the indispensable prerequisite of their present existence shaped their understanding of the law as the passage from orality to literacy strengthened customs with the support of the written text (Colloque Beaumanoir 1984). We already observed that public interest and the pursuit of communal objectives dictated the content of rules that created the legal framework for the governance of the cities. In some statutes, the references to the restauratio pacis alluded to the conflicts opposing traditional rulers to groups of citizen seeking the political recognition of their socio-economic significance and demanding more participation in the affairs of the city. We should not overestimate these references to constitutional crisis and civil unrest as they often provided a convenient rationalization for more pragmatic compromises between various competing interest groups. In Northern Italy, the Peace of Constance (1183) ended at least for a time, the conflict opposing the German emperor to the Lombard communes. Frederick Barbarossa agreed to the cities’ demands, recognized their autonomy, and confirmed their institutions and the power to make their own laws. Under these circumstances, the compilation of customary norms and the drafting of urban statutes initiated a process of legitimation that not only aimed at providing the community with a set of rules but also validated the outcome of socio-political compromises. The cogency of these statutes stemmed from the official narrative that invested the new institutions and their representatives with an authentic and official authority. Elsewhere in medieval Europe, ambitious and determined urban elites placed the potestas statuendi at the center of their requests. It became the most public and visible attribute of the legitimate authorities. The power for each city to make its own laws was undoubtedly reminiscent of Roman imperial constitutions that were brought back to relevance by the jurists trained in Roman law who often advised cities’ councils as well as secular and ecclesiastical lords. In these jurists’ opinions, each city could, like ancient Rome, contend with its own ius civile as it transformed its de facto autonomy into a de iure self-rule. The composition of the statutes of the city of Montpellier that served a model of legislation for many Southern French cities were one of many examples of this process.

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On August 15, 1204, the new lord of Montpellier, Peter II, King of Aragon, swore to preserve and observe the customs of the city. The former lord of the city, Guilhem VIII had died two years earlier. The events following his death had led the city into political unrest. Pope Innocent III stepped into the contentious debate over the lord’s succession and annulled Guilhem’s second marriage thus denying his illegitimate heirs any claim to the lordship of the town. Marie, only daughter of a first marriage, became the sole heir. Peter’s marriage to Marie was the surest way to secure the lordship over the town. The governance of this prosperous city had raised significant challenges over the years. The former ruling family had managed to contain the increasingly independent spirit of its inhabitants but the brutal repression of a first revolt in 1141 was still present in many people’s mind. All parties to the promulgation of the new custom hoped that the Libertas hominum Montispessulani would open a new era of political stability. This elaborate compilation comprised 122 articles. It combined different drafts and projects that were written as early as 1190 (Gouron 1978). It included a selective compilation of ancient customary norms and new rules borrowed from the Roman law which already played a significant role in the administration of the city’s public and private matters. The statute brought a sense of stability in response to the uncertainties caused by the dynastic change that annexed the formerly independent lordship into a powerful kingdom. The political power rested in the hands of the Aragonese King but the statutes firmly established the unique character of the Occitan city even as it accepted the authority of its new foreign lord. The Libertas hominum safeguarded Montpellier’s social culture as it gave law pride of place not only in asserting the people’s rights but also in cementing new collective feelings of solidarity and identity. The political consequences of this legal statement quickly followed the promulgation of the statute. Within a year, imbued with a high sense of their charge, the city councilmen adopted the official title of consuls as proof of their legitimacy that was in their eyes comparable to the highest authorities of the Roman Republic. By then, the city’s magistrates did not pretend to have the Roman consuls’ imperium but they had gained acceptance of their legislative powers with the affirmation of the potestas statuendi in exchange for the city’s financial support to the king’s pressing needs (Gouron 1980). Montpellier’s legal changes were not different from the mutations that can be observed in many European cities during the thirteenth century. Local institutions of governance developed within the framework provided by customary rules. This movement created in turn local synergies that reshaped the medieval political culture. Consequently, the multiplication of distinctive legal order in the medieval European landscape fostered the emergence of new modes of representation and communication as customs and urban statutes, like today’s constitutions, served also the cultural expression of a new collective self-consciousness.

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CHAPTER THREE

Codes ELSA MARMURSZTEJN

From a historical point of view, the medieval West sets the framework of a long evolution, marked with strong changes, of the materials, forms, and modes of production of codes and norms. The last two terms are not equivalent. If some legal works have been refered to as “codes” in the Roman Empire as from the third century, the notion of codification did not exist as such before the nineteenth century. Strictly speaking, it did not mean setting in writing the existing law, but replacing obsolete rules by an exclusive law, better adjusted to the needs of the time, and so sweeping away the past. This was first achieved under Napoleon’s rule. As a counterpoint, the compilation of Roman law ordered in the sixth century by Justinian, the Emperor of the Eastern Empire—the rediscovery of which, in the second half of eleventh century Italy, was a unique event in legal history—is more like a “coordination” work (Honoré 2010: 106), or even a “fossilization” process of the former law (Rivière 2013). The effort to put things in order and the forward-looking perspective show the concern for “reform,” allowing us to conceive the Justinian corpus,1 if not as a “code,” then at least as a milestone in the history of codification (Coriat 2000: 283). More literally, it corresponds to the cultural phenomenon of “putting into codex,” which consists in the recording of rules in a book (codex), where they could be kept and used.2 Even in this perspective, very few medieval rules could correspond to the strict definition of what codification means. In some fields, like that of canon law, the idea that codification is a process or a historical milestone is not irrelevant. As for the rest, the more plastic notion of “norm,” implying neither novelty, nor systematization, nor exhaustivity, would be more suited to the medieval context. The difficulty of grasping the referents and the cultural expressions of the norms, in such a length of time and in a political space marked by the diversity of its structures, is increased by the legal pluralism that characterized the Christian West after the disappearance of the Roman Empire, and was reflected in the fragmentation of rights and the mutliplicity of normative authorities. Furthermore, if one combines two recent approaches—the pluralist viewpoint which consists in considering the existence of the law as beyond state control (Rouland 1998: 119–122; Moutouh 2003: 1158–1162), and the historiographical perspective that tends to consider the norm as a body of “reference values meant to discipline medieval society” (Gauvard 2002: 469), whether or not these values became formal rules, and whether or not they implied coercion or sanction— this period opens such a large range of norms that trying to describe their contents would be pointless. Roman law, Church law, secular legislation, treatises of government or education, statutes of urban guilds, universities or faculties, norms constructed in differents fields of learned culture, common culture or social life, are in keeping with the specific chronology of the institutions or social formations which produced them. They could not be accounted for by any linear or typological presentation.

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From a medieval thinker’s perspective, this period more plainly comes within an “age of grace” supposed to last until the end of times. This “age of grace” is the last step in the Christian history of salvation, that started with the “age of natural law,” considered as the state of innocence and followed by the “age of the Law,” received at the time of Moses in order to avoid, after the original sin, the extinction of the naturally instituted precepts. This organization of the history of salvation is a commonplace of learned medieval culture. It can be found in a treatise by archbishop Hincmar of Rheims at the end of the ninth century (Hincmar 1852), as well as in the Summa by Henry of Ghent four centuries later. As this famous theologian said, “nature itself is the master of all justice” (Henry of Ghent 1953, art. 8, qu. 4: I, fol. 66v). As a matter of fact, the whole normative culture of the Western Middle Ages is dominated by the identification of the law with nature as created by the divine legislator, and by the idea that the “fall” made it necessary to repair the law that nature had inscribed in the hearts of men, but whose precepts had been clouded by sin. The Gospel was thus considered to be the recordatio of the natural law (Henry of Ghent 1953, art. 8, qu. 5: I, fol. 67v), at the end of a process adapted to man’s ability to receive the law after sin. In this Christian history of salvation which merges into a history of the law, the heterogeneousness of grace raises an instant difficulty. Hardly supported in legal terms, the notion of grace still opens up to a particular culture of law, which finds its source, as will be seen, in the links that the Christian doctrine had established and developed with the Old Testament. Generally speaking, the Western system of norms and the knowledge contained in the sacred text are indissolubly linked (Legendre 2005: 82). It will be interesting to understand how those Christian norms have been constructed or reappraised in this “legal” framework, by observing the cultural forms and conceptions enforced in this construction. These forms and conceptions have deeply changed. They show the presence of law in culture (from the twelfth century, the judicial inquiry provides a methodological pattern to the different disciplines of knowledge) as well as the presence of culture in law (the reconciliation of auctoritates which is the goal of the work of the codification of canon law is not unrelated to the ideas about musical harmony). And last, the theological science, constituted as such from the twelfth century and intellectually prevailing from the thirteenth, appears as a locus for the production of norms. It has close and complex links with the law, whose language it uses to deal, in original cultural forms, with difficult and ambiguous cases in all fields of the religious, political or social life.

THE ANTI-CODE: FROM ANTILEGALISM TO THE NEW LAW A Code without Norms: Universality and Indeterminacy of the “New Law” Originally, Christianity presented itself, as distinct from Judaism, as an “anti-code.” The opposition of faith to the law is at the core of Paulinian doctrine (See Rom. 4). The Christian faithful were “not under the Law” any more, “but under grace”; they had “died to the law through the body of Christ” (Rom. 7, 4). The political, social and cultural triumph of Christianity had nevertheless altered the perspectives Paul had opened up, to such an extent that the initial antilegalism was replaced by a “new monism” (Simon 1948: 100). The opposition of the “law of Christ” to the law of Moses3 replaced the opposition of Christ to the law. As a matter of fact, Paul himself used phrases such as lex fidei or lex Christi in his epistles (Rom. 3, 27; 1 Cor. 9, 21; Gal. 6, 2). Christianity therefore came

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FIGURE 3.1  Moses receiving/breaking the Tablets of the Law. Paris, Bibl. Mazarine, ms. 870. 1295. Source: Bibl. Mazarine MS 0870, first folio © Bibliothèque Mazarine.

to present itself less as a rupture than as a new type of the same genre (Brague 2005: 252–253). As a counterpoint to the original code (the Law), the “new law” was always specified: the combination of words expressing the “law of grace” or the “perfect law of freedom” (Simon 1948: 101) solve the tension between grace and the Law. Besides, the Traditio legis—namely the gift of the new law given by Christ to Peter—constitutes one of the most popular and representative iconographic motifs of Christian art between the fourth and sixth centuries. The alcoves in the transverse axis of Saint-Constance in Rome

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(mid-fourth century) are decorated with mosaics representing the gift of the law: on the right, God is giving the Law to Moses; on the left, Christ is giving the law to Peter in the form of a scroll bearing the inscription Dominus legem dat (Congar 1962: 916; Grabar 1966: 192, n° 207). On most of the friezes of sarcophagi where it is carved (Snelders 2005: 330), the motif of the Traditio legis is associated with that of Christ teaching, with a book in his hand, and with that of the mission given to the apostles (Congar 1962: 918–919; Snelders 2005: 330). The content of the law given by Christ the legislator was still indeterminate. This indeterminacy essentially represented the new law, which was neither a particular code, nor a set of precepts, but Christianity itself. In patristic literature, Christ the lawgiver is himself identified with the “eternal law,” “the new covenant” (Brague 2005: 253), or “the living law” (Lactance 1992, IV, 25: 204). And it is to the “holy cross of Christ” that an unknown author, a contemporary of Tertullian, likens the “law of Christians” (Congar 1962: 930). These associations reveal a major paradox: the “new law” was not conceived of as a set of commandments, but as a “new system of salvation” (Brague 2005: 254); the perfect and universal “law of grace” was a code without norms. Indeed, the relationships between Christianity and the Law were not expressed in terms of opposition or substitution of the new to the old. Christ had not come to “abolish,” but to “fulfill” the Law (Mt. 5, 17). That’s why the Old Testament, indispensable to understanding the Christian message, remained the foundation of the faith of the Verus Israel. Thus, Christian culture fundamentally considered itself as a culture of the fulfillment of the Law.

Modes of the Fulfillment of the Law The process of dialectic succession involved a model of unity between the two laws. Around 1290, Peter John Olivi asserts that “the new law and the old law do not differ absolutely in species,” but that, “in the same way as the fruit and the branch of a tree constitute the whole and perfect tree along with its roots, so the new law is contained in the old one like a chicken in the egg.” The Old Testament differed from the New one “in the way in which that which is implicit, imperfect, and material, differs from what is explicit, perfect and fully formed” (Peter John Olivi: fol. 6rb-va). The fulfillment of the Law by Christ lay on the distinction between the permanent essence of the moralia (moral precepts) and the transitory and obsolete essence of the cerimonialia (ceremonial ordinances). Around 1230–1235, Robert Grosseteste said that Christ had “fulfilled” both, by giving the moralia “the permanence and the life of charity,” and by putting an end to the literal sense of the cerimonialia “through the production of a spiritual meaning and a spiritual work” (Robert Grosseteste 1986: 66). Still, was the Revelation to be continued, as the words of Christ in John’s Gospel suggested: “I have much more to say to you, more than you can now bear. But when he, the Spirit of truth, comes, he will guide you into all the truth?” (John 16, 12–13). According to Henry of Ghent, those words did not announce a supplement of truth, because there was nothing to add for the justice of the law to be accomplished, since Christ had replaced the lex talionis by the “ultimate degree of justice, proceeding from the law of charity” (Henry of Ghent 1953, art. 8, qu. 6: I, fol. 68r-68v). But those words promised a more perfect understanding of the truth revealed and contained in the Gospel. Besides, by interpreting the spiritual meaning of the cerimonialia and by completing the moralia, “the evangelical doctrine had not so much fulfilled the law of the Old Testament, but rather expounded it, by explaining the perfect way to observe all the legal precepts” (Henry of

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Ghent 1953, art. 8, qu. 6: I, fol. 69r). The Gospel was the expositio legis (Henry of Ghent 1953, art. 8, qu. 6: I, fol. 69r). The “codification” of the new law had been continued by the apostles, whose doctrine was to be found in the evangelical doctrine, “not in the way in which the perfect was in the imperfect, but in the way in which the explicit was in the implicit, and the exemplified in the example,” then by the doctors, destined to explain what neither Christ nor the apostles had explained, “without being content with former explanations” (Henry of Ghent 1953, art. 8, qu. 6: I, 69v). “Formally” given, the new law was thus to be “materially” constituted by the ongoing elucidation of the divine truth (Henry of Ghent (1953, art. 8, qu. 6: I, fol. 68v). This requirement summarizes a peculiar conception of the institution of the norm, oriented towards salvation, inscribed in a process of permanent elaboration, and told, more than produced, by doctors who presented themselves as mere interpreters of a complete and perfect law. The Bibles moralisées of the late Middle Ages (Lowden 2000), reserved for the French kings and their kin, significantly express the perfect totality of the Scriptures and visually show the fulfillment of the Law. Each page consists of eight medallions arranged in two columns, whose illustrations are paired. The superior miniature of each pair illustrates the short extract of the Old Testament which accompanies it. The inferior miniature represents a corresponding scene of the New Testament, associated with a short commentary explaining the typological link between the two pictures.

Biblical and Roman Models: A Culture of Law Imitation Theological exegesis and its iconographic expressions in the late Middle Ages are of course not the only cultural forms of the “fulfillment” of the Law. The latter provides, as from the High Middle Ages, not only the major referent, but the very substance of some legal texts. If the Bavarian Law, set in writing in the Merovingian period, opens with a quotation from Isidore of Seville putting Moses first among the law-makers of the world (Wormald 1999a: I, 43), Charlemagne’s Admonitio generalis (789) makes direct use of the Old Testament, whose authority explicitly supports nine of its chapters (Charlemagne 1883: 58–59). The Liber ex lege Moysi, an Irish compendium of Mosaic law which was diffused in the West as early as the eighth century, one copy of which at least reached England at the end of the Anglo-Saxon period (Wormald 1999a: 419; Fournier 1909), is sometimes considered as a possible source of the Domboc, compiled by Alfred the Great, king of Wessex (871–899) (Preston 2012). This “book of law” remarkably exemplifies the “fulfillment” of the Law in secular legislation. This law code opens with the Old-English translation of chapters 20 to 22 and of the first third of chapter 23 of the Book of Exodus. There, the Decalogue comes before the Mosaic laws which are derived from it regarding various crimes, offences, and damages. This “Mosaic preface,” representing one-fifth of the Domboc, is immediately followed by a short history of the law as it passed from Moses onto Christ, then onto the apostles, and eventually onto the holy bishops and the scholars. The purpose was neither to incorporate the Law as an exemplary monument nor as a still valid authority, but to show how it was to be received in Christian times: the fulfillment of the Law by Christ did not reside in a series of additional statutes, but in the principle of mercy. The Domboc may be read as an effort to give concrete expression to this principle in the kingdom of Alfred (Treschow 1994: 86–89). Proclaimed as the essence of Christan law—to such an extent that its possession made any law code useless—mercy was nevertheless circumscribed by a concern to maintain the rigour of justice. The fundamental system of monetary compensation “for the sake of mercy,” replacing the corporal or capital punishments, did

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not apply in cases of repetition of the offence or of treason against the king. A balance had to be preserved between the demands of justice and those of mercy (Treschow 1994: 89–90), in the manner of divine judgment itself. A deliberate effort to fit in with the context of the times completes this objective (Wormald 1999a: I, 420–421).4 Mosaic law is actually translated into Anglo-Saxon language and legal practice. Its harmonization with Christian culture ensures the authority of the law code (Treschow 1994: 91). Finally, “Alfred mirrors Christ’s approach to law […]: just as Christ adapts Mosaic law for the Christians, so Alfred adapts Mosaic law for the Anglo-Saxons” (Preston 2012: 25). The sovereign significantly uses the language of instruction, thus echoing the replacement of the “commandments” of Mosaic Law by the “teaching” of Christian Law. The kernel formed by the Book of Exodus still kept an operational role. Patrick Wormald highlighted the convergence between the Domboc’s preface and Hincmar’s ideas about the law. The king of Wessex and the archbishop of Rheims apparently shared the same conception of the structure of legal human history, and particularly of the essential continuity of “God’s legal revelation” (Wormald 1999a: I, 425). By dealing with Mosaic law in a more sophisticated way than any other medieval legislator, Alfred somehow implemented the Hincmarian principle according to which human law should as much as possible conform to divine law. He thus showed “that West Saxon law […] belonged from the outset to the history of divine legislation for humanity” (Wormald 1999a: I, 425–426). In this perspective, Alfred’s law-book should be mainly considered as “an ideological statement” (Wormald 1999a: I, 426). Still, medieval norms cannot only be accounted for from the perspective of their link with the primordial biblical text. In a period when the imperial legacy was highly valued, barbarian rulers were patently willing to follow the Roman model. Besides, the laws they produced are not viewed any more as the conservatory of ancient “germanic” customs, supposedly founded on a unified culture, common to all barbarian peoples. These barbarian laws comprise many more measures inspired by Roman law than had been previously thought (Joye 2012: 96–97). Even the first Anglo-Saxon kings followed this model, although their codes were not written in Latin and did not contain as many elements of Roman influence as Visigothic or Burgundian codes (Joye 2012: 94). To account for the different uses of Roman law, P. Wormald suggested that a distinction be made between the inspiration both ideological and practical characterizing the presence of this law in southern Europe and the mere ideological inspiration which probably prevailed in northern Europe (Wormald 1999b: 25), where the production of laws patently unsuited to actual use in court has no practical explanation (Wormald 1999b: 30–31), and suggests that the formal procedure of making law and administering justice was still essentially oral (Wormald 1999b: 23). This distinction could also help explain the paradox lying in the Carolingian interest in written law: the fact that Charlemagne ordered the conflation of the two divergent recensions of the lex Salica and ordered the revision and completion of existing laws without bringing their contents up to date, may lead us to consider this legislative effort as an aspect of the new imperial dignity the sovereign assumed in December 800. Some of the barbarian law codes are more than inspired by the Roman model. The Breviary of Alaric (or Lex Romana Visigothorum) appears in 506 as an actual completion of the Theodosian codification. The Code that emperor Theodosius II had promulgated in 438 only partially achieved his project of exhaustive, exclusive and final compilation of applicable law. It contained the imperial constitutions (leges), but not the jurisprudence and the classical doctrine (ius). The jurists that the visigothic king Alaric II had commissioned

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carried out the synthesis of the ius that the compilers of the Theodosian Code had not. Designed as an exhaustive, forward-looking compilation of the current law, the Breviary thus contains the leges issued from their Roman model, accompanied by short abstracts (the interpretationes), organized within a similar structure and joined to excerpts of the ius. The selections performed by means of juxtapositions or basic, but efficient omissions, highlight the new policy of repression of the visigothic rulers (Liebs 2013). The Roman legal culture is thus reinvested and Theodosian codification perfected in the barbarian code.

FIGURE 3.2  Gratian, Decretum with the Gloss of Bartholomew of Brescia. Paris, Bibl. Mazarine, ms. 1290, fol. 173. 1380–1395. Source: Bibl. Mazarine MS 1290, fol 173 © Bibliothèque Mazarine.

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THE BIRTH OF THE LEARNED LAW AND THE TEXTUAL CONVERGENCE BETWEEN THEOLOGY AND THE LAW Gregorian Reform and Learned Law This Roman legal culture remained significant in the High Middle Ages, but some of its basic texts were forgotten for several centuries. The Digest, an anthology of jurisprudence and the most important book of the Justinian corpus, was not quoted any more after Pope Gregory the Great, in 603 (Cortese 2002: 58). The eleventh century was a breaking point. The entirety of the rediscovered Justinian codification became part and parcel of the learned medieval culture because it supplied the material basis for the academic teaching of Roman law. This resurrection of Roman law essentially helped to build papal sovereignty, but the “Gregorian” reform—which was actually initiated during the pontificate of Leo IX (1049–1054)—had crucial cultural impacts. It provided a frame for the development of new methods, which changed the approach to ancient texts, sought as “building materials for a new legal order of the Church, adapted to the principles of the reform” (Cortese 2002: 58). Under the papal impulse, this search resulted in the rediscovery of Justinian’s original works as from the second half of the eleventh century. The jurists adopted the new intellectual procedures to interpret the texts of the rediscovered Roman law. Besides, Gregorian reform had a revolutionary impact on canon law. From the pontificate of Leo IX, the assertion of papal legislative prerogatives implied a strengthening of the Church’s legal arsenal. The synod at Rheims in October 1049 exemplified the intertwining of canon law and reform: there, the pope underlined the importance of papal law for the faith, stipulated that it was to rank among the canons, and confirmed, in the same perspective, the reform of the legislation he had produced during his previous synods. As Kathleen Cushing puts it, “perfection in Christian terms had long been seen as entailing adherence to an established code of behaviour. At Rheims, Leo demonstrated that the pope was the appropriate person to determine what that code should be” (Cushing 1998: 20). The distinction between the two learned laws—Canon Law and Roman Law—could only be artificial. Together, they constitute the ius commune. The civilists borrowed, in many ways, from the innovations produced by the ius novum of the papal and conciliar legislation. Above all, Roman law contributed, from the twelfth century, to the development of a technical canon law, by offering it a model of the unity of the sources, a technique, and a language (Legendre 1965: 913–930), which enabled the elevation of “canon law to the level of Roman law, by having the canonical rules fit into the Roman formulations” (Legendre 1964: 100). If the idea of the “twofold dependence” between ecclesiastical and Roman law should be preferred to the simplifying pattern of reception (Legendre 1965: 923), the Gregorian theoreticians nonetheless claimed the self-sufficiency and supremacy for canon law, by showing that the validity of Roman laws in the Church only depended on papal approval (Legendre 1964: 63–64). On various subjects, such as usury or divorce, Roman law provided answers that the Church would not accept (Legendre 1965: 923). Besides, it had been a weapon in the hands of the laity in the political conflicts of the eleventh and twelfth centuries. Even if the popes and canonists often recalled that it represented an essentially Christian legislation—that of the “very Christian emperor” Justinian (Legendre 1964: 89), who had “not felt above imitating the holy canons” (Legendre 1964: 19)—Roman law “had to be both used and disqualified, assimilated, but

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perceived at the same time as a contradiction and dominated” (Legendre 1965: 923). The sophisticated monument of the Justinian codification had to be recovered in every detail and its teaching made it alive again: glosses, commentaries, summas, questions, consilia, thus constituted a massive set of juristic writings.5 As a counterpoint, canon law, like the “new Law,” was then to be built, as a set of heterogeneous rules whose coherence was about to be improved by canonical knowledge, so that human norms could be integrated into the divine order of salvation. Therefore, from the twelfth century, it is with theology that canon law had the closest link.

Canon Law and Theology In medieval culture, the relationship between theology and law was perceived as very close, as we can see in the Divina Commedia of Dante. In the tenth Canto of Paradise, the poet can see, around Beatrice, a garland of dazzling characters, whose voices respond to one another with an unparalleled harmony. Among them, Thomas Aquinas shows him Gratian, who to “who helped both forums so much that heaven is pleased,” and next to him, Peter Lombard, “who with the poor widow offered up his treasure to Holy Church” (Paradiso, canto 10: 211) This closeness is more accurately expressed in a thirteenth-century legend, which relates that Gratian (the father of the science of canon law), Peter Lombard (the father of scholastic theology), and Petrus Comestor (the father of ecclesiastical history) were born to the same mother, who conceived them from three adulterous unions (Ghellinck 1948: 285). While assigning founders to disciplines which were in fact gradually elaborated, these literary expressions account for the perception of a simultaneous birth of theology and canon law. Actually, the Concordia discordantium canonum or Gratian’s Decretum and Peter Lombard’s Book of Sentences appear more or less at the same time, around 1140, as collections of authorities which were thematically gathered, and with their contradictions. The two books, which had been written with a practical purpose and had no official character, were almost instantly successful: the Decretum set the teaching basis and first pillar of the classical canon law (the Liber extra, compiled at the instigation of Pope Gregory IX in 1234, setting the second one), while the Book of Sentences, whose authority had been confirmed by the Fourth Lateran Council in 1215 (canon 2), gave rise to hundreds of commentaries, whose very production determined the accession to the rank of master of theology. In both works, the proportion of interpretations is limited to linking texts and to the expression of a few opinions. The heuristic effects of discordance seem however more important in the Decretum. Its very title of Concordia discordantium canonum uses a musical metaphor to describe its purpose, which is not to constitute a mere collection of canons, but to bring back harmony from dissonance. By the middle of the sixth century, the Concordia canonum attributed to Cresconius already used that metaphor (Brundage 2008: 97). Moreover, around 1096, the prologue of the Panormia by Ivo of Chartres, which was the most widely spread canonical collection before Gratian’s, was often copied as a separate treatise entitled De consonantia canonum (Brasington 2004: 115–142). By promoting the transfer of certain principles of biblical and rhetorical hermeneutics to the field of sacred canons, this text was going to have considerable effects on the development of the emerging canonical and theological sciences. Now hermeneutics and divine harmony were closely linked. The importance of musical theory in the Augustinian conception of the providential order of the world has been highlighted (Kuttner 1980: I, 3–4). The zither helped for instance to explain the existence of evil: some strings produced a low

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and unpleasant sound; others made a higher and better one. The musician could tune the zither so that all the strings produce a more perfect higher sound, but he would then lose the right consonance of the instrument in its totality: the diversity of sounds was indispensable to the production of music (Bianchi and Randi 1993: 196). This antique conception based on harmony had many applications in the fields of politics, esthetics, and sciences (including theology) (Bianchi and Randi 1993: 208–210). In the thirteenth century, Bonaventure thus compared the Holy Scriptures to a zither, whose “inferior string does not produce harmony by itself, but with the others; in the same way, each passage of the Scriptures depends on another; to go even further: each passage depends on a thousand of others” (Spitzer 1963: 35). This image of the harmony reached by reconciling dissonances can be found again in the Consonantia by Ivo of Chartres, then in Gratian’s Concordia. If, as it was said, the heuristic effects of discordance are less emphasized in the Book of Sentences by Peter Lombard, this does not mean “that theology had weakened the model invented by the law” (Boureau 1992: 1114). As a matter of fact, by highlighting the success of Gratian and Peter Lombard, the legend overlooked the founding figure of the theologian Peter Abelard. Around 1130, his Sic et non appeared as a voluminous collection of the Church fathers’ contradictory opinions, preceded by a prologue explaining the way in which it could be used. Abelard resumed Ivo of Chartres’ hermeneutical principles, but he used a specific expression by proposing to build the truth through inquiry: “because doubt leads us to inquiry; and it is through inquiry that we can understand the truth” (Abelard 1976–1977: 103). The dissonances “[encouraged] the inexperienced readers to make a deeper inquiry into the truth, and [made them] more perceptive thanks to the inquiry” (Abelard 1976–1977: 103). The link with the law, in a context when the procedure of contradictory investigation was starting to develop, was reinforced by the judicial purpose claimed by Abelard in the very first lines of his prologue: “Since, in such a wide array of discourses, some of the saints’ words seem not only diverse, but also adverse, it is not irrelevant to judge those by whom the world itself will be judged” (Abelard 1976–1977: 89). The methodological convergence of theology and canon law, linked to the wide spreading of the model of the adversarial inquiry, which from the twelfth century onwards established itself as a “general form of knowledge” (Foucault 2001: 1454). is completed by a textual convergence. Even before Gratian and Peter Lombard, Ivo of Chartres and Abelard “brought into play the same stock of legal and theological authorities, suited to the universal and new inquiry” (Boureau 1992: 1116). The connections between theology and law cannot be reduced to a mere interplay of mutual borrowings, though. Their convergences showed a major cultural phenomenon—the “scholastic mutation” (Boureau 2007: 170)—which initiated a “new regime of the truth, perceived as a construction or a reconstruction, against the tradition, narration, and custom” (Boureau 1992: 1116). In this context, because of the interweaving of their techniques, sources, and purposes, law and theology participated in the “scholastic épistémè” (1992: 1116), seen as a set of knowledge and methods, linked organically. The perception of the novelty of those disciplines has been accompanied by some uncertainty about their difference. At the beginning of the thirteenth century, in the Bolognese school of the canonist John of Spain, it was still questioned whether Gratian’s Decretum should be put among the legal books or among the theological ones. The question arose from the hypothesis that a testament might make two separate bequests for those two categories of books (Cortese 2002: 65, n. 32; Legendre 1964: 94). On

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a different note, E. Cortese drew attention to the phenomenon of the “canonization” of the Justinian codification, seen “as the expression of a near-theological truth” (Cortese 2002: 70). By borrowing the image of the temple of justice from the Justinian constitution Deo auctore, medieval jurists gave it a “mythologic value” and literary expressions which disguised the Roman law as revealed truth (C. 1, 17, 1, 5; Cortese 2002: 70–71 and n. 47). Thus, the corpus of the Roman law could be conceived, like the Holy Scriptures, as a perfect totality: omnia in corpore iuris inveniuntur,6 said Accursius, the author of the glossa ordinaria in the middle of the thirteenth century. Its contradictions could only be surface ones and had to be resolved. The fact that the Justinian codification lies here among the biblical declinations of the paradigm of the Law makes it all the more surprising that an anecdote relates, at the end of the thirteenth century and at the very beginning of the teaching of the rediscovered Roman law, a confusion between the Roman law and the Mosaic one. The hero of this anecdote is magister Pepo, presented by the famous Bolognese jurist Odofredo (d. 1265) as the first teacher of the Justinian laws, while Irnerius was traditionally considered as the “founder” of the Bologna law school (Cortese 2002: 62). E. Cortese showed that the memory of Pepo was more vivid in France, and seems to have been particularly so among theologians. Thus, in the 1180s, Radulphus Niger, an English master who was teaching in Paris, made Pepo a symbol of the triumph of Roman law over the barbarian legislation (Cortese 2002: 63): during an assembly held by Henry IV in Lombardy, the master seems to have obtained a decree from the emperor that the sentence passed on a slave murderer should be capital penalty instead of the monetary compensation prescribed by the Lombardian law. According to Pepo, natural law demanded that the culprit should suffer the same fate he had inflicted upon his victim.7 As noted by E. Cortese, the Justinian inspiration seems weak here, and it is the biblical lex talionis which is invoked, in the Isidorian perspective in which it was seen as a rule of natural law.8 Although Radulphus Niger presents him as a technician of the Roman law, Pepo reasons more like those canonists and theologians who identified Roman law with Mosaic law, and also to the Gospel, and claimed its pre-eminence over all human laws (Cortese 2002: 64–65). This cardinal principle is codified in Gratian’s Decretum, which asserts that “mankind is ruled both by natural law and morality,” that “natural law is what is contained in Law and Gospel,” and that it “takes precedence over all other laws on account of its dignity and antiquity” (Gratian 1879 dictum ante D.1 c.1 and dictum ante D.5 c.7). Anything that contradicted natural law had to be held null and void (Gratian 1879 D.8 c.2 dictum). Laurent Mayali noted that the Decretum “thus [transposed] the unity of faith in the law, by placing natural law, of divine origin, at the top of a normative hierarchy” (Mayali 2011: 475–476), without overlooking human law, which also represented all human activities. Thus, the reconciliation of opposing rules was “made clearly easier by a legal argumentation,” which benefited, especially in the second version of the Decretum, from the supplies of Roman law, “numerous principles of which support the transformation of religious norms into legal rules” (Mayali 2011: 476). This “juridification of religion” affected in return the representation of the law, by bestowing upon it “a renewed legitimacy, in the framework of a Christian normative model in accordance with the divine plan,” and by attributing to it the “authority of a universal knowledge” (Mayali 2011: 476). Substantially or formally linked to the Law, medieval “codes” gave birth to cultural productions based on similar methods, exemplified by the quaestio, which derived

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from the model of the adversial inquiry and was used in every discipline of scholastic knowledge. These codes have however federated distinct, and, in certain fields, rival “textual communities.”9 As of the thirteenth century, theologians claimed a superior ability to elaborate the norms of natural law.

THEOLOGICAL NORMATIVITY AND ABSORPTION OF THE LAW This claim participates in a cultural movement favoured by the “academic policy” of the papacy. From Innocent III (1198–1216), the will to make of Paris the supreme instance regarding doctrinal orthodoxy strenghtened the authority that the Parisian theologians had acquired. It is the very perspective in which pope Honorius III issued the bull Super speculam, prohibiting the teaching of Roman law at the university of Paris. Gérard Giordanengo showed that this prohibition confirmed an actual situation. The “scientific disarray” of the Parisian jurists, combined with the decline of the French school of canon law since the 1210s, left the field open to a normativity which was neither legal nor coercive, but based on the supreme authority of the theological science.

