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Habilitation: November 2002 |
Franz-Josef Arlinghaus From
“Improvised Theater” to Scripted Roles: Literacy and Changes in Communication in North
Italian Law Courts (Twelfth-Thirteenth Centuries) in: Karl
Heidecker (ed.): Charters and the Use of the Written Word in Medieval Society
(Utrecht Studies in Medieval Literacy 5) Turnhout: Brepols Publishers 2000,
pp. 215-237. Download article: .rtf-Format / .pdf-Format (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.[1] 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.[2] 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.[3] 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,[4] 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,[5] 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.[6] 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.[7] 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.[8] 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.[9] 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.[10] 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.[11] A way of
regulating conflicts collectively also before official courts seems to have
been dominant in Italy until the middle of the twelfth century.[12] 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.[13] 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.[14] 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.[15] As far as
society itself is concerned, the existence of independent systems[16] 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.[17] 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.[18] When
employing the strategy described above in an evolutionary process,[19] 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.[20] In the
thirteenth century, additional “institutions” such as delegate
judges, iurisperiti and consiliarii,[21] whose
tasks [222] were
to work on limited problems,[22] were
appointed ad hoc during the proceedings with the consent of the
parties, thus creating even more autonomy from the central city
administration.[23] 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,[24] we can be
brief here and concentrate on the manner in which communication patterns were
changed by the reorganisation of the legal procedures. 1.1
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.[25] 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[26]–and 1276–the beginning of the
government of the Visconti.[27] 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.[28] 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.[29] 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.[30] 1.2
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.[31] 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.[32] 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[33]–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”.[34] 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[35] 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 ...)”.[36] 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 ...)”.[37] 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)”.[38] 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.[39] 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,[40] while the
texts [229] produced
during the proceedings had to be read aloud.[41] 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.[42] 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.[43] 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.[44] 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.[45] 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.[46] 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.[47] 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.[48] 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),[49] 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.[50] For San
Gimignano, more than 100 of these consilia have survived from the
second half of the thirteenth [232]
century.[51] With
their format of little papers, these differ significantly from the consilia
of the fourteenth and fifteenth centuries[52] 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.[53] 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.[54] 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.[55] 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.[56] 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,[57] the ordo
was famous for its reference to the practice and was often copied in the
second half of the thirteenth century.[58] 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.[59] 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[60] if
performing a legal ceremony were the only goal.[61] 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.[62] 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”.[63] 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.[64] 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.[65] 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. |
[1] The Liber Consuetudinum, written in Milan in
1216, relates that with the Peace of Constance (1183) ordeals fell out of use
in Northern Italy. “Istae solemnitates olim ante pacem imperatoris
Federici in usu fuerunt: pace vero facta cum Federico imperatore, qui
Mediolanensibus et aliis Lombardis plenam iurisdictionem concessit, pro magna
parte huiusmodi solemnitates exularunt ...” (Liber Consuetudinum Mediolani anni mccxvi,
ed. E. Besta and G.L. Barni,
“Nuova edizione interamente rifatta” (Milan, 1949), pp. 298 ff.). For the
use of writing in the Italian communes, see H.
Keller, “Vorschrift, Mitschrift, Nachschrift: Instrumente des
Willens zu vernunftgemäßem Handeln und guter Regierung in den italienischen
Kommunen des Duecento”, in: Schriftlichkeit und Lebenspraxis:
Erfassen, Bewahren, Verändern, ed. H. Keller, Ch. Meier and Th. Scharff (Munich, 1999: MMS
76), pp. 25-41.
[2] For the Janus-faced trials against heretics (with
examples from Italy), where “rational” methods such as writing were
used to produce “the truth”, see recently Th. Scharff,
“Auf der Suche nach der ‘Wahrheit’: Zur Befragung von
verdächtigen Personen durch mittelalterliche Inquisitoren”, in: Eid
und Wahrheitssuche: Studien zu rechtlichen Befragungspraktiken in Mittelalter
und früher Neuzeit, ed. St. Esders
and Th. Scharff (Frankfurt am M.,
1999: Gesellschaft, Kultur und Schrift: Mediävistische Beiträge 7), pp.
139-162. For Italian penal justice, see A. Zorzi, “Rituali e cerimoniali
penali nelle città italiane (secc. xiii-xvi)”, in: Riti e Rituali nelle
società medievali, ed. J. Chiffoleau,
L. Martines and A. Paravicini
Bagliani (Spoleto, 1994: Centro Italiano di Studi sull’Alto
Medioevo, Collectanea 5), pp. 141-157. New insights into the penal justice
system of the medieval city are offered by the recently-published volume Die
Entstehung des öffentlichen Strafrechts: Bestandsaufnahme eines europäischen
Forschungsproblems, ed. D. Willoweit (Cologne,
Weimar and Vienna, 1999: Konflikt, Verbrechen und Sanktion in der
Gesellschaft Alteuropas, Symposien und Synthesen 1), especially the papers
of E. Cohen (for France), H. Schlosser (for Augsburg) and D. Willoweit (for Würzburg).
[3] For a theoretical reflection on the two problems in
modern courts, see N. Luhmann, Legitimation
durch Verfahren, (Frankfurt am M., 1993), pp. 69 ff. and 113 ff.
