Franz-Josef Arlinghaus

From “Improvised Theater” to Scripted Roles:
Literacy and Changes in Communication in North Italian Law Courts
(Twelfth-Thirteenth Centuries)
in: Charters and the Use of the Written Word in Medieval Society
ed. by Karl Heidecker 
(Utrecht Studies in Medieval Literacy 5)
Turnhout: Brepols Publishers 2000,
 pp. 215-237.
(Numbers in [red] = page numbers in the publication)

This paper deals with the changes of the form of communication that took place in North Italian law courts during the High Middle Ages. These changes are linked to the intensive use of writing that had been implemented since the last decades of the twelfth century in a massive way within the normal everyday activities of law courts. Many parts of the increasingly differentiated proceedings were written down and–the crucial points of this paper–oral communication in court was based increasingly upon written texts.
The strong growth in the use of writing in court–together with the reception of Roman law–is usually discussed from the perspective of an inclination towards a more rational and objective approach to legal matters. It is true that, from a contemporary point of view, the way legal proceedings were structured in the thirteenth century seemed to lead to more appropriate and “just” decisions than was the case in the sometimes ordeal-based judgements of earlier periods. But, looking at penal justice and the way heretici were treated, some [216] doubts may arise concerning whether the people of the Italian city-states aimed at creating a “rational” or “fair” trial in the modern sense of the word when they dramatically changed the way their law courts operated.

What Is the Problem? Part i

Before going any further, it may be useful first to ask which function legal proceedings have in a given society anyhow. Firstly, for the city commune, it must have had as a priority the guarantee of the function of the society as a whole, in spite of the quarrels that may exist between certain citizens. At a time when a conflict between two individuals was almost always a conflict between two families, between two rival groups, or even between “political” parties, it was no easy task to prevent the outbreak of open fights within the city, which in turn would then hinder the function of market places or even make it difficult to pass through certain streets, etc. Secondly, it seems very difficult for a court to produce a decision which, in the eyes of both parties, is regarded as “just”, because the losing party is likely to dispute the decision, no matter what good reason might be given. Certainly a timeless phenomenon, it is an even greater threat to a medieval city, the structure of which was already very complex and gave rise to various conflicts not common in rural societies, and in which, on [217] the other hand, the point of reference was not the individual but the social context of the single person, and hence any litigation was seen as a quarrel between groups, as has been pointed out above.

Looking at the specific situation of the twelfth and thirteenth centuries, within Milan–as within many other cities in northern and central Italy–we see an almost constant growth of conflicts between different social and political groups, mainly between what are referred to as the nobiles and the popolo, the latter divided into the “party” of the Credenza di S. Ambrogio (mainly craftsman) and the Motta (dominated by merchants). After the Peace of Constance in 1183, the pressure from outside lessened for several decades, and it seems that now the city societies of northern Italy allowed themselves the breakout of sometimes open conflicts which could even lead to the expulsion of large groups of the population belonging to the “wrong” party. What is more, the freedom gained at that time–some scholars speak of the Peace of Constance as the Magna Carta of the city communes–made the city community more responsible for their own affairs and hence limited the possibilities of referring to the emperor as a legitimation device, especially with reference to the juridical administration of the town. The war against Frederick ii did not ease this situation. [218] When the party of the popolo dominated Milan in the 1250s, inner peace was still not guaranteed and the first “strong men” like Martinus della Torre tried to govern the city by their own will. But it was not until the late thirteenth and early fourteenth centuries, when the Visconti successfully established themselves as signore of the city of Milan, that internal conflicts lessened.