Legal Frameworks of Enunciation The questioning which was the driving force or the theological inquiry was not confined to a merely speculative area. It also addressed concrete cases, whose variety finds a particular expression in the quodlibetal disputes. Originating in the Parisian faculty of theology in the second half of the thirteenth century, these disputes were optional and only took place over two annual sessions (Advent and Lent). They were open to a larger public than the usual one of the masters who supervised them, and left the initiative of raising questions to the audience. The frameworks of the enunciation of the questions and the very content of their “determination” (final resolution) by the masters show a special interaction between the quodlibetal genre and the law. The normative purpose immediately appears in the wording of the questions in terms of lawfulness, obligation or advice, in fields that can briefly be described in terms of the right to things (tithes, ecclesiastical benefices, commercial profit, usury, theft … ) and of the obligations and individual responsibility (marriage, vows, forced baptism, host desecration, drunken homicide … ) (Marmursztejn 2006 and 2007). Among these questions, those which delt with the relationships between spiritualia and temporalia—and primarily with the plurality of ecclesiasical benefices— often echoed some legal debates initiated in the previous century (Miramon 2004). Moreover, some of the questions take the form of extremely detailed cases, analogous to legal casus (Boyle 1981: 245–246). This teaching method, widespread in the law schools at the end of the twelfth century, involved the presentation of a problem in relation to a particular situation, whose solution was to serve as a model in all similar situations. In the penitential field, the authors of confessors’ manuals likewise employed it, in the wake of the Summa de casibus penitentiae by the Dominican Raymond of Peñafort, and their works appear as “traités de morale juridisée.”10 This use of the casus form did not marginalize the quodlibetal determinations in a normative context when the Roman technique of the rescript was still vivid (Giordanengo 1989: 288; Coriat 1985). As an imperial answer to the question raised by a litigant in a particular case, before or during a trial, the rescript is the most frequently represented source in the Justinian compilations. This procedure continued in the Middle Ages through royal legislation,

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which long remained generally ineffective. However, the most obvious parallel has to be found in papal decretals, which had no decisive value, except for the cases addressed, and cannot be seen as laws before the Sext promulgated by Boniface VIII (1298), which formed a genuine “corpus of papal laws, issued as a whole, and a faithful imitator of the Justinian Codex” (Fransen 1972: 36).

The Captation of the Law and the Claim for Theological Superiority The closeness to the law also appears in the content of the arguments used by the theologians, who widely resorted to concepts, definitions and authorities of legal origin. Besides, in their reasoning, the allegations to canon law have no less weight than biblical quotations. In 1271, when dealing with a question about the possibility for the pope to give a dispensation to bigamists so that they could be promoted to holy orders, Thomas Aquinas thus opposed a canon of Gratian’s Decretum, attesting that a pope had actually given such a dispensation, to the Epistles to Titus and Timothy, asserting that only those who had been married just once could be promoted to holy orders. In this case, the apostolic prohibition did not pertain to divine law, but “to a rule established by the human authority that God conceded [to the apostle]” (Aquinas 1996b, IV, 13: 333–334). As far as he could grant a dispensation from norms of human or positive law, the pope could lawfully do so in the case at stake. Finally, and in more general way, the masters of theology put into legal terms the conflicts between norms or between norms and practices involved in the cases they were submitted. For instance, the questions about marriage (conceived as the right of ownership over one’s spouse’s body), about forced baptisms of children (who, according to natural law, belonged to their parents as oxes or horses belonged to their owners) (Aquinas 1996b, III, 18: 274–275; II, 7: 223), or about the escape of a man sentenced to death (which was justified if he was loosely guarded, because he had a superior duty to preserve his life) (Henry of Ghent 1983, IX, 26: 307–310), are tackled according to the categories of rights of usage and property rights. In all cases, the “divine or natural law” is the touchstone of theological normativity. The masters constructed the normative legitimacy or their discourse on this supra-legal foundation, and based their own authority on their special ability to grasp and express the derived principles of natural law, such as justice, intention, contractual freedom, or extreme necessity. As a matter of fact, if the first principles of natural law were considered universally accessible, its secondary precepts may vary from one case to another. Those with outstanding knowledge and reasoning skills were in charge of their determination. Besides, the theologians have openly claimed their superiority over the jurists in that field. In a question dealing with ecclesiastical benefices, Thomas Aquinas makes it clear that the theologians had to tackle the questions insofar as they pertained to divine law, whereas the jurists had to deal with the questions pertaining to positive law (Aquinas 1996b, II, 8: 226). In the same way, Henry of Ghent, dealing with the case of a married cleric and facing the contradiction between the chastity required by priesthood, and the marital duties entailed by marriage, proposed to draw a distinction between the “nature” of the sacrament, pertaining to divine law and therefore to the theologian’s scrutiny, and his “accidental observance,” pertaining to human law and therefore to the canonist’s one (Henry of Ghent 1518: fol. 214r). The cultural convergence is here coupled with a competition with the jurists. The theological norms were specifically constructed in a paradoxical movement of appropriation and of exclusion of the law.

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In a context marked by the “dissemination of the law in medieval culture,” and by a “scientific change” linked to the development of a “legal consciousness gradually [penetrating] the other fields of culture” (Mayali 1992: 129–130), the intellectual procedure of the scholastic theology did not just take the form of a fictitious trial, following the art of the judge; it also adopted the language of the law to deal with what was difficult to tackle. This was the case, for instance, with the theological debate of the thirteenth and fourteenth centuries on the forced baptism of Jewish children, which addressed mainly the issue of parental rights. By using the concept of serfdom without referring to its theological origin, and by characterizing the Jews as objects of law, theologians—although they reached very different conclusions—really absorbed the law, which was used in that case as a language, as a technique, and as a strategy to limit Jews’ freedom. Besides, this debate on forced baptisms shows that the theologians’ legal culture was not solely expressed in the quodlibetal context. If the Quodlibets represented the most appropriate locus to tackle difficult or ambiguous cases, the theologians exerted their normative capacity in various scholastic genres (commentaries on the Sentences, summas, disputed questions, treatises), by implementing the same quaestio method. The links with the law could however be perceived more generally than through the sharing or the appropriation of techniques and references.

Permanence and Mutation of the Norms of the Old Law By reactivating the tension between the old and the new Law, some theological questions show that the construction of Christian norms took place in a fundamentally “legal” framework, and was made in the continuity of the fulfillment of the old Law. The issues of Sabbatical observance or tithes bear witness to this (Marmursztejn 2011). To account for the continuity of those precepts, originating in the old Law, until the “age of grace,” the theologians did not make a mere spiritual interpretation. They analyzed its structure: those “mixed” precepts pertained partly to cerimonialia, and partly to moralia. Substituted for the Sabbatical precept, that of Sunday rest was based “on an edict of natural law,” which maintained “that all men, having the use of reason, should cease all business at certain moments and give themselves over to divine worship and the veneration of God.” This “edict of natural law” had been determined through a statute of the Church, which had ordained “that the Lord’s day would be that of Christ’s resurrection as a new man” (Henry of Ghent 1979, I, 41: 230–231). The mixed nature of the precept had thus allowed its transfer from one legal regime to another. Insofar as it was a moral precept, based on natural law, it could lawfully be maintained; the time assigned to its observance had been determined by the Church. Thus, the observance of Sunday rest under the new law had not succeeded that of Sabbath “by virtue of the strength of the precept of the Law,” but “by virtue of a constitution of the Church and the custom of the Christian people” (Aquinas 1897, IIa IIae, q. 122, a. 4: 479). The permanence of the obligation to pay tithes—although it was not comprised in the Decalogue—was explained in a structurally analogous way: tithes had to be paid because a precept of natural law made it an obligation to remunerate the spiritual services of the priests; as far as the quota was concerned, tithes depended on “a new institution by the Church,” which had decreed that the Old Testament taxation would also be observed in the New one, “so that there would be some consonance between the Old and the New Testaments” (Aquinas 1996b, II, 8: 226). This brief picture gives an incomplete image, insofar as it seems to ignore the theological divergences and keeps the jurists away. However, the theologian Gerard of Abbeville

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sounded a peculiar note, by arguing that the permanent obligation of tithes was based on a passage in Matthew’s Gospel (23:23), whereas his colleagues generally denied that this passage could be a neo-testamentary confirmation of the precept. Gerard of Abbeville is then close to the position held by Hostiensis in his Summa aurea, completed circa 1253. This great canonist relied on authorities “both from the Old and the New Testaments,” including the quotation from Matthew’s Gospel, to assert the obligation to pay tithes “by virtue of precept” (Hostiensis 1556: 253va). The theologians also held opposing views on other issues, as in the case of a disjunction between the parish where the sacraments were received and the parish where land was cultivated, or also in the case concerning personal tithes. These divergences echoed the uncertainty of canon law itself. Beyond the theologians’ different positions regarding legal sources, which they draw on a great deal, textual analysis reveals the specificity of theological solutions, which were elaborated in this case from the existence of gaps or hesitations in the law and divergences between its commentators (Marmursztejn 2012). In all their diversity, medieval norms eventually appear as forms of the “fulfillment” of a first Law, which provided a model, but also a framework and some materials. The scholars who thought out the norms and contributed to produce them did not consider the codification as a substantial creation, but as an elucidation or an adaptation. Although their references and methods may have varied according to the circumstances, they reveal, in a general way, strong cultural interactions. At the heart of the Middle Ages, the closed corpus of Roman law, as a source—itself sacralized—of an extensive academic literature, has indissoluble links with the canon law, which, from the twelfth century, was built as a science along with the twin discipline of theology, and started to be codified by using the same rational method of the contradictory inquiry. In this normative world of the ius commune, the heterogeneousness of theology refers to that of grace in the “legal” history of salvation. If scholastic theologians claimed a superior ability to “make clear” the divine or natural law, they still used the human language and instruments of the law to solve the difficult cases. The early Italian humanism, as a “movement of cultural rupture,” would precisely target those instruments. In the framework of a global critique of the academic methods and institutions, the deconsecration of legal science was accompanied by a return ad fontes, which mainly aimed at bringing back “the purity of the Justinian monument,” buried under the commentaries, and at applying to it new hermeneutical principles, in order not to reconcile, but to historicize the real divergences (Gilli 2009: 576, 577, 581). In the same way, the philological and historical critique expressed in 1440 by Lorenzo Valla to prove the unlikeliness of the Donation of Constantine spares Gratian by assigning the forgery to an addition made by one of his disciples. In his treatise De iure (1437), Leon Battista Alberti still recommended the enforcement of a juridical system without any normative text, where the moral principles founding the norms could work without any specific ecclesiastical law (Gilli 2012: 262–264). In the fifteenth century, however, “what was at stake was not really the codification, nor the reworking of the principles of law on the basis of humanism” (Gilli 2009: 584), but rather a reorganization of the political field, in which the position of the jurists was changing. The gradual closing of their space of doctrinal activity, particularly because of the gradual substitution, in the teaching of jurisprudence, of the sentences issued by the courts of appeal for their own expert judgments, represents a major evolution in the emergence of legal humanism, “which could not be interpreted, therefore, as a mere cultural phenomenon, but is also an answer to the crisis of the institutional orders” (Gilli 2009: 579).

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CHAPTER FOUR

Agreements The Discovery of the Market and the Control of the Guilds JONATHAN GARTON

INTRODUCTION This chapter examines the culture of trading in the late medieval period, a time when the occupational guilds were at the “zenith of their power” over commerce and industry in England (Gross 1890: 117). It considers the control exerted by the guilds in light of scholastic conceptions of the just price and the role of the market in establishing the value of goods for exchange, and it challenges the correctness of the prevailing modern view that the guilds operated as private interest groups, hobbling local trade for the benefit of their members by prescribing the terms on which people were able to enter into agreements with guildsmen. Specifically, it argues three things. First, it is not anachronistic to judge the guilds against the standards of modern economic thought, for while medieval trade operated in the context of a “moral universe that obliged any buyer or seller to act for the common good and agree to terms of exchange accordingly” (Langholm 1998: 85), the effect of the market, the significance of supply and demand, and the problems that could arise from the abuse of market power, had long been part of Western intellectual culture. Second, it is reasonable to conceive of the power exercised by the guilds—being in essence nothing more than a group of individuals bound together for mutual purpose (Thrupp 1942: 167; Ogilvie 2007: 1)—as private rather than public in nature, although that they were generally left to control their own affairs was a legacy of the guild merchant, which is properly viewed as a civic institution, and their authority to do so was at the pleasure of the crown and could be withdrawn. However, and lastly, although this private power could at times be exercised for the benefit of the dominant trading elite, the guilds did not enjoy a market monopoly but rather a regulatory monopoly, which operated to correct market failures and as such facilitated, rather than hindered, nascent town economies.

GUILDS AND THE MEDIEVAL ECONOMY Understanding the impact of the guilds on commercial agreements is a particularly important endeavour. The fraternal aspect of the guilds and their broader significance in the religious and social life of medieval society is well known (for a recent appraisal, see Rosser 2015) but their role in regulating trade and industry in the towns has long

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FIGURE 4.1  Craftsmen at Work. Miniature in the book of Leonardo Dati, De Sphaera. Modena, Biblioteca Estense. 1470. Source: DEA/A. DAGLI ORTI/Getty Images.

been a source of contention despite—or perhaps because of—this being their primary function. The historiography has come full circle in recent years. From the late eighteenth to the early twentieth century the view was that the guilds were “archaic institutions that imposed irrational or self-serving fetters on competitive markets” (Epstein 2008: 155). Adam Smith (1776: 2.1) famously observed that: It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities, but of their advantages.

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On this analysis, the system of self-regulation manifested by the guilds operated not for the benefit of society as a whole but for the narrow benefit of their members: the paradigm guild operated as a cartel (Epstein 1998: 685), restricting competition by controlling entry to and progression through—with their demarcation of apprentices, journeymen and masters—the trade, fixing prices at an artificially high level, and thus discouraging efficiency of production, high-quality goods and technological advancement. Accordingly, for Smith (1776: 1.94) the guilds “though they may, perhaps, have been useful for the first introduction of some branches of commerce” were “in the long-run proved, universally, either burdensome or useless, and have either mismanaged or confined the trade,” and their decline in influence over the Tudor period—three quarters of the guilds in existence in 1500 had been wound up by 1600 (Muldrew, 1993, 175), as trading expanded out beyond town walls and beyond the grip of their charters (Ogilvie 2014: 171–172)—was to be applauded: “to be merely useless … is perhaps the highest eulogy which can ever justly be bestowed” upon them (Smith 1776: 1.96). Smith was heavily influenced by Anne-Robert-Jacques Turgot, who identified the “caprices” of the “arbitrary and injurious regime” of the French craft guilds thus: Citizens of all classes are deprived of the right to choose what laborers they would employ, and of advantages competition would give them in the low price and excellence of labor. Often one cannot execute the simplest work without having recourse to many workmen of different guilds, without enduring the delays, the infidelities, the exactions which necessitate or favor the pretensions of the various guilds[.] (Edict of the King, Decreeing the Suppression of Craft-Guilds (1776), reproduced in Gordon 2011: 275) This was a view that persisted throughout the nineteenth century—the view of one leading commentator was that the guilds “mercilessly obliterated the spirit of mercantile enterprise, and crushed out every stimulus to extensive production” (Gross 1890: 50)— and well into the twentieth century: as Epstein (2008: 155) notes, even the guild socialists focused on the “social rather than … economic benefits.” Since the 1980s, however, a number of historians have argued that guilds were not simply “rent-seeking organizations bound by tradition and against technological change” (Epstein 1999: 986) but rather facilitated nascent town economies by (a) reducing the information asymmetry between buyers and sellers by imposing standards of quality and price, (b) reducing irregularity of supply by providing members with access to credit and financial aid, and (c) providing a framework for the “transmission of skills and technical innovation” (Epstein 2008: 155; and see Hickson and Thompson 1991). Yet, more recently this “rehabilitation” of the guilds has been challenged by Ogilvie (2007: 11), whose work echoes Smith in arguing that these institutions were “neither necessary nor sufficient” for achieving these aims and, rather than supporting the market supported simply “well-off male guild masters at the expense of consumers, employees, women, migrants, Jews and other marginal groups whom they excluded from full participation in the pre-modern economy” (Ogilvie 2007: 54). Inevitably, as we shall see, there is truth on both sides, but it is clear that the guilds exerted considerable influence over town economies during the period in question and that much of this was beneficial to the wider community.

CULTURE OF THE JUST PRICE AND THE MARKET It was once thought that guild control over commercial agreements aligned with the medieval construct of the just price, which supposedly held that it was unethical for a thing to be sold other than for the cost of production plus such wages as would “maintain

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the craftsman or merchant in his appropriate station in life” (Baldwin 1959: 7). The basis for this was the golden rule, as one nineteenth-century economic historian explains: [Since] price … was to be determined by the rule of doing unto others as we would wish that others should do to us, then the maker should receive what would fairly recompense him for his labour; not what would enable him to make gain but what would permit him to live a decent life according to the standard of comfort which public opinion recognized as appropriate to his class. (Ashley 1888: 38) Thus Max Weber (2003: 358) wrote that “medieval economic ethics excluded haggling, overpricing and free competition, and were based on the principle of just price and the assurance to everyone of a chance to live,” while William Cunningham (1890: 233), contrasting the medieval approach with contemporary market theory, explained that the “just price is known by the common estimation of what the thing is worth; it is known by public opinion as to what it is right to give for that article, under ordinary circumstances.” The just price was informed by a longstanding suspicion, dating back at least to the early Church Fathers, that trade was inherently sinful. Ambrose, Bishop of Milan, for example, portrayed merchants as men who were “always on the go, day and night, amassing piles of treasure” who would end up “shipwrecked” by the “relentless quest for profit” (De Officiis Ministrorum, book 1, L 243), while Cassiodorus declared that “merchants are an abomination because they neglect the righteousness of God for an inordinate desire for money and burden their wares with lies even more than with prices” (Commentary on the Psalms, psalm 30, v. 15 (PL 70, 501A)). In the less inflammatory words of Pope Leo I, man’s natural tendency to avarice is such that “it is hard for sin not to come into transactions between buyer and seller” (Epistola, 167, q. 11).

FIGURE 4.2  Thomas Aquinas. Unknown artist. Source: Print Collector / Getty Images.

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Although a number of earlier scholastics had referred to the concept, the promulgation of the idea that agreements should centre on a just price is generally attributed to Thomas Aquinas. Unlike the early Church Fathers, Aquinas did not consider all trade problematic, preferring the Aristotelian distinction between exchanges made in order to obtain the “necessaries of life,” which were inherently virtuous, and exchanges made purely for profit, which were “justly deserving of blame” for tending to “the greed for gain, which knows no limit and tends to infinity” (Summa Theologica, II, II, q 77, art 1). However, Aquinas argued that it was unethical to sell a thing for more than its worth, as there must be equality between buyer and seller: First, as considered in themselves, and from this point of view, buying and selling seem to be established for the common advantage of both parties, one of whom requires that which belongs to the other, and vice versa[.] Now whatever is established for the common advantage, should not be more of a burden to one party than to another, and consequently all contracts between them should observe equality of thing and thing. Again, the quality of a thing that comes into human use is measured by the price given for it, for which purpose money was invented[.] Therefore if either the price exceed the quantity of the thing’s worth, or, conversely, the thing exceed the price, there is no longer the equality of justice: and consequently, to sell a thing for more than its worth, or to buy it for less than its worth, is in itself unjust and unlawful. (Summa Theologica, II, II, q 77, art 1) Aquinas based his analysis on Aristotle’s conception of the justice of reciprocity: Let A be a builder, B a shoemaker, C a house, D a shoe. The builder, then, must get from the shoemaker the latter’s work, and must himself give him in return his own. If, then, first there is proportionate equality of goods, and then reciprocal action takes place, the result we mention will be effected. If not, the bargain is not equal, and does not hold; for there is nothing to prevent the work of the one being better than that of the other; they must therefore be equated. … This is why all things that are exchanged must be somehow comparable. It is for this end that money has been introduced, and it becomes in a sense an intermediate; for it measures all things, and therefore the excess and the defect-how many shoes are equal to a house or to a given amount of food. The number of shoes exchanged for a house (or for a given amount of food) must therefore correspond to the ratio of builder to shoemaker. For if this be not so, there will be no exchange and no intercourse. And this proportion will not be effected unless the goods are somehow equal. (Nicomachean Ethics, V, 5) However, whereas Aristotle explained that a house was worth more than a shoe simply because the need for the former was greater, Aquinas (Commentary on the Nicomachean Ethics, bk 5, lect. 9, 980) went further, suggesting that the difference in value was also due to the labor and expenses in their production, i.e. the just price comprised an objective element in addition to the subjective element of need (see Baldwin 1959: 76–77). On this basis, the guilds’ control over exchanges was once thought by some to manifest the spirit of the paradigm medieval economy: The end which the gild aimed at was the rule of a proportional equality; hence its minute regulations and exaggerated precautions. The engrossing of raw materials was forbidden. Partnership was looked at askance. The master might engage only a very limited number of men, and follow only a limited number of trades. External as

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FIGURE 4.3  Aristotle. Roman copy, made in the 1st century CE, of a bronze by Lysippus, 4th century BCE. Source: DEA PICTURE LIBRARY/Getty Images.

well as internal competition was kept at a distance. Not a foreign workman could be employed when there was scarcity of labor in the commune itself. No articles from without that resembled the home product might be offered for sale. The interests of the purchaser were looked after as well as those of the seller. There were precise instructions regarding the proofs of competence to be furnished by workmen; as far as possible, determination of a price just, and in conformity with the theories of publicists on the legitimacy of all profit. The stability was arranged for as much as it could be, measures being taken to prevent a fall, as well as to check demands for a rise, in their rate. (Nye 1899: 103–104) Certainly, insofar as they emphasized cooperation and equality between craftsmen the guilds appeared to conform to “the Church’s romantic ideals” of ethical trading (Gras 1933: 306). This is perhaps unsurprising, given that many of the older craft guilds began life as religious fraternities co-opted by their members to pursue occupational as well as—or over—spiritual ends (see Rosser 2015: 151–159). However, this understanding of the cultural context overlooks that while Aquinas in particular was silent on how the just price was to be calculated in practice, his analysis being purely normative, other scholastics were not. It is clear that by the time the guilds

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reached the height of their power in the fourteenth and fifteenth centuries the majority of thinkers did not see the concept of the just price as an alternative to the market price but rather as the very same. Aquinas’s contemporary, Albert the Great, observed that a “price is just which can equal the value of the goods sold according to the estimation of the market place at that time” (Commentaries on Libri Quattuor Sententiarum, dist. XVI, art 46), and a number of earlier commentators, such as Azo of Bologna and Lawrence of Spain, made similar connections between the just price and the current price as determined by the higgling and haggling of the market. And the Philosopher himself, upon whose work Aquinas based his own, had of course recognized the role of the market when he said that “all goods must … be measured by some one thing[.] Now this unit is in trust demand, which holds all things together” (Nicomachean Ethics, V, 5). The leading exponent of nascent market theory during the late medieval period is generally taken to be Peter John Olivi, whose ideas were popularized posthumously and anonymously in the fifteenthcentury sermons of Bernadino of Sienna over a century later, Olivi having been accused of heresy shortly after his death (see Langholm 2009). In his Tractatus de Emptionibus et Venditionibus, Olivi rejected the notion that a thing has an intrinsic economic value and recognized instead that its price was determined by its utility, and utility was neither objective nor fixed. Regarding the former, he recognized that “value is partly judged by the pleasure of the will” and “one horse pleases one man more than another man” (q 1). Regarding the latter, he took issue with Aquinas’s view that the just price is unaffected by a thing’s scarcity at a particular moment, instead recognizing that this enhances demand: Thus the same grain is valued more highly at a time of dearth and famine or penury than at a time of general abundance. Thus also the four elements, water, earth, air and fire, have with us a lower price because of their abundance than gold and balsam, although the former are more necessary and useful for our life. (Tractatus de Emptionibus et Venditionibus, q 1) For Olivi, it was perfectly acceptable that a thing is valued more highly when demand is greater; the community is not disadvantaged but rather served, as the seller has incentive to sell the thing to those who need it rather than stockpile it. None of this is to say that the scholastics were fully cognizant of capitalist theory, or considered market forces something to which traders were obliged to submit (see Langholm 1998: 85–99), and it was also considered acceptable for a current price to be fixed by law “after taking into consideration the quality of the object and all other buying and selling circumstances” rather than by the market (John de Lugo, De Iustitia et Iure, 26, 38). But they were certainly aware of the workings of the market and of the dangers of monopoly power and cartels. Both Thomas Aquinas and Albert the Great noted the tale of Thales of Miletus, who showed that philosophical thought could be brought to bear on matters of business by buying up all the local olive-presses out of season for a low price and then renting them out in season “on what terms he liked” (Aristotle, Politics, i, xi), and subsequent writers were clear, certainly by the fifteenth century, that price fixing could be detrimental to local trading (see Langholm 1998: 96).

PUBLIC AUTHORITY OF THE GUILD MERCHANT Medieval culture drew a distinction between private monopoly and state monopoly. The latter was “an art often practiced by cities when they are want of money,” as Aristotle (Politics, i, xi) put it, and although it was recognized that a state monopoly could operate

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to the detriment of the public, it was certainly viewed as being more legitimate than a monopoly in private hands. The occupational guilds were not themselves formal emanations of the State, but they did grow out of the civic authority of the guild merchant. The guild merchant as an institution can be traced back at least to the late eleventh century—it is referenced in the charters of Burford (1087) and Canterbury (1093) (see Gross 1890: 10)—if not to the Anglo-Saxon period—a “gihalla burgensium” of Dover is mentioned in Domesday (f 1)—and continued into the fourteenth and in some cases fifteenth centuries, but there has been confusion, particularly in the earlier literature, as to its public or private status and its relationship to the other guilds. It has been described by some as “merely a private society of merchants, having nothing at all to do with the administration of town affairs” (Gross 1890: 37, summarizing a view he did not hold), “distinct from the municipal government of the boroughs” (Merewether and Stephens 1835, xvi), and “merely connected with commerce [not] a part of the government” (Merewether and Stephens 1835, 117). Yet other commentators have treated the guild merchant as synonymous with the state: for Thompson (1851: 596) it was “not a mere adjunct of a town community but the only formal embodiment of the population into a civic fraternity,” while Brentano (1870: 29) observed that “the whole body of full citizens[,] ‘the civitas,’ united itself everywhere into one Gild[;] the citizens and the Gild became identical; and what was Gild-law became the law of the town.” A middle ground was suggested by Seligman (1887: 32–32), for whom “the guild-merchant was at the outset a mere company of traders” which over time “lost its character as a purely private society, and became closely connected with the municipal organization, although never identical with it.” But it is clear from the evidence collated by Gross that the reality was that the guild merchant was merely a set of rights granted to town officials by the crown and giving them jurisdiction to regulate local trade: the guild merchant of Macclesfield, for example, was described in 1350 as being held by the “burgesses,” while the guild merchant of Bristol was described in 1372 as being held by the “mayor, bailiffs and community” (Gross 1890: 37–43). Gross (1890: 8) also notes that the following standard clause, or some variation thereon, was repeated in numerous town charters: We grant a Gild Merchant with a hanse and other customs belong to the Gild, so that no one who is not of the Gild may merchandise in the said town, except with the consent of the burgesses. As such, the guild merchant was in essence the town’s department of trade. However, it is clear that it was not synonymous with the civic administration of the town in the allencompassing manner suggested by Thompson and Brentano; rather but it formed but one discrete element thereof: the evidence is that the borough and the guild merchant maintained separate rolls (see e.g. Ipswich and Southampton), treasuries (Southampton and Derby), purses (Chester) and officers (Bridgewater) (see Gross 1890: 62). It was also possible to be a guildsman without being a burgess, and vice versa, although Seligman (1887: 42) notes that in smaller towns in particular the guild and the borough “may in truth have been the same individuals.” Regarding the former, the ordinances of several guilds, presumably as a means of drawing trade to the town, envisaged that strangers could enrol and thus permitted to engage in toll-free trading (see Gross 1890: 66), and several guild members’ lists distinguish between the intrinseci and the forinseci (Gross 1890). Regarding the latter, there are numerous charter and ordinance references to burgesses outside the guild, such as in Shrewsbury, Bristol, and Reading (Gross 1890), and in 1357 the Usages and Customs of the guild at King’s Lynn, under which it was an

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offense punishable by fine to deprive a burgess or guildsman of his place at the Sturbridge fair, specifically provided that the fine was due to the mayor and not the alderman “if the transgressor shall be a burgess, and not a brother of the gild.” And although in some cases lack of membership may have been a deliberate choice—Gross (1890: 69) notes that in Shrewsbury the custom was apparently for burgesses to drop in and out of the guild merchant, as their business circumstances required—the guild and borough generally operated different membership requirements: the focus of the former was on a person’s wealth and their ability to pay tolls, the latter on burgage rights. There is also evidence that the de facto operation of a guild merchant may not always have reflected its de jure status and the institution may have been subverted by private agreement: for example, in 1330 the burgesses of Derby were brought before the eyre to account for the operation of their guild merchant, granted to their forebears by Henry III in 1256 (see Glover 1829: 375), as certain of their members were accused of “assert[ing] that they are fellows of the said Guild, and that others are not” and “under cover of this … they [did] oppress the people coming to the said town with vendible wares” and “the profit arising therefrom [did] not accrue to the advantage of the community of the said town, but only to [their] advantage” (Placita de Quo Warranto 1818: 158–161; translated in Gross 1890: 41). Generally, however, while it is tempting to think of it as controlling entry to trade in a manner similar to the occupational guilds, in reality the guild merchant provided a different form of support to a town’s economy by operating what was effectively a system of trade tariffs. Outsiders were generally permitted by the burgesses to trade but on less preferential terms: they would normally be required to pay a tax and were often subject to a range of restrictions such only being permitted to sell wholesale and within certain hours, and not being permitted to purchase certain raw materials or trade in the town’s staples. In some towns, such as Barnstaple and Liverpool, outsiders could only trade in a specific location, under supervision (Gross 1890: 45–46). Measures were also typically put in place to prevent subversion of these rules: guildsmen were generally barred from entering into partnership with outside traders and in some cases, such as Southampton, risked losing not just their guild membership but their franchise if they passed off the wares of another trader as their own (Ordinances of the Gild Merchant of Southampton, s 23).

PRIVATE AUTHORITY OF THE OCCUPATIONAL GUILDS Unlike the guild merchant, the occupational guilds that rose to prominence during the fourteenth and fifteenth centuries were not an emanation of the State but groups of workers bound not by their engagement in trade generally but in specific occupations. They controlled entry to their vocations, oversaw the training and progress of new members through the apprenticeship system and the setting of wages (see generally Scott 1912; Epstein 1998; Wallis 2008), and required their members to comply with a range of regulations in the course of their work, which in many cases included the setting of standards of quality and price. However, although they were undoubtedly private institutions it would be misleading to think that the source of their power was also private: the guilds’ power over their trades was only possible because they were “backed by superior political sanction” (Epstein 1998: 685), having been granted exclusivity in their charters by the crown. But to the extent that these guilds were able to exert private power, the most frequent criticism levelled at them is that they were monopolistic and thus tended towards anti-competitive behaviour: thus, “guilds organized to protect local artisans …

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FIGURE 4.4  Guild Ordinances of the Bakers of York, 1595–1596. From J. R. Green, Short History of the English People (1893). Source: Universal History Archive/Getty Images.

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in preserving local monopolies against encroachment from outside competition” (North 1981: 134); “the object of the Craft-Gild was to secure collectively as great a monopoly as possible” (Walford 1888: 36); and, simply, “guilds were monopolies” (Holmes 1962: 36). Even those who argue that matters were more complex, and that we should be wary of generalization across different guilds and industries, tend to admit that some monopolistic behaviour “cannot be denied” (Scott 1917: 586). But it is important to be clear exactly what we mean by a monopoly and the significance of one. A monopoly exists when a single person or enterprise is the sole provider of a particular good or service. Monopolies can be undesirable not simply because of the modern “distrust of the social and political … power of an unregulated monopolist” (Breyer 1990: 10), but because they can lead to inefficiency. According to classical economic theory, when producers in a perfectly competitive market create more units of a good than buyers are willing to purchase, they will drop their prices and then create fewer units; the price reduction will make the good desirable to more buyers and so demand will increase; as demand increases, so the price increases until the number of buyers wanes, demand drops, and the cycle begins again. In time, supply will equal demand—market equilibrium –which is desirable in that this is efficient both in terms of production, as it maximizes output and minimizes cost, and in the sense that a producer or buyer cannot be made better off without this being at the expense of the other. But a perfectly competitive market is only possible where no one player can influence the price of goods. Where one producer has a monopoly then he can increase his profit at the expense of buyers, by “curtail[ing] production in order to raise prices (from fewer sales) by gaining revenue through increased price on the units that are still sold” (Breyer 1982: 15–16), and he has no incentive to keep production costs low. But of course, this is not how guilds were supposed to operate: The craft company was not simply an association among men of a town engaged in a particular occupation; it was the association, in idea and approximately in fact, of all the men so engaged. That means that, as soon as the company was solidly established, no man who did not belong to it could carry on the trade in the borough. (Ashley 1922: 37) The point is not that there was a single artisan or trader but rather that there were many, competing with each other, albeit operating in compliance with the same set of guild regulations. Whence did this confusion arise? Richardson (2001: 218) suggests that the problem is that nineteenth-century writers such as Gross had a “dramatically different” conception of monopoly from our contemporary understanding of a marketplace comprising a single seller: for them, the label of monopoly could be reconciled with permitting outsiders to compete in their market. There is certainly some evidence of trades being plied outside the guilds during the period in question, at least in London (see Scott 1917: 587), where the freedom of the city carried with it the right to “carry on any trade or mistery,” a right upheld by the mayor and aldermen in 1335 when the weavers unsuccessfully attempted to restrain the burellers from weaving and selling cloth in apparent breach of the exclusive rights granted to the former by Henry II (Calendar of Letter-Books of the City of London, book E, fol. ccxlvii). There was also a distinction between the manufacture of a good on the one hand and trade in it on the other. Scott notes that in many cases the guild charter would grant exclusive rights over the former but not the latter: in the case of the Oxford cordwainers, for example, “no one outside of the gild was permitted to sell any new work; nothing is said in regard to trading in goods that had once been put on the market” (Scott 1917: 588).