[4] It is sufficient to consider the numerous quarrels
which arose because certain buildings were erected in places where, in the eyes
of the neighbours, they ought not to have been built. In March 1221, Jacobus
Menclotius sued Otto Longus to tear down a wooden fence, which was built behind
the wall surrounding Jacobus’ property, but still on his ground. The
monastery of St. Radegonda in Milan took Bellottus de Dexio to court to make
him close two “windows”, which he had put in the wall that bordered
the cloister, with an iron (“stoparet seu clauderet de muro fenestras
duas que sunt in quodam muro”) (ACM Nos. 339 and 312). For a relatively small town like Perugia, about 560 law
cases were registered for the year 1258 alone (M. Vallerani, “Modelli processuali e riti sociali nelle
città comunali”, in: Riti e Rituali, pp. 115-140); Vallerani found out that about 25% of
the population of a city had contacts with the courts in one way or another (id., Il sistema giudiziario del
comune di Perugia: Conflitti, reati e processi nella seconda metà del xiii secolo (Perugia, 1991: Deputazione
di storia Patria per l’Umbria, Appendice al Bollettino 14), p.
18).
[5] For the history of Milan in the twelfth and thirteenth
centuries, see H. Keller,
“Gli inizi del comune in Lombardia: limiti della documentazione e metodi
di ricerca”, in: L’evoluzione delle città italiane nell’xi secolo, ed. R. Bordone and J. Jarnut (Bologna, 1988: Annali
dell’Istituto storico italo-germanico 25), pp. 45-70, at pp. 48 ff.; G. Rossetti, “Le istituzioni comunali
a Milano nel xii secolo”,
in: Atti dell’11o congresso internazionale di studi
sull’alto medioevo: Milano e il suo territorio in età comunale (xi-xii
secolo), Milano, 26-30 ottobre 1987 (Spoleto, 1989), pp. 83-112, pp. 90
ff.; G.L. Barni, “Milano
verso l’egemonia”, in: Storia di Milano, 3.2 (Milan, 1954),
pp. 239-393; F. Franceschini,
“La vita sociale e politica nel duecento”, in: Storia di Milano,
4.2 (Milan, 1954), pp. 155 and 392; R. Hermes,
Totius Libertatis Patrona. Die Kommune Mailand in Reich und
Region während der ersten Hälfte des 13. Jahrhunderts (Frankfurt
am M., 1999: Europäische Hochschulschriften, Reihe 3, Geschichte und
Hilfswissenschaften 858), pp. 423 ff. For a general survey, see Ph. Jones, The Italian City-State: From Commune to Signoria (Oxford,
1997), pp. 130 ff.
[6] F. Menant, “La transformation des institutions et de la vie politique
milanaises au dernier âge consulaire (1186-1216)”, in: Atti
dell’11o congresso internazionale di studi sull’alto
medioevo, pp. 113-144. Although
the survey of literature and sources in Hermes,
Totius Libertatis Patrona, pp. 423 ff., is excellent, I cannot follow
his interpretation.
[7] A. Haverkamp, “Der Konstanzer
Friede zwischen Kaiser und Lombardenbund (1183)”, in: Kommunale
Bündnisse Oberitaliens und Oberdeutschlands im Vergleich, ed. H. Maurer (Sigmaringen, 1987: Vorträge
und Forschungen 33), pp. 11-44, at p. 42. Fundamental for the relationship
between Barbarossa and Milan is still G.
Fasoli, “Friedrich Barbarossa und die lombardischen Städte”,
in: Friedrich Barbarossa, ed. G.
Wolf (Darmstadt, 1975: Wege der Forschung 390), pp. 149-183. A
link between the Peace of Constance and the development of communal statutes in
Milan is perceived by H. Keller,
“Die Kodifizierung des Mailänder Gewohnheitsrechts von 1216 in ihrem
gesellschaftlichen-institutionellen Kontext”, in: Atti dell’11o
congresso internazionale di studi sull’alto medioevo, pp. 145-171. On connections between the growth of the city
administration and the agreement of 1183, see F.
Menant, “La transformation des institutions”, pp. 113 ff.; M.F. Baroni, “La registrazione
negli uffici del Comune di Milano nel sec. xiii”,
Studi di storia medioevale e diplomatica 1 (1976), pp. 51-68; and id., “Il notaio milanese e la
redazione del documento comunale tra il 1150 e il 1250”, in: Felix
olim Lombardia: Studi di storia padana dedicati dagli allievi a Giuseppe
Martini (Milan, 1978), pp. 5-25.
[8] H. Keller, “Mailand zur Zeit des
Kampfes gegen Kaiser Friedrich ii.”,
in: Europas Städte zwischen Zwang und Freiheit: Die europäische Stadt um die
Mitte des 13. Jahrhunderts, ed. W.
Hartmann (Regensburg, 1995: Schriftenreihe der Europa-Kolloquien im
Alten Reichstag, “Sonderband”), pp. 273-296; G. Fasoli, “Federico ii e la Lega Lombarda: Linie di
ricerca”, Annali dell’Istituto storico italo-germanico di Trento
2 (1976), pp. 39-74; E. Voltmer,
“Formen und Möglichkeiten städtischer Bündnispolitik in Oberitalien nach
dem Konstanzer Frieden: Der sogenannte Zweite Lombardenbund”, in: Kommunale
Bündnisse, pp. 97-116.
[9] E. Sestan, “Die Anfänge der städtischen Signorien: Ein
erschöpfend behandeltes historisches Problem?”, in: Altständisches
Bürgertum 1: Herrschaft und Gemeinverfassung, ed. H. Stoob
(Darmstadt, 1978: Wege der Forschung 352), pp. 346-379 (first published
in Italian as: “Le origini delle signorie cittadine: un problema storico
esaurito?”, Bullettino dell istituto storico italiano per il Medio Evo
e Archivio Muratoriano 73 (1961), pp. 41-69); Jones, The Italian City-State, p. 9. For changes in
the juridical administration, see M.
Spinelli, “Il capitano di giustizia durante la prima metà del
Quattrocento: Spunti e reflessioni”, in: L’età dei Visconti: Il
dominio di Milano fra xiii e xv secolo, ed. L. Chiappa Mauri, L. De Angelis Cappabianca
and P. Mainoni (Milan, 1993: Gli
Studi 2), pp. 27-34.