What Is the Problem? Part ii

If we assume that, due to the density of population and because of the complexity of social relations, conflicts are more likely to arise in a big city such as Milan than in less-populated rural areas, then the described historical situation of Milan in the thirteenth century only served to aggravate the problem. How must legal proceedings in such a city and time be structured to achieve the above goals? One successful strategy may consist of creating an autonomous [219] “area of communication” within the city commune, in which the controversies can be treated separately from other areas of communication. Dealing with conflicts within an independent frame offers the possibility of them having fewer negative implications on the city commune as a whole. It also makes it easier for the familiares of the judges, advocates and especially the litigant parties and their witnesses to, as it were, visit the same market and attend public meetings without the risk of perpetuating the conflict there, because now everybody knows that the quarrel is being dealt with elsewhere. The damage caused by a collective manner of regulating conflicts, which draws the entire circle of kindred and friends into it, is shown by Vallerani’s analysis of the vendetta in thirteenth-century Perugia. The large numbers of persons involved in the conflicts seriously threatened the functioning of the town’s institutions. A way of regulating conflicts collectively also before official courts seems to have been dominant in Italy until the middle of the twelfth century. In this respect dissolving the settlements of conflicts from their entanglement in society is something new.

If the proceedings themselves have become an autonomous modus of social interaction, and if the individual in these proceedings is successfully detached from his social context, the chances increase that, in the case of a defeat in court, this person would have greater difficulty mobilizing his social relations [220] in a protest against the decision. The “socialisation” of his defeat in court is then more difficult.
This way of looking at the problem is inspired by recent sociological research of twentieth century law courts, suggesting that the way legal proceedings are structured is decisive for the acceptance of law as a whole. While this analysis can presuppose that the procedures implemented functions in an already-differentiated environment, which was accustomed to autonomous discourses, this can not be assumed for the medieval society. As for the “modern” individual, taking a certain role in an autonomous discourse is something he is familiar with because it is part of his everyday life in modern society. As far as society itself is concerned, the existence of independent systems within modern society (law, economics, politics and so forth) and the creation of new ones is nothing that would astonish society. Around 1200, however, the growing autonomy of law was something new. As far as we can see, at that time hardly any models were available of acting in independent systems. This [221] meant that neither the commune nor the individual could rely on experience in operating in an autonomous area of conflict regulation. Therefore it is obvious that when such areas evolve, greater efforts will be required to mark the independence of the discourse. It was for the purpose of emphasis that these efforts had to be made by and during the proceedings themselves.

When employing the strategy described above in an evolutionary process, the city administration would have to allow the formation of certain institutions or offices, independent of other administrative units and separated from the everyday business of the citizens. In fact, in Milan it can be observed that at the end of the twelfth century the consules iustitiae separated from the consules comunes and became independent. In the thirteenth century, additional “institutions” such as delegate judges, iurisperiti and consiliarii, whose tasks [222] were to work on limited problems, were appointed ad hoc during the proceedings with the consent of the parties, thus creating even more autonomy from the central city administration. The key element here is the fact that these “institutions”, dealing with a certain case, could refer to each other and hence create a more independent judicial procedure, strongly based on self reference. Because the “institutional” side of the problem is analyzed elsewhere, we can be brief here and concentrate on the manner in which communication patterns were changed by the reorganisation of the legal procedures.

Two Theses

For the given historical situation, the increased institutional independence of the courts seems not to have been enough to create an autonomous area for dealing with disputes and transforming the conflict from a quarrel between two [223] members of different social groups into a litigation between two individuals–at least in so far as possible. Combined with the institutional alterations, fundamental changes in communication patterns in court were necessary. Changing the way people communicate with each other during the proceedings can be interpreted as essential for demonstrating the autonomy and otherness of the newly-created discourse to all participants. These changes took place supported by a specific use of written texts in the litigation. To put it briefly:

First: the way writing was used in courts in the thirteenth century created a specific form of communication between the judges and the parties involved. More than was the case in the twelfth century, a great part of the verbal exchange in the thirteenth century consisted in reading out documents and protocols. Tying communication to written texts can be regarded as a successful way of creating a specific discourse in court, making it distinguishable from others.

Second: these changes in the structure of communication go hand in hand with a different form of participation by the person in the proceedings. For his part, the individual now had to comprehend that his actions in court are different from other actions of daily life. At the same time, this had to be signalized to his social relations. The changed modus of speech, that is verbal communication on the basis of written texts, helped to mark the difference between the role the individual adopted in court and the way he acted in his ordinary social life. [224]

How Can We Prove This?