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Furthermore, the market was only at risk of distortion when there was no alternative product that met the same need, more or less, of buyers; the fiefdom of many guilds was sufficiently narrow that the medieval buyer had purchasing choices that crossed guild boundaries (see Richardson 2001: 218). So, for example, at the most generic level butchers competed with poulters and fishmongers; brewers competed with vintners; and masons competed with carpenters. There was even competition for specific goods, such as candles—the tallow chandlers and wax chandlers belonged to separate guilds— and even, in one notable example, bread: in late fourteenth century Canterbury, bakers were separated into those permitted to bake white bread and those permitted to bake black (Hasted 1801: 613–614; Kramer 1927: 53). And, of course, the great majority of products were sold to the localities beyond the town wall, and thus beyond the guild jurisdiction, which placed the guilds of different towns in direct competition: here, as Richardson (2001: 219) notes, not only did customers have access at fairs and markets to “itinerant traders who sold products made in many places,” and not just from England, but they often “lived within walking distance of multiple markets operated by independent municipal, aristocratic, and ecclesiastic authorities.” Competition was also evidenced by the “perpetual border warfare” between those guilds that operated within the same industry (Marshall 1929: 24): the London letter-books record, for example, the complaint leveled jointly—apparently without irony—by the Mistery of Pinners and the Mistery of Ironwire Drawers and Cardmakers that for several years they had each been depriving the other of work (Calendar of Letter-Books of the City of London, book K, fol. 31). In some cases, regulatory competition delayed the adoption of technological advances in those industries where some degree of cooperation between occupations was necessary. Thrupp (1942: 167–168, 187) notes the early fourteenth century dispute between the London cloth merchants and fullers over the adoption of water-powered fulling mills as an example of how in some cases the guilds “tended to hinder the rational combination of related industrial processes under one management.” Sometimes it was deemed sufficiently problematic for the State to step in: following a turf dispute between the Coventry guilds variously involved in the wire crafts, the court leet ordered several to be merged in 1435 (the cardwire drawers with the girdlemen; the smiths with the brakemen), albeit otherwise reaffirming their exclusive jurisdictions (Coventry Leet Book, 181–183). (None of this is to say that members of a guild could not in practice exert artificial influence over the market in the manner of a cartel: in 1363 Edward III granted the vintners an almost exclusive right to import and sell wine—at the expense of importers from Gascony (Sargent 1918: 305)—but this was almost immediately restricted to the right to control taverns and retail prices, following concerns that they were stockpiling wine in order to drive prices higher (27 Edw. Stat. 1 (1363); 38 Edw. III Stat. 1 (1365)); see Sargent 1918: 306–307). In 1365, as the practice had not abated, the mayor of London was granted the power to search cellars for putrid wine, and in 1368 eleven presumably prominent vintners were brought before the mayor and aldermen and “undertook that wines of Gascony should be sold at a reasonable price, so that no complaint should come before the mayor” (Calendar of Letter-Books of the City of London, book G, fol. cci b).

FACILITATION OF TRADE Despite the foregoing analysis, the guilds did in fact have a monopoly. However, it was a regulatory monopoly: i.e., not in the private market but in the “political market” (Epstein 1998: 686). Each guild had the exclusive right to regulate the trade or craft in

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question within their particular locality, such that there was not a single artisan or trader but a rather single regulatory body. This is a markedly different proposition. Whereas competition in a private market is generally considered desirable—albeit that some form of regulation is normally required to minimize certain negative consequences (see Ogus 1994: ch 2)—for the reasons outlined above, competition in regulatory bodies is not (see Patil 2001: 4255, albeit in a modern context). Multiple regulators may be no better than an absence of regulation, in as much they lead to a multiplicity of required practices, whereas a monopoly regulator is able to set standards that apply to all. The need for some form of quality control, a “minimum” quality to which buyers were entitled (Gustavsson 1987: 13), was as important in the context of medieval trade as it is today. That there was a specific guild, with its own specific rules, regulating each trade tended towards expertise: Quality control ranged from verifying the metal content of an alloy (gold, silver, and pewter) or the fibre density and dye quality of cloth; to meeting consumer tastes in the decorative and pictorial arts; to guaranteeing a product’s sturdiness and solidity, as in building, shipbuilding, and carpentry. Therefore, protection against error and fraud required different institutional arrangements according to type, including ex ante monitoring of skills—for example, through apprenticeship, best done by guilds— and ex post punishment for incompetence and cheating—which could be undertaken more effectively by other means. (Epstein 2008: 159) The ex ante control exercised by guilds was the medieval solution to the problem that if it is difficult to evaluate a particular good or service prior to purchasing it—or even in some cases after purchase, if its quality or usefulness cannot easily be evaluated due to technological limits (e.g. the content of the goldsmith’s alloy) or because it can only be evaluated over an extended period (e.g. the sturdiness of the carpenter’s chair). By ensuring that their members complied with particular, publicly accessible, standards, the guilds oiled the wheels of the market. Crucially, the standards could be relied upon because the guilds could control entry—the London shearmen, for example, required a candidate to be “knowyn a goode man … and [a] perfith and able workman of the seid Crafte” (Ordinances of the Guild of Shearmen, reproduced in Transactions of the London and Middlesex Archaeological Society, iv, 1875: 40)—and because there were sanctions for their breach—the London pewterers, for example, provided that the first penalty for bad workmanship was to “lese the mater so wrozte,” the second was to “lese the mater and be punished,” and the third was expulsion from the guild “for euermore” (Welch 1902: 4). Furthermore, the standards were often enforceable by consumers in the event of a breach, as in this 1482 ordinance of the York carpenters: Yf ony wyrk … is unsufficiently, unabill, and unwarkmanly wroght, that the sersours of the said occupacion at the desyr of the awner of the same wark shall serch it and yf it be foundyn unsufficiently wroght be the syght of the said sersowrs, he or tha that heryn be foundyn defective shall as oft tyms as tha be foundyn defective forfate vj s. viij d., in the form abovesaid to be payd and devydyd; and our this, he that is so defective shall make sufficient amendes to the pairte tharby grevyd or hurt. (York Memorandum Book, ii: 368) Similarly, the Bristol tailors in 1407 provided that compensation was due should “any tailor lose by his evil working a cloth or garment to him delivered to be cut” (The Little Red Book of Bristol, ii: 83), while Lipson (1959: 32) notes that in the case of Plymouth

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fullers it was the guild collectively, rather than the offending individual, that undertook restitution. The economic benefits that flowed from regulations such as these also explain why, just as less scrupulous traders may have wished to operate outside the restrictions of a guild, other townsmen valued membership even where they had already been carrying on the trade in question independently, as in the case of one John Elsey of Iskham, who in 1422–1423 gave evidence to the mayor and aldermen of London that although he had been admitted to the freedom of the City through his membership of the Mistery of Hornyers some twelve years earlier, he “had long used, and was now using the Mistery of ‘Bruers,’ as good men of the latter Mistery testified,” and as such sought admittance to the latter (Calendar of Letter-Books of the City of London, book K, fol. 4). Two other guild practices that might appear prima facie to benefit only the members but in practice would have had a positive impact on town economies were the provision of credit facilities and the operation of friendly societies. Regarding the former, although it was once thought that commercial credit was a distinguishing feature of the early modern period and that in the fourteenth and fifteenth centuries “money-lending had nothing to do with commerce; wealthy men borrowed in emergency, or to equip for war” (Postan 1928: 236, summarizing a view the author did not hold), there is “copious” evidence in the court rolls and London letter-books to the contrary (Postan 1928), and those guilds that provided their members with access to credit helped prevent local economies from being disrupted by irregularity of production, smoothing over the problems caused by, for example, an unexpected cost in the raw materials needed by a particular trade (Epstein 1998: 685). Regarding the latter, it was commonplace for guilds to make formal provision for the support of those members who succumbed to sickness or poverty (Lipson 1959: 342–344). So, for example, the London carpenters provided in 1333 that they would support “any brother or sister [who fell] into poverty by God’s hand or in sickness … so that he may not keep himself” (The “Boke” of the Ordinances of the Brotherhood of Carpenters of London, 13), while the London drapers provided in 1388 that they would support those who fell “by chance … into trouble or into poverty” (Johnson 1914: 199; see also Lipson 1959: 343). The point must not be stretched but while the main motivation was clearly mutual support—with perhaps an element of social control, as in the case of the London white tawyers, who in 1346 extended their aid to the widow of any eligible guildsman but only “so long as she behave herself well and keep single” (Ordnances of the Trade called “Whittawyers,” 20 Edw. III, 1436)—supporting individual members during periods of temporary hardship would also have helped lessen irregularity of production insofar as those members would not be forced by circumstance to withdraw from the guild and adopt an alternative occupation. There were also, of course, less direct but no less significant economic ramifications for the town when mutual support spilled over into altruism and the guilds “anticipated … the features of modern charity” with the founding of almshouses and free grammar schools (Lipson 1959: 344), easing the burden of poor relief and education that would otherwise have fallen on the shoulders of other townsmen.

CONCLUSION The occupational guilds played a significant economic role in regulating commercial agreements during the late medieval period. Although there have been renewed concerns in some quarters over the legitimacy of private institutions manipulating trade for the

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benefit of local elites, these have been overstated. It is true that, unlike the old guild merchant, the occupational guilds were certainly not public in nature, but that guildsmen were left to regulate their own affairs was only because they had been granted the authority to do so by the crown and, as with the vintners in 1365, this could always be revoked. While it is clear that in some instances guild power could be exercised for the benefit of the few, or at the expense of technological progress, the suggestion that nascent town economies were impaired by the guilds preferring the just price over competition, at a time when contemporary intellectual culture no longer regarded the two as mutually exclusive but rather recognized that the former could be set by the latter, is rather wide of the mark: in setting standards that remedied information asymmetry between traders and buyers, and in ameliorating disruptions to the supply of goods though the provision of credit to their members, the overall effect of the guilds was the facilitation of trade rather than its hindrance.

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CHAPTER FIVE

Arguments BEATRICE PASCIUTA

The tendency to apply procedural arguments to extralegal situations is much more widespread than one might think. In the Middle Ages, this tendency incorporated different fields of knowledge in a much more casual and transversal way than is the case today. Procedural metaphors are intensively used for the entire construction of Christian doctrine and not just in the two events that mark the beginning and the end of humankind – the judgment against Adam in Eden and the Last Judgment – but also in biblical trials and the trial that decided the death of Christ. From the new millennium, however, a more “legalistic” approach aimed to construct a more rational procedure, one that could assure a shared, objective form of the process. Such an “ordo” would guarantee, by means of in-depth analysis of various procedural steps, attainment of a “true” truth, i.e. the procedural truth, which is unique, cannot be replicated, and represents a truth as sacred as the liturgical one. Furthermore, this sacredness and the symbolic and functional strength of the procedural mechanism, in which each bystander embodies a predetermined role—judge, plaintiff, defendant, witness—combine to make the trial the ideal setting to address issues that have little or nothing to do with the law stricto sensu. Thus, acts and creations with religious aims—sermons, moralizing works, didactical works, mystery plays, painting cycles and illuminations—and those with didactical aims or those that serve purely as entertainment, make use of procedural tools or, at a minimum, apply categories borrowed from legal reasoning. Conversely, theological and ethical reasoning in the Middle Ages influenced legal reasoning, particularly with respect to the structure of trials that can be categorized as “exceptional” and those that were motivated by political goals. The most famous cases— ranging from trials of queens during the early Middle Ages to the political trials of the fourteenth century, and above all the prosecution of Boniface VIII and the Templars— brought extralegal reasoning into the courtroom “by force,” where that reasoning masked goals that were clearly non-juridical. In this way, not only did legal and procedural reasoning influence activities and actions distinct from the law, but so too did symbolism, morality, and didacticism shape the legal culture as it developed.

BETWEEN LAW AND THEOLOGY: ARGUMENTS IN THE LEGAL CULTURE Trials by Ordeal During the first centuries of the Middle Ages, the most common form of conflict resolution was a trial by ordeal or “God’s judgment.” The early medieval trial by ordeal

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was based on the idea that God himself—Supreme Judge of all human beings at the end of time—takes part in human controversies through rituals meticulously regulated by the Church (Gaudemet 1963). In such cases, human justice and divine justice unite to reveal the truth demonstrated by the effects of physical tests imposed on defendants and by conclusive declarations about the meaning of those effects. Such trials subjected defendants to fire, water, contact with glowing hot metal, ingestion of huge amounts of food, purgatory oaths, and duels, tests that constituted the “sacred depository,” which the Church borrowed from the pagan trial by ordeal and later transformed into the sacraments (Jacob 1996: 96–97). Examples of biblical ordeal-formulas include passages on Shadrach, Meshach, and Abednego, and Susan. The Book of Daniel describes the ordeal of the three young governors of Babylon, who are cast into a furnace of burning fire for having refused to adore an idol, only to emerge unscathed (Dan. chap. 3). Susan, falsely accused of adultery by two old men, is found innocent thanks to God’s intervention and Daniel’s counter-trial (Dan. chap. 13). Both examples, which differ greatly, are used as “topoi,” or tropes, in early medieval times in order to justify trials by ordeal. Thus, blessings imparted before such trials were invocations to God, made to remind Him that He had already taken part in similar cases, performing a miracle when necessary. If a particular defendant was innocent, He would then intervene (E.g. Zeumer, 621 ss). Pope Innocent III prohibited the clergy from taking part in trials by ordeal at the convocation of the Fourth Lateran Council in 1215. A few years later, this prohibition, introduced in the Liber Extra (X 3.50.9), was adopted in the Liber Augustalis, i.e. the body of laws enacted by Frederick II, rex Siciliae and Emperor of the Holy Roman Empire (Pasciuta 2008). These two proscriptions arguably represent the most significant ways in which both secular and ecclesiastical legislation acknowledged the profound changes theorized by legal doctrine in the field of legal procedure between the end of the twelfth century and the first decades of the thirteenth century.

Ordines iudiciarii and the Structure of the Trial From the last two decades of the twelfth century onwards, jurists—especially canonists— began to elaborate on the so-called ordines iudiciarii. By analyzing and systematizing different legal sources (canon law, interpretations of Roman law and usus fori, i.e. procedural customs—both civil and ecclesiastical), these works represent an attempt to establish a procedure that can be applied under any circumstances and by any tribunal. Accordingly, the ordines iudiciarii or libelli de ordine iudiciorum were used by tribunals and lawyers as well as law students.1 The first civil law scholars who began to reflect on legal procedure described the process and the purpose of trials in general terms. In this way, Bulgarus, glossator and scholar of Irnerius, who wrote the first brief treatise on trials (1130–1140, De iudiciis), thus portrayed a trial as an actus trium personarum or an act that necessarily involves three people. The plaintiff (intendens) is the one who declares that he wants something, claiming a right to which he believes he is entitled. The offender, i.e. the defendant (intentionem evitans), resists the plaintiff’s requests and takes a position countering the plaintiff’s claims. The judge (in medio cognoscens) is the third participant, the one who stands between the parties charged with the task of assessing “truths” proposed by the defendant and the plaintiff in order to provide a solution (Excerpta legum, p. 6). From this perspective, the trial is an ordo, or a well-ordered and logical sequence of stages necessary and sufficient to produce a “just” solution to the controversy, demonstrating the value

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of pursuing a legal action. The ordo iudiciarius, as described within the framework of legal doctrine, is a “self-perpetuating” mechanism; it is the only tool that can guarantee logically correct decisions, anywhere and for any given case. Consequently, to obtain justice, there was no further need for divine intervention, which was previously an essential requirement ensuring the functioning of trials by ordeal. At the same time, and in order to legitimate the ordo iudiciarius as drafted by legal doctrine, the trial was envisioned by jurists as something that God required. In the introduction of the Speculum iudiciale (1271–1276 c.), the most famous work on medieval procedure, Guillaume Durand sketches a kind of history of laws and trials that derive directly from God and pass through several stages to the status of the law in Durand’s time. As a result of the influence of works such as the Speculum iudiciale, which connects God, mankind, and the law, the trial is portrayed as having a value in its own right.

BETWEEN THEOLOGY AND LAW: ARGUMENTS IN THEOLOGICAL CULTURE The First Trial: Prosecution of Adam by God According to canonists—from the first summae of the Decretum Gratiani (Paucapalea, Stephen of Tournai) to Guillaume Durand—trials take place throughout the history of humankind. The first trial dates back to the expulsion of Adam and Eve from the Garden of Eden. “Procedure and the judicial way of solving conflicts seem to have their origin in Paradise” (Speculum, I, p. 5, § 24). Adam, reprimanded by God for having disobeyed, makes his objections as a defendant would, and in turn he accuses the woman of having persuaded him to eat the apple, and therefore to have sinned: “The woman you put here with me—she

FIGURE 5.1  God confronts Adam and Eve. Mosaic. Monreale, Sicily. Cathedral of S. Maria la Nuova. 12th-13th century. Source: Melvyn Longhurst/Getty Images.

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gave me some fruit from the tree, and I ate it” (Gen. 3:12). The sin of man against God overturns the state of nature, thus introducing the concept of ownership. In a state of nature, that state of grace in which God had placed man, there was no reason for disputes, because all goods were common. When God punishes Adam and expels him from Eden, He condemns him, among other things, to “eat his food” (“By the sweat of your brow you will eat your food”: Gen. 3:19), meaning that man must toil to produce his own food for consumption. The introduction of the terms “mine” and “yours” represents the sole reason for conflict, as the distinction makes it necessary for humankind to create earthly justice to solve disputes. The stoics had already developed this idea, and Durand references a proverb of the pseudoSeneca: “Men would live in peace if we would get rid of these two words: Yours and Mine” and also “We would be ours without our things” (Speculum, I, p. 5, § 25). These themes are given added significance thanks to their connection to the expulsion from Eden and, therefore, to divine punishment. In his attempt to reconstruct the history of trial and procedure, Durand identifies an ordo iudiciarius already in the Old Testament; namely, the necessity of relying on a minimum of two witnesses to provide a proof, a principle first expressed by Moses and later embraced by legal science: “In ore duorum aut trium testium peribit qui interficietur. Nemo occidatur, uno contra se dicente testimonium” (“By the word of two or three witnesses, [a] the one who is to die is to be put to death. No one is to be put to death by the word of one witness.”) (Dt. 17.6). Indeed, according to Durand, the necessity of creating a set of procedural rules was an issue already raised in the Ten Commandments, where it is stated that ownership of property could lead to conflict among men: “Non concupisces domum proximi tui, nec desiderabis uxorem ejus, non servum, non ancillam, non bovem, non asinum, nec omnia quæ illius sunt” (“thou shalt not covet thy neighbor’s house; neither shalt thou desire his wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor anything that is thy neighbor’s”) (Ex. 20.17). Continuing his examination of the history of the trial, Durand turns his attention to the New Testament. In his first Letter to the Corinthians, Paulus explicitly refers to iudicia secularia, i.e. trials held by men and between men. In the light of the Apostle, his successors to the throne of Peter continued to create canons that were intended to provide guidance for an ever-increasing number of controversies. Durand, who combines historical reconstruction with practical demands of his day, describes the content of his work and outlines his aim of providing a tool that will offer useful guidance: “I will compose a Speculum iudiciale, a mirror in which judges, lawyers, notaries, parties, witnesses can look at themselves and find the solutions apt to all trials” (Speculum, I, p. 5, § 26). Durand uses historical narration to unite biblical accounts and modern scenarios in order to reveal the link between forms of the trial and theological construction. In Durand’s view, the trial is legitimated by the fact that it is a continuation and secular manifestation of the liturgical arena. Like Eucharistic liturgy, the trial is organized as a ritual and, as is the case for Eucharistic liturgy, the truth in a trial can be achieved only by performing—in a precise order—a series of steps set forth by the doctrine. Eucharistic liturgy aims to achieve sacramental truth; judicial liturgy seeks procedural truth. As a consequence, the final result of the trial, “sealed” by the ne bis in idem principle, cannot be questioned further and represents a tangible manifestation of the sanctity of the ritual.

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This indissoluble link between trial and liturgy is discussed by Durand in the Rationale divinorum officiorum. This work was written a few years after the Speculum, and in some ways, it can be considered its counterpart. In fact, in the field of liturgy Rationale is as famous, foundational, and (at the same time) recapitulatory as the Speculum is. In the introduction to the Rationale, Durand explicitly recalls his earlier writing on trials, noting that he wrote Rationale to address questions raised by the Speculum and to clarify procedural matters (Rationale, I, p. § 16).

The End of the Human Story: Last Judgment According to the most exhaustive description of the Final Judgment, as contained in Saint Matthew’s Gospel (Mt. 25, 31–46), the last day of humankind creates a terrifying scenario. The Christ-Judge does not apply the law to distinguish between souls, but relies instead on his profound knowledge of human behavior. The Final Judgment is, therefore, certainly not an actus trium personarum; rather, it is not a trial at all. When medieval theologians speculate about the exact form of the Final Judgment (or, using Petrus Lombardus’ words, about the ordo to be applied), legal terminology informed their theological reasoning. It will be a peculiar trial, this is evident. A trial without witnesses, without a defense and without a debate. Nevertheless, it will be a judgment characterized by the presence of a judge, who will render a verdict. According to the Scriptures, Christ will act as judge of all mankind in the Final Judgment (Sententiae, IV, dist. 47.4–48 ([PL 192, coll. 953–957]). The paradigm of the Final Judgment changes in parallel to the development of procedural doctrine. In Jacobus de Voragine’s Legenda Aurea (a work written in the very same year as Durand’s Speculum iudiciale), the portrayal of humanity’s final day is similar to the one described by legal doctrine. With regard to the return of Jesus, de Voragine discusses issues that directly apply to the legal setting. In particular, he refers to the collegial aspects of judgments: saints assist Jesus and approve the Judge’s sentence, just as those who assist a judge may approve of a sentence and formally subscribe to it. He also deliberates about the characteristics of a judge, noting that Jesus has all of the qualities of an ideal judge, as anticipated by legal doctrine. Further, Jacobus reflects on the prosecutor’s presence at trial, as all souls must also face three prosecutors. First, the Devil will remind us when, where, and how we sinned and how we should have behaved in the alternative. During the trial, the Devil will ask Jesus for the souls of those sinners who voluntarily submitted to his dominion. The second prosecutor is represented by each soul’s own sin. The third prosecutor is the world as a whole, because offending the Creator represents an offense to the world. In addition, de Voragine contends that there are three infallible witnesses: God, who is judge and witness at the same time; one’s own conscience, and each person’s guardian angel, who knows everything that a person has done and will testify against that person. The sentence is irrevocable and unappealable, because it matches the three criteria established by jurists on supreme justice: it is impossible to appeal to a superior judge, the crime is evident, and the judgment cannot be postponed (Legenda Aurea, chap. I, pp. 8–12). In this way, key legal issues are an essential part of a work intended, not as a popular work, but as a resource for preachers. That such a work addresses these topics is an unequivocal sign that the procedural structure was, at this point in history, well-known and deeply-rooted even among non-jurists.

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FIGURE 5.2  The Last Judgment. Miniature in the Queen Mary Psalter. London, British Library, ms. Royal 2.B.vii, fol. 302v. 1310–20. Source: British Library, London, UK/© British Library Board. All Rights Reserved / Bridgeman Images.

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The Struggle Between Good and Evil as a Trial Since the beginning of Christianity, interpreting salvation and redemption as a kind of juridical struggle between God and the Devil appeared, both to orthodox and heretical thinkers, to be the only possible way to incontrovertibly demonstrate that the conflict between Good and Evil had been resolved and that—despite appearances—Good had triumphed. God could have chosen other, more spectacular and immediately effective ways to defeat Evil (such as an armed conflict or a miracle). Nevertheless, the choice to use the law instead is certainly more in line with the “juridical” configuration adopted by Christianity following its very first institutional contacts with the Empire. A feature that distinguishes Christianity from the other two great monotheistic religions is a vigorous and uninterrupted debate about possible explanations for the existence of Evil. The influences of oriental religions and Jewish interpretations emerge from apocryphal texts as well as from the works of the Early Church Fathers aimed at confuting heresies (Pasciuta 2015: 151–154). One of the most effective heretical doctrines regarding the struggle between Good and Evil is elaborated by Marcion of Sinope (c. 85–c. 160), which we know thanks only to the works devoted to confute it. As described by Eznik of Kolb, the Armenian bishop who devoted the fourth book of his “Against the Sects” to Marcion, according to Marcion’s doctrine there were three deities when the world began: Matter, the Other (or Unknown God, who would reveal Himself in the New Testament), and the Demiurge or God of Creation and Law (Refutation of the Sects, pp. 57–59). The world with its creatures originated from sexual intercourse between Matter and the Demiurge. The struggle between the two of them for the possession of man induced the Unknown God to show himself. The latter, distressed by the pain inflicted on humankind by the two fake deities, decides to send his son to perform miracles, thus provoking the envy of other men. As a consequence, Jesus is condemned to crucifixion and to death. Having died, and having lived as a man, Jesus descends to Hell to free souls sent there by the Lord of Law and Creation. But the Lord of Creation becomes very angry and condemns the world to darkness. Thus, the second phase of conflict began. Jesus returns to Earth, this time in the likeness of God, and sues the Lord of Creation and Law for having wrongly condemned him to death. Jesus asks to be judged by the very Law that the Lord of Creation had written. Thus, having put the Law before the parties, Jesus asks the Demiurge: “You have written: ‘whoever kills is to be killed, whoever sheds the blood of a just man, his own blood is to be shed,’ haven’t you?” Because the Lord of Creation acknowledges that he was the author of the Law, Jesus asks him to surrender and to accept his fate of being condemned to death. When the Lord of Creation realizes that he is to be condemned because he wrongly killed according to his own Law, he tries to plead ignorance. As compensation to Jesus, he offers the souls of all those who believe in him. The Marcionite theory distinguishes itself from other heretical theologies of the second-third century precisely because it proposes a theological interpretation of legal procedure as a means of solving the eternal conflict between Good and Evil. This “vision” of Salvation as a conflict of rights was very successful and, despite its evident heterodoxy, it created a model that was followed (with some significant variants) by the orthodox theory of Salvation. Beginning with Augustine and Leo the Great, the ambiguous figure of the Demiurge, God of the Old Testament and Lord of the Law, was replaced with the Devil, rebel angel and prince of Darkness. The Early Church Fathers were then able to explain the struggle between God and the Devil in terms of the claims that Evil professed to have over humankind and the will of God to take seriously this claim.

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According to Augustine, God would have handed humankind over to the Devil as a punishment for the original sin, placing mankind under the potestas of the latter: “Humankind has been placed under the power of the Devil by God’s justice, because of the sin of the first man.” Therefore, God’s punishment follows a “juridical” path because it is the direct consequence of the application of justice. It is a punishment that follows a conviction.

Scholasticism and the Devil’s Rights Augustine’s theory on “the Devil’s right” was destined to have a long-lasting influence. Medieval scholasticism, in fact, being deeply influenced by the concomitant “explosion” of law schools, used juridical elements as foundations for philosophical reasoning. As a starting point, humankind has been caught and enslaved by the Devil and the cost of redemption, in order to be freed, is the life of another man, an extraordinary one, the Son of God. The Son of God’s death offsets Adam’s pride by making him humble. According to Petrus Lombardus, author of the Libri Sententiarum, the handbook used in all theology schools starting from the second half of the twelfth century, God thus makes use of both justice and power to rescue Humanity. Through justice he defeats Evil; through power he brings about the history of Humanity. These choices have a significant didactical value. Thus, justice is used to educate Humankind; it represents a potential goal and a tool that men can apply, albeit imperfectly. Conversely, power also makes it possible to act without rules: it is therefore a very dangerous “weapon” that attracts the Devil (also defined amator potentiae) and, consequently, the greedy man. Therefore, power must be an exclusive prerogative of God, demonstrated to Humanity only through an unachievable and unique action: the resurrection of Jesus Christ. As a result, if the tool used by God to defeat Evil is justice, then the relationship between God and the Devil—as a kind of logical counterweight—must also be valid from a procedural perspective, i.e. from the perspective of making concrete the concept of justice and the application of legal rules (Pasciuta 2013: 422–429). Petrus Lombardus considers a hypothetical legal dispute between God, man and the Devil. If the three of them were to go to trial, the Devil should, on the one hand, face criminal charges of injury against God for having fraudulently taken away one of his servants (i.e. man) from Him and prevented him from using force; on the other hand, the Devil could be liable for fraud and damage against man. Mankind, for its part, should face criminal charges for injuring God, having disregarded His order and having chosen another lord (“De causa inter Deum, et hominem et diabolum” [Sententiae, III. dist. XX.2, col. 799]). With these issues in mind, the concept of a “legal” dispute between God and the Devil was clearly accepted by theology: the logical explanation provided by Petrus Lombardus summarizes the point of view of Scholasticism and seems to conclude the matter. The problem is solved thanks to the law which, once again, proves to be an ineludible support for theological reasoning, much more than any hermeneutical tool. The essence of theological thinking from this period is its aim to understand and explain dogmas using logical procedures.

ARGUING IN THEOLOGICAL AND LITERARY TRIALS The procedural outline that legal doctrine establishes between the twelfth and the thirteenth century, as regulated both by papal and secular law beginning in the first half of the thirteenth century until the first decades of the fourteenth century, was destined to

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extend beyond the strictly juridical sphere to become the standard format for resolving any kind of conflict. The features that make this outline “exportable” to extra-juridical spheres, and those which may make trials paradoxical, are the following: the presence of a logical structure (a trial is made up of an ordered set of steps whereby a sequence of different phases ensures the logical—unique and final—solution to the litigation); the presence of an equitable character (a just and impartial judge evaluates the applicability of the law to the case at hand, avoiding a purely formalistic application of a norm, which would be an aberration); accessibility to anyone (any person, regardless of social and juridical status, can rely on a trial, has a natural judge, has the right to be heard and therefore the right to a defense); applicability to all kinds of litigations (the simplicity of the structure of the trial, conceived as a dispute between two parties before an impartial judge, who delivers a judgment the parties must respect, follows the logical pattern of non-violent conflict resolution, even non-strictly juridical ones). How, then, does the structure of the “new” trial influence medieval culture? And how is it implemented by the collective imagination? The trial developed by legal doctrine beginning in the twelfth century is a documented one. Each phase of the ordo, in fact, foresees the drafting of memories, motions, documents, and evidence. Recording these phases in writing served a practical purpose and an authoritative one. First, the documented trial established permanently and in an unequivocal way the “truth” that was reached in the courtroom with reference to the judged case. Second, it was thereafter possible to use a sentence as a precedent for similar cases. The written form, finally, creates a “narrative” of the trial and, for this reason, it can actually be transformed into a story. The opportunity to show two different theses—both during the argument and when parties produce evidence to the judge—the situation marked by pathos that culminates either in terror (in response to the severity of a conviction) or in relief (for an acquittal) and the option to alternate between voice-overs and dialogue among the parties and the judge, are all elements that make a trial the ideal framework for a written or imagined narration. In fact, “trial stories,” i.e. those stories developed in the form of a trial but describing non-truly legal issues that serve ethical rather than procedural goals, are used for didactical purposes starting in the thirteenth century, first in sermons and exempla and afterwards in the wider framework of so-called “mock trials.”