[10] This is not to be confused with the “separation
of powers”; in fact, what is understood here by “autonomous area of
communication” goes beyond an institutional separation and includes the
way people act and communicate in court. See Luhmann,
Legitimation durch Verfahren, pp. 72 ff.
[11] M. Vallerani, Il sistema giudiziario del comune di Perugia, p. x, note 10.
[12] The analysis of the functioning of Italian tribunals
from 1000 until 1150, recently published by Chris Wickham, shows that conflict
regulation in the form of placita were “large scale public
ceremonial(s)”. This seems to be true not only for the placita,
but also for the more “inofficial” ways of dealing with conflicts
at that time (Ch. Wickham, “Justice in the Kingdom of Italy in the eleventh century”,
in: La giustizia nell’ alto medioevo (secoli ix-xi)
(Spoleto, 1997: Atti della xliv
settimana di studio del Centro Italiano di Studi sull’Alto Medioevo,
11-17 aprile 1996), pp. 179-250, at pp. 237 ff.; quotation from p. 193). For the difference between the placita and the
consular tribunals, which are seen as “direct representations of
increasingly-formalized local power”, see ibid., pp. 244 ff., at
p. 246. For the placita, see also F. Bougard, “‘Falsum
falsorum judicum consilium’: L’écrit et la justice en Italie
centro-septentrionale au xie
siècle, BEC 155.1 (1997), pp. 299-314. The different types of conflict
regulation in (the rather more rural) France of the time seem to have in common
that “tous ces rites sont publics” (P.J. Geary, “Vivre en conflit dans une France sans
état: Typologie des mécanismes de règlement des conflits (1050-1200)”, Annales
Economies Sociétés Civilisations 41 (1986), pp. 1107-1133, at p. 1119); see
also K. Heidecker,
“Communication by written texts in court cases: Some charter evidence (ca.
800-ca. 1100)”, in: New
Approaches to Medieval Communication, ed. M. Mostert, (Turmhout, 1999: Utrecht Studies in Medieval
Literacy 1), pp. 101-126.
[13] Luhmann, Legitimation durch Verfahren,
p. 112: “Funktion des Verfahrens ist mithin die Spezifizierung der
Unzufriedenheit und die Zersplitterung und Absorption von Protesten”.
[14] N. Luhmann, Legitimation durch Verfahren; id., Ausdifferenzierung des Rechts:
Beiträge zur Rechtsoziologie (Frankfurt am M., 1981), pp. 60 ff.; id., Das Recht der Gesellschaft
(Frankfurt am M., 1993). For a discussion of Luhmann’s theses, see the
critical approach of J. Rückert, Autonomie
des Rechts in rechtshistorischer Perspektive (Hannover, 1988: Schriftenreihe
der Juristischen Studiengesellschaft Hannover 19), which is in part
rejected by D. Simon,
“Rückerts Frage: Rezension zu Niklas Luhmann,
Das Recht der Gesellschaft”, Rechtshistorisches Journal 14
(1995), pp. 36-47; further: K. Günther,
“Vom Zeitkern des Rechts: zu Niklas Luhmann,
Das Recht der Gesellschaft”, Rechtshistorisches Journal 14
(1995), pp. 13-35.
[15] For Luhmann,
Das Recht der Gesellschaft, pp. 292 ff., modern individualism is essential
for separated systems (such as “law”) to create a complexity of
their own. For critics of the (sometimes simplistic) concept of the
“Middle Ages” in Luhmann’s works, see O.G. Oexle, “Luhmanns Mittelalter: Rezension zu N. Luhmann, Gesellschaftsstruktur und
Semantik, Bd. 3”, Rechtshistorisches Journal 10 (1991), pp.
53-66 (with reference to his idea of “individualism”), and Luhmann’s reply: “Mein
‘Mittelalter’”, ibidem, pp. 66-70. For role-playing in
modern societies, see E. Goffman, The
Presentation of Self in Everyday Life (New York, 1959). Illich–in
addition to others–states that “individuality” in the modern
sense of the word, began to emerge in the twelfth century (I. Illich, Im Weinberg des Textes:
Als das Schriftbild der Moderne entstand: Ein Kommentar zu Hugos “Didascalion”
(Frankfurt am M., 1991), pp. 27 ff. (originally published in English as: In
the Vineyard of the Text: A Commentary on Hugh of St. Victor’s
“Didascalion” (Chicago, 1993))).
[16] The term “system” will be avoided in this
paper, because it is associated with a complex modern society (N.
Luhmann, Soziale Systeme: Grundriß einer allgemeinen Theorie
(Frankfurt am M., 1999)).
[17] Even for the late Middle Ages, it is not at all clear
how and to what extent we can talk, e.g. of a “private” and
“business” life of a merchant. Insights into the relation between
family and merchant-company that are still fundamental are given by M. Weber, Zur Geschichte der
Handelsgesellschaften im Mittelalter: Nach südeuropäischen Quellen
(Stuttgart, 1889; reprint Amsterdam, 1964), pp. 128 ff.; an example is given by
F.J. Arlinghaus, “Io, noi
und noi insieme: Transpersonale Konzepte in den Verträgen einer
italienischen Handelsgesellschaft des 14. Jahrhunderts”, in: Bene
vivere in communitate: Beiträge zum italienischen und deutschen Mittelalter–Hagen
Keller zum 60. Geburtstag überreicht von seinen Schülerinnen und Schülern,
ed. Th. Scharff and Th. Behrmann (Münster, 1997), pp. 131-153.
[18] M.T. Clanchy,
From Memory to Written Record: England 1066-1307, 2nd edn. (Oxford and
Cambridge, Mass., 1993), p. 193.