Firstly, if and to what extent texts produced during the proceedings were read out in court must be examined. Was there a development towards more reading and less open oral dispute? Secondly, the function of the reading must be discussed. Can this development simply be attributed to a general growth of the importance of writing? Is it possible to differentiate between the use of writing, say, to aid the memory or for the structuring of arguments and the use of texts as a substitute for verbal exchange? And if a “non-rational” employment of texts can be observed, what is the advantage of reading as compared to the use of spoken formulae in the proceedings?
To answer these questions, one must determine as precisely as possible how legal proceedings in northern Italy in the twelfth and thirteenth centuries were performed. Two different kinds of sources shall be taken into account: Documents, which mainly means the judgements of the city courts, and the ordines iudiciarii. This paper will focus on the sentences passed by Milanese courts, but San Gimignano and Bologna will also be taken into account. About 252 judgement have survived from Milan for the 136 years between 1140–only from this time onward one can speak of the beginning of a regular administration of justice by the consules–and 1276–the beginning of the government of the Visconti. For 98 of these 136 years, at least one charter has been left to us, thus there is a relatively constant flow of documents from the observed period.

The charter provides information about certain cases, including who the litigants were, who decided the case, the names of the witnesses and scribes present, etc. It also reports on the allegations put forward by the parties and, important for the question being raised here, how and under what circumstances these statements were made (see examples below). If it is true that by looking at the charters we can get as clear an idea as possible concerning how legal proceedings in Milan were put into practice, it is also true that most of the documents are quite brief with respect to the procedure as such. More detailed [225] information is available from the ordines iudiciarii. This type of source can be regarded as a kind of handbook-literature, written to inform judges, notaries and advocates about the way a legal trial should be held. Often written by learned jurists with experience in everyday legal affairs, in explaining the procedure the ordines refer either to the practice in court, as observed by the authors, or to other legal texts.

