12.09.02, Mostert and Barnwell, Medieval Legal Process

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Geoff Koziol

The Medieval Review 12.09.02

Mostert, Marco and P.S. Barnwell. Medieval Legal Process: Physical, Spoken and Written Performance in the Middle Ages. Utrecht Studies in Medieval Literacy. Turnhout: Brepols Publishers nv, 2011. Pp. ix, 299. ISBN: 978-2-503-54174-7.

Reviewed by:
Geoff Koziol
University of California, Berkeley

Given that its fifteen articles cover everything from the Salian and Alemannic laws to Polish bandits and Silesian monastic foundations, a limited number of recurring themes make this a surprisingly coherent collection. First, although written documentation was always important, it was only rarely necessary or sufficient (and even then only in late and limited contexts): charters never sufficed to prove title; written records of oaths did not normally establish the full terms of agreements; written laws did not contain all the law or all that was necessary for conducting legal procedures. Second, because so much of the work of law and politics was done on the basis of testimony and personal relationships and obligations, law and politics were conducted publicly, in ways that made their engagements memorable. Third, documents were therefore invariably presented (and often written) in public settings, as elements of social practices that used writing in ways that were performative. Fourth, as a result, historians cannot use surviving documents as if they give the whole story of any action they record. Charters, oath-texts, and laws always had a performative element that is either concealed by the written text or alluded to in formulas that can be misunderstood if their performative implications are not recognized. As this summary indicates, the essays of Medieval Legal Process participate in a recent turning away from maximalist understandings of medieval "literacy," as historians reject the polarities of "oral" and "literate" (the very terms being problematic in medieval contexts) and seek to understand writing (and reading) as complementary elements of conjoined practices. As part of a related re-revisionism, several of the articles hold that we should trust signs of "performativity" conveyed by written texts more than was done by revisionists who tended to dismiss them as literary conceits.

It is a shame to be unable to treat each article in any depth, for every one introduces the reader to some fascinating practice, calls attention to some overlooked source, or sheds new light on well-known sources. After a concise and thoughtful introduction by Marco Mostert on why the volume emphasizes "performance" rather than "ritual," Paul Barnwell leads off with an article on Merovingian charters. He begins by pointing out that the Pactus Legis Salica (hereafter PLS) scarcely mentions documents, even though the PLS was itself a written code and documents were written and used in the sixth century. [1] Analyzing some of the legal actions the PLS does record, Barnwell suggests that such actions were so effective that written documentation was not necessary as evidence in case of subsequent challenge. The reason were effective is that public actions "both validated the action and created witnesses" (20), while also spreading liability for supporting a legal transaction among those who had publically participated in its performance. He further emphasizes that later Merovingian-era laws, charters, and charter-formulas allow both written documentation and public performances, but always in ways that suggest that the former were supplementary to the latter. Barnwell also gives a very valuable short discussion of early medieval oathhelping and ordeals.

Bernard Zeller analyzes the eschatocols and dorsal notes of St. Gall charters in order to understand how often charters were written at or near the time or place of the legal transactions they record. The Lex Alamannorum specifies that gifts to a church should take place in the church itself before witnesses and a priest, and that a charter was to be drawn up and laid on the altar, but practice was more varied. Most charters specifying a conveyance at altar or church were drawn up by monastic scribes; those by non-monastic scribes named atriums or other locations. Those other locations also varied considerably: though "publice" technically meant (in conformity with the Lex Alamannorum) before six to seven witnesses, many acts were executed before more people, often in court sessions in the presence of a count or other local leader. Zeller also finds that more charters than one might think were drawn up at the place and time of the legal transaction itself. True, dorsal notes were sometimes made on the hair side of a parchment at the time of the transaction ("Vorakte") and used to redact the charter itself on the flesh side later; but the time separating the two writings was brief (since the charter often contains details not found on the dorse), and again practice was varied. Some charters give more than one actum place or have two different beginnings, as if the charter had been composed in two separate stages. Some were prepared in advance and filled in and completed at the time of the transaction. Some "Vorakte" may even have been made before the legal action (its basic terms known in advance) and used to draft the charter at the time of the transaction.

Karl Heidecker also discusses St. Gall charters but concentrates on those that mention disputes. He finds that despite the number of charters produced in the region (an indication of the undeniable importance of writing things down), charters were mentioned as being used as evidence in dispute-settlements in only one instance, and even then only in conjunction with the testimony of witnesses. Charter-writing, he argues, was part of the Carolingians' effort to establish control of the region, and (another aspect of the Carolingian program) part of the monks' effort to establish control over their estates. Heidecker ends with a detailed discussion of a recurring dispute that culminated in a placitum at which the bishop of Chur did not produce the most relevant charter available to him, but instead produced a not-wholly-relevant royal diploma, offering it less as proof (it was not treated as such by the court, which instead heard witnesses) than as a prop in a performance of episcopal indignation.