The exempla and the Sermons During the first half of the twelfth century, as a result of the Fourth Lateran Council (1215) and Pope Innocent III’s provisions on prayers and confessions of sins, street preaching spread in an extraordinary way, as did didactical-religious works of sermons and “tools” used by preachers. Among these tools, the exempla, brief stories with a pedagogical aim in which the narrator warrants the truthfulness or authenticity of the facts, play a very important role. Exempla are usually inserted in collections of sermons and hagiographic works, e.g. Lives of Saints, Collections of Miracles. In other instances, they are collected in specific works and organized by subject.2 From a literary point of view, exempla are not particularly refined and, obviously, they do not include scholarly legal elements. Nonetheless, exempla rely on the format of the trial to resolve conflicts or to punish moral crimes. By analyzing the main collections of exempla, it is therefore possible to extract some key concepts to better understand popular culture. In particular, exempla shed light on different kinds of trials, the way that the world of the law and its protagonists are

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perceived, conceivable types of judges and lawyers or conflicts and main crimes, and the effectiveness or ineffectiveness of litigation. In the most ancient collections, the commonest kind of legal pattern is certainly the trial by ordeal. This procedure is effectively described by Caesarius of Histerbach. In his Dialogus Miracolorum, written around the 1240s, the ordeals described are numerous and varied: a glowing hot iron that the defendant has to take in his hands; a duel; the wheel. A miraculous intervention occurs both during the first phase—when the prosecutor bears the burden of proof—and in the second phase, when the defendant is freed. The view underlying numerous stories based on trials reveals a substantial distrust of justice as exercised by humankind. Therefore, divine intervention (i.e. a miracle, a wonder performed by a saint) is necessary to overcome the limits of human judgment, both in the form of ordeals and trials, as in the case of the son who asks to be executed in place of his father, who is wrongly accused of being a thief. The judge, showing his utmost ignorance of the basic rules of justice, and having condemned the father to hang, answers the prayers of the son (who wants to sacrifice himself to demonstrate his father’s innocence), by hanging the latter instead of the father. However, Saint Jacob, to whom they were devoted, rescues the son by supporting his body. When the father goes to the gallows to claim his son’s body and bury it, the son greets him, revealing that he is still alive because the saint prevented the noose from strangling him (Dialogus Miraculorum, dist. 8 cap. 58). When a just solution to a trial relies on mankind, and when no miracle occurs to remedy the situation, the judge can solve the dilemma with wisdom, rather than with the ordo iudiciarius. Here, the model is Solomon’s judgment, a biblical story updated to have a stronger effect on the audience. Thus, the following exemplum: a father, having learned, during a fight with his wife, that only one of their three sons is actually his, and not knowing the identity of the real one, makes his last will and testament leaving all his assets “to his only son.” The dispute between the three brothers about the inheritance is brought before a judge. The latter orders the corpse of the father to be tied to a tree, proclaiming that the heir will be the son who is able to hit it with an arrow. Two of the three sons, without any hesitation, shoot their arrows into the body while the third son gives up, crying at the sight of the desecrated corpse. In this way, the judge verifies that the latter is the true son, and he assigns the disputed inheritance to him. At the conclusion of the story Caesarius adds: “The judgment of Salomon about the child is analogous” (Die Wundergeschichten, 3, n. 19, pp. 140–141). “Exemplary literature” from the first half of the thirteenth century deals with trials in a very cursory way. The aim is to frighten, but no attention is paid to procedure or, therefore, to the arguments raised in court. The dispute, a quarrel between two parties before a judge, is certainly less impressive than a trial by ordeal and less apt to generate a miracle. Since the object of such a quarrel is always the possession of a soul, such a judicial dispute is usually linked to the Devil and the tribunal is usually located in Heaven. In this case, the conclusion of the dispute is already decided. The sinner, who is devoted to a saint or, more often, to the Virgin Mary, dies and is claimed by the Devil because of his sins, which are evident and well known to the audience. While the angels try to recapture the soul from the Devil, the Madonna intervenes, arguing against the sentence. The Devil makes his counterarguments, and the dispute is left with the supreme judge, Jesus Christ. Christ, as a token of love for his mother, performs a miracle: the dead sinner is resurrected so that he can have the opportunity to lead a life of penance (Die Wundergeschichten, 3, n. 36, pp. 157–158).3

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Attitudes towards trials and towards the law in general begins to change during the second half of the century, thanks probably to the spread of legal culture and the abolition, by secular legislation, of trials by ordeal. In the Legenda Aurea, written by the Dominican Jacobus de Varagine around 1260, the trial by ordeal is almost absent and the dispute is usually described in procedural form, with a debate between two parties and a deciding judge. The effectiveness of the exemplar story is still linked to an extraordinary event or miracle, but unlike cases described by Caesarius of Heisterbach, the focus is not on a trial by ordeal but on a procedural judgment. The trial is set in a dream, and the sinner finds himself before a judge having to defend himself. The judge is usually God, and the opponent is, understandably, the Devil. The saint assists the protagonist and suggests him the right answers. So, for example, a monk tells his brothers that he faced a judgment against the Devil and that, thanks to the help of Saint Gregory, he was able to skillfully respond to all the arguments made by the Devil (Legenda Aurea, pp. 200–201, §17). In this way, the narrative topos of a dispute with the Devil for possession of a sinner’s soul takes the form of a judicial dispute. The beginnings of a real trial, with a prosecution and a defense, statements and evidence, lawyers and judge, and all the elements of a judicial trial as foreseen by legal doctrine, is described in the session devoted to the Miracles of the Madonna. In the Legenda Aurea, the story of a sinner who has to face God’s judgment carrying his “box of sins”, thus triggering a judicial dispute with the Devil, demonstrates careful attention to the form and structure of the trial, which is presented as an alternative to a miracle. Arguments and respect for procedure are the only tools that humankind has in order to achieve justice, even in Heaven. God, too, chooses legal procedure in order to provide the sinner with the opportunity to be saved. In particular, according to the story, a man with a box full of sins is judged by God when Satan suddenly appears and says: “Over this soul you have no power; he is mine and I have an instrumentum publicum which proves this fact.” God replies to Satan: “Where is your instrumentum?” To which the Devil replies: “I have an instrumentum that you have dictated with your own mouth and that you have established would last forever. In fact, you said: ‘For in what day soever thou shalt eat of it, thou shalt die the death’ (Gen. 2.17). Because this man belongs to those people who ate the forbidden food, he has to face prosecution by virtue of the instrumentum publicum.” In response, the judge says: “You, man, are allowed to defend yourself.” But the man remains silent. The demon says: “His soul is mine also by virtue of praescriptio, as I have possessed it for more than thirty years and he obeyed me as a servant of mine.” Again, the man stays silent. And the demon says: “His soul is mine also because, even though he did something good, his bad deeds clearly prevail.” God, who does not want to sentence the man, grants him the opportunity to come back after eight days to respond to the charges. The man goes away and is despondent, because he is certain that he will lose the argument and die. He meets another man who asks him the reason for his sorrow. After listening to the despondent man’s story, the other man says: “Do not be afraid because, with reference to the first charge, I will help you viriliter.” The man asks him what his name is and he replies: “Truth is my name.” He then meets a second man who promises to help him efficaciter in reference to the second charge. When this second man is asked to say who he is, he replies: “Justice is my name.” After eight days, the man whose soul the Devil wants appears before the judge, and the demon repeats the first charge. Truth answers:

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We know that death is twofold, it concerns the body and hell; that instrumentum that you are producing, demon, has nothing to do with hell but it has to do with the body. It is evident, in fact, that that sentence concerns all men and foresees that their bodies will die but, obviously, it does not foresee that they will all burn in hell. Therefore, with reference to the death of the body, that instrumentum lasts forever; otherwise, the death of the soul is cancelled by virtue of Christ’s blood. At this point the demon, understanding that he is defeated on the first charge, starts to make his case as to the second one. But Justice steps forward and says: “Even though you have possessed a servant for many years, the ratio has always been contrary to serving such a cruel master.” When it comes to the third charge, though, there is no helper and God orders: “Bring the scale to weigh Good and Evil.” But Truth and Justice say to the sinner: “Invoke the mother of mercy, who sits next to the Lord, and ask for her help, with all your concentration.” The man does as he is asked, and the Madonna comes to his aid. She rests her hand on the side of the scale where there are a few good deeds while the Devil tries to tilt the scale to the side of the bad deeds. In the end, the Madonna wins and the sinner, returned to life, devotes himself to do Good (Legenda Aurea, pp. 514–515, §4).4 The goal of such a tale is to structure divine justice as human justice, overturning the source of exemplarity: from a miraculous wonder (effective because it remains out of reach) to the imitable wonder of a celestial tribunal in which the souls have the same possibilities that men have on Earth. This way, the example becomes more powerful, because justice follows the same mechanisms both in Heaven and on Earth. The trial, human or divine, is the only way to solve disputes in order to seek redress of grievances and to affirm, in a logical and unequivocal way, one’s own rights.

Mock Trials The success of the trial in Heaven, with the Devil playing the role of the plaintiff and both virtues (Justice and Truth) and the Madonna playing the role of lawyers arguing on behalf the sinner-defendant, spurred the writing of long and complex works in the fourteenth century that are commonly known as mock trials. These “literary” texts, both secular and religious, are usually structured as trials with dialogues. Two different typologies can be identified: trials held in Heaven and “secular” trials, which are set in non-religious environments to address non-religious issues. Trials in which the protagonist is the Devil, who states his right to possess the souls of sinners and argues against the virtues before God in Heaven, represent one category of mock trials. Trials between lovers are part of the second category.

Trials of the Devil The most ancient example of a dispute between God and the Devil is the Piato di Dio col Nemico (ed. Roediger 1887: 31-48). Written in vernacular Italian, this work dates from around the end of the thirteenth century to the beginning of the fourteenth century. It is structured as a dialogue, and it contains no explicit references to legal sources, but the arguments on which the conflict between God and the Devil are based are inspired by the law. Even so, it was not written by a legal specialist. The preamble describes the Devil who, failing to reveal Christ’s true identity, jubilantly watches his crucifixion. The descent of Christ into Hell traps the Devil: the death of an innocent, in fact, nullifies the power of the Devil over a soul, because Evil has been

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defeated through deceit, i.e. the same weapon used by the Devil to possess a man’s soul. Therefore, the Devil calls God to account for the injury he suffered because he was unable to capture Christ’s soul. The Piato proceeds as a dialogue between the Devil and GodChrist, who are here unified. The Devil accuses Christ of having violated both civil law, which is identified by the Gospel’s passage “give to Caesar what belongs to Caesar, and give to God what belongs to God,” and the law of nature, whereby stronger animals dominate weaker ones. Christ replies directly, denying the legal value of the Devil’s claim, as the latter has taken man by fraud and deceit. The Devil counterargues, accusing Christ of having deceived him: “You have hidden your divine nature within humankind and, in so doing, you have acted like the fisherman who hides the hook in the bait, deceiving the fish” to which Christ replies: “Brother, who deceives the deceiver only renders justice. Art is deceived by art.” In the dispute over souls, which appears here as a dispute between equals, the Devil claims the largest number of doomed souls relative to the saved ones. Christ replies by putting forth the value of the Gospel, which exceeds all the souls that the Devil could ever claim. The Piato depicts the pleading stage of a trial, or the skirmish between parties, and it appears to represent a plot outline used in miracle plays that focused on the descent of Christ into Hell. The doctrinal source is probably the Gospel of Nicodemus, one of the best-known Apocrypha within the framework of fourteenth-century theatrical and literary culture. Within this framework, the Piato describes, among other things, the contrast between Inferno and Hades, highlighting the risks that the Devil runs by holding a man who has not been condemned, in the kingdom of the dead (Izydorczyk 1997). In other respects, the “Trial between the Devil and the Madonna, in front of Christ judge” is a work of much greater significance from a juridical and a theological point of view. It appears under the title Tractatus questionis ventilate inter Diabolum et Virginem Mariam coram Cristo iudice within the body of treatises by Bartolus de Saxoferrato. The text was written during the first half of the fourteenth century, certainly not by Bartolus, even though it was attributed to him in some manuscripts from the early fifteenth century. It was probably developed within the framework of canonistic legal doctrine, which has always been characterized by a deep interest in trials and an awareness of the main issues arising in theological debates (Pasciuta 2015). The “Trial between the Devil and the Madonna, in front of Christ judge”—known also as Processus Satane—is a mock trial between the Devil and the Virgin Mary for the possession of humankind. It is set in Paradise, more precisely in the Celestial Tribunal. In the preamble, a narrator addresses the audience to provide the backstory. Humankind, doomed because of Eve’s sin and saved thanks to the intervention of another woman, the Virgin Mary, continues to sin. Therefore, Satan, longing to possess the souls of sinners he felt unfairly deprived of, decides to take an extreme and “modern” route: complain before a court and ask for justice. He appoints an attorney, instructing him on the claims to be made to the judge, and he sends him to Paradise to enforce his rights. The judge, i.e. Christ, is obliged to accept the claim—which has merit, formally speaking—and allow the Devil to sue humankind. The Archangel Gabriel, messenger of the celestial tribunal, issues the summons but no one appears. As a consequence, the Devil asks humankind to be declared a “willful defaulter.” In this case, in fact, according to the law, he would have immediately come into possession of the res petita: in practice, this would have resulted in the enslavement of humankind. However, Christ, applying equity (which is a privilege of the judge), decides to grant the defendant a delay. The tears of the Saints are heard by the Virgin who decides to personally defend humankind. Thus the trial continues with

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the arguments of the parties, which are sometimes harsh and vicious, almost insulting, but always respectful of the procedure foreseen by legal doctrine. They even contain allegations, i.e. quotations of civil and canon law used by the parties’ attorneys. The trial ends with a solemn sentence, given by Christ on Easter day in the year 1311. The sentence absolves humankind and (again) condemns the Devil to stay in Hell forever. This work is a union of law and theology: the form is legal, as is the structure of the trial, but the matter in question, the object of the dispute, is radically theological. The way in which the dispute is presented is a literary or theatrical approach that references both the genres of contrast and miracle plays. The text allows, in fact, for different interpretations: from a standard or common one (typical of exemplary literature and preaching) to a sophisticated one (typical of university teaching, both in the faculties of law and theology). The Processus Satane uses a farcical tone and the tools of paradox and parody. At the same time, it represents an extraordinary twofold test of both law and theology. Questioning the theory of Resurrection through the clever application of procedural logic, forces the jurist to find—among the possible solutions—the optimal solution to an irresolvable trial for which the conclusion is already known. At the same time, theology can verify, by means of a procedural model, the logical strength of debates about Redemption, the fight between Good and Evil, the redeeming role of the Madonna. Other works derived from, or linked to, the Processus Satane, are: the Advocacie Notre-Dame, the central part of the Merlijn by Jacob von Maerlant and the Jutgamen General (Our Lady’s lawsuits; von Maerlant; Le Jugement Dernier). These are all works written in the vernacular, between the second half of the fourteenth century and the first half of the following century, in which the literary relevance surpasses the juridical one. In these texts, probably intended to be represented on stage, the juridical references are greatly simplified in order to emphasize the farcical tones typical of didactical literature and of edifying theater. The Consolatio Peccatorum or Processus Belial is, otherwise, a work with no direct links to the Processus Satane, except for, obviously, the general topic (Mastroberti 2012). It was composed in 1382 by Jacopus de Theramo, midrange jurist, professional ecclesiastic and future bishop of Taranto. In this rather rambling text, in which the conflict between the Devil—Belial—and Christ over the damage that the latter would have caused by destroying the doors of Hell and therefore over the possession of the world, provides an opportunity for Theramo to write about arbitration and, therefore, extra-judicial dispute resolution (Lefebvre-Teillard 2006: 9–11). Many characters play minor roles in the trial: from Aristotle to the emperor Augustus, from Moses to Isaiah. Because the Processus Belial was written by a jurist, its structure mirrors the most current developments of canon law procedural doctrine of that time, even though it is a work that can be defined “plus édifiante que juridique” (Lefebvre-Teillard 2006: 9–11).

Arguing in Heaven Within the “universe” of the miracle plays, one important example of the procedural form is the Procès de Paradis, or debates set in Paradise in which the Virtues Justice and Mercy, Truth and Peace argue before God about the destiny of humankind. The allegory develops in response to commentaries on Psalm 84:11: “Misericordia et veritas obviaverunt sibi; iustitia et pax osculatae sunt.” The differences between the virtues is already present in the so-called Apocalypse of Ezra, a Greek apocryphal of the fifth

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century, where the angel Uriel stands for the principles of Justice and the prophet Ezra for those of Mercy. Truth compromises with Mercy and forms an alliance with Justice and Peace. These arrangements form the framework for the debates that are described. One passage from the allegory of the Four Virtues within the Latin culture is mediated by the midrash, the Jewish commentary to the Holy Writ, written in the eleventh century. A king, father to four daughters and a son, has a servant who commits a crime. The servant is found guilty and is imprisoned. The king’s daughters begin to fight about the destiny of the servant: two of them want to leave him in prison; the other two prefer to pardon him. In order to reconcile his sisters and appease the king, the son decides to offer himself in exchange for the servant, taking on his crime and punishment. Thanks to this generous gesture, the servant regrets what he did, is liberated and goes again to serve the son and the father. The sisters—the four daughters of God or celestial virtues—are reconciled (Traver 1907; Klinefelter 1953; Ralston 1984). The Trial in Paradise is also described in Latin, English, French and Italian literature. The first example dates back to the eleventh century and is found in the Commentary to the Psalms of Hugh of Saint-Victor (c. 1096–1141). Some twenty years later, the trial appears in a sermon on the Annunciation by Bernard of Clairvaux (1090–1153). Even though there are some differences, both authors present the dispute in the form of a dialog: the so-called Four Daughters of God fight about the possibility of saving guilty and sinful mankind. In Hugh of Saint-Victor’s comment, Truth is in Heaven with the God-judge and Mercy is on Earth next to man, who is miserable by definition, and who is waiting for divine judgment. However, when God, accompanied by Truth, prepares to descend to Earth to judge man, Mercy steps forward to ask that sinners be pardoned. As a result, Mercy and Truth quarrel, with their dispute highlighting the gravity of the situation: Truth would punish all who are guilty, Mercy would pardon all who are guilty. After inviting the two Virtues to find a solution to their insurmountable disagreement, God pronounces an arbitration in the name of the equity principle: man’s sin is punishable in the name of Truth, and it should be pardoned in the name of Mercy. As part of the final solution established by God as supreme judge, the two Virtues must change places: Mercy will go up to Heaven and remain next to God to moderate his condemnation of sinners; Truth will go down to earth and inhabit the hearts of men, so that every person will understand his own mistakes and present himself to God with proper remorse. The agreement is sealed thanks to the intervention of Justice and Peace, who believe that their rights have been respected (Hugo of Saint-Victor). In Bernard’s version, Justice and Peace, Truth and Mercy, who embody the logical contrast between the observation of sin and grace, are reconciled by the supreme judge, God himself; after having listened to the arguments of the parties, God delivers the final sentence and commits to solve the problem himself through the Incarnation (Bernard of Clairvaux). Parallels between the divine model and the functioning of actual courts are effectively illustrated by an English sermon from the fourteenth century. The king of Heaven has two executioners, just like the king of England, and they are Mercy and Justice. Justice sits at the Common Bench—the Common Pleas—but Mercy sits at the King’s Bench. Should anyone think that the judgment of the executioner sitting at the Common Bench is too severe, he can appeal to the highest judge and be absolved within a set period of time (Roberts 2001, n. 31: 124). Returning to the divine model, the contrast between the Four Daughters of God appears in the last part of an anonymous version of the Processus Satane. Here, in contrast to what happens in religious or theatrical works, the “technical” character

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of the text and its strong legal tone force the Four Virtues to participate as attorneys of the parties. The example, which has already been established in the exemplum by Jacobus de Varagine, becomes more complicated and ends on a note of ambiguity. The contradiction created by the encounter between the theological truths and legal assumptions—within the framework of the common Aristotelian-scholastic logic— creates another paradox, which is truly original with respect to literary tradition: the Madonna, by supporting the salvation of humankind, is aided by Mercy and Peace. At the same time, however, Truth and Justice intervene in favor of the Devil, demonstrating the certainty and continuity of sin. In this way, debates set in Paradise provide an opportunity for the four Virtues, the Madonna, and God to make competing arguments about mankind’s destiny.

Love Trials The genre of trials between lovers shifts the paradoxical dispute to the secular setting. The rhetorical tool of the trial makes it possible not only to describe discussions between lovers as violations of laws—indeed, the laws of love—but also to structure the great topic of love using logical terms provided by legal reasoning in an attempt to give rational concreteness and certainty to the elusive world of feelings (Goodrich 1996; Becker 1991). Part of the second book (chap. 7) of the treaty De amore, written by the French troubadour Andreas Cappellanus (c.1150–ca.1220) around 1185, is devoted to “love judgments” (De amore). This chapter deals with quarrels between lovers that are referred to arbitration tribunals. These are always presided over by a woman—by Eleanor of Aquitaine, the socalled queen of the troubadours, who was the first, repudiated wife of Louis II, King of France (until 1152) and then wife of Henry II Plantagenet, King of England, or by her daughter Marie, Countess of Champagne, or by Ermengarde, Viscountess of Narbonne or by Isabelle of Hainault. These love judgments certainly do not take the form of trials according to the ordo: instead, they parallel sentencing in feudal tribunals. They are arbitrations, in which the two parties present their dispute to a wise judge who makes a decision based on his own opinion. The use of legal argumentation is a constant in such love trials. Beyond the rhetorical expedient—and beyond the courtly love “fashion,” of which Cappellanus is one of the greatest theorists—what is important to note is that love is analyzed as a legal system, as a relationship regulated by norms that, therefore, can be brought to trial when those norms are violated. It should also be emphasized that the model of the feudal court, in which the dispute is referred to an arbitration tribunal, has a precise normative basis; namely, a sentence imposed by Eleanor of Aquitaine. In fact, the decretal Dilecti filii abbas, issued by Innocent III in 1202 (and inserted in the Liber Extra, 1.43.4) focuses on the merit of an arbitration award pronounced by Eleanor of Aquitaine, Queen of France, in a controversy about the use of a forest between the monks of the Cistercian monastery of Scardona and the Hospitallers of Ceresiers in the diocese of Sens. The losing party appeals to the pope, affirming the general principle of the invalidity of an arbitration led by a woman: “secundum regulam iuris civilis feminae a huiusmodi publicis officiis sint remotae.” Nevertheless, the pope, while confirming the general principle, dismisses the appeal by virtue of an exception that makes it possible for a woman to conduct an arbitration in the case of a controversy between freedmen. Furthermore, according to a consuetudo approbata, which had the force of law in the Kingdom of France, praecellentes women— i.e. queens—had ordinary jurisdiction over their subjects.

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Returning to the topic of love trials, another example of literary trials are two works by the poet and musician Guillaume de Machaut (1300–c. 1377), Le Jugement dou Roy de Behaingne and Le Jugement dou Roy de Navarre (Le Jugement). In both texts, the model of the love judgment goes beyond the standard debat between lovers, which nevertheless constitutes the story’s starting point. The setting of the first Jugement is a court chaired by King John of Bohemia, under whom the author actually served from 1323 to 1346. In this judgment, the dispute originates from the fact that a woman has rejected a knight who is enamored with her. The king will side with the knight. The second dispute is more complex. The knight and the lady are in a forest discussing their situation: he is in love with her; she does not love him anymore. They argue and, in the end, they ask a wise and impartial judge to decide who is right and who is wrong. The poet himself decides to help them and suggests they find a judge. According to the author, a judge should be: a knight who has done much to promote love; one without equal, on both sides of the sea, one of whom it can be said that no nobler, more generous and less cruel heart can be found; one more generous than Alexander and comparable to Hector for his skills; a pillar of nobility; one who is not the slave of his own wealth and who only desires honor; one who is happy to say: “it is yours”; one who loves God, the Church, loyalty and justice so much that he is called the sword of justice; one who is humble and sweet, generous with his friends and proud and cruel with his enemies. The scene is full of other characters: Honor (the handsome knight), lady Courtesy, the attorneys Youth, Reason and Loyalty. Unlike Andrea Cappellano, Guillaume de Machaut uses the juridical form of the arbitration only as a pretext, a setting. By comparison, the “weight of law” regains all its importance in the Arresta Amorum, certainly the most widespread and known theatrical work produced by the Basoche (Fabre 1856; Harvey 1941; Bouhaïk-Gironès 2007). This work was composed by the jurist and poet Martial D’Auvergne around 1460–1465. The setting is an imaginary tribunal, the Parlement d’Amour, which handles matters related to love. This text, well-known both for its literary and theatrical relevance, is an example of the staging of legal procedure: in this way, fiction becomes a tool to impress upon the audience norms and rules that usually slip the minds of the average jurist, the clercs de justice. The object of the Arresta, in fact, is not the status of a relationship but rather the structure of the trial. The characters are only “tools” used to stage a trial and convey the author’s ideas effectively. In other words, the topic of the dispute—love problems—is taken from courtly love literature, but the author does not even try to be original, he does not add any detail or narrative peculiarity. He only cares about legal exposition. Law, therefore, “takes advantage of” narrative and becomes the true literary object. This assessment is supported by the fact that, even by 1553, jurist Benoit de Court wrote a commentary on the Arresta, just as if it were a legal text and not a literary or theatrical work.5 In Martial d’Auvergne’s work, the arrêts (or verdicts) are pronounced by the supreme tribunal of love (“dans la grande chambre du noble parlement d’amour”). They are, as the name indicates, unappealable sentences, i.e. final decisions, which follow judgments of the courts of first instance (jugement). The structure, therefore, mirrors the structure typical of sentences issued by a supreme tribunal. In some cases, the tribunal of the first instance is quoted.6 Thus, the Arrêts therefore describe: the parties (demandeur and defenseur, plaintiff and defendant), the object of the dispute, the arguments offered by prosecution and defense, sentencing from the tribunal of the first instance and, finally (and very briefly), the operative part of the decision of the supreme tribunal, which grants or denies the appeal, with a very short description of the grounds for the judgment. The

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disputes in Arresta Amorum relate to legal matters, including the breach of a contract (of mutual love); a suit by a plaintiff claiming damages when the defendant failed to adhere to the terms of a contract; an old man’s suit against a young woman for failure to carry out her part of a contract in spite of having received gifts (“consideration” for performance, in this case: love); and the very legitimacy of the trial and the competence of the tribunal, as in the case of Arrêt 34, where two youngsters, the heirs of two lovers, wearing symbols of mourning, sue Death, accusing her of having taken the two lovers without the right to do so. Death objects, declaring a nonsuit, by virtue of her absolute power over all living creatures. The plaintiffs reply that, on the contrary, the tribunal of love is competent, as it has exclusive jurisdiction over all those who follow the laws of love (demonstrating that the laws of love overturn those of nature: love survives death, can be eternal, does not suffer from cold or hot, etc.). The plaintiffs therefore put on a fictitious trial, arguing that Death be required to right her wrong by recreating images of the two lovers, so that a portrait can be made to remember their beauty on earth. The tribunal declares the trial valid and orders Death to find lawyers who can argue in her defense. In this way, even a subject as abstract as love is examined from within the structure of the courtroom. As this overview shows, throughout the Middle Ages procedural arguments found their way into a vast range of works. Procedural mechanisms offered by the trial thus served several purposes, including ascribing the roles of plaintiff, defendant, judge, and witnesses to both earthbound and divine actors in myriad written works. In addition, by using the structure of the trial in works that ranged from those with religious aims to those that served merely as entertainment, these texts provided continuity along with familiar themes. Just as legal reasoning left its mark in fields distinct from the law, so too, did theological matters, allegorical devices, and the limits of legal reasoning leave their mark on emerging legal culture.

CHAPTER SIX

Property and Possession TYLER LANGE

Are property and possession a binome or are they two distinct concepts? That is to say, is there a legal distinction between possessing something and owning something? Simple possession or physical detention has not always and not everywhere been clearly distinguished from full ownership or legal proprietorship, above all with respect to real property. Considering European cultures of property over a thousand-year period confronts us with the need to navigate between shifting conceptions of elite identity and disparate doctrines and practices of property concerning slaves, real property, family property, church property, fiscal property, movable property, and all sorts of proprietary and possessory rights. What follows focuses on real property because, as early medieval archeology and later medieval inventories illustrate, the quantity and value of movable property was greatly exceeded by the importance and value of rights in land. For most, subsistence depended on the availability of land to cultivate. For a few, subsistence and power depended on the right to appropriate some portion of cultivators’ surpluses. There will be much at the outset about elite Franks, because the Franks and their habits of landholding dominated early medieval Western Europe. Cultures of property are heavily influenced by elites’ practices, mentalities, and aspirations in this world and in the next. Whether peasant or aristocrat, each individual was torn between the imperative of survival in the here-andnow, aspirations to lasting family wealth and power, and individual hopes for salvation.

FROM ROMAN ANTIQUITY TO THE MIDDLE AGES What then was property? We might first ask jurists, then anthropologists, and finally historians. The Roman jurists excerpted in the sixth-century Emperor Justinian’s compilation of prior law had lasting influence on conceptions of property over the thousand-year period covered by this contribution, although it was diffuse and indirect prior to the twelfth century. In Justinian’s compilation, property or dominium is defined only obliquely, for instance, through modes of acquiring it (D. 41.1 de acquirendo rerum dominio). It has been suggested that dominium originated in the absolute power of the slavemaster over his slaves, and was only later extended over real property.1 This is persuasive, particularly as the second-century jurist Gaius divided the subjects of the law into persons, things, and actions, the former capable of ownership, the latter things (including humans) capable of being owned, and the last (primarily) means of acquiring ownership of or rights to things. Justinian’s textbook, the Institutes (2.4), defines usufruct as “the right to use and enjoy another’s things without destroying them (ius alienis rebus utendi fruendi salva rerum substantia),” implying that full ownership permitted

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the destruction of the principal. Later jurists drew just this conclusion: the French jurist François Hotman (1524–1590) wrote that “ownership is the right and capacity to use or abuse any thing insofar as permitted by civil law (dominium est ius ac potestas re quapiam tum utendi, tum abutendi, quatenus iure civili permittitur)” (Hotman 1558: ad v. Dominium). Full property was for the Romans the capacity to use and to abuse a human, piece of land, or object. In contrast, modern anthropologists acquainted with such civil law traditions have on the contrary defined the acme of property rights not as the unrestrained capacity to sell or to destroy but as the absolute prohibition of sale or destruction, as inalienability in legal terms. Marcel Mauss, Annette Weiner, and Maurice Godelier have described special and influential categories of property that are excluded from exchange because they are so sacred or so bound up with the identity of the proprietor that they cannot be irretrievably disposed of (Mauss 2007 [1925]; Godelier 1999 [1996]; Weiner 1992).2 What can a historian add? Both the Roman juristic and the anthropological definitions of property are important to what follows, for property over the long Middle Ages is characterized by two tendencies: first, possession of fact  and legal proprietorship tended to become two aspects of the same right, a right that could coexist with the rights of others over the same object; second, property rights in land came to be treated at least aspirationally as inalienable or as alienable only with great difficulty. Property rights had to reconcile the legal subject’s freedom to dispose of his or her property, a freedom principally exercised for the benefit of the legal subject’s soul through acts of religious commemoration, with restrictions on the disponibility of human, real, and movable property, restrictions directed at preserving either the landholding (for cultivators) or the landed wealth that undergirded family power (for elites). How did property relate to identity? Because our historical sources focus on the property of elites or of near-elites, what follows will take up first late antique cultures of property, then “medieval” cultures of property, before concluding with currents of change at the end of the period. The question of elite identity around AD 500 points to the shifting significance of property and possession in late antiquity. Traditional histories of property in the Middle Ages begin with the effacement of classical Roman conceptions of property that distinguished between possession in fact and ownership in law by a putatively Germanic notion of seisin or legal possession. That late Roman possession was not simply physical detention of an object is apparent in an excerpt of Ulpian included in Justinian’s Digest (41.2.17): there is this difference between ownership and possession: that a man remains owner even when he does not wish to be, but possession departs once one decides not to possess. Hence, if someone should transfer possession with the intention that it should later be restored to him, he ceases to possess (Differentia inter dominium et possessionem haec est, quod dominium nihilo minus eius manet, qui dominus esse non vult, possessio autem recedit, ut quisque constituit nolle possidere. Si quis igitur ea mente possessionem tradidit, ut postea ei restituatur, desinit possidere). Possession as an inferior species of property right was protected at law through the possessory interdicts that restored disturbed possession to those dispossessed through violence or other means.3 Ownership as a higher species of property right required legal forms—transfer (traditio) and a legal cause for transfer (causa traditionis) such as sale— for effective transfer of title. One could be forcibly dispossessed, but not forcibly deprived of ownership. Preserving a concept and a practice of full ownership required effective

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legal remedies against unjust possessors as well as a system of recording licit transfers of ownership. Both of these institutions receded over the course of the fifth, sixth and seventh centuries, as new elites and new modes of elite behavior supplanted older elites and older modes of elite behavior within the Western Empire. Shifting elite cultural identities transformed conceptions of property. To be elite in late antiquity was to be an elite Roman male, a civilian and a citizen. Roman-ness was less a genetic identity than an aspirational ethnicity. Although there were trends towards the militarization of elite comportment that would soon drive apart lay and clerical cultures, the latter preserving aspects of late antique elite literary—and property management— practices, Roman ideals of property were organized around the economic, legal, and political structures that supported the citizen’s cultivated leisure (otium) and political action (negotium). Late antique Roman elite identity rested on a comprehensive system of state taxation, on often widely dispersed and vast aristocratic landholding, and on the administrative circuits that knit together the empire through the transport of the food doles or annonae that fed the populace of Rome and later of Constantinople until around the year AD 600 (McCormick 2001; Wickham 2005). That is to say, the aspirational identity that structured property holding in the late antique empire was that of the senatorial absentee landowner whose landed income could approach that of entire provinces. In comparison to the early empire or to the republic, the ideal of property holding was no longer the Roman citizen’s “quiritary” property. Distinctions between peregrine or provincial property were otiose, as the concept of full property (like Roman citizenship through Caracalla’s edict of 212) had been generalized across the empire. To be fully Roman was to be a proprietor on a grand scale, a grand scale that facilitated office-holding, including sponsoring hugely expensive public games and works as well as literary and artistic production. This was the case even as late antique civilian culture became more clericalized, at least in Southern Gaul and Northern Italy: Sidonius Apollinaris (c. 430–489), Boethius (c. 480–524), and Venantius Fortunatus (c. 530–600/609) all drew incomes from large estates, though the case of Boethius, executed by Theoderic, and Venantius, patronized by Frankish royalty, highlight how much the retention of property (and life) depended on political choices. In such a world, proprietorship was clearly less any sort of real cultivation or occupation of the land than a claim to a share in its revenues. Late antique Roman law tended to denature possession, giving greater weight to intent than to physical detention, that is, to possession “by intent (animo)” rather than possession “by physical presence (corpore),” drawing possession closer to ownership. This would have protected the property rights of absentee landowners, who could perhaps avail themselves of the possessory interdicts to recover alienated or lapsed revenues—until, of course, their lands passed out of Roman rule, as would be the case for the rich grain lands of North Africa and, in time, Sicily, that funded Roman elites. It would have likewise facilitated barbarian “guests’” transformation into new landowning elites in the Western empire by protecting the shares of Roman estates granted to “guests” from attempts by Roman landowners to reclaim them. As Roman landowners consequently sought to extend the period for prescribing title to land (i.e., the period for acquiring land by long possession,) to, for instance, fifty years in Visigothic Spain (thirty years had been the classical norm; Innes 2006: 60), they encouraged the obsolesence of Roman forms both of ownership and of elite identity. Matthew Innes has written: “litigation over barbarian land reshaped notions of title … simplif[ying] rights over property” (2006: 58, 63).