[19] The strategies are not seen as the results of a
meaningful search, but rather as the outcome of a variation/selection process,
fostering the development of forms of proceedings more appropriate to a given
communal society (the “environment”). For this
concept, see Luhmann, Das Recht
der Gesellschaft, pp. 267 ff., and id.,
Ausdifferenzierung des Rechts: Beiträge zur Rechtssoziologie und
Rechtsstheorie (Frankfurt am M., 1999), pp. 11 ff.
[20] For a survey of Milanese institutions, see Manaresi’s introduction to ACM,
pp. xxxvii ff.; C. Santoro,
“Gli offici del comune di Milano e del dominio visconteo-sforzesco
(1216-1515)” (Milan, 1968: Archivio della fondazione italiana per la
storia amministrativa, “Prima collana” 7), pp. 13 ff. For the
administration of the legal system, with special regard to the development of
“files”, see Th. Behrmann, “Von der Sentenz zur Akte: Beobachtungen zur
Entwicklung des Prozeßschriftgutes in Mailand”, in: Kommunales
Schriftgut in Oberitalien: Formen, Funktionen, Überlieferung, ed. H. Keller and Th. Behrmann
(Munich, 1995: MMS 68), pp. 71-90. A reduction of public participation
in Milanese civil litigations is stated by Th.
Behrmann,
“Der Rechtsakt und sein Publikum: Beobachtungen an Mailänder und
Novareser Urkunden des 12. und 13. Jahrhunderts”, in: Formen der
Verschriftlichung und Strukturen der Überlieferung: Studien über Gestalt,
Funktion und Tradierung von kommunalem Schriftgut des 12. und 13. Jahrhunderts,
ed. H. Keller and M. Blattmann (Münster, forthcoming in MMS);
F.J. Arlinghaus,
“Legitimationsstrategien in schwieriger Zeit: Die Sentenzen der Mailänder
Kommunalgerichte im 12. und 13. Jahrhundert”,
in: ibid. It is no contradiction that the concept of
“direct” participation of the whole city commune to legitimize
political and legal proceedings is still predominant in the Italian communes:
see P. Schulte, “‘Omnis
homo sciat et audiat’: Die Kontrolle kommunalen Handelns in Como im
späten 12. und 13. Jahrhundert”, Mélanges
de l’École française de Rome: Moyen Âge 110 (1998), pp. 501-547.
[21] M. Chiantini, “Dal mondo della prassi: Una raccolta di consilia della
seconda metà del Duecento per la curia podestarile di San Gimingnano”,
in: Consilia im späten Mittelalter: Zum historischen Aussagewert einer
Quellengattung, ed. I. Baumgärtner
(Sigmaringen, 1995: Studi: Schriftenreihe des Deutschen Studienzentrums in
Venedig 13), pp. 33-50; for Milan, see F.J.
Arlinghaus, “Legitimationsstrategien”. For a general survey
of this type of source, see I.
Baumgärtner, “Stadtgeschichte und Consilia im italienischen
Spätmittelalter: Eine Quellengattung und ihre Möglichkeiten”, Zeitschrift
für historische Forschung 17 (1990), pp. 129-154; see also the papers of M.
Ascheri, “Le fonti e la
flessibilità del diritto comune: Il paradosso del consilium sapientis”,
in: Legal Consulting in the Civil Law Tradition, ed. M. Ascheri, I. Baumgärtner and J.
Kirshner (Berkeley, 1999: Studies in Comparative Legal History),
pp. 11-53, and I. Baumgärtner,
“Einführung”, in: ibid, pp. 1-8.
[22] The notaries e.g., by now not only protocol the
responses to the testimonies, but in fact interview the witnesses separately
without the participation of the consules iustitiae; see infra,
notes 45 and 56.
[23] The similarities to legal proceedings in church courts
are obvious, but it must be emphasized that in the context of the legal
administration of the Church or the city, these “institutions” take
on different meanings. The iudex delegatus e.g., is found in canon law
and in the proceedings of urban courts, but the reason why they were employed
and the meaning of the institution are quite different. For the iudex
delegatus in Milan, see W. Engelmann,
Die Wiedergeburt der Rechtskultur in Italien durch die wissenschaftliche
Lehre: Eine Darlegung der Entfaltung des gemeinen italienischen Rechts und
seiner Justizkultur im Mittelalter unter dem Einfluß der herrschenden Lehre der
Gutachterpraxis der Rechtsgelehrten und der Verantwortung der Richter im
Syndikatsprozeß (Leipzig, 1938), pp. 328 ff.. For the function of delegate
judges in ecclesiastical trials, see W.M.
Plöchl, Geschichte des Kirchenrechts, 2: Das Kirchenrecht der
abendländischen Christenheit (Vienna and Munich, 19622), pp. 83
ff.; P. Herde, Beiträge zum päpstlichen
Kanzlei- und Urkundenwesen im dreizehnten Jahrhundert (Munich, 1967: Münchener
Historische Studien, Abteilung geschichtliche Hilfswissenschaften 1), pp.
125 and 217 ff.; id., Audientia
litterarum contradictarum: Untersuchungen über die päpstlichen Justizbriefe und
die päpstliche Delegationsgerichtsbarkeit vom 13. bis zum Beginn des 16.
Jahrhunderts, <?> vols. (Tübingen, 1970: Bibliothek des Deutschen
Historischen Instituts in Rom 23), 1, pp. 181 ff. and 191 ff.
[24] Arlinghaus, “Legitimationsstrategien”.
[25] For
differences between oral and the written language, see W.J. Ong, Orality and Literacy: The Technologizing of the
Word (London, 1982), pp. 81 ff. Koch and Oesterreicher charactarize the
differences, generally defining “Sprache der Nähe (oral)–Sprache
der Distanz” (written) as follows: “Die Kombination
‘Dialog’, ‘freier Sprecherwechsel’, ‘Vertrautheit
der Partner’, ‘freie Themenentwicklung’,
‘Spontaneität’ ... ‘starkes Beteiligtsein’,
‘Situationsverschränkung, etc. charakterisieren den Pol ‘gesprochen’”.