Twelfth-Century Court Cases

In the middle of June 1143, the consuls of Milan were asked to decide in a litigation between the monastery and the chapter of St. Ambrogio. The dispute concerned to which of the two parties the rights to the altars of the church of St. Ambrogio belonged, which of the two was allowed to put bells into the tower, and which party was responsible for the burning of incense. After the canons’ oral presentation of their claims (dicebant) and the monks’ response to this (repondebant), they agreed to meet in the house of the archbishop the following day. The statements of the parties at the next meeting were also recorded comprehensively in the sentencia, the written decision of the court. A main point of reference in the decision was an older written agreement between the monastery and the chapter. It provided equal rights for both communities on the donations to the altars of the church. In spite of the importance of this document, [226] it is not cited in the sentencia but–like the oral testimonies of the parties–recorded in the form of indirect speech.
In October 1145 the city consuls of Milan had to judge in a dispute between the archpriest of Santa Maria ad Montem, Landulf, and Ardericus surnamed Patarinus. “For this was the conflict (Lis talis enim erat)”, so the charter begins, and it continues thus: the archpriest said (dicebat), that Ardericus had appropriated a piece of land which belonged to the Church. Ardericus responded that this land had been given to him by his father Anricus, and that he had received it from Valbertus. And he presented “witnesses to whom no credibility was given (testes, quibus nulla fuit data fides)”. Then, in turn, Landulf again made statements which were supported by his witnesses, and so forth.
The sententiae of the urban courts written around 1150 often present themselves more as a memorandum over regulations of a certain conflict than as a judgement. They record the things that happened in court as in a protocol. Besides the judgement, no other written record was produced during the proceedings. If older documents were of any importance, their content was referred to in indirect speech. With the exception of a few cases–such as in a charter of 1155–the text is not cited in the sentenciae. [227]
It is more than doubtful whether the charters presented as evidence in Milanese courts at that time were read out aloud in public, because “ostendere” is the only verb used. This is an expression that in later years was usually accompanied by “legere” or “perlegere”. A sidelong glance at quarrels between two communes shows that even in more important cases of that time, even if famous jurists like Obertus de Orto were among the judges, most likely the charters were not read in public. In a litigation between the communes of Piuro and Chiavenna, the Milanese consules comunis functioned several times as an arbitration tribunal. In their decision from 14 April 1154 we read: “After having heard and seen these and many other notices of sentences, Guertius confirmed ... (His et aliis multis auditis et visis notitiis sententiarum, laudavit Guertius ...)”. It seems likely that “auditis” refers to the verbal dispute reported in the charter and “visis” to a (silent) inspection by the judge of older sententiae mentioned in the text. By contrast, in later Milanese documents “videre” seldom stands alone but is usually accompanied by “legere” or “perlegere”, signalling that the charters were not only “seen” by the judge but also read aloud. When [228] in 1208 on one side Arialdus, the abbot of the monastery of St. Ambrogio, and “on the other side the brothers Beltramus and Petrinus surnamed De Figino and Boziardus De Intusvineam” met once again in the Milanese communal court, reference to the verbal dispute and to an older judgement were given as follows: “Having heard, seen and read these and other aforementioned instruments of sentences, forenamed (judge) Paganus ... condemned ... (His et aliis auditis, viso et perlecto suprascripto instrumento sententie, prefatus Paganus ... condemnavit ...)”. And it seems that as in 1208 and also around 1150, if presented documents were read out in public, this was explicitly stated. When the representatives of the Lega lombarda ordered the citizens of Reggio not to disturb the citizens of Cavriago, they were told to do so “as was written in the charter and was read there by forenamed Gerardus Faber (sicut in carta scriptum erat, et ibi fuit lecta per predictum Gerardum Fabrum)”.
A short excursion is necessary at this point. Like Ivan Illich, Paul Saenger and others state, starting from the twelfth century there was a change in the way texts were read. It is no longer essential to “hear” the words of a book. In Italy earlier than elsewhere, silent reading combined with a more analytical approach to texts now became more and more commonplace. Viewed in this context it is not unlikely that charters were not read out in court during the twelfth century. And the emphasis that was put on reading aloud in courts in the thirteenth century, together with the specific way this was employed, can hardly be understood as the consequence of a “medieval” necessity of hearing the words of a text. It is interesting to see that from the late twelfth century onward, the instruments parties presented in court as evidence were more and more often read silently (“diligenter inspectis”) by the judge, while the texts [229] produced during the proceedings had to be read aloud.
But we are jumping ahead. Up to the end of the twelfth century, the situation of communication can be described as follows: Both parties, accompanied by their witnesses (and presumably other people socially related to them), appeared before four or six consules comunis, who functioned as judges. In a more or less spontaneous battle of words, which probably included certain formulae commonly used in such a situation, they presented their arguments. The witnesses made their statements in the presence of both parties and in the presence of the witnesses of the opposite party. Then it was the turn of the testes of the second party to speak. It is obvious that with this form of implementing law, this form of stage-management, the people related to the litigants participated directly in the win-or-lose question. Both parties appeared accompanied by their supporters, entered into a verbal exchange and–because their supporters (the “testes, quibus nulla fuit data fides”) appeared in part responsible–had a good chance that the indignation would be shared by their community, socialising the defeat.

Thirteenth-Century Court Cases

After the end of the twelfth and during the thirteenth centuries, the way of proceeding in the urban courts changed considerably. The consules comunis, the “political” heads of the administration, were no longer responsible for civil litigations. Now, with the consules iusiticiae a somewhat independent institution dealt separately with the quarrels. The legal action no longer took place on one or two successive days; instead a long row of hearings was put into practice: there was a date of hearing for the plaintiff to bring in the charge, [230] another to obtain an initial response from the defendant, one for the iuramentum calumniae, and so forth–in total usually more than ten dates for one case. The examination of the witnesses was now the task of the notaries, who questioned them without the presence of the judge and protocolled the answers. But this is not the only important part of the proceedings that took place without the official judge, the iudex ordinarius (which is the consul iustitiae) being present. More and more consiliarii, iurisperiti and/or delegati were appointed during the proceedings to deal with the case.