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MEDIEVAL OWNERSHIP After the collapse of Roman structures of taxation and practices of elite landholding by AD 600 or so, to be elite would henceforth increasingly require the adoption of a military, “barbarian” identity. That Carolingian bishops bear Germanic names may well disguise genetic continuity between late antique and early medieval elites, just as an aporia of genealogical memory may obscure genetic continuity between Carolingian and millennial elites. Innes has observed that in late antiquity “ethnicity was appropriated by fragmented and impoverished elites unable to maintain formal class privileges rooted in the law and implicated in the structures of the state” (Innes 2006: 76). As Guy Halsall has more adventurously put it, “the Merovingian ‘kingdom’ originated as a Roman army, an army that then adopted a Frankish identity” (Halsall 2010: 186). In this transformation of identity, political culture, and regimes of property, the sixth-century wars of Justinian may well have been as epochal as his codification of Roman law for Europe’s legal history. For, as Halsall has argued, Justinian’s wars of reconquest forced inhabitants of the Western Empire to recognize that they were not, that they could no longer be Romans (Halsall 2017). This catalyzed an ongoing transition in elite identity. Around 500, we see Romans and Barbarians, or Romans and Franks, as separate if not necessarily genealogically determined identities. Aside from their ancestries, were Syagrius and Clovis really so different in comportment? By 600, non-clerical elites aspired less and less to Roman identity. More and more, they acted “Frankish,” gave their children Frankish names and adopted “Frankish” modes of behavior. To be elite was then to be an elite Frank (or Burgundian etc), which is to say, to be a free warrior or his consort.4 In the intervening period, as elite behavior could no longer be anchored in and legitimated by the late imperial polity, a phase of lavish grave goods point to uncertainties about status and power, to intense competition for local authority before those gathered for a burial and potentially for a feast and a distribution of largesse (Halsall 2010). What remained of late antique civilian culture passed to the church, where elite bishops (Sidonius Apollinaris, Germanus of Auxerre, Gregory of Tours … ) preserved not just literature, but administrative techniques and perhaps outlook in the church estates that Guy Bois has appropriately described as “fragments of the state.”5 This last point is worth emphasizing, because the sixth and seventh centuries are marked by institutional discontinuities that together have been appropriately called the end of the ancient world. By 450 or so, Rome no longer received the annonae on account of the Vandal invasion of North Africa. The reduced annona administered by the Church ceased by 600. In Constantinople grain doles ceased at the Arab invasion of Egypt in 618. Across the Empire, successor polities abandoned state taxation, funding their armies by granting them land everywhere except in the lands governed by the Caliphs (McCormick 2001; Wickham 2005). This had two momentous consequences for elite identity. What was an elite man to do now that there was virtually no civilian tax administration? How was an elite man to acquire enormous wealth, now that the political unity and administrativecommercial circuits that bound together his widely dispersed estates had disappeared? The response to the first question was the militarization of elite comportment, evident from Italy to Spain to Gaul to Britain, and a shift from the control of land to the control of men, potentially to the formation of tribal micro-polities. The response to the second question was twofold: elites had either to accept a diminished status supported by regional landholding (as apparently in Lombard Italy) or to seek wealth from the king, becoming “near to the king (königsnah).”6 Property tended to refer to relationships between kings and aristocrats and between aristocrats and those who cultivated the land.

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The right that free peasants, servile peasants, or even the Frankish Reichsaristokratie, whose vast estates were scattered across Francia from Le Mans to Bordeaux, from the Main valley to Brie, or up and down the Seine basin, had in the land went by many different names—possessio, seisin, gewere—and has given rise to much debate among historians. The collapse of an ethnic explanation of the late antique transformation of the Roman world makes the ascription of the eclipse of the Roman legal conception of property, of title to land, to “Germanic” legal institutions untenable (Conte 2009; Waelkens 2009). This does not mean, however, that the development was wholly internal to late Roman “vulgar” land law (pace Levy 1951). Canon law not unsurprisingly played its role, on account of the fact that, as Ian Wood has phrased it, Western Europe was “given” to the Church through large-scale donations of land to ecclesiastical institutions in the second half of the first millennium (Wood 2013). Ecclesiastical lands, these “fragments of the state,” influenced conceptions of property and of property management throughout the whole of the period concerned.

POWER AND PROPERTY The organization of the new polities of Western Europe also played their role. These were characterized by chains of obligation formalized only towards the millennium, in which some types of land manifested the bond between king and aristocrat or between king and free warrior and were intended to fund that military service (Innes 2006; West 2013). Early medieval kings possessed land. Aristocrats possessed land. Tenants possessed land. Smallholders possessed land. The concept of possession allowed for the exercise of many different rights by many different persons over the same piece of land. Virtually no property rights were absolute. Whether or not the dominus owned his tenants, he certainly possessed a right to the fruits of their labor. Indeed, the question of formal entitlement to property would have been hard to prove by Roman documentary standards and would in the future be proven through demonstrated possession. A more appropriate question was: had the lord been publicly “invested” with such a right? The question of proof was important to dispute resolution and to the recognition of property rights. Under the empire the existence of state taxation necessitated the maintenance of municipal property registers, wherein transactions were recorded. These appear to have been abandoned unevenly relatively early in the period treated here, with fossilized references persisting in seventh- and eighth-century formularies. Property transfers nonetheless remained “public” if not public. As Warren Brown has argued, the probative value of property transfers was established by witnesses, making the transition from the antique registries of property or gesta municipalia to private and “public” charters less abrupt (Brown 2012). In late antiquity, property transfers were publicized by being read out before witnesses and inscribed into the public register of a state institution. By the seventh century property transfers were publicized by being read out in an assembly, perhaps a mallus, perhaps before a count or a bishop, and perhaps even before the emperor. Proof rested not in the document but in memories of the oaths and consent that accompanied its reading (Clanchy 1993 [1979]). Proof by witnesses accorded with the fluidity of early medieval law and early medieval landholding. Estates, and presumably single farmsteads and fields, passed sometimes violently between individuals. Kings gave away occupied lands. What mattered were memories of the moment of transfer and recognized possession. Perhaps on the model of the transfer of movable property, the transfer of land could occur by charter in a public assembly, through the transfer of a

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wand (festuca) or clod of earth, or through some other symbolic act. Once seised of land, the landholder had a legally enforceable right. This brings us to the new model of landholding, via the question of legal protections for seisin.

LAND, FAMILIES, AND CHURCHES BEFORE THE YEAR 1000 If the late antique model of landholding was that of the senatorial Roman male, the landholding of the early medieval lay aristocrat could provide no secure model, for he enjoyed great wealth that could disappear when political circumstances changed. If late Roman wealth had been intimately tied to the administrative and economic linkages of the Roman state, early medieval wealth was intimately tied in a different manner to the politics of the early medieval kingdoms. We can see this in narrative histories—Gregory of Tours, Paul the Deacon—and in wills, as in the testament of Bertram of Le Mans, who lost a vast patrimony before he regained different but nonetheless vast landholdings (Wood 2013: 41–44). That Bertram, like many other early medieval aristocrats (Gregory again, but many others as well), died a bishop highlights the importance of ecclesiastical landholding for medieval conceptions of property, even of that most medieval construction, virtually inalienable lineage property. This is not to overstate the importance of Christianization, which was slow and uneven, and is historiographically disputed with respect to chronology and geography. It is rather to highlight how the legal regime and administration of ecclesiastical property influenced the management of family property. Religious culture influenced family structures, and forms of landholding. The importance of ancestry varied across sixth-century Western Europe, but everywhere appears to have grown more important by the seventh and eighth centuries. It would grow still more important towards the millennium. If we lose track of ancient families such as the Aviti of Clermont after 700, we can then begin to track important later families such as the Robertians or Pippinids (Bouchard 2001; Wickham 2005: 167–168). Land remained indispensable to aristocratic status. There was no magnate without property and the resulting income, whether acquired by inheritance or by gift. Families and heads of aristocratic families therefore sought to ensure the continued power of their relatives through nearness to kings, through the transmission of inherited land, and through the acquisition of high ecclesiastical office so as to gain access to church lands and wealth. The Western Church, whatever its pristine apostolic poverty, had come to hold considerable property by the early Middle Ages. Some of this, like the Sicilian estates of the papacy, was lost with the decline of transregional landholding consequent upon the political and economic fragmentation of the Western empire. Some of it remained as the property of churches on a more local or regional scale, as, for instance, the patrimony of the church of Clermont administered by its bishop. From 600 onwards as well, monastic centers spread across Europe, themselves accruing layers of rich donations (and rich layers of documentary records7) from landowners large and small. This accrual of ecclesiastical property made the offices of bishop or abbot attractive to lay aristocrats. The result appears to have been a sort of cycle, whereby donors gave property—including the humans annexed to it—to monasteries or bishoprics and bishops and abbots temporarily (or “temporarily”) regranted such property to layfolk, potentially family members, or simply lost it when a bishop or, more rarely, an abbot fell from favor and could not defend his church’s land. As Ian Wood cautions: “it is by no means clear that the church’s ownership of the gifts it received was anything like as secure as the conciliar acta would have us believe” (Wood

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2013: 59). It was therefore not just commemoration or salvation that families sought: in Régine Le Jan’s phrasing: by transferring family property to ecclesiastical institutions, donors sought to “sacralize their family’s power” (cited by Wood 2013: 58). What is more, church property was ever more closely assimilated to the inalienable (because not ownable) res sacrae, res religiosae, and res sanctae of classical Roman law (Inst. 2.1.7–10).

DRESSING UP WITH PROPERTY: SEISIN This tendency toward making church property inalienable progressed still further in Visigothic Spain. Its adoption in Carolingian Francia was to have long-ranging consequences for subsequent ideals of property. Emanuele Conte, developing the doubts of Ernst Levy concerning Germanic “gewere” and the ideas of Gerhard Köbler about the non-Germanic, theological origins of legal possession or investiture, has discovered the origin of this legally defensible possessory right equivalent to ownership—called investitura, gewere or guaranty (from werjan, to dress, hence in-vestiture), seisin—in Visigothic legislation (Conte 2009). In fact, the first appearance of the word revestire in a legal context seems to happen in a law given by the king Erwig (r. 680/1–687). Giving his pardon to a group of rebels, he issues orders to recall them from exile and to “reinvest” (revestire) them with their noble status and land. Based on Tertullian’s claim that Christians would be reinvested (revestire) with the life despoiled (exuere, spoliare) by carnal death, this conception of reinvesting those unjustly despoiled of property (restitutio spoliatorum) crystallized into a legal procedure (the actio spolii) for the restitution of bishops’ property in the ninth-century canon law compilations of Benedictus Levita and Pseudo-Isidore (Conte 2009: 175–179). Indeed, the Pseudo-Isidorian canon Redintegranda, which passed into Gratian’s collection (C.3 q.1 c.3) appears to have been based on a passage (Redintegrandum) of the Visigothic Epitome Aegidii. Although Pseudo-Isidore limited the procedure to bishops, the underlying conception of property and the resulting procedure were soon (if not immediately) applied to lay property. Three contextual observations clarify the importance of the conception of property and of justice or law underlying these provisions. First, Carolingian justice strongly emphasized arbitration and conciliation. Bishops often served as arbiters or mediators, encouraging Christians to make peace. By emulating the merciful Christ and mobilizing their worldly status, Laurent Jégou has argued, bishops were doubly mediators: mediators among men, they averred themselves capable of mobilizing their social and political capital to drive rivals towards negotiation and peace; mediators between God and men, they invested their decisions with spiritual significance … [T]he restitution of a usurped property became a donation, the abandonment of illegitimate claims an act of piety, the admission of guilt an act of humility, punishment a penance (Jégou 2011: 478). Religious imperatives encouraged the return of property to its rightful possessor. Second observation: Charles West has argued that the Carolingians sought to formalize social relations to reformist ends and in the process transformed society. Thus, because “[v]illae were in reality not so much owned as dominated,” “owning large tracts of land could be less an abstract ‘property’ than a claim to exercise power,” a power sometimes referred to as potestas and eventually as the bannum (West 2013: 71). In this light, the “Feudal Revolution” appears less as a cataclysm than as the reification of ongoing trends in the exercise of public power and landholding: “[e]xpressing their hopes and aspirations for change in a language of politics infused with a liturgised theology, [the Carolingians] shaped social practice into institutionalised power, and it was simply an extension of this

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process which distilled that institutionalised power in certain circumstances—particularly over those of low status—into property relations” (West 2013: 260). This religiously motivated transformation of relations of power into layered property relations would characterize the rest of the Middle Ages. West identifies the ninth century as the crucial period when Carolingian formulas of landholding gave way (with a half-century gap) to “a new vocabulary of property rights” (West 2013: 154–157). This takes us closer to Pseudo-Isidore and to my third observation. Geoffrey Koziol has insightfully discussed the dating formulas used by Charles the Simple. From his anointing in 893 Charles dated his diplomas conventionally by regnal year. However, after the death of the Robertian king Odo in 898 he added a clause giving the year “in succession to Odo,” replacing this formulation after June 899 with one lacking mention of Odo: “being restored [sc to full kingship, to my full hereditary right] (redintegrante)” (Koziol 2012: 482). After 911 references to his status as king in Lotharingia produced formulas such as the one quoted by Koziol: “in the twenty-fourth regnal year of the most glorious king Charles, in the eighteenth year of his restoration, and in the fifth year of his assumption of his greater inheritance (regnante Karolo rege gloriosissimo XXIV., redintegrante XVIII., largiore vero hereditate indepta V.)” (Koziol 2012: 483). Such choices were not innocent. As Koziol observes of Charles, “in 898, he was restored to what was rightfully his … he and the kingdom alike [were] made whole again” (Koziol 2012: 483). That Charles used the terminology of the Pseudo-Isidorian “redintegranda” takes us to the core of how he and his contemporaries thought about property and possession—and to the first stage of the threefold extension of the applicability of the actio spolii from episcopal property to imperial property to lineage property. Charles used the originally theological terminology of the canonical actio spolii to describe his relationship to his hereditary public power. Over the following centuries, such an attitude would be extended over the property of all layfolk, who could then demand “reinvestiture” with their hereditary property, property that consisted for elites in various degrees of power over land and over men. Conte demonstrates that feudal “investiture” (investitura, vestitura) with public power treated as property, was in fact a back formation from “reinvestiture (reinvestitura).” Moreover, use of Pseudo-Isidorian terminology with respect to royal or lay landholding suggests that the high medieval ideal of landholding was ecclesiastical, emulating bishops’ inalienable if temporary—so long as they espoused their church—ownership of their diocese’s lands (Descimon 1993: 1129–1131). Warrior aristocrats aspired to clothe their family possessions with the inalienability of ecclesiastical property as guaranteed by the actio spolii. “Once the Carolingians set out to define themselves as a patrilineage … and defined their kingship as hereditary in the male line,” Constance Bouchard has advised, “other groups of relatives had to follow suit” (Bouchard 2015: 184–185). “Before the eighth century,” she continues, “although of course men believed that whatever their fathers had had was rightfully theirs, there was little sense of a long line of ancestors giving validity—except for kings” (Bouchard 2015: 191).

PROPERTY IN THE FEUDAL SOCIETY Seen from this angle, many of the characteristics of land law across Europe between 800 and 1200 align: the shift from testaments to donations inter vivos (Barbier 2005), the practice of the laudatio parentum (gaining relatives’ approval for transfers of family property: Tabuteau 1988; White 1988), the emergence of the two retraits (retrait lignager enabling family members and retrait féodal enabling lords to repurchase alienated family

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or feudal land within a certain time-limit), the exclusion of dowered daughters from inheritance (Mayali 1987), the rise of primogeniture (or other customs of inheritance) restricting or excluding the transfer of family property to younger sons, and the emergence of customary modes of succession distinguishing between acquired and inherited property (e.g. Yver 1966). All of these signify a move to treat lay property as being as inalienable as ecclesiastical property, but inalienable with respect to a lineage.8 In Barbara Rosenwein’s words: Land, which had been used so freely as a means of social bonding, now … took on the character of a seigneurie and a family inheritance. … Names, which had been single and possible to identify only in association with other names, now … increasingly were followed by a patronymic, derived often enough from family estates as much as from patrilineal descent. … Land was no longer broken up into gifts to support all family members and ensure their solidarity (Rosenwein 1989: 205–206). We can invert Jack Goody’s suggestion that the Church changed family structures and inheritance practices so as to acquire more property: Ian Wood’s narrative would suggest that family structures and inheritance practices shifted because the Church had acquired so much land (Wood 2013: 58; Goody 1983). Individuals and families first gave land to the Church, then began to emulate ecclesiastical conceptions of inalienable property—which could nevertheless be granted out as precaria or beneficia or fiefs. As Susan Reynolds has written: the law of property embodied in the academic and professional law … of the later middle ages did not develop out of the customary law that governed noble property in the early middle ages … [but] from the custom and law created by the arrangements made rather by great churches for the management of their lands than by lay nobles for theirs (1994: 7). High medieval law guarded the near inalienability of family property through nascent inheritance customs that tended to pass the near entirety of a holding or complex of landed properties to one privileged heir per generation, through the two retraits, and through possessory remedies constructed on the canonical basis mentioned above. In England, Henry II’s (r. 1154–1189) possessory assizes of novel disseisin, darrain presentment, and mort d’ancestor enshrined this form of landholding (Maitland 1888). The first safeguarded those disseised of long-held property, the second those disseised of the right to present a candidate to an ecclesiastical benefice, and the third those not seised of a family property that they should have inherited. In France these took the form in the following century of the functionally analogous casus novitatis or complainte en nouvelleté shaped by subsequent developments in learned jurisprudence. Such procedures provided the mechanism by which parcels of public power annexed to land as fiefs and treated as property could be recovered. The case in the church was not so different, as the benefices that were supposed to provide income to those performing ecclesiastical functions were likewise treated as property. The terms benefice (beneficium—a term also used for property conceded to a lord’s military followers, for fiefs, that is) or prebend (praebenda), used from the ninth century to refer to the revenues destined to sustain the occupant of an ecclesiastical function, were increasingly treated as a species of property right. As with the actio spolii, canonical remedies here again shaped late medieval land law. Yet the canonical remedies following from the ius novum of the Decretum and decretals differed from the

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remedies of Visigothic councils or Carolingian forgers, for they were inflected by the new manner of teaching Roman law that spread outwards from twelfth-century Italy (Winroth 2000).

THE IMPACT OF LEGAL DOCTRINE SINCE THE TWELFTH CENTURY If high medieval law centered on a notion of legal possession, late medieval law once again sought to distinguish—imperfectly—possession and ownership on a Roman model, leading to the civil law distinction between actions for recovering physical detention (the actions possessoires of modern civil law) and actions for title (the actions pétitoires of modern civil law). This was the consequence both of the renewal of studies of Justinian’s compilation in twelfth-century Italy and in developments internal to canon law. However, what reemerged was not the distinction as known to classical jurists but a distinction that better accommodated the chains of rights characteristic of feudal hierarchies. For how did seisin or investiture fit into a scheme of factual possession and legal title? Poorly, in short. When the French jurist and judge Jacques d’Ableiges (b. before 1350–1402) discussed possession, seisin, and ownership, he revealed just how little even late medieval cultures of property had to do with antique cultures of property. D’Ableiges implied that title followed from long possession: “he has acquired ownership through long seisin (par longue saisine a acquis le droit de la proprété)” (Bibliothèque nationale de France, Paris, nouvelles acquisitions françaises [hereafter BN NAF] 3555, f. 140v). Furthermore, seisin was simply aggravated possession: “seisin is acquired after a year and a day of continuous, peaceful, open, irrevocable possession (par icelle possession continuée non vi non clam non precario etc, la saisine est acquise par an et par jour après)” (BN NAF 3555, f. 78v-79). If d’Ableiges evokes the language of the Roman possessory interdicts, the substance of the law he discussed was based on a framework worked out in recent canonical jurisprudence and extended to forms of possession unimagined in classical Roman law. The multilayered claims of lords, vassals, and tenants to land that we might call feudal property constituted a perplexing legal problem if one’s conceptual tools were Roman notions of dominium and possessio.9 The contractual origin of fiefs in lifetime grants of land later made perpetual but requiring homage, investiture, and the payment of certain dues for successful transfer—and the potential that they would revert to the lord upon failure to fulfil these requirements—gave the lord property rights over his vassals’ land. However, those vassals might well choose to subinfeudate their land, reproducing the same situation as they invested their vassals or tenants with the land. Thus, a lord (dominus) wielded one type of property right with respect to his tenants or vassals, and as vassal (vassallus) he possessed another with respect to his feudal superior. The glossators who in the twelfth century interpreted Roman law therefore bifurcated the concept of dominium into dominium directum and dominium utile: every lord held direct ownership with respect to his tenants or vassals and ownership to use with respect to his lord. However, as the citations from Jacques d’Ableiges illustrate, legal procedure did not function in these terms. Petitory actions for title were rare, as questions of title were to be avoided, whether because they could give rise to trials by battle or because unquivocal documentary titles were scarce.10 The majority of property actions took the form of possessory actions on the model of the actio spolii as applied to family property (in England) and on the model of later canon law developments in the law of benefices (on the continent).

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Concerning the latter, Peter Landau has outlined how twelfth-century canonists addressed the grievance of a cleric provided to but not instituted with a benefice (Landau 1971). Since an ecclesiastical benefice could not (legally, at least, though the resignatio in favorem provided a way around this also adopted subsequently for lay offices) be treated as heritable family property after the Gregorian era (Wood 2006: 729–739), the cleric had to be invested before he could be reinvested. What sort of claim might a cleric provided to but not instituted with a benefice have when someone else was instituted with the benefice? He had a ius ad rem, a personal claim against the patron who had promised him the benefice but no claim upon the particular benefice. His opponent, the canonically instituted, beneficed cleric, had on the contrary a ius in re, a real claim to reinstitution with the property itself. Not illogically applied to feudal property in a Summa written before 1250, investiture with a fief was taken to give the vassal a ius ad rem while possession was interpreted as giving a full ius in re. Pierre de Belleperche (d. 1308) reversed this, describing the ius ad rem of a dominus as a property right in the thing itself. This solution allowed for all types of right to be pursued through possessory actions in royal courts, a prospect attractive to royal judges who sought to redirect property disputes from questions of title disputed in feudal courts (for fiefs) and in church courts (for benefices or tithes). Increasing emphasis on the territorial jurisdiction of monarchs encouraged the use of such procedures that permitted the accommodation of Romano-canonical procedure to customary systems of land tenure predicated on seisin—at the same time as they expanded the competence of royal courts at the expense of other jurisdictions (Lange 2013). The rebirth of the state did not result only from the reemergence of Roman categories, or even only from the application of canon law corporation theory, but also from the suppression of non-feudal property and the assertion—less historically grounded in France than in England—that the king was the ultimate feudal suzerain of all French land.11 In such an environment, and absent the type of land registers attempted in Southern European urban territories, property disputes turned on proof of possession or seisin, particularly with the decline of feudal investiture. In France, by 1300 or so the plaintiff in actions for title (actions pétitoires) was presumed to have been disseised.

THE FLEXIBILITY OF POSSESSION OF CORPOREAL AND INCORPOREAL THINGS High and late medieval cultures of property were premised on forms and on repeated actions. Documentary titles as such were rare, and took second place to the testimony of witnesses: if some ecclesiastical institutions preserved a few charters recording initial donations dating back to the sixth or seventh century, these were exceptional survivals from a different age. For everyone else, ownership rested on repeated, witnessed possession and on symbolic actions. Transfers of property required the handover of clods of earth, of wooden wands, or reiteration of actions signifying possession or seisin, contracts required the remission of arrhes or earnest money, homage required personal appearance at the seat from which the fief in question “moved.” Such arrangements were durable. There are plenty of stories of homages rendered at the portal of an entirely decayed castle, seat of the principal fief upon which a particular fief depended. In the town of Tonnerre there were two examples of such durability: until the French Revolution canons of SaintAignan, the town’s original parish church, preserved some litigious mortuary rights and tithes even after the disappearance of the church and the transfer of its chapter to the newer church of Notre-Dame; by the end of the Hundred Years’ War the count’s castle

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was in ruins and soon thereafter disappeared, even its location forgotten, although the count’s vassals’ fiefs moved from that castle. That the rights of a vanished church or the need to perform homage at a ruined castle endured should not give the impression of static cultures of property, for the tithes of Saint-Aignan and the prerogatives of the count of Tonnerre were much litigated—in terms of possession and seisin, for almost anything could be litigated in these terms: whether concerning a rabbit warren or a parish church or an annuity tied to a piece of property or a venal office, late medieval courts ruled on possession and seisin.12 In England, one can see this in the incredible flexibility of late medieval actions of trespass: one could use an action of trespass to seek legal redress for adultery, for unpaid debts, for broken contracts, for matters rather distant from trespass on real property that nevertheless amounted to trespasses upon different sorts of corporeal and incorporeal rights. As late as 1513, the Abbess of Montivilliers in Normandy mentions in her act of homage to the king that “we and our predecessors are and have been seised of and in peaceful possession (sommes et avons este en saisine et possession paisible)” of patronage and ecclesiastical justice over the parishes of their exemption, “for which things we owe the king our lord only fealty and prayers.” However, in 1667 the Abbess’s lawyers advised her to drop mention of her possession and seisin of this right, as she had no clear, documentary title to it (Archives départementales de la Seine-Maritime, Rouen, 54 H 35). Although the dominance of possession began to recede in the sixteenth century, with the spread of notaries and property or debt registers, not until after 1600 was it clear that medieval cultures of property were dead. Until “documentary proof trumped witnesses’ testimony (lettres passent témoins),” it remained possible that property could be transferred through violence. If families and institutions aspired to make land inalienable within a lineage or for an institution, medieval conceptions of property opened the door to a far less stable situation. In the land wars of the late Middle Ages, violent entry could give rise both to complaints of novel disseisin and, in time, to licit seisin (Bellamy 2013 [1983]). Because of the nature of possessory remedies, one could assert that the potential for individual and familial immortality could rest on lands acquired through violence, appropriately enough for an epoch in which non-clerical elites aspired to military virtues if not always to military careers.

THE DECLINE OF MEDIEVAL MODES OF OWNERSHIP The year 1500 not unreasonably marks the end of medieval cultures of property in two ways. First, we see the rebirth of an ideal of civilian, political, literary elite behavior. Second, we see the emergence of new means of perpetuating individual and family memory in the history writing that accompanied the newly classicizing elite culture that was the Renaissance (Burckhardt 1990 [1860]; Elias 1969 and 1982 [1939]; Kelley 1970). The domestication of elite manners identified by Norbert Elias extended to the realm of law: the violent seizure of property and the usurpation of new rights and extension of prior claims—often to peasant dues—under the implicit threat of force receded. Economic violence and legal chicanery would now have to serve where physical force once operated towards the preservation and augmentation of patrimonies. Until—and into—the sixteenth century, however, fact could well turn into law. Indeed, some of the devices by which families sought to protect lineage property—aiming at inalienability—encouraged violent solutions. For instance, the English “feoffment to use” allowed landowners to avoid paying feudal dues at their death. This achievement

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came at some cost, however, for in enfeoffing trustees with his property while retaining rights of use to it, the former owner (the formerly seised, invested vassal or freeholder) lost access to the possessory remedies available to those seised of land. John Bellamy has remarked that “the restricted options available to the cestui que use […] to defend the property of which he was the user … must have encouraged the adversary to enter on the cestui” (Bellamy 2013 [1983]: 134). Thus this form of trust, intended to protect family property, may in some cases have had the opposite effect of facilitating its loss to someone who had forcibly seized (and eventually seised himself of) the property. Third, in the realm of law, lords increasingly sought full proprietorship over the lands of their tenants. For example, in 1514, the Abbot of Saint-Michel near Tonnerre sued for two inheritances which he claimed on the basis of the local custom according to which servile (mainmortable) land escheated to the lord when the tenant died without an heir of his body in residence. The Abbot claimed title on the basis of the tenth-century charter by which the Count of Tonnerre gave the monastery “the entire allod which I seem to possess in the village called Coussegrey, forest and fields, and the meadows and men pertaining to it with the church … and with which I am invested by inheritance.” The charter described not Roman proprietorship but investiture and recognized possession. To strengthen his case, the Abbot claimed that an enfranchisement of 1411 only pertained to villagers’ persons; their tenures accordingly remained unfree and could still escheat to him in the absence of a suitable heir.13 The replacement of overlapping medieval claims to land by neo-Roman categories of possession and ownership served to create more (early) modern property rights, for the abbot—now clearly the proprietor—tended to lease out formerly servile tenures on more profitable, more temporary terms (e.g. ADY H 2162, 117, or H 2163, 13v, 22).

THE “DEAD HAND” Aspirations to inalienability often foundered on individual hopes for salvation. At the beginning as at the end of the period, heirs resisted pious bequests deemed overly generous. One means for contesting such bequests was, naturally, to overturn the will. In the early Middle Ages this drove donors to devise property to the Church through donations inter vivos with the approval of their relatives rather than by testament (Barbier 2005). Another was to find ways of using pious bequests to reinforce and to advance family status. The period covered by this discussion is the great age of monastic foundations and lavish gifts to the church. These reflected individuals’ hopes to secure salvation by giving the superfluous wealth that they had failed to dispose of during their lifetimes to the Church. By the seventh century, it also reflected their hopes to elicit the particularly efficacious prayers of holy men and women gathered in monasteries. In the later Middle Ages, donors endowed masses, earmarking the revenues of otherwise virtually inalienable family property in perpetuity for the salaries of chantry priests, hoping that the masses they would murmur might shorten the stay of the donor and his or her family in Purgatory. These hopes are the second dimension of the monastic archives whose extant volume overwhelms that of surviving lay archives between 500 and 1500 and therefore furnishes the basis for much medieval historiography (Bouchard 2015; Le Jan 1995; Geary 1994; Esch 1985). The collections of charters that record donations of land and other rights to religious institutions served not only as documentation of property rights but as memorials of those for whom clerics, monks, and nuns were to pray. Kept with relics and treasures, memorials of donations combined with more

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explicit “libri memoriales”—a term that might be translated as “lists of benefactors”—to perpetuate the memory of individual donors. In other words, we can see archives as records of individual hopes for salvation. Those hopes were satisfied only at some cost to families and lineages. When family property passed to the Church, there was little hope of getting it back from the Church’s “dead hand.” Indeed, the “dead hand” advanced when late medieval ecclesiastical institutions invested cash bequests in purchases of new land (Fourquin 1964: 336–339, esp. 463–465).14 This is not to say that no one tried to get family property back. Families could forcibly retake land, though ecclesiastical institutions could counter with actiones spolii or the newer possessory remedies, if rulers or law courts were favorable. Families could also try more subtle means. These took three forms. First, before the post-Carolingian crystallization of power relations into property rights and before the Gregorian Reform clarified that layfolk could not “own” but only hold patronage rights (ius patronatus) to a church, families could dispose of the revenues of proprietary churches (Wood 2006). Secondly, families could seek to place members in charge of ecclesiastical institutions so as to manage their property directly and to divert some wealth back to families. The dynasties of Gallo-Roman bishops at the outset of the period constituted one form of this. The lay abbots of the Carolingian period, the non-resident commendatory abbots and priors of the high and late Middle Ages, and the pluralist high clergy that cumulated benefices while hiring priestly proletarians to serve in their place at starvation wages, constituted other forms. Taking the income from benefices without performing functions or even bothering to take major orders (let alone be ordained to the priesthood), prelates enriched their families with the vast incomes from such sources. Thirdly, families could seek to gain direct control of ecclesiastical lands through temporary grants of various kinds that could ultimately lead to churches’ loss of such property. Precaria, hypothecs and shorter leases, or enfeoffments, for that matter, gave layfolk and lay families effective control of much church property, illustrating how the inalienability of ecclesiastical property could be undermined by families’ aspirations to the same. This is quite clear with grants in precaria and some enfeoffments, whereby landowners granted property to an ecclesiastical institution and received the same property back as a “precarious” grant at the discretion of the instition or as a fief. In such cases, ecclesiastical immunity shielded family property from other claimants, such that family property could pass securely between generations. This sort of behavior is most obvious among elites, but is not dissimilar to the heritable tenures of cultivators or to leases repeatedly renewed with members of the same peasant lineages by ecclesiastical institutions. These were two solutions to the conflicting imperatives of salvation and family power.

PERSONHOOD AND PROPERTY IN THE LATE MIDDLE AGES Was the individual truly so submerged in the collective, whether religious institution or lineage? As in Jacob Burckhardt’s description, was the medieval individual “conscious of himself only as lineage, tribe, faction, corporation, family, or some other form of community?”15 That is perhaps to pose the question incorrectly, for the individual was more properly—and at least aspirationally—subordinated to the institution’s or to the lineage’s property from the millennium. The transition is perceptible: Patrick Geary has noted that Count Fulk le Réchin of Anjou (1043–1109) “knew little about his ancestors because … he looked back to find in the past that which he was in the present—that is,

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a continuity in office and land that was qualitatively the same as his own” (Geary 1994: 79). Fulk’s ancestors in the Carolingian Reichsaristokratie had organized their family memory not around (sometimes rapidly) shifting landholdings: in contrast, later medieval memory, liturgically guarded by monks and later by chantry priests, “unlike that which might have been preserved by sisters, widows, or daughters, was disjointed, alienated from the family it served” (Geary 1994: 79). It was tied to the donor’s landholdings, to the dignities associated with the donor’s property rights. The memory of the counts of Anjou was different than that of Fulk le Réchin’s ancestors. Seals are informative as to why. In the early Middle Ages, seals were a royal prerogative that was claimed by bishops and lay aristocrats from the second half of the eleventh century. The holder of a seal authenticated or verified documents, often transfers of property or a property right, with the impress of his, her, or its (in the case of towns, monasteries, or other corporations) seal. Yet the seal tended to reduce humans to categories, to signs (see Figure 6.1). Brigitte Bedos-Rezak has written that “[w]hat arose in the eleventh and twelfth centuries … was less ‘the individual’ than a semiotic system, a practice of sign interpretation that fostered representation of the person as a category. … The individual appears to have been a casualty of the eleventh and twelfth centuries” (Bedos-Rezak 2011: 157). The individual was a semiotic casualty, in a sense, because it became simply the bearer of property.

FIGURE 6.1  Seal of Gilbert de Clare, Earl of Gloucester and Hertford. 1218–1230. Source: Flickr / Llyfrgell Genedlaethol Cymru / The National Library of Wales.