(i.e. “Sprache der Nähe”). “Dagegen
Charakterisieren ‘räumliche und zeitliche Trennung’, ‘festes
Thema’, ‘völlige Öffentlichkeit’,
‘Reflektiertheit’, ‘geringes Beteiligtsein’,
‘Situtationsentbindung’, etc. den Pol ‘geschrieben’”
(i.e. “Sprache der Distanz”) (P. Koch and W.
Oesterreicher, “Sprache der Nähe–Sprache der Distanz:
Mündlichkeit und Schriftlichkeit im Spannungsfeld von Sprachtheorie und
Sprachgeschichte”, Romanistisches Jahrbuch 36 (1985), pp. 15-43,
at pp. 21 ff.; id.,
“Funktionale Aspekte der Schriftkultur”, in: Schrift und
Schriftlichkeit–Writing and its Use: Ein interdisziplinäres Handbuch
internationaler Forschung–An Interdisciplinary Handbook of International
Research, 2 “Halbbände”, ed. H. Günther and O. Ludwig (Berlin and
New York, 1994-1995), 1, pp. 587-604. Their theses that “in
principle” there is a continuity between the two poles cannot be
discussed here. For the performance of medieval literature and the
re-oralization of written texts, see F.H.
Bäuml, “Autorität und Performanz: Gesehene Leser, gehörte Bilder,
geschriebener Text”, in: Verschriftung und Verschriftlichung: Aspekte
des Medienwechsels in verschiedenen Kulturen und Epochen, ed. Ch. Ehler and U. Schaefer (Tübingen,
1998: ScriptOralia 94), pp. 248-273, at p. 261.
[26] H. Keller, “Gli inizi del comune”, p. 53; A. Padoa Schioppa, “Aspetti della giustizia milanese dal x al xii
secolo”, in: Atti dell’11o Congresso internazionale
di studi sull’alto medioevo, pp. 459-549, at pp. 516 ff.
[27] The sentences–together with numerous other
Milanese communal documents–have been edited in: ACM (until 1216),
ACM sec. xiii 1, ACM
sec. xiii 2.1 and ACM sec. xiii 2.2. For a diplomatical
description of the Milanese communal sententiae, see ACM, pp. cvi-cviii.
[28] Only for the periods 1158-1169 and 1243-1246 no
judgements have survived, mainly due to military actions and for political
reasons; for the statistics, see Arlinghaus,
“Legitimationsstrategien”.
[29] A survey of the ordines of the twelfth century
is given by L. Fowler-Magerl, Ordo
iudiciorium vel ordo iudiciarius: Begriff und Literaturgattung (Frankfurt
am M., 1984: Ius Commune: Veröffentlichungen des Max-Planck-Instituts für
Europäische Rechtsgeschichte, Sonderhefte 19), pp. 1-31. Guilielmo Durantis, Speculum iudicale, probably the most famous
book of its kind, was written between 1271 and 1276, and first
“updated” between 1289 and 1291 (G.
Durantis, Speculum iudicale: Illustratum et repurgatum a Giovanni
Andrea et Baldo degli Ubaldi (Basel, 1574; reprint Aalen, 1975)). Editions
of a number of ordines, mainly from the thirteenth century, have been
published by L. Wahrmund in the
series Quellen zur Geschichte des römisch-kanonischen Prozesses im
Mittelalter (<place>, <year>-; reprinted during the 1960s in
Aalen). Special “Handbooks” for notaries also give descriptions of
how legal proceedings were performed (Die Ars Notariae des Rainerius
Perusinus, ed. L. Wahrmund, (Quellen
zur Geschichte des römisch-kanonischen Prozesses im Mittelalter 3, Heft 3;
repr. Aalen, 1962), pp. 147 ff. rubric ccxci; Rolandini
Rodulphini Bononiensis, Summa totius artis notariae (Venice,
1546; reprint <Aalen?>, 1977), f. 34r ff).
[30] But a reference to the Liber extra or the Codex
Iustiniani does not essentially mean that the texts are pure theory. Given
the aim of the ordines, it is more likely that even here the texts
describe what “really” happened in communal courts, maybe
justifying the proceedings by mentioning authoritative texts (see Wahrmund, “Einleitung”, in: Die
Ars Notariae des Rainerius Perusinus, pp. xxxviii
ff. and xlvii ff.).
[31] ACM, No. 9, June 1143:
“Ad hec ipse abbas et monachi respondebant quod tota oblatio
ipsorum altarium seu oraculorum sicut superius legitur ad ipsum monasterium
ratione pertinere debeat; sed quia quondam discordia fuit inter ipsum
monasterium et ipsam canonicam de iam dictis oblationibus et aliis quam
pluribus capitulis, dicebat ipse abbas sicut terminata et finita fuit adtendere
et adimplere volebat, et de ipsa concordia instrumentum unum ostendebat;
... Anselmus iudex pro eo quod consules fecerant eum, inbreviare ipsam
convenientiam in cartula una quam in sua tenebat manu, per iussionem et
parabolam ipsorum consulum iussit atque precepit eisdem abbati et monachis et
preposito et canonicis ut ambe partes sic adtendant et tacite et contente sint
sicut legitur de oblatione et sepellitione in cartula quam ante hos dies et
annos fecerunt Amizo archidiaconus”.