Before examining two stages of the procedure in detail (the pronouncement of the sentence and the reading of the witness protocols), a short comparison of the Milanese charters written around 1150 and 1250 shall be presented. The sententia written down in 1264 over a case heard by Gualterius Balbus can be seen as a collection of the important documents written during the proceedings. Apart from a little entry sentence at the beginning and a note at the end, the charter consists of a copy of the plaint (libellus) and the insertion of the judgement. Comparing the sentencia of 1143 (see note 30) with that of 1264, we [231] find that both documents appear more or less to be protocols of the legal action that took place, in fact as protocols of the central arguments spoken in court. But while the first charter reports an open verbal exchange, the last presents itself as a composition of texts that were read out–texts, it should be emphasised, that were written only for and during the legal proceedings.
To see how these texts were used in court, let us look at the way the iurisperiti communicated with the judge. After 1250, in almost every case the “ad hoc set-up” of this “institution” can be observed. Analyzing the sententiae, it seems that now either some stages of the proceedings were performed twice (once in front of the iudex ordinarius and once in the presence of the appointed iurisperiti), or all of the decisive parts were performed by the iurisperitus, and the “official judge” only read the verdict, which had already been written down by the iurisperitus. A good example of the latter is the sentencia of 1264 referred to above. Admittedly, it was the judge Gualterius who seemed to appoint the iurisperitus Guido Nadivus, but only the latter “saw witnesses (vidit testes)” and “diligently saw, heard and examined the rights, the allegations and the arguments of both parties (diligenter vidit et audivit et examinavit iura et alegationes et rationes utriusque partis)”, while Gualterius only “pronunciavit”, that is, pronounced the consilium/judgement given by Guido. For San Gimignano, more than 100 of these consilia have survived from the second half of the thirteenth [232] century. With their format of little papers, these differ significantly from the consilia of the fourteenth and fifteenth centuries and correspond to how reference is given to these writings in the Milanese sentenciae. Juridical arguments are hardly ever found in these little texts; usually, no reasons were even given for the decision made by the iurisperitus and sent to the iudex ordinarius. It thus seems very unlikely that presenting an “expert’s” report was the real function of the consiliarii, at least in the thirteenth century. But what is more important for the argumentation proposed here is how the reading of the sentence was staged. As we learn from little notes put on the consilia, the iurisperitus wrote down the sentence, sealed the paper and sent it to the iudex ordinarius. But it was not until the next hearing that the latter broke the seal, unfolded the document and read it to the parties. Here, the fact that the iudex ordinarius used the text of the iurisperitus when pronouncing the sentence can be interpreted in two ways: On the one hand this can be seen as a way of signalising both responsibility and distance to the sententia pronounced, thus leading to a fragmentation of possible protests against the sentence. But here the second aspect must be emphasized. Binding his speech to the written text in this decisive stage of the legal proceedings prevented him from using expressions that could be interpreted as “personal”, underlining that not Gualterius but the iudex ordinarius was speaking. And here the difference between “person” and “role” is marked through the estrangement of verbal speech by using a written text.
The way written texts are used during the pronouncement of the sentence [233] highlights different aspects of communication in court (such as “responsibility”, “role-taking”, “scattering protest” etc., as in the example just given), making it difficult to see how important the connection between “reading” and “role-taking” actually was. The specific use of witness protocols in legal proceedings of that time seemed to put stronger emphasis on the rehearsal of roles than on other aspects of communication. In Milan, like in many other Italian cities, after the last two decades of the twelfth century, the witnesses’ statements were no longer made in front of the judge. “Private” notaries, appointed during the proceedings, were given the task of questioning the witnesses and protocolling the answers. Like the text of the consilium, the witness protocols were kept secret until they were read to the iudex ordinarius and the parties by the official court notaries in a separate hearing. As pointed out above, in Milan in the second half of the thirteenth century, when the iurisperiti came into play, important stages of the proceedings were sometimes performed twice–in front of the judge and in front of the iurisperitus. Because he was now the one who really decided the case, the reading of the protocols in front of the iudex ordinarius can be seen as a kind of ritualised performance. It is interesting to see how, in his ordo, Aegidius Fuscarariis described the way witness protocols were dealt with in the hearings of the iudex ordinarius. Although written for advocates and notaries who mainly appeared in ecclesiastical courts, the ordo was famous for its reference to the practice and was often copied in the second half of the thirteenth century. In the hearing, the official judge ordered the notary to read the protocols. But it does not seem that the contents of the texts were of greater interest in this date of hearing, because if there were many of these testimonies, says Aegidius, reading only a few of them sufficed: “et sufficiat [234] pro omnibus”. Why this was sufficient becomes clearer when we look at the next step of the proceedings: To come to the point, when a close examination of the testimonies was to take place, the judge informed the parties that he did not want to go on with the proceedings. He now directed them to the iurisperiti and would only proceed to sentencing after receiving their counsel; that is, the counsel of one or two consiliarii who separately dealt with the testimonies in detail.
It can be concluded that the hearings in which in the presence of the iudex ordinarius the testimonies were (in part) read was not meant to inform everybody about what the witnesses really said. This meeting was more a play, but a play performed with hardly any texts learned by heart. Because giving the information as such was not of any importance here, it would well have been possible to exchange some general formulaic sentences if performing a legal ceremony were the only goal. But in contrast to formulae, by reading out witness protocols one can–as in a ceremony–give communication a rigid form and at the same time focus on a particular litigation. In this way, not only [235] justice in general but the specific dispute are staged as a distinct discourse. The questions formulated by the parties and the answers given by their witnesses now sounded quite different from the discussion of the same case in the tavern. For the parties, it was easier to understand their action in court as a role different from others. It offered a chance that it was clear for all to see that conflict regulations are allocated a special area of communication, created between “judge”, “plaintiff” and “defendant”–roles now played by the participants.