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It is no coincidence that broadening recourse to seals coincides with the crystallization of customary rules of property devolution. The maxim “the dead seizes the living (le mort saisit le vif),” i.e. the heir by customary law is immediately invested with his inheritance at the previous incumbent’s death, encapsulates this idea. Jacques Krynen notes that the maxim “expresses an inherent principle of customary law: the lineage’s virtual ownership of family property” (1984: 191). Whether the custom of inheritance was, to use the French terms, “de simple côté,” “de côté et ligne,” “souchère,” or “de tronc commun,”16 it minimized the individual’s ability to dispose of family property, often restricting the inheritance of daughters and younger sons. Identity—and not just elite identity—was constructed around property, as Michel Nassiet has observed with respect to the quarterings or impalements of arms that signified surnames and titles perpetuated through an heiress in the fourteenth and fifteenth centuries (see Figure 6.2) (Nassiet 1995; also Chassel 2012). By the later Middle Ages, as the more fluid structures of early medieval landholding crystallized in the overlapping rights of late medieval and early modern land law, personhood was tied to property, not simply, but in a complex manner, such that personhood could be fractured. Then as now, an individual could hold property in different legal capacities, in distinct legal personas. Daniel Smail has written that [o]ne of the effects of the ius commune was to fragment the individual into a multitude of legal personae. To give one example, a person could own or manage an estate in a variety of ways—as a father for an unemancipated son, as a husband for a wife or as a father-in-law for a daughter-in-law, as a guardian for a ward, as an heir for life, as a member of a partnership, as a lord, or as a proprietor. The list of possibilities goes on (Smail 1999: 205). This is why Frederic William Maitland (and Ernst Kantorowicz through him) could pun “about the king being ‘parsonified’” because he too was a corporation sole (cited by Kantorowicz 1957: 3). An English parson was “impersoned (personatus),” that is, endowed with a legal persona in virtue of his investiture with a particular benefice. His worship, to use an etymologically appropriate word, of course reflected the value of that benefice. Parsons or parish clergy everywhere modeled this mode of property-holding by which a complex of properties created an individual’s identity. Here again we encounter canon law, for the famous decretal Quoniam abbas (X.1.29.14), discussed by Kantorowicz (1957: 385–401), established that the abbot of a certain place was a corporation sole, in other words, that different individuals successively inhabited an immortal function. Kantorowicz traced what this decretal meant for the development of the State, following it to the decretal Intellecto (X.2.24.33) that provided for the inalienability of Crown property. One might instead follow Quoniam abbas along a different path, that of the aspiration to inalienability from its application to ecclesiastical dignities to its application to lineage property. This decretal of Pope Alexander III (r. 1159–1181) coincided with the emergence of the maxim “le mort saisit le vif” and widespread elite use of seals, thus also with the crystallization of elites’ complexes of family lands and of cultivators’ tenures into something like perennial dignities. When the previous Duke of Buckingham died, another Duke of Buckingham (if a capable heir existed) stepped into his place in the peerage and took over his lands. When the tenant of a given parcel within the mainmortable holdings of the Abbot of Molosmes in Burgundy died, the child born of legal marriage residing at home succeeded to that tenure. Such attitudes persisted into the sixteenth and seventeenth centuries and sometimes beyond.

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FIGURE 6.2  Arms of Jean IV de Beauvau, d. 1468. Source: Bibliothèque nationale de France.

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Aristocratic dynasts and peasant proprietors of hereditary tenures were not properly corporations sole like an abbot or bishop. Yet in some sense they nevertheless inhabited dignities defined by landholdings, landholdings themselves oriented toward aspirations to quasi-ecclesiastical inalienability within a given lineage. These proprietors or tenants would have avowed themselves to be defined by their inherited properties. In those cases where cultivators took the name of their farms (and whose status within the community was defined by the amount of land held), and certainly for nobles who took the name of their principal fief, it was almost as if late medieval succession practices meant that the piece of property or complex of properties called its own heir. We might accordingly alter the maxim “the dead seizes the living heir” to “the holding invests its next hereditary occupant.” The spread of a Renaissance model of elite deportment focused on the self-fashioning proprietor (Burckhardt 1990 [1860]; Greenblatt 1980), Europe’s colonial expansion across the globe (Benton and Straumann 2010; Fitzmaurice 2014), and trends toward neo-classical or neo-scholastic forms of absolute property rights over men and land (Renoux-Zagamé 1987) mark the end of the cultures of property characteristic of the long Middle Ages from 500 to 1500. This is not to say that medieval men and women had no power over men or land but that their cultures of property gave virtually no one an absolute legal right to use, to abuse, or to destroy land or men. Not only were property rights intertwined and overlapping over the same individuals and same land, but they were also limited in a different way by aspirations to inalienability. This is to make a strong, if indirect claim for the impact of religion on patterns of landholding. After the massive transfer of claims to land and its fruits that marked the end of antiquity, medieval Christians began to seek the same inalienability for their family property that the Church claimed for its own property—property that had, in large part, come through pious gifts in hope of commemoration and of salvation. They aped ecclesiastical modes of landholding and land-management for assuredly worldly reasons, to consolidate their own and their families’ power and renown. Early medieval proprietors gave land to the Church expecting temporary (if repeated) re-grants to their family members. Late medieval proprietors ceased to do this, giving money or securities (nevertheless often tied to landed property) to purchase prayers. Increasingly, they turned to the States to safeguard proprietors’— and not families’—property rights. This is not to say that everything changed instantly in 1500. Entails, mayorazgos, primogeniture, préciputs, customary forms of succession, the protection of nobles’ mortgaged property from their creditors, proportional stints on unenclosed common land tied to the size of one’s holding … persisted. Nevertheless each of those protections was eventually rolled back with the advance of sixteenth-century models of absolute ownership.

CHAPTER SEVEN

Wrongs Towards a Cultural History of a Medieval Legal Concept KARL SHOEMAKER

INTRODUCTION Lawyers talk funny. Though perhaps medieval legal historians talk funnier still.1 Indeed, their subject matter demands it. Perhaps nowhere is this more evident than in the vocabulary that we have inherited from ancient and medieval legal sources to describe the various categories into which the Western legal tradition has divided wrongs. Our legal vocabulary for wrong today has largely been grown on foreign soil. In the civil law tradition it is rooted in classical and post-classical Latin. In the common law tradition the vocabulary for wrong is rooted mainly in the unique French spoken by the Norman rulers of late medieval England. Thus, we possess today a multitude of words, some current, some obsolete, drawn from different languages and multiple strands of the Western legal tradition to define or describe wrong. Some are familiar, such as crime, tort, and trespass. Some are perhaps less so—culpa, delicta, quasi-delicta, malificia, peccata, iniuria and others. Moreover, none of these words have meanings that have remained static, either in colloquial usages or in technical, lawyerly senses. When legal historians talk funny it is because they are often speaking a domesticated, but nonetheless alien tongue. Yet this often alien, sometimes archaic, and always historically mutable vocabulary for wrong is at odds with the otherwise straightforward schema for wrong supplied by classical legal sources. As the classical-era Roman jurists understood it, wrong was one side of a two-fold division into which all obligations could be classified. In Roman law obligations arise either through contract or wrong. That is, one can become legally obligated either through entering into a binding agreement, or by committing a wrongful act. The commission of a wrong incurs an obligation. The obligation arising from a wrong can be further subdivided into those that give rise to an obligation to compensate and those that give rise to afflictive punishments. In the common law tradition, this distinction is expressed on the one side through the law of torts, which concerns compensation for a wrongful or negligent act, and on the other side through criminal law, which concerns state-sanctioned punishment for criminal acts. In the civil law tradition, moreover, this division is sometimes expressed as the difference between a private wrong, amenable to compensation or settlement, and a public wrong, requiring the punitive action of public authority. In both cases, the division separates compensatory actions on the one hand, and punitive ones on the other.

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A moment’s reflection, however, will reveal that these seemingly neat two-fold divisions veil a welter of complexity and confusion. Why should some wrongs give rise to a compensatory action, and others to a criminal prosecution? Sometimes the answer is mere historical contingency, such as when an act formerly classified as a wrong giving rise to monetary damages is, either through explicit legal reform or through slow accretion, reclassified as a crime requiring punishment. Or vice versa. At the same time, within the Western legal tradition many wrongful acts can be pursued procedurally either as crimes or torts, depending on the wishes of the complaining party. Moreover, the dividing line between public and private wrongs is exceedingly blurry, and some scholars question the usefulness of the taxonomy altogether.2 Sometimes the same discrete act can be pursued as both a crime and tort simultaneously. Hence, it is by necessity that legal historians speak of wrong with nuance, equivocation, and an awareness of historical contingencies. Wrong is a word with a legal history, and thus it evades tidy definition. Moreover, it is this history, not the neat taxonomies of lawyers, that has determined the content and, at times curious, organization of the law of wrongs today.

AN OLD FEUD REVISITED In the gloaming that marked the final disintegration of the west Roman Empire and the emergence of the early European peoples, much is hidden from the legal historian’s view. By the time written legal sources such as codes and placita come into view in the fifth and sixth centuries, the shadow of Roman administrative practice is typically still faintly visible. The earliest legal codes produced in medieval Europe raise some perplexing questions, most of which concern why there is no evidence these codes were used to provide rules of decision in actual cases. The clearest evidence for practical usage does not emerge until the ninth century, even though legislation was produced in the sixth and seventh centuries. Some contemporaries saw in the production of written laws by early medieval European kings an emulation of Roman modes of power. And with good reason. The Theodosian code provides the template for much of the earliest legislation of the Visigoths, Burgundians, and Franks. The language of these legal texts, with the important exceptions of Anglo-Saxon and Irish legislation, is Latin. Even here, though, it is an Anglo-Saxon, Bede, who tells us that the earliest English kings legislated “iuxta exempla Romanorum”—according to the examples of the Romans. That Bede may have had the Carolingian Franks in mind when he said “Romans” does not diminish the importance of late Roman lawgiving as an inspiration for early medieval kings. Even so, Roman influence on early medieval legislation is typically detected less when it comes to legislation regarding wrongs. Here, the learned vocabulary of delictus and crimen, and authority of the imperial magistrate was replaced by self-help, blood feuds, and wergilds that characterized the legal practices of the peoples of early medieval Northern Europe. In this domain, the early medieval law codes often conceal more than they reveal. The legislation of early medieval Europe presents to us a world in which wrongs done to the person and to the property of others were more often to be addressed by compensatory payments. For example, a passage in the Pactus Legis Salicae provided that: He who sets fire to someone else’s house while men are sleeping inside shall be liable to pay twenty-five hundred denarii to him whose house it is. Those who escaped therefrom should each call him to court … and he is liable to each of them for four

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thousand denarii. If some remain therein, he shall be liable to pay eight thousand denarii in addition to restoration of the value involved plus a payment for the time that was lost. (The Laws of the Salian Franks 1991: 81–c. 15.1). Across the channel in England, similar approaches are seen. For example, in the Laws of Aethelberht, the earliest Anglo-Saxon legislation, it is provided that: “He who stabs through an arm, let him pay with 6 shillings.” And following that provision: “If an arm becomes broken, let him pay with 6 shillings.” (Oliver 2002: 73). Physical punishments were typically reserved for slaves, though in the earliest AngloSaxon legislation even slaves might pay compensation for wrongs (Oliver 2002: 79–80). In principle, freemen paid for their wrongs according to (sometimes minutely) articulated tariffs, rather than by undergoing punishment. Prices were set for an injury to a hand, a foot, an eye, the genitals, and so on. Very little role was imagined for what we might call public authority in the resolution of wrong. Kin groups and alliances with lords sufficiently powerful to provide personal protection mattered more than any attempts (which were notably few anyway) to address social disorder and crime through explicit royal policy. This general state of affairs has sometimes been examined by legal historians under the rubric of the blood fued, and it has typically been set in opposition to the complex legal processes and expectations of classical Roman law. A violent and protracted conflict that arose in Merovingian Gaul in the late sixth century illustrates these issues well. The events in question have been examined by historians, but it will be useful to review the particulars of the case because they will highlight some often overlooked features of the historical development of wrong as a legal category. Gregory of Tours, the son of a leading Gallo-Roman family and eventual Bishop of Tours, offered a firsthand account of events that occurred near Tours in the late 580s.3 A “civil war,” he explained, arose between some men of the city. The initial dispute arose in Manthelan, a village lying about twenty miles to the south of Tours. A young man named Sichar, who belonged to a well-connected family, was enjoying himself at a Christmas party there. As we find out later, Sichar enjoyed exploring the depths of his cups. Perhaps many of the other party guests were drunk, too. At some point during the evening, a local priest sent his serving boy to the party with an invitation that the guests come over and enjoy some more drinking. For reasons that are not stated, one of the men at the party, later identified as Austregesil, drew his sword and, “not fearing to strike him,” killed the priest’s servant boy. Sichar, a close friend of the priest whose servant was slain, immediately seized his weapons and with his entourage went to the town church in order to wait for Austregesil and his men. Sichar may have assumed Austregesil and his friends would come to the church in order to take sanctuary for their offense. Or Sichar may have judged the church to be the best place to confront a group of men, one of which had just slain a priest’s servant. At any rate, after hearing that Sichar was waiting for him, Austregesil also took up his weapons and went to the church with his friends and followers. There was a violent fray. Several men on both sides were wounded. Sichar was brought safely out of the melee by some clerics. He then was able to reach the relative safety of his nearby country estate. Nonetheless, he had to leave behind four wounded servants along with some money and goods for their care and convalescence. The men were recovering at the priest’s house when, with Sichar now away, Austregesil returned. With the help of his men, Austregesil killed the four wounded servants and took the money that had been left for them. The initial violence had escalated considerably.

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At this point in the story, Gregory tells us that an assembly of men of the city came together and determined that Austregesil was responsible for killing the priest’s servant, for killing Sichar’s servants, and for taking Sichar’s money and goods without authorization (sine audientia). This iudicio of the citizens, according to Gregory, condemned Austregesil “under the law” (censura legali condempnaretur). Whether emboldened by this judgment or in simple disregard of it, Sichar soon set out with his men to recover his stolen goods and money. Hearing that a man named Auno now held the money originally seized by Austregesil, Sichar gathered some allies and attacked Auno by night at his home while he slept, killing him, his son, his brother, and his servants. Sichar and his men also took all the movable property and livestock. For his part, Gregory saw Sichar’s self-help as extralegal. By attacking Auno and carrying away his goods and animals, Gregory said Sichar “set aside the judgment” of the tribunal and “acted seditiously.” Greatly aggrieved, Gregory personally intervened. He sent a legation to both sides “so that they would come together in his presence and, accepting reason, leave in peace.” When the warring parties arrived, Gregory exhorted them not let the wrongs (sceleribus) propagate further. Too many “sons of the church,” he said, had been lost already. He feared that more still would die. “Be peaceable, I beseech you, and he who has done wrong (malum) remain now in love and make amends (conponat) so that you may be children of peace and may be worthy of the kingdom of God.” Just to ensure that the point was not missed, Gregory then quoted the relevant portion of the Sermon of the Mount to his audience: “Blessed are the peacemakers, for they shall be called the sons of God.” Gregory’s framing of the story assumed that compensation would be the appropriate resolution of the case. In modern legal parlance, Gregory viewed the events as a torts case. After this exhortation, Gregory offered material support from the Church in order to resolve the conflict. Any man unable to pay the judgment that he had incurred on account of his part in the discord would be subsidized by from the church coffers, “lest any man lose his soul.” Even this intervention failed, however. Auno’s surviving son, Chramnesind, made demands for the killing of his father, his uncle, and his brother. The meeting broke without peace. Sichar set out to see the king, presumably to invoke his patronage in this still unresolved conflict. Before seeing the king, however, Sichar traveled to Poitiers, where his wife was living on an estate. While visiting the estate, Sichar began beating one of the slaves there, “exhorting him to get to work.” As Sichar beat him with a stick, the slave rose up, grabbed Sichar’s sword, withdrew it from its scabbard, and struck Sichar with it. Sichar was wounded, but not killed. When Sichar fell to the ground wounded, his friends came running, seized the slave, beat him cruelly, cut off his hands and feet and hanged him from a gibbet. False rumors quickly flew and Chramnesind mistakenly believed that Sichar had been killed. Gathering his friends and relatives, he went to Sichar’s house, killed some slaves, burned several houses, and carried off all the chattels and livestock. Gregory hardly dwells on the executed slave, other than to explain why some thought Sichar had been killed. Nonetheless, the juxtaposition of the slave’s death, which occurred through a summary process that resulted in dismemberment and execution, with the belabored attempts at settling the larger dispute between Sichar and Chramnesind, is telling. The slave was dealt with through a legal process that we might characterize as criminal law. Given no opportunity to amend his wrong, the slave was punished by his owner, who exercised a sovereign power recognized in law. At this point, the court at Tours once again asserted its authority, this time sanctioning Chramnesind for refusing to accept compensation and for burning Sichar’s house, killing

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his slaves, and taking his property. As a result, half the sum that had been awarded by the first tribunal was forfeit, though Gregory did not specify the amount. Even so, Gregory thought that this reduction of the original award was “against the laws” (contra legis), but understood it as an attempt to bring the parties to peace by placating Sichar for Chramnesind’s subsequent depredations. For his part, Sichar was ordered to pay the remaining half of the judgment, though Gregory explained that Sichar’s half was paid by the Church. With composition paid, Sichar and Chramnesind swore an oath that they would make no further trouble. “And thus the altercation came to an end.” Again, it is important to note how thoroughly tethered this process was to compensation for wrongs and to the mutual assent of the parties. To put the matter somewhat anachronistically, Sichar and Chramnesind’s dispute was governed by the law of torts, while the mutinous slave was governed by criminal law. From this perspective, tort law was a privilege of the landed freemen, peers. Criminal law, on the other hand, was imposed by social superiors upon subordinates. The story has an interesting coda. For a time, Sichar and Chramnesind made good on their oaths. In fact, they became such fast friends that they often shared meals, a roof, and even a bed. But one evening as the friends ate together, Sichar got drunk and made some ill-advised boasts. “Dearest Brother, you ought to be grateful to me, the one who killed your parents, and for which you accepted composition. For now gold and silver are abundant in your house. You would now be naked and destitute had not this case enriched you just a little.” Sichar was apparently as practiced at condescension and sarcasm as he was at drinking. Chramnesind did not take any of this well. Reading Chramnesind’s mind for his readership, Gregory described Chramnesind thinking bitterly to himself: “Unless I avenge my parents, I ought to give up the name of a man and be called instead a weak woman.” Chramnesind then surprised Sichar by blowing out the candles. In the dark, Chramnesind had the upper hand against the drunk and disoriented Sichar. Chramnesind drew his sword and cleaved Sichar’s head in two. After Chramnesind’s servants carried off all the goods they could, Chramnesind “stripped Sichar’s soulless corpse of its clothes and hung it up outside in the animal sty.” Chramnesind then immediately mounted his horse and rode for the king. Hearing that the king was in church, Chramnesind entered the church and prostrated himself at King Childebert’s feet exclaiming, “I come to ask for my life, O glorious king, because I have struck down men who killed my parents by stealth and despoiled all [my parents’] goods.” This may have sufficed for Childebert, but the queen, a woman named Brunhild, took the news very badly. Sichar, we learn only at this point, was under the special protection of Brunhild. Sichar “had been put in her word,” a reference to the special peace Brunhild had granted him. Learning that the queen was still angry with him, Chramnesind fled to his family in Bourges, a town in a region held by King Guntram, Childebert’s uncle. Gregory’s epitaph for Sichar was blunt: “Sichar was only about twenty years old when he died. In life he was frivolous, drunken, and murderous, causing not a few wrongs (iniuria) when he was drinking.” For his part, Chramnesind continued to try and secure his position with Childebert and Brunhild. He later returned to king Childebert and it was judged that Chramnesind should prove that he had killed Sichar lawfully. Chramnesind was able to do this, probably by oaths, though Gregory does not specify. Queen Brunhild nonetheless ordered that Chramnesind’s property be seized because “she had put Sichar in her word.” Chramnesind was only able to secure his property after the formal intervention of Count Aginus, who wrote a letter of restitution on behalf of Chramnesind.

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FIGURE 7.1  Feud. London, British Library, ms. Royal 13.B.viii. 13th century. Source: British Library, London, UK / © British Library Board. All Rights Reserved/Bridgeman Images.

CRIME AND TORT Gregory’s account of the conflict between Sichar and Chramnesind has provided something of an inkblot test for legal historians, inviting scholars to project larger legal forms onto the dim, messy shapes of the conflict. One legal form often detected in Gregory’s account is the blood feud. This has given rise to debates about whether, or to what extent, the feud should be understood as a formal or semi-formal legal institution in early medieval Europe; one that placed affirmative obligations upon members of a kin group or a whole volk to protect their lawful members and shun or kill members who committed wrongs against individuals or the group. In the nineteenth century, some historians perceived in Gregory’s tale a formally realized feud, as well as formalized peace protections that might shape and conclude a feud. Treating the feud as something akin to a systemized legal process by which the ancient Germanic peoples governed themselves, some historians long argued that the law of wrongs in early medieval Europe was governed by the rules of the feud. It was in this light that Alexander Gál understood the dispute between Sichar and Chramnesind, when he argued that the iudicium and placitum announced by the city of Tours should be understood as a tribunal seated to adjudicate the customary rules of

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feuding. Brunner saw the conflict between Sichar and Chramnesind in this way too, but also discerned an emerging tension between the feud-oriented folk rights of the ancient Germanic peoples and newly asserted royal prerogatives on the part of Frankish, Christian kings. Depending upon scholarly predilections, the tale of Sichar and Chramnesind has been used to show weak kingship, strong kingship, formal rules for social conflict, informal rules for social conflict, proof that the feud was a formal institution, and proof that the feud was not a formal institution. In his still underappreciated Felony and Misdemeanor: A Study in the History of Criminal Law (1937), Julius Goebel thoroughly dismantled the nineteenth-century accounts of medieval society as one governed by overarching, formal rules of peace and feud which could be detected in a supposed coherent and ancient Volksrecht. Even so, many scholars continued to treat the feud as a formalized or semi-formalized legal practice. J.M. WallaceHadrill showed some prudent caution when treating the feud as a formal institution, but he still saw the dispute between Sichar and Chramnesind, and others like it, as evidence that Frankish society was “dominated by the feud.” In his view, the feud was resilient, surviving alongside processes of law sponsored by enlightened kings. More recently, Peter Sawyer effectively questioned whether feud should be understood as a formal legal institution at all. Sawyer concluded that blood feuds “flourished best, not in the real world, but in the fictions of poets, storytellers and lawyers.” (Sawyers 1987: 36). There are good grounds for doubting that the feud was a formal legal institution. The Franks had no specialized word for feud. Faithu, or its Latinized form, faidus, cannot be shown to have a formal meaning (Niles 2015). When Gregory described the violence that broke out in Tours he used a range of terms, such as bellum civile, altercatio, and intentio. All in all, blood feud is probably not a useful historical category if it is meant to capture such a wide range of conflicts. More fruitfully, however, we might examine Gregory’s recounting of the various acts of violence between Sichar and Chramnesind within the longer historical arc of the law of wrongs. Here, the altercation at Tours offers up a poignant distinction. On one side of this distinction lay the prolonged conflict in which urban tribunals, episcopal intercession, and violent self-help were available to the protagonists. The urban tribunal, seeking resolution through the imposition of composition payments, appears in Gregory’s narrative as rather toothless and inconsequential. The disputants ignored it when it suited them, particularly when they thought they could gain an advantage through violence. Gregory’s own intercession proved rather weak and fruitless, too, despite his insistent moral condemnation of the violence and his willingness to open his episcopal coffers to subsidize the compensation owed. On the other side, lay the swift and brutal reprisal that was meted out on Sichar’s mutinous slave. The slave was summarily executed, his bodily mutilated, and his corpse displayed. The distinction here shows a foundational difference. Free men with land and followers enjoyed wide latitude in pursuing disputes and settling them. Slaves did not. This is of course not surprising. The legal category of slavery is characterized by the radical restriction of rights. Less appreciated, however, is how deeply embedded this status difference is within the Western legal tradition and how much of it survived the much later abolition of slavery in the West. Legal processes geared toward compensation are tightly bound up with status privilege. On the other hand, violence against the body, whether filtered through legal process or imposed summarily, is feature of low status. It is worth questioning whether the distinction between the kinds of wrongs amenable to compensation and the kinds of wrongs requiring punishment is a natural summa divisio. Rather, the conflict at Tours suggests that social status drove the legal options available

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to wrongdoers, and that social status provided the foundational distinction between who received the privilege of compensatory proceedings and those who were subjected to the harsh finality of criminal law. That is, legal historians would do better to seek the development of the difference between tort and crime in the social status of medieval wrongdoers, not in some a priori classification of wrongs.

THE LAW OF WRONGS AND LEGAL PROCESS A similar foundational concern with social status can be seen in the legal processes that came to be imposed on those accused of wrong. As a general rule, medieval law allowed to freemen the opportunity to clear themselves by oath swearing, while low-status accused were typically consigned to the ordeal process. Again, avoidance of the ordeal was a privilege accorded by status, not by the nature of the accusation or the crime. A great number of ordeal formulas survive (Formulae 1886: 601; Henderson 1910). Scholars have traditionally classified them according to ordeal types—ordeals of cold water, hot water, and red-hot iron. This threefold division hides several other variations on ordeal practice, including a Eucharistic ordeal reserved for clerics, but it captures the primary modes of trying someone by a bodily test. The ordeal of the red-hot iron required the accused to carry a fire-heated piece of iron a predetermined number of paces. The ordeal of cold water required binding the accused and lowering him into a pool of sanctified water. After completion of the ordeal of hot iron a priest would examine the wounds. A festering wound proved guilt. A clean healing wound proved innocence. Likewise, a body that sank when lowered into a pool of sanctified water was innocent because the water freely received it. The Frankish formulas often likened this form of ordeal to baptism: “If you are innocent let the water that received you in baptism receive you now.” (Formulae 1886: 601 ff.). Old Testament vignettes were provided as a certain kind of textual authority. For example, some formulae for ordeal of hot iron invoked Shadrach, Meshach and Abednego directly, presenting successful passage of the ordeal with divine protection.4 Linking the various forms of ordeal together was a belief that elements of the natural world could reveal God’s judgment—unworthiness betrayed by festering corruption visible on the flesh. The ordeal formulas should probably be understood as a form of liturgy. They take the form of prayers spoken to the iron implement or water, imploring that divine judgment be revealed. But the ordeal also had penitential significance. While the ordeal formulas tend to speak decisively in terms of guilt or innocence, medieval chroniclers often read the outcome of an ordeal as God’s merciful intervention on behalf of the guilty. Thus, the ordeal rendered a spiritual accounting, not simply a legal one (Galbert of Bruges 1967: 282–292). Thus, the ordeal might be inscrutable as a factual determination, but it remained intelligible within the teachings of medieval theology (Shoemaker 1999: 179– 180 and 197–201; Olson 2000). Still it should be stressed that the ordeal was not without its skeptics, even in the early medieval period. High-ranking churchmen had argued against its use as early as the ninth century.5 Agobard, a Spaniard by birth who became the archbishop of Lyon, thought the ordeal was impious and wrote two treatises attacking it.6 The ordeal, he urged, was neither sanctioned by scripture nor particularly good policy. Indeed, social groups who could secure exemptions from the ordeal generally tried to do so. High-status groups— nobles, knights, and clerics—were often exempted from the water and fire ordeals, and as a consequence being liable to ordeal process was often a mark of servile status (Esmain 1898: 1–7). By the eleventh and twelfth centuries, some cities claimed an exemption

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against the ordeal for their citizens, apparently sharing the view held by medieval writers that the ordeal was a rural practice, best suited for peasants (Brown 1975). As Richard Fraher has shown, the ordeal presented particular challenges to ecclesiastical discipline. A motivated parishioner might offer to prove serious charges, for example simony or concubinage, against priests or bishops by submitting to an ordeal. The use of ordeals in certain cases posed a significant challenge to the papacy because it put clerics, and especially prelates, at the mercy of lay accusers and interfered with papal attempts to extend and centralize clerical discipline in the early thirteenth century (Fraher 1992: 99). From the papacy’s perspective, it was better for ecclesiastical superiors to discipline clerics than to have such matters addressed by unpredictable and unreviewable ordeal processes. Alongside the administrative and institutional challenges the ordeal posed, a sentiment had arisen among many theologians at the University of Paris that the ordeal was illegitimate as a theological matter (Baldwin 1961). These doubts, coupled with the fact that many communities sought to avoid using it where they could (Hyams 1981: 126), made it possible for Innocent III to move decisively against the ordeal at the Fourth Lateran Council held in the fall of 1215, a few months after Magna Carta (Kuttner and Garcia y Garcia 1964). In Canon Eighteen of the council, priestly participation in ordeals was prohibited, effectively removing whatever ecclesiastical sanction the ordeal had enjoyed. Whether Innocent III’s prohibition was enough on its own to end the practice is still a matter of debate. But it is clear enough that ordeal practice in Europe withered quickly after 1215. The ramifications of the abandonment of the ordeal for legal process on the Continent were striking. The same Lateran Council that effectively ended the ordeal in 1215 had provided directions for replacing it. For example, in Canon Eight the papacy tried to find a delicate balance between insulating clerics against false accusations of wrongdoing (which might be brought from spite or jealousy, and which the ordeal practice facilitated) and simultaneously increasing the Church’s capacity for clerical discipline through legal processes. The solution was a hierarchical arrangement in which ecclesiastics of superior rank could discipline clerics of a lower rank, yet were themselves insulated from accusations made by inferiors or by laypersons. Canon Thirty-Eight placed important checks on some judges in these cases by requiring them to employ “a notary or two competent men” to record the judicial process. The aim was for accountability. The prescribed process required that a judge would “oversee all the acts of the inquiry, namely, citations and delays, refusals and exceptions, petitions and replies, interrogations and confessions, the depositions of witnesses and presentation of documents, interlocutions, appeals, renunciations, decisions, and other acts which take place.”7 The scaffolding for modern European civil and criminal procedure was being erected. All these steps in the inquiry were to “be written down in convenient order, the time, places, and persons to be designated.” The stated purpose of this canon was to provide a record in cases where someone claimed they were subject to a “dishonest or imprudent” judge. But it did much more than this. It mandated the conditions under which all ecclesiastical litigation would be recorded and, therefore, amenable to review by superior judges within the ecclesiastical hierarchy, culminating with the pope who was the judex ordinarius of everyone. Judges failing to comply with the requirement that their proceedings be recorded were liable to punishment. Taken together, these two canons represented the canon law’s solution to the end of the divine ordeal. Judicial inquiries were to follow a prescribed order—including allegations, responses, interlocutory appeals, depositions, etc.—and put into a written dossier that could be transmitted through a judicial hierarchy over which the pope presided. The obligations of pastoral care were taking on an increasingly juridical character.

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Matters were developing rather differently in England. There, the response to the Church’s abandonment of the ordeal did not involve the erection of an inquisitorial judicial model. Even so, it is only in 1219 that the crown issued specific instructions to royal justices to use jury verdicts in place of the ordeal. As I have argued elsewhere, the common law trial jury stepped more or less into the space left open by the ordeal and retained some of its central features; no discernable separation of law and fact and no offering of a rationale for the judgment reached (Shoemaker 1999). That the ordeal procedure was fundamentally tied to social status can be seen in Magna Carta, “the palladium of British liberties.” For example, chapter thirty-nine of Magna Carta expressly forbade King John from imprisoning, exiling, or seizing the property of a “freeman” without first securing “the lawful judgment of [the man’s] peers and by the law of the land” (nisi per legale judicium parium suorum vel per legem terrae).8 That is, judgment must precede execution (McKechnie 1914). The phrase “by the judgment of [his] peers” captured a customary expectation, widely observed on the Continent as well, that no man should be judged by anyone of inferior station. This did not originally have anything to do with a guarantee of a right to a criminal jury trial. Maitland showed decisively that the criminal petty jury did not exist in 1215 (Pollock and Maitland 1898: I, 152). McKechnie argued convincingly that the phrase held the following meaning for John’s barons. First, the peers of a tenant were other crown tenants, and the court in which they would render judgment on a peer was the Curia Regis. Similarly, a tenant of a mesne lord were other tenants of the same lord, and the court in which they would render judgment on a peer was the relevant baron’s court (McKechnie 1914: 378). There were wider applications as well. Jews being sued by Christians were entitled to the judgment of their peers, other Jews (Rotuli Chartarum 1837: 93). Marcher lords might even claim a right to be tried by other marcher lords (Pollock and Maitland 1898: 393). The phrase indicated, in other words, a demand to return to older practices; practices that John was widely viewed as having flouted by appointing his own favorites to judge in disputes with his barons or by disregarding legal process altogether. If the phrase “by judgment of [his] peers,” designated the forum and composition of the court, “per legem terrae” (by the law of the land) indicated the procedure by which judgment would be found. But again, this did not mean trial by a jury. While there is considerable ambiguity concerning what the “lex terrae” of chapter thirty-nine meant in 1215, it can be convincingly argued to mean the trial by ordeal. In the twelfth century legal text called Glanville, for example, “lex” clearly meant tests such as battle or ordeal (Glanville 2002: 2.19 and 5.5). In the Assize of Clarendon, the ordeal is explicitly equated with lex. In chapter 12 of the assize, red-handed thieves “shall have no law,” while mere suspects “shall go to the ordeal of water” (Stubbs 1890: 144). For the barons, the “lex” in this sense probably meant the duellum, trial by battle (McKechnie 1914: 393). The ordeal was more typically reserved for the unfree. Granted, “lex terrae” might also be used in less formal senses not associated with the ordeal, but in chapter thirty-nine the usage seems to have meant the duel or the ordeal. Of course, neither the barons nor King John had any way to know that a few months later, in Rome, Pope Innocent III would promulgate legislation at the Fourth Lateran Council that effectively ended the use of the ordeal in Christian Europe (Kuttner and Garcia y Garcia 1964). But in the summer of 1215, when the barons in England sought concessions from John, they sought to retain trial by battle for their own disputes, and were content to leave lower status individuals to the ordeals. The abandonment of the ordeal and the transition toward inquisitorial procedure brought a new set of legal procedures, but continued to inscribe a fundamental distinction between those who could be tortured in judicial proceedings and those who could claim immunity from torture.

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FIGURE 7.2  The beheaded body of King Saul displayed by the Philistines. Miniature in a French manuscript of the Bible. 1244-54. Source: The Morgan Library and Museum, ms. M.638, fol. 35v. Purchased by J.P. Morgan (1867-1943) in 1916.