[32] ACM, No. 13, 18 October
1145: “Lis enim talis erat. Dicebat ipse archipresbiter quod
ipse Ardericus iniuste detinet mansum unum quod dicitur de Violare ei reiacet
in eodem loco Vellate et est iuris ipsius ecclesie. Ipse vero Ardericus
respondebat quin ipse quin Anricus avus eius quin Vualbertus de Vellate, qui
dederat predictum mansum eidem Anrico avo suo, possederant per sexaginta annos
et dicebat, quod pertinuit eidem Vualberto beneficiario more; et de
predicta possessione dedit testes quibus nulla fuit data fides. Quod ipse
archipresbiter prorsus negabat et insuper dicebat si hoc verum
fuisset, tamen non debet prodesse eidem Arderico pro eo quod ipse quondam
Anricus avus eius fecerat finem de predicto manso in manu presbiteri Goldi; et
de hoc dedit testes qui fuerunt Ariprandus de Azello et Lazarus ... qui
dixerunt sub iureiurando vidisse discordiam inter Anricum Isatarinum ... et
pre Goldum de Sancta Maria ad Montem de manso de Villaira ... ubi viderunt
ipsum Anricum facere finem in manu ipsius pre Goldi de predicto manso, et
usumfructum habere debebat ipse Anricus donec vivus fuerit, et hoc fuit minus
est de annis triginta et duobus et plus de annis viginti ...”.
[33] ACM, No. 33, 29 June
1155: “... idque publico instrumento insinuari volebant, asserentes
prefatum Gilbertum consulem Mediolanensem ita statuisse per concordiam utriusque
partis, unde quendam brevem hostendebant ipsius Gilberti precepto
compositum, cuius verba hec sunt: ‘In nomine domini nostri Iesu
Christi. Breve recordacionis de concordia
hominum Clavennatum et Pluriensium’ ...”.
[34] One of the first examples dates from 10 July 1207, ACM,
No. 298: “... et super his quoddam instrumentum investiture feudi
hostendebat. His et aliis
auditis, et visis et perlectis scrituris et instrumentis ab utraque parte
hostensis ... prefatus Robbacomes talem in scriptis protulit sententiam ...”. As early as
the early eleventh century, the ostensio cartae played an important role
in Italian courts; it is not yet clear whether at that time the document was
read out or simply recited (see Bougard,
“‘Falsum falsorum judicum consilium’”, pp.
300-311; id., La justice dans
le royaume d’Italie de la fin du viiie
siècle au début du xie
siècle (Rome, 1995: Bibliothèque des écoles françaises d’Athènes
et de Rome 291); and Wickham,
“Justice in the Kingdom of Italy”, p. 190). For the use
of writing in earlier times, see H.
Brunner, “Das Gerichtszeugnis und die fränkische
Königsurkunde”, in: Abhandlungen zur Rechtsgeschichte: Gesammelte
Aufsätze 1, ed. K. Rauch
(Weimar, 1931), p. 443 (first published in: Festgaben für A.W. Heffter
(Berlin, 1873)); Recht und Schrift im Mittelalter, ed. P. Classen
(Sigmaringen, 1977: Vorträge und Forschungen 23); a recent bibliography
in: New Approaches to Medieval Communication, pp. 268-275.
[35] For
Obertus, see P. Classen,
“Richterstand und Rechtswissenschaft in den italienischen Kommunen des
12. Jahrhunderts”, in: id., Studium
und Gesellschaft im Mittelalter, ed. J.
Fried (Stuttgart, 1983: Schriften der MGH
29), pp. 27-126, at p. 50. For the problem in general, see J. Fried, Die Entstehung des
Juristenstandes im 12. Jahrhundert: Zur sozialen Stellung und politischen
Bedeutung gelehrter Juristen in Bologna und Modena (Cologne and Vienna,
1974: Forschungen zur neueren Privatrechtsgeschichte 21).
[36] ACM,
No. 30. For the Piuro-Chiavenna trial, see H. Keller,
“Mehrheitsentscheidung und Majorisierungsproblem im Verbund der
Landgemeinden Chiavenna und Piuro (1151-1155)”, in: Civitatum
Communitas: Studien zum europäischen Städtewesen: Festschrift Heinz Stoob zum
65. Geburtstag, ed. H. Jäger,
F. Petri and H. Quirin, 2 vols. (Cologne, 1984: Städteforschung
A 21), 1, pp. 2-41, at pp. 10 ff.
[37] ACM, No. 312, 28 March
1208.
[38] ACM, No. 6714, December
1168. In 1164 in Verona, for unknown reasons Albertus Tinca gave a judgement to
his “assessor” Guido “ut eam legeret” (J.
Ficker, Forschungen zur Reichs-
und Rechtsgeschichte Italiens (Innsbruck, 1868-74), iv, No. 134, pp. 176 ff.).
[39] Illich, Im Weinberg des Textes, pp. 65 ff.; P. Saenger, “Silent reading: Its impact on late
medieval script and society”, Viator: Medieval and Renaissance Studies
13 (1982), pp. 367-414, at pp. 385 ff.; id.,
Space Between Words: The Origins of Silent Reading (Stanford, 1997: Figurae:
Reading Medieval Culture), pp. 271 ff. If in the case of England it is true
that documents mostly had to be “heard”, in the first half of the
thirteenth century charters might have been “shown”, that is
inspected, in court (Clanchy, From
Memory to Written Record, pp. 267 ff. and 272 ff.).
[40] In a case heard by Arnaldus, the defendant presented
charters which were “inspected” by Arnaldus: “Et de his
publica instrumenta ostendebat (the defendant) ... Quibus et aliis visis et auditis, instrumentis quoque utriusque partis
diligenter inspectis ... Arnaldus ...
condempnavit ... (ACM, No. 228, 20 April 1200); a few examples of
many are successively ACM, No. 245, 20 April 1202; ACM, No. 274,
20 December 1204; ACM, No. 283, 26 October 1205. For “inspixere”
and “videre” as verbs which indicate silent reading, see Saenger, “Silent Reading”,
p. 384.