Hagen Keller discusses royal charters (chiefly Salian and Staufen). After a brief summary of their visual and textual semiotics, he argues that diplomas were issued in public performances in which gestures, language, and staging were as important as the diplomas themselves. For example, he suggests that when a diploma was given conveying royal protection, the count palatine may have held the ruler's scepter over the beneficiary's head. Keller also provides an illuminating account of the secret politicking and public performances lurking behind a diploma of Frederick Barbarossa for the church of Cambrai--a diploma, incidentally, whose terms had almost no effect, since they were almost immediately superseded by a private agreement that violated the diploma's terms.

Diplomatists and "Urkundenforschern" (including Keller) have recently given much attention to the graphic elements of charters, not least their subscriptions. Returning to the concerns of a much earlier scholarship, Georges Declercq argues, with convincing, concrete evidence, that the "firmatio" of a charter (that is, its corroboration "manibus propriis") meant that subscribers actually had to physically touch their subscription (often the cross made next to their name). He further argues that this practice resulted not from declining "literacy" but from the evolution of a set of public performative practices surrounding the use of charters. Thus, in a well-known case (formerly discussed by Janet Nelson), the terms of a charter were found to be invalid because the making of the charter had been invalid, not having been accompanied by this witnessed "firmatio." Declercq also notes the importance of the fact that charters (and their notarial subscriptions) were written in a first-person formulation that echoed the original performative actions, making the charter itself a pledge by issuer and notary: indeed, in Bavaria, the vernacular synonym for "firmare" was "suiron"--"to swear."

Charles Insley and Matthew Hammond find similar traces of public performance in Anglo-Saxon and Scottish charters. Hammond notes in particular a royal charter of 1050 describing the enthronment of Leofric as bishop of Exeter (a description echoing that found in the Leofric Missal), with the oddity that the charter contains a description of itself being placed on the altar at the time of the enthronement: a physical impossibility, but a representation that makes the charter part of the performance it lastingly records. Insley also argues that the famous charters of Æthelred that call attention to the king's youthful neglect were issued in the very assemblies in which Æthelred admitted his neglect, the assemblies calling for reform, the charters illustrating it. Hammond points out that the earliest royal charters in Scotland were also issued at or in the wake of major assemblies, while non-royal charters were similarly associated with public gatherings that witnessed the actions the charters describe. The earliest royal charters often record the foundation of monasteries, the foundation being used as an occasion for a solemn assembly that was both political and religious.

Anna Adamska makes a similar argument based on sources relating the foundation of the Cistercian monastery of Henryków in Silesia (c. 1222-1228). Like Keller's article, this is a wonderful example of the politics that charters conceal (revealed here also by a complementary narrative account), a politics that again had both a secret side (barely glimpsed) and a public representation (conveyed in the charter), the public representation being conveyed in a performance which the charter embodies but does not narrate--in this case, two formal banquets in the presence of the Silesian duke that bookend two important moments in Henryków's foundation, and that again served as a de facto assembly combining religion and politics.

Examining the earliest Old Swedish laws, Stefan Brink argues that apparently early "oral" elements in the laws really were early, and not just later literary devices. While attending to alliteration, hapaces, and the etymology of "lagsagan" (a legal district, but originally "to say the law"), he pays special attention to "skötning," a legal action in which (again archetypally at a well-witnessed meal) the conveyor of land placed soil from the land in a cloak on the lap of the recipient, who marked acceptance of the conveyance by folding over the edges of the cloak.

Michael Gelting discusses the Danish equivalent of the same action: "skødnung" (Latin "scotacio"), adding that the action was accompanied by the public declaration of words of conveyance, and emphasizing that these public conveyances were so practically effective that charters were correspondingly few and non-dispositive. To be sure, in 1241, the Law of Jylland required scotation to be performed in court, and these scotations were often recorded in writing. Nevertheless, the resulting document never constituted proof of the conveyance. The law required performance in court, and disputes were settled by the Danish equivalent of the English "court of record," that is, through the incontrovertible testimony of members of the court about what had been performed publicly. Public performance of scotation remained so important that many conveyances to religious houses made two separate scotations, one "for the record" in court, the other in the church. (It is, incidentally, quite wonderful to read a medieval historian still able to speak knowingly of "livery of seisin.")