CONCLUSION The juridical discussion of wrongs that followed after 1215 tended to categorize wrongs by the type of remedy sought, calling some private and some public. But the underlying logic of the category was not originally grounded upon a distinction in the type of wrong or the procedure used to litigate it. Rather, the fundamental distinction had to do with the status of the accused. The ability to compensate for breached obligations was for a very long time a privilege accorded to status, not to categories of crime, even though early modern and modern jurists have tended to treat them that way. The central claim of this essay is relatively modest: status distinctions are deeply embedded in the cultural history of Western law and in the processes by which that that law has been applied to individuals compelled by law to make their wrongs right. Among the implications of this claim are that any lawyerly attempts to locate the crime-tort distinction in the purely conceptual underpinnings of a given legal system are misguided. They are misguided for the simple

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reason that in both the common law and civil law traditions a set of hierarchical cultural commitments precede the distinction and ground it. We may no longer overtly subscribe to the status distinctions at stake, and may celebrate the moments of emancipation that punctuate early modern and modern legal history, but the prior cultural commitments continue to underpin the processes of law governing how we treat wrongs and wrongdoers. We should pay better attention to this feature of our legal history and our law.

CHAPTER EIGHT

Legal Profession SARA MENZINGER

The establishment of the Roman Barbarian kingdoms in the West marked not only the end of law schools, but also the demise of a professional class whose identity had been based for centuries on the acquisition of knowledge through a strict training programme. The issue was not that literacy levels in the new Western political entities were now unable to grapple with the complex field of Roman legal rules. Indeed, as it is for example testified by the Visigothic law (especially in the Lex Romana Wisigothorum), the ability to manoeuvre through a highly technical set of rules sometimes endured. Rather, the problem was precisely that Roman law was not reducible to the possession of technical knowledge, as it continued to represent throughout Late Antiquity an essentially cultural phenomenon. The inseparable link between Roman law and the arts of persuasion, expression and reason, coupled with Roman Law’s extraordinary capacity to incorporate ethical and political principles of associative life, made its survival practically impossible in a world that had gradually assumed a very different cultural, political and economic complexion. Although lines of continuity existed, especially with the provincial and military law of the late Roman period, the legal systems that emerged in central-southern Europe between the fifth and eighth centuries soon took the form of lists of prescriptions of a predominantly penal nature. These amounted to a series of obligations and prohibitions accompanied by detailed punishments for who those infringed them. On occasions, such rules represented proper instruments of administration and government, as in the Lombard and Frankish kingdoms. At other times, they were instead tantamount to a set of identity claims made by populations who sought to legitimate their political constitution through the posthumous construction of an “ethnic law” (Wormald 2003). In both cases, however, they were not laws that required specific training in order to be applied. Legal knowledge therefore became the privilege of individuals esteemed more for their high level of experience rather than culture. Apart from a few exceptions, the different forms of justice that operated intermittently in Europe until the advent of Charlemagne paid little consideration to whether legal experts differed substantially from connoisseurs of local customs.

JUDGES AND NOTARIES BETWEEN THE EIGHTH AND ELEVENTH CENTURIES: THE LOSS OF PROFESSIONAL DISTINCTIONS AND NEW MEANINGS OF LEGAL TITLES From the perspective of legal professions, the arrival of the Carolingians did not signal a real turning point. The missi dominici and scabini—public officials who carried out supervisory and administrative activities on behalf of the Emperor—that were scattered

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FIGURE 8.1  Judgment given by the Pharaoh (as in Gen. 41.1-13) portrayed as the AngloSaxon king with his noblemen. British Library, ms. Cotton Claudius B.iv, fol. 59. 11th century. Source: British Library, London, UK / © British Library Board. All Rights Reserved / Bridgeman Images.

throughout the territories of the Holy Roman Empire generally possessed moderate administrative knowledge, but they were not required to possess expertise of a strictly technical and legal nature. Although these new officials carried out precise fiscal and judicial tasks for the monarch and represented de facto public power, in reality they

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did not hold office in virtue of their wealth of cultural knowledge, but often on the basis of proven experience and their own local aristocratic influence (Bougard 1995: 139–200, 281–295). However, the desire for a public administration and the centralized management of justice—personified to a certain measure by these officials—led to a greater movement of iudices than in previous centuries. The meaning of the term iudex nevertheless varied greatly and was certainly far removed from the professional connotations that tend to be associated with it today. On the one hand, iudex was a title that appeared to be used extensively in early medieval Europe in order to designate not a profession as in the past, but the function of someone actually involved in the act of judgment; in other words, lay or ecclesiastical authorities occupying positions of control who therefore had the power to judge their subordinates or were reputed to be sufficiently authoritative to ensure respect for any decision made (Keller 1969). In some cases, especially in urban contexts, representatives of the highest level of society became iudices. Up until the late eleventh century, the title was at times even passed on hereditarily within the same family, confirming how such a status was more honorary than professional (Schwarzmeier 1972: 287–335; Wickham 2003: chapters 2 and 3). The contamination between judicial function and personal power—which reached its height between the end of the ninth and eleventh centuries following the decline of public power in the late Carolingian period— was thus the basis of an initial shift in meaning of the term iudex during the early Middle Ages in Europe. This was no longer a professional title but a designation that conveyed social prestige and a position of authority (Wickham 2004). During the same period, nonetheless, the term iudex was used in different ways and it continued to refer to a set of competencies, even if these clearly diverged from those of the past. In the decades around the turn of the tenth century, Carolingian judicial officers were less extemporaneous and were now recruited stably from among those who had received at least notarial training. The large number of iudices that proliferated during and after the reign of Charlemagne in the lands of the Holy Roman Empire, both to the south and north of the Alps, possessed more specialized expertise in contrast to the random and often improvised knowledge of the Carolingian scabini and the Lombard gastalds—officials in charge in Italy, with administrative and judicial powers. Familiarity with legal formularies and procedural manuals was the key defining trait of the early medieval notaries who were essentially assigned the task of compiling records and documenting the phases and resolutions of trials. The main characteristic that distinguished them from the rest of society was precisely their ability to read and write, which, during an era deeply marked by illiteracy, was already in itself a distinctive element in secular society. Although there were notable geographical differences, these iudices-notarii, including those exclusively recognized as iudices, tended on the whole to participate in judgments and sentencing, where they were consulted for their general legal knowledge and especially for their familiarity with writing and documentation. Therefore they did not preside over lawsuits either on an individual or collective basis, but provided counsel as individuals or, more often, in a collegial manner to the private or semi-public, ecclesiastic or secular authorities that, as noted, carried out the actual judicial functions. In other words, they did not hold any real power of jurisdiction, besides rare exceptions such as in southern Italy with its Lombard-Byzantine tradition where, from the end of the ninth century, judicial activity appeared to break from the political authority for which it was practiced. In the first decades of the tenth century, lawsuits in Salerno and Capua were in fact headed only by iudices, who generally judged alone or in pairs (Delogu 1997).

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In the rest of Italy, as in the other parts of Europe under Carolingian rule, the collective counsel provided by groups of iudices to rulers instead confirmed the virtual absence of any independent justice entrusted to professional judicial officials. The limited decisionmaking autonomy granted to these hybrid experts was probably a major reason for the relative ubiquity of the early medieval iudices-notarii. Moreover, such a figure could crop up in very different locations: in fact, it was not uncommon to read, in the space of a few years, the same name in imperial judgments, in the courts headed by episcopal authorities and by the secular representatives of sovereign power, and even in the aristocratic courts (albeit, at least initially, only on a rare basis). This degree of ubiquity would diminish from the end of the twelfth century, as the recuperation of a real judicial role in trials meant that many legal figures had to take definite sides, which on occasions was irreconcilable with their presence in different types of court. In northern Italy, the city of Pavia held key importance during the Carolingian era and the subsequent period for a considerable part of this nomadic group of officers. As the seat of a lively court school, the capital of the Lombard Kingdom and later of the Carolingian Regnum Italiae, Pavia for a long time represented a destination for those in search of technical and legal training of a notarial nature. Before the end of the eleventh century, Pavia was perhaps the only center that possessed what one could describe as a professional class: a large group of officials who held the same level of expertise, used a distinct form of writing and collectively introduced more structured and innovative procedures. They vaunted the title of notarius (or iudex et notarius) sacri palatii— judge and notary of the “Holy Palace,” how the whole of the administrative offices was designated in Pavia—to signal the attainment of their professional status within the local palace or as part of the entourage of the itinerant sovereign court. Furthermore, the specific organization of the center of learning in Pavia, where the qualification of notarius represented the preparatory step in the career of a person intending to become a iudex, was one of the main causes of the strong link between the two titles, especially in Italy, that existed for over three hundred years (Radding 1988, chapters 2 and 3; Bougard 1995: 128–204). The metamorphosis of the title and of the functions of the early medieval judge—who was no longer a public official appointed by the State with the power to adjudicate, but the drafter of deeds and an expert in standard formularies and the prevailing rules—transfigured their professional identity for centuries, so that it retained notarial characteristics throughout the early Middle Ages and well beyond. The mixed identity of iudex et notarius persisted even after the revival of law schools. Although the schools contributed to the restoration of professional boundaries that had been blurred for centuries, they did not break the judge’s traditional participation in notarial matters. Indeed, this custom continued throughout the higher Middle Ages, with judicial activity often being carried out alongside the drafting of documents still through the entire thirteenth century (Meyer 2000). The fiscal function assigned to the Palatium in Pavia helps to explain the other professional features of those who gravitated around it. The habit dating back to the Lombard era of depositing taxes collected in the kingdom’s various “stations” into the treasury of the Court of Pavia, accompanied by forms of registration and records of payments, undoubtedly had an influence on the development of fiscal expertise among the notarial and judicial workforce of Pavia. But the idea that taxes and collections were matters administered by iudices in the early Middle Ages was not limited to either Pavia or Italy. In a famous capitulary (the De villis capitulary) issued at the beginning of

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the ninth century and intended for the whole of the Holy Roman Empire, Charlemagne assigned the officials known as iudices with the lucrative task of collecting tenths from landholders and transferring them to the church (Lauwers 2012: 32). This was a clear expression of the mixture of the sacred and profane that characterized Carolingian politics as a whole, in which the boundary between ecclesiastical and public types of taxation began to disappear. What is of interest here, however, is the involvement in the fiscal sector of personnel with legal and notarial training who, with their familiarity with writing, appeared to the sovereign the obvious custodians of expertise required to organize tax collections, regardless of whether this regarded state tributes or church tithes. At the start of the twelfth century, European cultural life underwent dramatic changes. In the field of the legal professions as in many other areas, such changes denoted a clear emancipation from the early medieval era, but it is difficult to comprehend aspects of the later legal culture without taking into account the profile that the legal professions had acquired prior to year 1000. Two aspects in particular survived the watershed of the twelfth century: the enduring importance of the role of writing among the professions of iudices and notaries, and the involvement of legal experts in the tax system, a matter that would soon establish a monopoly of legal science across Europe.

THE REVIVAL OF LEGAL STUDIES IN THE TWELFTH CENTURY: THE PROFESSIONALIZATION OF JUDGES AND THE DECLINE OF A UNITED CLASS During the twelfth century, there was a veritable explosion of titles acquired through legal training; titles that previously had been used far less and with greater stringency. This clearly testified to the liveliness of European legal studies after centuries of torpor. The unplanned proliferation of law schools from the beginning of the twelfth century onwards was reflected in the fluctuating array of titles of those who attended them in the first few decades. Names such causidici, iurisperiti, legisperiti, legis docti, advocati, sapientes iuris and iudices not only appeared simultaneously in European documents but were often used at the same time by the same people. This confirms the impossibility of establishing a hierarchy of legal titles during and beyond the twelfth century, as this would incorrectly assume that their contents and use were consistent (Cortese 1992). The reality is that the recourse to different appellatives, which for a long time denoted a particular function rather than a profession, depended essentially on the context. Individuals could be defined causidici so as to underline their skill in court proceedings, legis/iuris periti/docti to highlight their knowledge, advocati when they represented a party in a trial or, more generally, an institution’s interests, and sapientes iuris if they perhaps offered counsel to a political authority in virtue of their legal expertise. However, these all remained approximate definitions and were easily contradicted by the infinite variety of local linguistic uses. In contrast to such varieties, two tendencies appeared nevertheless to consolidate following the revival of learned legal studies: on the one hand, the increasingly professionalized meaning acquired by the title iudex and, on the other, the separation of legal and notarial competencies. Indeed, the spread of learned and particularly Roman law during the twelfth century had a great influence on the separation of the figure of judge from that of the notary and on the subsequent decline of the mixed title. The

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fact that the profession of the tabelliones in Justinian law was clearly distinct from any judging activity increasingly led those who became experts in this field to free themselves from the title of notary which in contrast to before, now probably started to appear deprecating. At the same time, the birth of the Roman-canon trial increasingly forced judges across Europe to master new forms of knowledge, upon which the identity of the judicial personnel of the late twelfth and subsequently thirteenth and fourteenth centuries would be modelled. During this period, the distinctions in schooling in terms of the different curricula studiorum of notaries and judges highlighted the clear separation that now existed between the two professions and it became increasingly rare to see notary and judicial functions associated with the same person. The combined position was, however, not exceptional, because certain cases existed, such as in the Tuscan city states in central Italy where, still in the fourth decade of the thirteenth century associations of judges presented themselves as notarii et iudices and carried out the act of reorganizing public, notarial-like documents. Nevertheless, it is true, that from the thirteenth century onwards, notaries and judges would appear increasingly as two distinct cultural, professional and social groups (Menzinger 2006: 59–60). The turn of the thirteenth century therefore marked a first line of demarcation within the ranks of medieval legal experts. From this moment, notaries progressively saw themselves as practitioners of a profession and as such tended to make alliances with the medieval labor force. In urban contexts, they mixed with other professional associations, joined anti-aristocratic movements whereupon, in many cities, they became the leading intellectual force. They did not share the same fate as the iudices, whose title, especially from the thirteenth century onwards, reflected a high social status and a course of legal training that was quite distinct from that of the notary.

THE SCHOOL OF BOLOGNA AND THE INCREASE OF EUROPEAN CENTERS OF LEARNING: THE UNIFIED EXPERIENCE OF LEARNED LAW BETWEEN THE TWELFTH AND THIRTEENTH CENTURIES The focus of the specialist training received by a judge could have been a local, customary law or, as frequently occurred following Irnerius and the birth of the Bologna School in the mid-twelfth century, Roman learned law, but it could have also regarded canon and feudal law. This second scholarly component should not obscure the first one, in other words, the simultaneous appearance of collections of rules during the second half of the twelfth century, about which the jurists were not only experts but—and this is the most interesting aspect—were essentially their makers. As the examples of Pisa and Milan in Italy demonstrate, such compilations could assume an important identity marker in cities’ demands for autonomy from imperial power during an era of confrontations and clashes with Frederick Barbarossa. The communal judges were assigned the task of protecting, through statutes, the various rights and privileges of citizens that the Emperor might otherwise attack (Storti Storchi 1998: 63–99, 2012). As such, many judges abandoned the definition of iudices sacri palatii or iudices domini imperatoris/regis, in order to cancel out any residual trace of compliance with imperial authority. Indeed, if such a designation in the early Middle Ages had indicated the link with the School of Pavia, following the

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conflict with the German emperors, it instead became the expression of a political belief, and continued to be used only in cases of imperial alignment (Classen 1983: 23–91; Nicolaj 1991). The stabilization of law schools in the first decades of the thirteenth century resulted everywhere in a far more consistent and formal use of professional titles. From Bologna and Montpellier to Oxford, Cambridge and later Orléans, legal titles began to be awarded by Law Faculties and became the expression of public recognition of an individual’s expertise (Brundage 2008: 219–282). After centuries of appointments made from above, in which the title of iudex was granted from a higher authority—be this an emperor, a pontiff, a count, a bishop, or the government of a city—the twelfth century now introduced a radically different perspective. Things could not have been different: with the restoration of the Corpus iuris civilis by Irnerius and his school in Bologna, law quickly regained the stature of a science, and mastering it increased the probability of winning a case in either an ecclesiastical or secular court. The professional titles were supposed to ensure that whoever had completed their training was able to manoeuvre through the labyrinth of acts and procedures contained in the civil and especially canon trial manuals, which increased from the second half of the twelfth century onwards (Fowler-Magerl 1984). The revival of the study of Justinian texts was the driving force that triggered this change: whether the preference was for the study of the ancient Roman actiones and the evolution of the trial (as occurred in the minor Italian and French schools where above all the Code and the Institutes were analyzed); or the focus was on tackling the enormous private law legacy of Roman law, annotating the Code and venturing through the arduous passages of the Digest (which was especially the case in Bologna); or one rediscovered the ancient Roman public law contained in the last three books—the Tres Libri –of the Justinian Code (as occurred initially in peripheral centers of learning in Italy as well as in Arles and Montpellier), it was clear by now that the study of law required rigorous method and years of study and reflection on ancient sources (Cortese 1995: II, 103–195; ConteMenzinger 2012). Regardless of the different methods used in law schools from the twelfth to fourteenth centuries, no academic institution in Europe took an antiquarian approach to the study of Roman law. On the contrary, the extraordinary potential of an intellectual legacy that for the first time had re-emerged in its original grandeur was felt everywhere. Undoubtedly, it was the chance of putting Roman law to concrete and contemporary use that saw the establishment of the practice-oriented “Minor Schools” in northern Italy and southern France. As explicitly stated by a number of teachers, such schools were not aimed at training legal theorists, but rather at producing capable lawyers and judges well-versed in legal literature, who in four years learned to reflect dialectically on the ancient sources and were able to transfer their expertise from the lecture theatres to the court rooms.1 The fact that this happened in secular schools attended mainly by secular students, as in Italy, or in canonical schools, as in France or England, mattered very little. The French and English monastic and episcopal schools, which developed around the study of the Decretum of Gratian (c. end of the eleventh century—middle of the twelfth century), quickly appreciated the importance of the instruments of Roman law, and contributed considerably to furthering its study. In the ecclesiastical centers of learning of Arles, Avignon, Saint Gilles, Montpellier and Marseille, Roman law was studied in parallel

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FIGURE 8.2  A lecture to university students in Bologna. Laurentius de Voltolina, miniature. Berlin/Staatliche Museen Preussischer Kulturbesitz, Min. 1233. 14th century. Source: Wikimedia / The Yorck Project / GNU Free Documentation License.

with canon and sometimes feudal law, as attested by the extraordinary legal culture of numerous southern French bishops and archbishops and of the entourage of the numerous ecclesiastical professionals that surrounded them (Gouron 2000). Around the third decade of the thirteenth century, the excellent center for the study of civil law in Orléans was established in an episcopal school in a geographical area—northern France— that was located at a long distance from those southern regions that had experienced direct Roman rule and had maintained closer contact with its culture over the centuries (Meijers 1959). Even in far-away England, where Roman law was unable to count on almost any historical tradition, the twelfth century marked a period of great interest for legal studies in general, and Roman-canon law in particular. The usefulness of the tools of Roman law for English judges and lawyers is well illustrated by the good fortune that befell the work of Vacarius (died 1198), a legal expert from northern Italy who followed the Archbishop of Canterbury to England in around 1143. His lessons on the Justinian texts were so successful that they were initially banned and later readmitted by English kings in the canon law schools, including perhaps Oxford itself, where Roman law experts were already in the 1180s being called pauperistae, from the title of the work (Liber pauperum) in which Vacarius had constructed a sort of “introductory grammar” to the Justinian texts (Loschiavo 2013).

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The international dimension of Vacarius’ life can be assumed to be typical of the kind of career of a high-ranking jurist. The clear understanding of law on the part of kings, pontiffs, archbishops, bishops, lords and city governments as an instrument of government in fact highlighted the urgent need to recruit expert advisors able to contribute with their legal expertise to efficient administration, especially in the areas of justice and taxation. This enabled famous jurists, particularly from Italy in the first instance with their training in Bologna, to pursue international careers that had been unthinkable until now, and, in doing so, take advantage of the growing demand for professionalism from European political authorities. It also implied, in short, a major internationalization of universities, due to the obvious possibilities of earnings that a legal education promised. While students hailing from England, Provence, the kingdom of France, Germany or Spain quickly filled the lecture theatres of the Bolognese Studium, in Oxford there were even students from as far afield as Hungary. This international movement also included teachers: for example, brilliant Italian jurists taught in the law schools of Provence, especially in the twelfth century, while the most celebrated professors from Bologna were hosted in Spain and in the Kingdoms of France and England from the second half of the thirteenth century. The diaspora of jurists was further encouraged by factional fighting which led to the banishment of thousands of individuals, among whom many law teachers, from the cities of central-northern Italy (Brundage 2008: 221–262). It is possible to reconstruct this intellectual migration from available documents. While the mapping of legal manuscripts has made it possible to identify the presence of the first schools of learned law in Europe, the marginal comments and annotations on the Roman and canonical sources provide proof of the movements of famous jurists during the thirteenth and fourteenth centuries. The intense mobility of both the student and teaching population had important consequences: it led to the circulation of arguments and interpretations of sources that had become standardized in all the various centers of learning. This helped to homogenize the legal culture of lawyers and judges of different nationalities across Europe. The contamination between Roman and canon law, and in part also theology, carried out by Vacarius characterized the training of English jurists from the twelfth century on, and represented the common thread between English institutions and the so-called French and Italian “Minor Schools,” where Gratian’s Decretum was well known and cited in contrast to the civil law school of Bologna. The practical inspiration of the lessons taught in these schools further increased the joint interest in Roman and canonical sources for two key reasons. On the one hand, the new procedure applied in the medieval courts was based on ancient Roman rules, albeit mediated by centuries of canonical doctrine (a significant part of Gratian’s Decretum, which quoted little Roman law, had a strong focus on justice and trial procedure) and, on the other hand, the reform of Gregory VII at the end of the eleventh century had highlighted the central role that justice would play in the papal project for a new Church. The growing ability of ecclesiastical courts to attract cases that not only regarded the assets and members of the clergy, but also the widening sphere of secular interests, made canonical procedure an unavoidable subject of study. This was certainly the case in most feudal areas of Europe, where ecclesiastic justice could appear as the only true alternative to that of the aristocracy. However, the valorization of the judicial sphere as a common means of infiltrating high medieval society was not the only consequence of the great reform movement of the eleventh century. The clear separation between ecclesiastical and secular assets, the

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FIGURE 8.3  Alfonso X as a judge. Miniature in the Libro de los Juegos. Madrid, Biblioteca de El Escorial, ms. T.i.6. Second half of the 13th century. Source: DEA/A. DAGLI ORTI/Getty Images.

desire to build an ecclesiastical landed “patrimony” and, above all, the new insistence on the tithe as a compulsory tax owed now by every good Christian, led to the proliferation of conflicts, due to the often intense opposition within the secular world to such an aggressive programme. The spread of law schools across Europe was in fact driven by a common reason: the rapid increase of cases lodged in ecclesiastical and civil courts. The volume of confrontations and controversies demanded an unprecedented number of expert jurists able to frame new legal relations, which had arisen out of the increasingly multifaceted and complex political, economic and social organization of society.

THE WEAPONS OF LAW: LAWYER-SOLDIERS AND LAW AS AN INSTRUMENT OF SOCIAL, POLITICAL AND ECONOMIC ACHIEVEMENT IN THE THIRTEENTH CENTURY The role performed by law experts as consuls or as advisors to consuls in numerous governments of Italian city states and the key function that they held in episcopal, archiepiscopal or consular urban administrations in southern France, clearly illustrates the intense communication between scholarly thought, on the one hand, and administrative and judicial practice, on the other, that immediately existed in both secular and ecclesiastical spheres. As attested by the frequent civic and political engagements that dotted the biographies of jurists following the reappearance of law schools, training in law guaranteed a high social status. This is testified by the widespread claim of membership to the militia which, especially in Italy, was the term used to designate the military aristocracy or the chivalry (Maire Vigeur 2004). Whether membership of the militia was the cause or effect of the early political prominence of legal experts is, however, not yet clear. The fact that the individuals defined in the sources as iudices

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were constantly present in the highest levels of society in the centuries prior to the twelfth century meant that this important role was later considered an established phenomenon. The problem was that, from the beginning of the twelfth century, the term iudex underwent, as we have seen, a metamorphosis: its “authoritarian” associations diminished in favour of more explicitly cultural connotations, thus highlighting the novelty of an intellectual group whose prestige was now based on the sharing of professional expertise. The crucial point to understand is what occurred at the turn of the twelfth century at the start of the revival of the study of Justinian texts. In other words, the question is whether the cultural expertise that now began to be associated with the title of judge was likewise accompanied by a change in the types of families of iudices, who back in the eleventh century had normally hailed from the military aristocracy and had defined themselves “judges” in Europe. It would appear that the study of law represented a means of social advancement and that the identification of jurists with milites (knights) was above all the result of a cultural operation aimed at affirming jurists’ elite social standing. In Bologna and other Italian university cities, the revitalized Roman law culture played a liberating role in opening up access to judicial posts that were previously assigned on the basis of social class and that became now instead open to those who possessed university training (Fried 1974). Such an opening in the field of the legal professions stood however in stark contrast to a much less democratic vision of legal culture that existed in medieval communal society, especially from the middle of the thirteenth century onwards (Maire Vigueur 1986, 1994). There were dramatic differences between the political and academic conditions in the great university cities of the thirteenth century and the fluid situation that existed around a century earlier (Fried 1974). A good example of the desire on the part of jurists to be identified with the aristocracy of milites, or knights, is provided by a passage composed at the start of the thirteenth century by Azo (d. before 1233), one of the principal exponents of Bolognese legal science. As revealed by the common surname Porcus/Portius (which seems to connect his family to the activity of swineherds) that was usually associated with his name, Azo did not originate from the ranks of the local aristocracy, with which he undoubtedly aspired to be confused (Conte-Loschiavo 2012): The Emperor—Azo asserts—sets two times: one for war and the other for peace. In times of war four things are needed to defend the res pubblica: arms, the use of arms, victory and triumph. In times of peace, four similar things are required: laws, the use of laws, the rejection of calumny and the cult of law. These two spheres—arms and laws—must hold the same importance for the sovereign. One always needs the support of the other, and as the military world is positioned under the protection of laws, so the same laws are safeguarded with the aid of arms. They are so similar and useful that the term “arms” and the term used to designate those who handle them are well suited to laws and jurists: laws are thus known as arma and lawyers are called milites (Azo, Summa Institutionum, Prooemium, Fitting 1871: 539). The juxtapositions between advocati and milites and arma and leges reflect what would soon become a veritable motif among experts in both civil and canon law in the late Middle Ages, in other words, the conscious desire to merge the scientia iuris with the militia. Such a convergence was certainly evoked in ancient Roman texts, which offered various pretexts for ennobling legal professions. In a constitution of the fifth century— later merged into the Code of Justinian in the course of the sixth century—the emperors Leo and Anthemius had incisively asserted that:

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FIGURE 8.4  The just judges. Hubert and Jan van Eick, altarpiece (detail). Ghent, Flanders. 1432. Source: PHAS/Contributor/Getty Images.

Advocates who explain ambiguous questions which arise in the course of litigation, and who, by the ability of their defence, frequently, in both private and public matters, restore the fortunes of those who have been ruined, are not less useful to the human race than if they had preserved their country and their relatives by taking part in battles, and receiving wounds. For We do not think that those who are equipped as soldiers with swords, shields, and cuirasses should be considered the only ones who protect Our Empire, but that the advocates, also, who have charge of cases contend as soldiers, and, trusting in the glorious power of eloquence, protect the hopes, the lives, and the children of those who are distressed (Justinian Code, 2.7.14; trans. Scott 1932). While this “universal mission” of the lawyer appeared to resonate with Ciceronian values, the specific social implications of the jurist’s identification with the miles were not actually drawn from Roman legal texts but were an invention of medieval legal thought. Indeed, it was around the turn of the twelfth century that legal experts recognized the value of the passages of Corpus iuris civilis, in which laws were juxtaposed to arms, and lawyers to soldiers, so as to create a correlation between legal professionals and the urban chivalry (Fitting 1871: 538–547; Brundage 2008).

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DOCTORES IN IURE CIVILI ET CANONICO: THE POWER AND SOCIAL PRESTIGE OF LAW PROFESSORS BETWEEN THE THIRTEENTH AND FOURTEENTH CENTURIES Social prestige, political influence and academic power became deeply interconnected with the generation that followed Azo. At times the jurists in Europe’s large university cities now quite clearly represented a powerful lobby that was able to steer the decisions of political entities, including those that were populous and influential. The presence of legal professionals in decision-making bodies—as stable members of councils and protagonists of local politics—was without doubt a feature of many cities in centralnorthern Italy (Menzinger 2006). In contrast to the rest of Europe, secular educational establishments continued to prevail in Italy and, especially in civil law, the acceptance of political appointments did not represent an alternative to teaching. The holding of prestigious administrative duties in alternation with or at the same time as intense teaching activity during the first half of the fourteenth century did not represent an exception, not even in the case of authors of great intellectual stature, such as Bartolo da Sassoferrato (Lepsius 2013). The situation was slightly different in the field of canon law and in the schools of ecclesiastical civil law situated mainly on the other side of the Alps. In France and England, the people who received legal training at university were primarily ecclesiastical figures, and the study of law generally represented the first step in a prestigious career in the various dioceses scattered across each kingdom. Although this did not necessarily entail the interruption of scientific activity, in the sense that many experts in canon law wrote fundamental works following their appointment to ecclesiastical positions and their abandonment of academic posts, it was difficult for them to continue with or to periodically return to their teaching as often occurred with the Italian jurists of civil law. While legal professions started to appear increasingly identical in the late Middle Ages in terms of economic prosperity and social prestige, it was also the case that law professors in university cities represented ever more a separate class. The public discussion of theoretical cases, drawing on judicial cases that had perhaps caused a certain stir because they affected widespread interests, provides us with an almost theatrical image of the role of the law professor in the late medieval urban context (Bellomo 2008). The dialectical method, which was based on the contraposition of antithetical arguments as a means to arrive at the truth, was well suited to the wider debates that animated the ancient medieval piazzas, and where students and professors would stage lessons for the benefit of local society (Fransen 1985). The public role of the teacher of law, who as a judge or professor was accustomed to a large audience to persuade and guide,2 turned doctores legum into figures whose fame definitely went beyond the walls of courtrooms and lecture halls. These teachers were closely attached to their students not only because of the specific jurisdictional powers that Federick Barbarossa had granted them, but also due to a growing number of economic reasons. Law professors were in fact adept at profiting from academia: besides their income from teaching and legal services, they did not hesitate to make money from the university lodging market, the production of books and, above all, usury. They were commonly known to loan out sums of money at interest, especially to foreign students to enable them to complete their costly university education, and to also invest their capital beyond the realm of the university.

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In this regard, the story of the Accursio family in Bologna, the famous glossators of the Justinian Corpus iuris civilis, offers a telling picture of the success of many families of jurists of the late thirteenth and fourteenth centuries. The owner of a thriving shop where legal texts were reproduced for the Bolognese student market, Accursio managed to make provisions for three of his sons to receive their doctorates in law at a very young age, thus launching their careers as academic teachers. Accursio’s sons, in turn, became teachers or advisors of secular and ecclesiastical authorities in Bologna, Rome, Montpellier, Avignon, Paris, Burgos, Salamanca and Oxford, just to cite the principal places of their appointments. They pursued and expanded the book publishing business set up by their father, and at the same time managed hospitality facilities for the local

FIGURE 8.5  Saint Lucy before the judge Paschasius. Altichiero da Zevio, fresco. Padua, Oratory of Saint George. Second half of 14th century. Source Frans Vandewalle/Snarfel.

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university population. Together with other colleagues from Bologna and further afield, the brothers were also heavily involved in money lending (Soetermeer 1997). In fact, their excessive wealth and unscrupulous exploitation of university students was such that it directly earned one of them, Francesco, the disapproval of Dante who assigned him, along with other jurists tarnished with similar sins, to the depths of Inferno in his Divine Comedy (Menzinger 2015).

NOTES

Preface 1. Laurence Rosen, Law as Culture: an Invitation (Princeton: Princeton University Press, 2006), 199–200. 2. Pierre Legrand, Fragments on Law-as-Culture (Deventer: W E J Tjeenk Willink, Schoordijk Institute, 1999), 5. 3. Malcolm Andrews, Landscape and Western Art (Oxford History of Art) (Oxford: OUP, 1999), 53.

Introduction   1. Petrus Damiani, ed. Die Briefe, letter 57 at page 188. This text is largely quoted in literature about the history of chess. Classical Murray (1913); recently Adams (2006): 49.   2. Gloss Ad tabulas to auth post C. 1.3.17, Interdicimus: “Sed quid de scaccos? Responde: forte secus, quia in ingenio naturali consistit, nec committitur viribus fortunae.” Recent bibliography on the Piacenza Mosaic repeats an error of Murray (1913: 138), where an Authentica added by medieval glossators to the Code of Justinian is wrongly quoted as Codex 1.6.17. Cfr. Tronzo (1977) at 19 and Vaccaro (2007) at 145.   3. So Petrus Cantor (2004), chap. 76 (at 512); all the three version of the Verbum adbreviatum recently published in the Corpus Christianorum (n. 192, 2004 and 2012) devote a chapter to iudicia peregrina, collecting holy scriptures and cases against ordeal and trial by battle.

Chapter 1   1. On the date and authorship of the treatise see Arnold (1977): 519, Brand (1996): 66–73, and Barton (1993): 1–142.   2. 1 Conc. Lat. c. 8 (1123); 3 Conc. Lat. c. 14 (1179), COD 218–19 = X 3.38.4.   3. 3 Conc. Lat., c. 14 (1179), = X 3.30.19; 4 Conc. Lat., c. 44 (1215) = X 3.13.12.   4. 2 Conc. Lat., c. 1–2 (1139).   5. 1 Comp. 3.33.8 = X 3.38.6 (1177); 1 Comp. 3.33.18 = X 3.38.15 (1159–81).   6. Summa Parisiensis gloss to C. 16, q.7, c.26, v. Pie mentis.   7. Huguccio, Summa decretorum (MS Admont 7), gloss to C.16 q.7 c.35, v. Considerandum.   8. Huguccio, Summa decretorum, gloss to C.16 q.7 c.36, v. reliquias sacras.