[41] see below, pp. <000-000(*19-*23)>.
[42] As early as the eleventh century, in formal and
informal dispute settlements, proceedings could include open verbal disputes (Wickham, “Justice in the kingdom
of Italy”, pp. 232 ff., drawing a parallel between cases of the eleventh
and late twelfth centuries (at p. 233); Bougard,
“‘Falsum falsorum iudicum consilium’”, pp. 299
ff.; Padoa Schioppa,
“Aspetti della giustizia milanese”, pp. 510 ff.).
[43] The discussion concerns the question whether the
first appearance of the consules iustitiae can be dated back to the
1150s (when certain consules causarum are mentioned) or to the 1170s
(when the term consules iustitiae is first found). But it is not before
the late 1180s–which is important for the argument presented
here–that they deal as an independent institution with civil litigation,
separate from the consules communis. For the discussion, see ACM,
pp. liii ff.; C. Santoro,
“Gli offici”, pp. 51; G.
Rossetti, “Le istituzioni comunali a Milano”, pp. 97 ff.;
and P. Classen,
“Richterstand”, p. 46. For the institutional separation,
see Arlinghaus,
“Legitimationsstrategien”.
[44] G. Dolezalek, Das Imbreviaturbuch des
erzbischöflichen Gerichtsnotars Hubaldus aus Pisa, Mai bis August 1230
(Cologne and Vienna, 1969: Forschungen zur neueren Privatrechtsgeschichte
13), pp. 43 ff.; for Verona, see P. Lütke-Westhues,
Die Kommunalstatuten von Verona im 13: Jahrhundert. Formen und Funktionen
von Recht und Schrift in einer oberitalienischen Kommune (Frankfurt am M.
etc., 1991: Gesellschaft, Kultur und Schrift: Mediävistische Beiträge
2), pp. 219 ff.; for Bologna, with interesting insights, M. Vallerani,
“L’amministrazione della giustizia a Bologna in età
podestarile”, Atti e memorie della Deputazione di Storia Patria per le
Provincie di Romagna 43 (1992), pp. 291-316. A general survey is given by K.W. Nörr, “Reihenfolgeprinzip,
Terminsequenz und Schriftlichkeit: Bemerkungen zum römisch-kanonischen
Zivilprozeß”, Zeitschrift für Zivilprozeß 85 (1972), pp. 160-170.
[45] One of the first references of reading out a witness
protocol in a Milanese sentence dates from 9 February 1195 (ACM, No.
188). The examination of witnesses in northern Italy is explained by H. Himstedt, Die neuen Rechtsgedanken im
Zeugenbeweis des oberitalienischen Stadtrechtsprozesses des 13. und 14.
Jahrhunderts (Berlin and Leipzig, 1910: Zivilprozessrechtliche
Forschungen 5), pp. 79 ff.; G.
Dolezalek, Das Imbreviaturbuch, pp. 54 ff.; H. v. Voltelini, Die Südtiroler
Notariats-Imbreviaturen des 13. Jarhhunderts 1 (Innsbruck, 1899: Acta
Tirolensia 2; reprint Aalen, 1973), p. clxii.
[46] Engelmann, Die Wiedergeburt der
Rechtskultur, pp. 243 ff. (consiliarii),
pp. 328 ff. (iudices delegati); G.
Rossi, Consilium sapientis iudiciale: Studi e ricerche per la storia
del processo romano-canonico, secoli xii-xiii (Milan, 1958), pp. 48 ff.; M. Ascheri, “Diritto comune,
processo e istituzioni: Ovvero della credibilità dei giuristi (e dei
medici)”, in: id., Diritto
medievale e moderno: Problemi del processo, della cultura e delle fonti
giuridiche (Rimini, 1991), pp. 195 ff.. For a survey on consilia, see Consilia im späten Mittelalter.
For the similarity in the tasks of delegati and iurisperiti in
Milan, see Arlinghaus, “Legitimationsstratgien”.
[47] ACM sec. xiii
2.2, No. 359, 8 March 1264: after a short
introduction, the libellus is cited, followed by the judgement and a
short comment (starting with “pronunciavit”, third person
sing.). Introduction: “Super questione que vertebatur coram ...
Gualterio Balbo ... inter dominum Lavizium Villanum canonicum ecclesie Sancti
Laurentii Maioris Mediolani et sindicus capituli ipsius ... ex una parte, et
Biriamum de Citelago ... In qua
questione talis porecta fuit petitio, tenor cuius talis est: [cited libellus:] In nomine Domini. Ego
Lavizius Villanus ... peto quatenus Biriamus de Citelago ... michi suprascripto
nomine exibeat et consignet omnes fructus, reditus et proventus, de quibus
datur decima, qui fuerunt in infradictis terris ... [cited judgement:] In
nomine Domini. Nos predictus dominus Gualterius consul Mediolani, habito
conscilio domini Guidonis Nadivi iurisperiti et sotiorum nostrorum, consulum
Mediolani, qui vidit testes ... et qui diligenter vidit et audivit et
examinavit iura et alegationes et rationes utriusque partis, condempnamus
predictum Biriamum ut hinc ad decem dies proximos det et solvat ... ut de
cetero omni anno det et solvat eidem domino Lavizio nomine illius ecclesie
decimam omnium fructuum illarum terrarum ... [last comment:] Dictus
dominus Gualterius Balbus pronuntiavit ut supra, presentibus partibus,
videlicet [Names] ... ex una parte, actores, et [Names] ex
altera. Actum in foro iuditiali comunis
Mediolani. Interfuerunt ibi testes ...”. What might cause some difficulties is the
“condempnamus”, indicating that Gualterius and Giudo worked
together on the case. As described in the charter, they did so separately, and
when Gualterius read the verdict to the public, Guido very likely was not
present, because his name is found neither among the witnesses nor elsewhere.