In an important article, Christoph Dartmann provides an incisive account of writing in Italian communes, showing in what contexts writing became more common and why, where it remained secondary and why, and why more writing was not necessarily "rational" in a Weberian sense. He notes that the first communes did not usher in a new culture of writing but rather used and adapted traditional forms (placita and private acts). The explosion of writing occurred c. 1200, in two quite different ways. First, as dispute-settlement became more drawn out (as court procedures borrowed from civil and canon law largely because they allowed litigants to draw out disputes), it became more necessary to document each stage of proceedings, less for the court's benefit than for the parties', who would stitch together all the sheets relating to the different stages in order to provide a dossier of the dispute. Second, when podestàs entered office, they swore a public oath stipulating to the rules that would govern their actions, the citizens answering with a public oath to obey and support the podestà. Over time, the number of rules podestàs swore to uphold swelled. The incoming podestà now swore on a codex containing the rules (these becoming so complex that they were eventually ordered by topic). Yet the oaths themselves were still public, both those of the podestà and those of the citizens. In Dartmann's words, "the legal construction of the city community [was created] through complementary oaths...The claim of validity of the written word depends essentially on the correct execution of the festive public act."

Janos Bak surveys the public actions through which legal transactions were accomplished in Hungary (ordeals, judicial combat, oath-taking, contracts sealed by drinking, etc.). The most interesting is the "repulsio," in which the losing party could unsheath a sword or brandish a weapon at the end of a trial, signifying his rejection of the decision and opening the way to a new round of negotiations—but he could do so only once.

Yuriy Zazuliak both documents and accounts for the solemnity that attached to oaths in fifteenth-century Galicia. The key, for him, is that oathtaking was a "social drama" whose variable outcome was effectively decided by judges and audience. He provides several excellent examples of just how this might work in practice (examples Carolingianists might profit from reading), including swearers who tried to finesse the rules and audiences that rejected the terms to which a party proposed to swear. Recalling Stephen White's argument about ordeal strategies in France, Zazuliak also notes that oaths were often proposed but given up at the last minute in favor of a compromise. Finally, he gives the lie to the old notion that such procedures were unthinkingly formalistic by citing cases in which courts allowed parties to repeat their oaths after mistakes. (Parties also swore their oaths phrase by phrase, repeating prompts given to them.)

Marco Mostert locates a wonderful "eyewitness" account of the court proceedings of the Hoge Vierschaar ("High Court of the Four Benches") of Geervliet, containing detailed descriptions of colorful rituals, formal oral statements, and scarcely any reference to the use of documents. But the account, written in the eighteenth century, invented an archaic medieval past and is clearly contradicted by late medieval documents from the court itself, in which parties were required to exchange documentation before sessions.

Finally, Stanislaw Sroke discusses a remarkable 1493 single-sheet from the borderlands of Poland, a letter addressed by a gang of some twenty bandits to the "bad and unjust people of Bardejov," threatening them with vengeance for having executed members of the band if they did not pay 4500 florins (which the townsmen were to leave in a monastery). Below the text, the authors drew a sabre, a broom, a fire, and a harquebus, and the names of six towns with six holes burned into the sheet for each, and in the bottom left corner a picture of a man beheaded and another of three men hanged. In a manner reminiscent of Steven Justice's Writing Rebellion, Sroka shows that lower-classes participated in documentary practices in ways that were more creative than anyone would have thought possible a generation ago.



1. Barnwell does not cite Jean-Pierre Poly's articles redating the core of the PLS to the mid fourth century. Admittedly, Wolfgang Haubrichs has strongly criticized Poly's conclusions on the grounds that Poly's key readings are philologically untenable. Yet I am not convinced that we can push putative rules of Frankish and Gothic philology as hard as Haubrichs does, least of all for texts as fraught as the Lex Salica; while one of the best reasons to support Poly's arguments is that they make so much sense of the odd characteristics of the PLS to which Barnwell and others call attention. See especially Jean-Pierre Poly, "La Corde au cou: Les Francs, la France et la Loi Salique," in Genèse de l'Etat moderne en Méditerranée: Approches historique et anthropologique des pratiques et des représentations, Collection de l'Ecole Française de Rome 168 (école Française de Rome: Palais Farnèse, 1993), 287-320; Wolfgang Haubrichs, "Namenbrauch und Mythos-Konstruktion: Die Onomastik der Lex-Salica-Prologe," in Nomen et Fraternitas: Festschrift für Dieter Geuenich zum 65. Geburtstag, ed. Uwe Ludwig and Thomas Schilp (Berlin, 2008), 53-79 at 56-59.

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Geoff Koziol

University of California, Berkeley