Conclusion

Compared to the twelfth century, in the thirteenth century the proceedings of urban law courts took on more of an autonomous element within the social structure of the North Italian city communes. The legal action now consisted of several steps that in part took place in front of committee-like institutions, which were often created during the proceedings. Now the plaintiff did not meet the defendant in a direct confrontation, consisting of an open verbal exchange, surrounded by “his” witnesses. Only accompanied by his hired lawyer, sometimes even represented by him in his absence, he met the opponent in 10 or 15 dates of hearings in court. But giving legal proceedings another institutional “design” seems not to be enough to establish an independent discourse and enable a necessary “role-taking” in court. At a time when the separation of the “political” and the “juridical” sphere was not at all common, legal proceedings that claimed autonomy had to be staged in a specific way. In a period when merchants of the same town in a foreign country had to pay for the debts of their compatriots as a matter of course, it was convenient to transform the way the participants communicated in court into a distinct form in order to establish an independent discourse. To change the way people communicate can be considered a mainstay in creating a separate space for dealing with a quarrel.
Up to a certain degree this probably could have been done by using formulaic expressions here and there, such as can be observed in almost any kind of legal action. But this strategy has its limits, when not only the proceeding in general but also the specific dispute being dealt with has to be elaborated as an independent sector of communication in the urban cities of that time. And such independence was needed to give people living in an undifferentiated society the opportunity of successful “role-playing”.
The massive use of writing in court opened up a way to mark even the [236] specific dispute as distinct. Michael Clanchy, referring to W.J. Ong, states: “writing anything down externalized it and–in that process–changed it ... to some extent”. By reading the written text aloud in court, this change cannot be undone. There is a certain “otherness” in the way things were now spoken by the judge, plaintiff and defendant, and it can be presumed that this other form of communicating was not attributed to the written text, but to the reader. By attributing this other modus of speech to the person, his acting in court could be regarded as something that only took place in this context. Tying verbal speech to written texts meant an estrangement from familiar situations of communication, laying a trench between the way the person communicated here and his unbound oral discussion elsewhere. Since this estrangement would be attributed to the way the person acted in court, his performance could now be defined as “role playing”, a performance of scripted roles based on reading out texts.
It becomes clear that by restraining unbound verbal disputes in favour of reading texts, the situation of communication in court as well as the statements [237] of the individual were marked as “distinct”. A specific discourse was established which was able to signalize and withstand autonomy. Within the historical context of the thirteenth century city communes, that is: in a context of almost no experience with autonomous elements in urban societies, it was possible to establish a differentiated and specific area of discourse by excessively mobilizing the potential that lies in writing. To some extent, this probably lessened the strain put on the city community by conflicts between individuals. The question of whether this active “role-playing” might also have contributed to a differentiated construction of “role”, “social context” and “self” in general must be left open.