Chapter 2   1. The story is related in the letter attributed to Frederick, ed. in the preface of Otto von Freising, ed. Waitz (1912: 4).   2. Otto von Freising, cit., p. 116: “Verumtamen barbaricae deposito feritatis rancore, … Latini sermonis elegantiam morumque retinent urbanitatem.”   3. Ivi: “Tota illa terra inter civitates ferme divisa …, vixque aliquis nobilis vel vir magnus tam magno ambitu inveniri queat, qui civitatis suae nen sequatur imperium.”   4. Ivi: In hoc tamen antiquae nobilitatis immemores barbaricae fecis retinent vestigia: quod, cum legibus se vivere glorientur, legibus non obsecuntur.”

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  5. E. Gibbon, Decline and Fall of the Roman Empire, vol. 5 (first published 1788), London— New York 1910—repr. 1962, p. 200: “Ambitious of restoring the splendor of the purple, Frederic the First invaded the republics of Lombardy with the arts of a statesman, the valor of a soldier, and the cruelty of a tyrant. The recent discovery of the Pandects had renewed a science most favorable to despotism; and his venal advocates proclaimed the emperor the absolute master of the lives and properties of his subjects. His royal prerogatives, in a less odious sense, were acknowledged in the diet of Roncaglia, and the revenue of Italy was fixed at thirty thousand pounds of silver, which were multiplied to an indefinite demand by the rapine of the fiscal officers.” Since Gibbon, many historians from various national traditions have adopted this interpretation.   6. Fögen (2006a: 68–73), expresses doubts about the real meaning of this event and emphasizes the discrepancies in the sources. Cfr. also Frenz (2007).   7. Three of the four “Laws of Roncaglia” were rarely used in the Middle Ages and were eventually lost. They were found in 1969 but there are doubts about the text and its tradition. See the recent volume almost entirely devoted to Roncaglia Gli inizi del diritto pubblico 2007.   8. For the critical edition of the four laws see MGH DD F I,2, 1979, 27–32 (docc. 237–240).   9. The Lex Romana canonice compta which was (as its title indicates) of ecclesiastical origins, was one of the most circulated. 10. It was originally not included in the compilation by Gratian but added by Paucapalea around 1150. On the origin and the history of this famous forgery see cfr. J. Fried (2007) and, for more bibliography, Gandino (2009). 11. Innocent IV’s letter (which has raised doubts on its authenticity) is edited in Winkelman (1885), n. 1035, p. 698. Comment in Maffei (1964: 78–82). 12. Cfr. Collins (2002), Maire-Vigueur (1982, 2010: 340–345). 13. “… assisas Rogerii avi nostri, usus quoque consuetudines temporis Rogerii [et] Guillelmi secundi, consobrini nostri… generaliter in partibus ipsis obtentas” (Winkelman 1880: 605 nr.716).

Chapter 3   1. Consisting of four parts—the Codex, the Digest, the Institutes and the Novellae—the Justinian’s Corpus iuris civilis was promulgated between 529 and 534.   2. At the end of the third century, the Gregorian and Hermogenian Codes, consisting mainly of private rescripts and arranged thematically under titles, were probably the first legal works to appear in the new codex rather than roll format (Corcoran 2013).   3. The opposition between the Old Law and the New one is first attested in the Tertullian’s treaty Adversus Iudeos, 6, 1 (Gaudemet 1985: 15).   4. Detailed examples of such adaptations are given by Treschow (1994: 90–102).   5. On these forms of exposition and diffusion of the legal science, see Bellomo (1995: 128–148).   6. Accurse, gl. notitia to Digest I, 1, 10, de iustitia et iure, l. iustitia; E. Cortese (2002: 71, n. 48).   7. This passage from the Moralia regum by Radulphus Niger has been edited in Schmugge (1977: 3).   8. Cf. Isidore of Séville, Etymologiae, lib. 5, cap. 27, § 24 (available online: www. thelatinlibrary.com/isidore/5.shtml).   9. Brian Stock’s phrase has been adapted by Alain Boureau in order to describe the “initial gathering [of the theologians] around the Sentences by Peter Lombard” (Boureau 2007: 53). 10. Among the twenty-four sections forming the first two books of the Summa by Raymond of Peñafort, twenty-three have the same titles as the sections of the decretals collections. Cf. Michaud-Quantin (1962: 36).

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Chapter 5   1. On the ordines iudiciarii and on medieval literature on trials see: Stickler (1994); Nörr; Fowler-Magerl (1984, 1994).   2. On exempla see in particular Welter (1927), Bremond, Le Goff (1982), and lately: Construire l’exemplarité (2008).   3. See also ibid., pp. 196–197 where the claimant is Saint Jacob and the judge is the Madonna.   4. This story is also to be found in some manuscripts including works of the pseudo-Caesarius of Heisterbach (Die Wundergeschichten, n. 3, pp. 212–213).   5. Arresta Amorum; the first dated edition of the Arresta—without Benoit Court’s comment— was issued in Paris in 1500 by Le Petit Laurens.   6. The complex structure of the judicial institutions of the kingdom of France “invades” the language of courtly love: arr. 1: Prevost de dueil; arr. 2: Ballif de Ioye; arr. 3: Viguer d’amours en la province de beauté; arr. 4: Maire de boys verdz; arr. 5: Conservateur des haultx privileges d’amours; arr. 7: Conseillers ordonnée sur les faict de la iustice du Tresor d’amours; arr. 9: le Marquis des fleurs et viollettes d’amours; arr. 10: le juge de la garde de seaulx establis aux contraictz d’amours; arr. 11: le maistre des forestz et des eaues sus les facts du gibier d’amours; arr. 12: les dames du conseil d’amours en la chambre de plaisance; arr. 15: Reformateur general sur les faicts des abus d’amours; arr. 16: Auditeurs des causes d’amours; arr. 13: prevost Daulhepine; arr. 14: Seneschal des Ayglantieres.

Chapter 6   1. Patterson (1982: 27–34) observes that dominium only acquired its later meaning in the first century BC, as the term dominus shifted from meaning “slaveowner” to “proprietor.” See too Patault (1977).   2. One thinks also of the res communia, publica, universitatis, and nullius (including res sacrae, sanctae, and religiosae) described at Inst. 2.1.   3. In general, see Dig. 43, including the interdicts Unde vi (43.16.3.15), Quod vi aut clam (43.24.12, 43.24.13.pr), Uti possidetis (43.17.4), or Utrubi (43.31.1.pr) for movable property.   4. Innes (2006: 70–74) contrasts “Roman” possessores and Burgundian travelers, faramanni, or Burgundofarones.   5. Bois (1989: 200) speaks of a later period. It is not, I think, unreasonable to extend this appellation to earlier large ecclesiastical landholdings. For a view of ecclesiastical immunities less as alienations of than as monuments to royal authority, see Rosenwein (1999).   6. The term refers to the late medieval Empire but conveys how proximity to the ruler was indispensable for large-scale landholding in the early Middle Ages (Moraw 1976).   7. Concerning written property transfers, the pertinent distinction is not that between clergy and laity but that between institutionalized and non-institutionalized actors: if your documents did not go to an ecclesiastical institution that survived until 1800, they would be unlikely to survive for modern historians (Brown et al. 2013: 375; Esch 1985).   8. On the shift from horizontal family groupings to lineages, see Duby (1972) and Jussen (2002).   9. See on the “feudalism” debate: Brown (1974), Reynolds (1994). 10. Or the titles were unrecognizable, as in the story of the Earl Warenne brandishing a rusty sword in response to a Quo warranto proceeding or the quite real carving knife kept as a title at Durham Cathedral Priory (Clanchy 1993 [1979]: 36–40, 258) 11. The king of France’s directe universelle, mentioned in the ordinance (Code Michaud) of 1629, was affirmed by an arrêt of the conseil du roi of 1682.

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12. E.g. Two arrêts of the Parlement of Paris pronounced in “in casu novitatis et saisine” on May 30, 1533, one concerning the possession of a benefice and the other the possession of a warren: Archives nationales de France, Paris, X1a172, f. 240v-241 and 248-248v. 13. Mediathèque Coeurderoy (formerly Bibliothèque municipale), Tonnerre, Cartulary of Saint-Michel (hereafter CSM), volume H, 1r-v: Milo, Count of Tonnerre gave: “omne alodium que possidere videor in villa que vocatur curtis secreta tam silvam quam terras et prata et homines ibidem pertinentes cum ecclesia … unde vestitus appareo jure hereditario totum ad integrum cum voluntate et consensu dilecte coniugis mee Ermengarde et carissimorum filiorum meorum Anardi et Rainardi et Alberici.” The manumission of June 19, 1411 (CSM H, 103r-110v, and CSM D, 100v-106v) did not specify whether it was personal or real. The bailiff of Sens, on October 25, 1514 (CSM H, 32r-39v), and the maire of Coussegrey on September 29, 1521 accepted this argument and awarded the abbey the successions of personally free serfs (CSM H, 91v-92v). 14. For this reason, late medieval kings forced churches acquiring property to purchase mortmain licenses. The Chapter of Paris had to pay 3,000 livres tournois to the king when it purchased a double seigneurie for 6,000 gold écus (perhaps as much as 12,000 livres tournois) in 1417 (Fourquin 1964: 337). 15. The Penguin translation has “race, people, party, family or corporation—only through some general category” for the original “Race, Volk, Partei, Corporation, Familie oder sonst in irgend einer Form des Allgemeinen.” 16. In late medieval France these options respectively entailed the devolution of lineage property (i) to all surviving relatives of the same degree on the paternal or maternal side, (ii) to those of the first group related to a piece of property’s acquirer (an astonishing requirement in many cases!), (iii) to surviving descendants of the property’s acquirer, or (iv) to the nearest sibling group descended from the property’s acquirer.

Chapter 7   1. See, e.g., the insightful exchange between Donahue (2003) and Hyams (2000).   2. Symposium: The Public-Private Distinction, 130 The University of Pennsylvania Law Review, 1289–1608 (1982).   3. In what follows, I have used the Latin text of Gregory edited by the Monumenta Germaniae Historicae, Scriptores Rerum Meronvingicarum, Gregorii Turonensis Opera, tom. I, pp. 366–368; 432–434. (Hannover, 1885). Translations are my own.   4. Daniel 3:1–30 (KJV).   5. Pope Nicholas I, for example, forbade the judicial ordeal in the adultery accusations that Lothair II brought against his wife, Queen Teutberga. Regesta Pontificum Romanorum, ed. Jaffe (Leipzig, 1885), no. 2872. Pope Steven V prohibited ordeals of iron or water in an accusation of infanticide (Decretum, C.2, q.5, c.20), though as John Baldwin points out, Stephen apparently confused the ordeal with torture designed to elicit a confession. Baldwin (1961: fn. 9).   6. Liber adversus Legem Gundobadi et impia certamina quae per eam geruntur; Liber Contra Judicium Dei in his Opera, ed. Baluzius (Paris 1666), T. I. 107 sqq., 300 sqq., and in PL 104:113–126 and 250–258.   7. C. 38. Constitutiones Concilii quarti Lateranensis una cum Commentariis glossatorum. 1981: 1–172.   8. McKechnie (1914: 377). There is some dispute concerning whether the clause should be read as “lawful judgment of peers or the law of the land” or “lawful judgment of peers and the law of the land.” See McKechnie (1914: 381–382) for a detailed discussion.

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Chapter 8   1. See the Prooemium of the second writing of the Libellus Disputatorius of Pillius de Medicina, edited by Belloni (1989): 54.   2. In many ways, this is not very different from the situation described for the early Modern Ages in Hutson (2007).

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INDEX

Abelard, Peter 54 Accursius (Accursio) 5, 55, 138 actions pétitoires (actions for title) 104, 105 actio spolii 102, 104, 108 Adams, Jenny 140 Adrian IV (Pope) 23 adversarial inquiry 54, 56 “age of grace” 46, 58 Agobard 120 Alaric II 50 Albert the Great 67 Alberti, Leon Battista 59 Alexander III (Pope) 110 Alexander of Telese 30 Alfred the Great, King of Wessex 49, 50 Alphonse the Wise 4 Ambrose, Bishop of Milan 64 Anarchy 21 Andrews, Malcolm xii Anglo-Saxon period 49–50, 68 legislation 114, 115 annonae 97, 98 Ansegise 26 Anthemius 135 antilegalism 46 Aquinas, Thomas 53, 57, 64, 65, 66 argumentation. See legal argumentation aristocracy xii, 23, 72, 95, 97–100, 102, 112, 135. See also elites Aristotle 66 Nicomachean Ethics 15–16, 65, 67 Politics 67 Arnold, Morris S. 140 Arnold of Brescia 23 ars boni et aequi 8 Assize of Clarendon 6, 19, 122 assize of mort d’ancestor 19, 21, 103 assize of novel disseisin 19–21, 103 Assizes of Ariano 35 Augustine (Saint) 8, 83 Augustus, Philip 19, 22 Auno 116 Austregesil 115

Aviti of Clermont 100 Azo of Bologna 67, 135, 137 balance of power 26–7 Baldwin, John 143 barbarian law codes 50–1, 97, 114, 125 barons 122 Bartholomew, Archbishop of Capua 37 Bartlett, Robert 5 Bartolo of Sassoferrato 9, 137 Barton, John L. 140 Beauvau, Jean IV de 111 Becket, Thomas 21–2 Bede 114 Bedos-Rezak, Brigitte 109 Bellamy, John 107 Belleperche, Pierre de 105 Bellomo, Manlio 141 benefices 103, 105 Bernard of Clairvaux 91 Bernardino of Sienna 67 Bertram of Le Mans 100 bishops 17, 22, 98, 101 blood feuds 115, 118, 119 blood-heirs 18 Boethius 97 Bois, Guy 98, 142 Bologna School 55, 130–1, 132, 133, 135 Bonaventure 54 Boniface VIII (Pope) 57, 77 Bouchard, Constance 102 Boureau, Alain 141 Bracton 11 Brand, Paul 20–1, 140 Bremond, C. 142 Brentano, Lujo 68 Brown, Warren 99, 142 Brunhild (Queen) 117 Bulgarus 78 Burckhardt, Jacob 108 burgesses 68, 69 Burgundian codes 50, 114 Byzantine empire 6, 9, 30

166

Caesarius of Histerbach 86, 87 caliphs 32, 33, 98 canon law 8, 17, 18, 28, 45 convergence between theology and the law 52, 53–6 doctores in iure civili et canonico 137 judicial inquiries 121 property disputes 21–2, 103–4 property rights 99, 101, 102, 105, 110 Cantor, Petrus 140 Cappellanus, Andreas 92 Caracalla 97 cardinal virtues 2–3 Carolingian period 25, 50, 98, 101–2, 108, 109, 125, 127, 128, 129 Cassiodorus 64 casus 56 casus novitatis 103 Cessolis, Jacobus de 5 Charlemagne 25, 49, 50, 125, 127, 129 Charles the Simple 102 Chaucer, Geoffrey 16 Cheney, Mary 21 chess, game of 1, 3, 4–5 Childebert (King) 117 chivalry 134 Chramnesind 116–19 Christian norms “age of grace” 46, 58 antilegalism 46 convergence between theology and the law canon law 52, 53–6 papal legislative prerogatives 52 scholastic culture 8, 24, 54 law of Christ versus law of Moses 46–8, 49, 58 modes of fulfilment 48–9 Biblical and Roman models 49–51 property rights 100, 101, 112 salvation 46, 48, 83, 107 theological normativity and absorption of the law 56 claim for theological superiority 57–8 legal frameworks 56–7 permanence and mutation of the old law 58–9 universality and indeterminacy of the “New Law” 46–8 churches: lay patronage 17–18 conflicts between ecclesiastical and secular justice 19 Church Fathers 64, 65, 83

Index

church lands 21–2, 99, 100, 102, 103, 105, 112, 133 pious bequests 107–8 city-states 39. See also Italian cities; urban statutes civil law 104, 113 Clovis 98 codification. See law codes Cola di Rienzo 28–9 Collins, Amanda 141 Comestor, Petrus 53 commerce 6 guilds (see guilds) common law 19, 22, 113 communal power 9 compensation 49–50 compensatory actions 113, 114, 119, 123 Compilatio tertia 27 complainte en nouvelleté 103 confession 5, 85 conflict resolution 4, 5, 22, 77 Constance of Altavilla 26 Constantine 28, 59 constitutionalism 26 cosmogony 36, 38 imagery 27–9 Liber Augustalis 29, 36, 78 urban statutes 9, 38–43 constitutions of Clarendon 6, 19 Conte, Emanuele 101, 102 contractual obligations 7 coronations 9, 23–4, 31, 35 Corpus Juris Civilis 24, 25, 29, 36, 136, 138, 141. See also Justinian Code 5, 8, 12, 36, 131, 136, 140 Digest 52, 96, 131 Institutes 11, 12, 36, 131 Cortese, E. 55 cosmogony 36, 38 courtly love 142 craftsmen 62, 66, 69–72. See also guilds Cresconius 53 criminal law 113, 114, 116, 117, 118–20, 128 Crusades 6, 36–7 cultural history xi–xii cultural syncretism 32, 35 Cunningham, William 64 Cushing, Kathleen 52 customary law 38–43, 110, 118–19 d’Ableiges, Jacques 104 damages 114

Index

Damian, Peter 4 Dante 15–16, 53, 139 D’Auvergne, Martial 93 death 7–8, 16 de Clare, Gilbert 109 de Court, Benoit 93 de Machaut, Guillaume 93 Demiurge 83 Devil, trials of 88–90 Devil’s right 84, 86–7 dice, game of 1, 4 Diet of Roncaglia 24, 141 dispute resolution 4, 5, 22, 77, 99 divine legitimacy 29, 36, 38 doctores in iure civili et canonico 137–9 Domboc 49, 50 dominium 95, 104, 142 Donahue, Charles 143 Donnelly, John Jr. xii Duby, Georges 142 Durand, Guillaume 79–80 ecclesiastical lands 21–2, 99, 100, 101, 102, 103, 105, 112, 133 pious bequests 107–8 economic growth 6 Eleanor of Aquitaine 92 Elias, Norbert 106 elites avoidance of legal process and punishment 120, 122, 123 military aristocracy 135–6 property rights 95–100, 102, 106, 110, 112 urban elites 7, 9, 40, 41, 42, 75 Elsey, John 74 enfeoffments 106–7, 108 Epstein, Stephan R. 63 Ermengarde, Viscountess of Narbonne 92 Erwig (King) 101 “ethnic law” 125 exempla 85–8, 142 Falco of Benevento 35 family property 100–6, 108, 110, 112 feoffment to use 106 feudalism 6, 7, 19, 102–4, 105 feuds 115–19 fiefs 104, 105 Fögen, Marie Theres 141 food doles 97, 98 Fourth Lateran Council 5, 6, 27, 36, 53, 78, 85, 121, 122

167

Fowler-Magerl, L. 142 Fra Angelico 14, 15 Fraher, Richard 121 Frankish elites 95, 97, 98, 99, 100, 102, 119 Frankish law codes 114, 125 Frederick II, Holy Roman Emperor and King of Sicily 26, 27, 28, 29, 36–8, 78 Frederick Barbarossa 9, 23–6, 42, 130, 137 Fulk le Réchin of Anjou 108–9 Gaius (jurist) 95 Gál, Alexander 118 gambling 4 Gandino, Germana 141 Geary, Patrick 108 George of Antioch 30 Gerard of Abbeville 58–9 Germanus of Auxerre 98 Gibbon, Edward 141 Giles of Rome 16 Giordanengo, Gérard 56 Glanvill 19–20, 122 Godelier, Maurice 96 Goebel, Julius 119 Goody, Jack 103 grain doles 98 Gratian 15, 17, 28, 41, 51, 53, 54, 55, 57, 59, 101, 131, 133 Gregory I (Pope Gregory the Great) 52 Gregory VII (Pope) 52–3, 133 Gregory IX (Pope) 37, 38, 53 Gregory of Tours 98, 100, 115, 116, 117, 118, 119 Gross, Charles 68, 69, 71 Grosseteste, Robert 48 guilds 6, 61 credit facilities 74, 75 criticisms of 62–3 culture of the just price and the market 63–7 facilitation of trade 72–4, 75 medieval economy 61–3 monopolies 67–8, 69, 71–2 private authority: occupational guilds 69–72 public authority: guild merchant 67–9 quality control 73, 75 Guntram (King) 117 Halsall, Guy 98 heirs 18

168

Henry II, King of England 19–21, 71, 92, 103 Archbishop Becket’s case 21–2 Henry III, King of England 69 Henry IV, Holy Roman Emperor 55 Henry VI, Holy Roman Emperor 26 Henry of Ghent 46, 48–9, 57 hereditary property 102, 110 heresies 83 Hickson, Charles R. 63 hierarchy of norms 8 Hincmar of Rheims 46, 50 Holy Land 6 Holy Roman Empire 23, 36, 126, 129 Honorius II (Pope) 27 Honorius III (Pope) 37, 56 Hostiensis 59 Hotman, François 96 Hugh of Saint-Victor 89, 91 Huguccio 18 humanism 59 Hutson, Lorna 144 Hyams, Paul 143 Ibn H · ama¯du 32 imperial power 23–6 balance of power 26–7 inheritance 102, 110 Innes, Matthew 97, 98, 142 Innocent III (Pope) 26–7, 36, 38, 43, 56, 78, 85, 121, 122 Innocent IV (Pope) 28, 141 Irish laws 114 Irnerius (Irnerio) 24, 55, 78, 131 Isabelle of Hainault 92 Isidore of Seville 49, 55, 141 Italian cities 23–4, 26, 39, 40, 127–8, 142 law schools 55, 128, 130–2, 133, 134, 137 Rome 6, 23, 27, 29 iura regalia 25 ius civile 8, 9 ius gentium 8 ius mercatorium 6 ius naturale 8 ius novum 52 ius patronatus 17–18 Ivo of Chartres 53, 54 Jacobus de Varagine 81, 87, 92 Jacopus de Theramo 90 Jégou, Laurent 101 Jews 58, 122 John, King of Bohemia 93

Index

John, King of England xi, 11, 22, 122 John of Spain 54 judges 134 eighth to eleventh centuries 125–9 images of 12 professionalization: twelfth century 129–30 judicial duel 5 judicial inquiries 121 judicial process 5–6 jurists 26, 42, 95, 96 influence on social, political and economic achievement 134–5, 137 law schools 128, 130–4, 137 jury trial 22, 122 Jussen, Bernhard 142 Justice Bracton 11 Henry II of England 19–21 human and divine 11 images of 11–15 lay patronage 17–18 conflicts between ecclesiastical and secular justice 19 poetry 15–16 theological ideas 16 Justinian 7, 26, 45, 52, 53, 55, 95, 104, 130, 135 Corpus Juris Civilis 24, 25, 29, 36, 136, 138, 141 Code 5, 8, 12, 36, 131, 135, 140 Digest 52, 96, 131 Institutes 11, 12, 36, 131 images of 12 wars of reconquest 98 just price 63–7 Kantorowicz, Ernst 110 kingship coronations 9, 23–4, 31, 35 Frankish elites and 98–9 Frederick II of Sicily 26–9, 36–9 Roger II of Sicily 29–35 sacerdos iusticiae 35 knights 135 Köbler, Gerhard 101 Koziol, Geoffrey 102 Krynen, Jack 110 Kuttner, Stephen 41 land 7. See also church lands assize of novel disseisin 19–21

Index

property disputes 19–21, 99 writs of right 19–21 Landau, Peter 105 Langholm, Odd 67 Last Judgment 13–15, 77, 81 Lateran III 18 Lateran IV 5, 6, 27, 36, 53, 78, 85, 121, 122 law codes 26, 45, 50, 114 Anglo-Saxon period 114, 115 barbarian codes 50–1, 97, 114, 125 Theodosian Code 26, 45, 114 Lawrence of Spain 67 law schools 55, 128, 130–4, 137 lay patronage 17–18 conflicts between ecclesiastical and secular justice 19 legal argumentation 8, 77, 85 exempla and sermons 85–8 legal culture 10 legal humanism 59 legal norms 8, 26 legal process 120–3 legal profession 7, 125 doctores in iure civili et canonico 137–9 influence on social, political and economic achievement 134–6 judges and notaries: eighth to eleventh centuries 125–9 law schools 130–4, 137 membership of the militia 134–6 professionalization of judges: twelfth century 129–30 legal rules 8 legal vocabulary 113 legitimacy 29, 36 Le Goff, Bremond 142 Legrand, Pierre xii Le Jan, Régine 101 Leo I (Pope) 64 Leo IX (Pope) 52 Leo the Great, Holy Roman Emperor 83, 135 Levita, Benedictus 101 Levy, Ernst 101 Lex Regia Vespasiani 29 lex Salica 50 lex talionis 48, 55 Liber Augustalis 29, 36, 78 literacy 7 Locke, Hew xi Lombard, Peter (Petrus Lombardus) 53, 54, 84, 141 Lombardian law 55

169

Lombard Italy 23, 42, 98, 125, 127, 128 Lorenzetti, Ambrogio 12 Lothair II, Holy Roman Emperor 27, 143 love trials 92–4 Macnair, Mike 22 Maffei, Domenico 141 Magna Carta xi, 11, 22, 39, 40, 122 Maire-Vigueur, J-C. 141 Maitland, Frederic William 110, 122 marcher lords 122 Marcion of Sinope 83 Marie, Countess of Champagne 92 market theory 63–7 monopolies 67–8, 69, 71–2 price fixing 63–7 marriage contracts 7 Marshal, John 21, 22 martyrs 12 Mauss, Marcel 96 Mayali, Laurent 55 McKechnie, William Sharp 122, 143 merchants 6, 64 guilds 67–9 mercy 49 Merovingian period 49, 98, 115 mesne lords 122 Michaud-Quantin, Pierre 141 military aristocracy 134–6 Milo, Count of Tonnerre 143 Milsom, S F C. 20, 21 miracles 85, 86 monastic foundations 107 monetary compensation 49–50 monopolies 67–8, 69, 71–2 Montivilliers, Abbess of 106 Montpellier 43, 131 Moses 46, 47–8, 49, 80 Murray, H J R. 140 musical theory 53–4 Muslim rulers 31–3, 37, 98 Napoleon 45 Nassiet, Michel 110 natural law 46, 55, 56, 58 Neckam, Alexander 4 Nicholas I (Pope) 143 Nicolò de Giacomo de Bologna 15 Norman kings 32–3, 35, 36, 37 norms 8, 26 Christian (see Christian norms) codification (see Law codes)

170

evolution 45–6 urban statutes 9, 38–43 Nörr, K W. 142 notaries 125–9, 130 obligations 113, 125 Odo (King) 102 Odofredo 55 Ogilvie, Sheilagh 63 Olivi, Peter John 48, 67 ordeal, trial by 77–8, 86, 120–2 ordines iudiciarii 78–9, 142 original sin 84 Orléans 131 Otto von Freising 23, 24, 140 Ourliac, Paul 40 ownership 95–6. See also property rights Oxford 131, 132, 133 papacy 6, 9, 17, 23, 26–7 balance of power 27–9 legislative prerogatives 52 papal privileges 22 Paris 56, 121 Patault, Anne-Marie 142 patronage of churches 17–18 conflicts between ecclesiastical and secular justice 19 Patterson, Orlando 142 Paucapalea 141 Paul (Apostle) 46 Paul the Deacon 100 Pavia School 128, 130 Peace of Constance 42 peers 122 Pepo 55 Peter II, King of Aragon 43 Peter the Chanter 5 Petrarca, Francesco (Petrarch) 28 Philippe of Beaumanoir 42 Piacenza cathedral: mosaics 1–4, 5, 10 pious bequests 107–8 Pippinids 100 poetry 15–16 political culture 9 Popes Adrian IV 23 Alexander III 110 Boniface VIII 57, 77 Gregory I, the Great 52 Gregory VII 52–3, 133 Gregory IX 37, 38, 53

Index

Honorius II 27 Honorius III 37, 56 Innocent III 26–7, 36, 38, 43, 56, 78, 85, 121, 122 Innocent IV (Pope) 28, 141 Leo I 64 Leo IX 52 Sylvester 28 possession 95, 96, 106. See also property rights prebends 103 price fixing 63–7 procedural mechanisms. See trial culture property disputes 19–21, 99, 104 canon law 21–2, 103–4 property rights 7, 95 absolute ownership 112 corporeal and incorporeal things 105–6 customary law 110 decline of medieval modes of ownership 106–7 ecclesiastical lands 21–2, 99, 100, 101, 102, 103, 112 pious bequests 107–8 elites 95–100, 102, 106, 110, 112 family property 100–6, 108, 110, 112 feudal society 102–4, 105 hereditary property 102, 110 identity and 96 land, families, and churches pre-1000 100–1 late medieval law 104–5 personhood and property 103–12 ownership 98–9 power and property 99–100 proof of possession 99, 105 Roman antiquity to the middle ages 95–7 Roman ideals 97 seals 109–10 seisin 101–2, 104, 105, 106 transfers 99–100, 105 pseudo-Caesarius of Heisterbach 142 pseudo-Cyprianus 4 pseudo-Isidore 101, 102 pseudo-Seneca 80 punishment 115, 119, 125 questio 55, 58 quodlibet 56, 58 Radulphus Niger 55, 141 ratio scripta 7

Index

Raymond of Peñafort 56, 141 Renaissance 106, 112 Reynolds, Susan 103, 142 Richardson, Gary 71 Rigby, Stephen 16 Robertians 100, 102 Roger II, King of Sicily 29–35 Rolando 26 Roman-canon trials 130 Roman elites 97 Roman Empire 23, 24, 45 Roman law 7, 8, 9, 24–6, 29, 40, 42, 125 canon law and 45, 52, 55 learned law 131, 132–3 property rights 95, 104 Rome 6, 23, 27, 29 Romuald of Salerno 35 Roncaglia, Diet of 24, 141 Rosen, Lawrence xii Rosenwein, Barbara 103, 142 rule of law 26 Sabbatical precept 58 sacralization of law 8, 46–8 sacraments 5 Saint-Michel, Abbot of 107 salvation 46, 48, 83, 107 Sargent, Frank 72 Sawyer, Peter 119 scholastic culture 8, 24, 54 Devil’s right 84, 86–8 seals 109–10 secular law 8 secular power 26 seigniorial courts 19, 20, 21 seisin 101–2, 104, 105, 106 Seligman, Edwin R A. 68 sermons 85–8 Shakespeare, William xi Sichar 115–19 Sicily 29–35, 36 Sidonius Apollinaris 97, 98 simony 17 slaves 116, 119 Smail, Daniel 110 Smith, Adam 62, 63 social conflict 115, 119 socio-political background 6–10 sovereign governance 8–9, 24 balancing law and power 26–7 iura regalia 25 kingship

171

Frederick II of Sicily 26–9, 36–8 Roger II of Sicily 29–35 Stephen, King of England 22 Stickler, A M. 142 Stock, Brian 141 Sunday rest 58 Syagrius 98 Sylvester (Pope) 28 syncretism 32, 35 Synod of Rheims 52 taxation 25, 58, 97, 129, 133–4 Templars 77 tenants 20, 21, 22, 99, 104, 107, 110, 112, 122 Tertullian 101, 141 Teutberga (Queen) 143 Thales of Miletus 67 Theodoric 25, 97 Theodosian Code 50–1, 114 Theodosius II 50 theology 5, 7, 8 convergence between theology and the law canon law 52, 53–6 papal legislative prerogatives 52 scholastic culture 8, 24, 54 justice 16 salvation 46, 48, 83, 107 theological normativity and absorption of the law 56 claim for theological superiority 57–8 legal frameworks 56–7 permanence and mutation of the old law 58–9 trial culture 77 arguing in Heaven 90–92 argumentation (see legal argumentation) divine intervention 86 Last Judgment 13–15, 77, 81 liturgical framework 80 mock trials 88 Prosecution of Adam by God 79–81, 93 scholasticism and the Devil’s right 84, 86–8 Solomon’s judgment 86 struggle between Good and Evil 83–4 trial by ordeal 77–8, 86 trials of the Devil 88–90 University of Paris 56, 121 Third Lateran Council 18 Thompson, James 63, 68 Thrupp, Sylvia L. 72 tithes 17, 58–9, 105, 106, 133–4

172

torts 113, 117, 118–20, 123 torture 122 Treschow, Michael 141 trespass 106 trial by battle 22, 122 trial by combat 1, 5 trial culture 8, 77 arguing in Heaven 90–92 argumentation 77, 85 exempla and sermons 85–8 divine intervention 86 Last Judgment 13–15, 77, 81 liturgical format 80 love trials 92–4 mock trials 88 ordines iudiciarii/structure of the trial 78–9 Prosecution of Adam by God 79–81, 93 Roman-canon trial 130 scholasticism and the Devil’s right 84, 86–8 Solomon’s judgment 86 struggle between Good and Evil 83–4 trials of the Devil 88–90 trial by jury 22, 122 trial by ordeal 77–8, 86, 120–2 tribute 17 Tronzo, William 140 Turgot, Anne-Robert-Jacques 63 tyranny 12–13 Ullmann, Walter 38 Ulpian 96 universities 55, 56, 121, 130–4, 135, 137

Index

urban statutes 9, 38–43 Vacarius 132, 133 Vaccaro, Maddalena 140 Valla, Lorenzo 59 vassals 104, 105 Venantius Fortunatus 97 Virgil 15–16 Visigothic codes 50, 97, 101, 114, 125 von Maerlant, Jacob 90 Wallace-Hadrill, J M. 119 Weber, Max 64 Weiner, Annette 96 Welter, J. 142 West, Charles 101 William the Conqueror 19 wills 7 Winkelman, Eduard 141 Wood, Ian 99, 100–1, 103 Wormald, Patrick 50 writ of right for land 19–21 “written reason” 7 wrongs criminal law 113, 114, 116, 117, 118–20, 123 early legal codes 114–15 feuds 115–19 legal process 120–3 punishments 115, 119, 125 torts 113, 117, 118–20, 123 trial by ordeal 77–8, 86, 120–2 vocabulary and classification 113–14, 123