[48] For a statistical survey up to the year 1276, see Arlinghaus,
“Legitimationsstrategien”. One of the few exceptions in the period:
the sententia from 6 July 1248 (ACM sec. xiii 1, No. 492). For the last quarter of the thirteenth
century, see Gli atti del Comune di Milano nel secolo xiii, 3, ed. M.F. Baroni, (Alessandria, 1992), No. 20, post
14 June 1277; No. 53, 17 December 1277; No. 87, 14 March 1279; No. 101, 23 June
1279; No. 126, 2 April 1280; No. 273, 3 June 1283; many more examples could be
cited.
[49] 11 April 1256, ACM sec. xiii 2.1, No. 139; 1 August 1256, ACM
sec. xiii 2.1, No. 152.
[50] See supra, note 47.
[51] For the following, see Chiantini,
“Dal mondo della prassi”, pp. 46 ff.; id., Il consilium sapientis nel processo del secolo xiii: San Gimignano 1246-1312
(Siena, 1997), pp. xliv and 7.
[52] For examples from the fifteenth century, see I. Baumgärtner, “Rechtsnorm und
Rechtsanwendung in der venezianischen Terraferma des 15. Jahrhunderts: Die
Consilia von Bartolomeo Cipolla”, in: Consilia im späten Mittelalter,
pp. 79-111.
[53] M. Chiantini, Il consilium sapientis, p. xxxii (for San Gimignano); Arlinghaus,
“Legitimationsstrategien” (for Milan). The same seems to be true for criminal proceedings in the second half of
the thirteenth century, when consilia were given and read out without
presenting any reasons (H. Kantorowicz,
Albertus Gandinus und das Strafrecht der Scholastik, 1: Die Praxis:
Ausgewählte Strafprozessakten des dreizehnten Jahrhunderts nebst diplomatischer
Einleitung (Berlin, 1907), p. 120).
[54] That San Gimignano is not at all an exceptional case
in the way consilia are presented in court, can be detected by the
explanations given by Durantis, Speculum
iudicale, No. 11: “Porro auditis partium disputationibus et actis
causae examinatis et consiliarii deliberatione praehabita diligenti, consilium
in scriptis redactum, ne judici relinquatur via malignandi, et secrete
offerant, prout eis visum et aequum videbitur, qualiter iudex debeat condemnare
vel absolvere”. For the reading of consiliae in criminal
proceedings, see Kantorowicz, Albertus
Gandinus und das Strafrecht der Scholastik, p. 120.
[55] Arlinghaus, “Legitimationsstrategien”.
[56] ACM, No. 260, 21
October 1203: “His et aliis auditis visis et perlectis testibus
ipsius prepositi et viso instrumento emptionis, prefatus Miranus condempnavit
...”; ACM, No. 309, 21 December 1207: “His et multis
aliis hinc inde auditis et testibus utriusque partis diligenter perlectis ...
Ubertarius ... absolvit; ACM, No. 316, 12 December 1208; ACM,
No. 317 (same day), and many more examples in the following pages of ACM.
For Milan, see also Liber Consuetudinum Mediolani, pp. 59 ff. The
handbooks of the notaries give a description of the procedure (see the editions
of A. Gaudentio, Ars notaria
(Liber formularius) (Bologna, 1892), p. 46 (written around 1214); Die
Ars Notariae des Rainerius Perusinus, pp. 147 ff. rubric ccxci, (written around 1233); and Rolandini Rodulphini Bononiensis, Summa
totius artis notariae, f. 344r ff.; for literature see supra, note
44).
[57] Several times he explicitly refers to the practice of
the Bolognese city courts (cf. Aegidius
de Fuscarariis, Ordo iudiciarius, ed. L. Wahrmund (Quellen zur Geschichte des römisch-kanonischen
Prozesses im Mittelalter, 3, Heft 1; repr. Aalen, 1962), p. xli, note 3, and p. 112).
[58] “Aegidius
will in erster Linie tatsächliche Rechtsübungen darstellen. Er arbeitet für die
Praxis und er schöpft aus dem Leben” (Wahrmund,
“Einleitung”, in: Aegidius de
Fuscarariis, Ordo iudiciarius, pp. xxix ff. and xxxv ff.,
quotation at p. xxxi).
[59] Aegidius de Fuscarariis, Ordo iudiciarius, p. 108: “Demum iudex praecipiat
notario, quod legat dicta testium. Et notarius statim incipiat in nomine domini
testes legere. Et si est magna multitudo testium vel attestationes sunt nimis
prolixae, legat dicta unius testis et sufficiat pro omnibus. Et ita servatur
Bononiae”; ibid., p. 115: “Adveniente termino
praefixo ad allegandum et disputandum super dictis testium et aliis, tunc dicet
iudex partibus: ‘Ego intendo habere consilium et de peritorum
consilio procedere ad sententiam. Si vos habetis aliquos suspectos, detis mihi in scriptis’”.
[60] Koch and Oesterreicher,
“Sprache der Nähe–Sprache der Distanz”, pp. 29 ff., talk of
“elaborated orality” (“elaborierte Mündlichkeit”),
thus indicating the closeness of “ritual speech” to written texts.
But it should be emphasized here that, despite all closeness, there is a
difference between the two modes of speech. For ritual speech and written text,
see also Koch and Oesterreicher, “Funktionale
Aspekte der Schriftkultur”, pp. 593 ff.; Ong,
Orality and Literacy, pp. 81 ff.
[61] Wickham, “Justice in the Kingdom of Italy”, p. 194, states that
the strongly formalized placita of the eleventh century were
“occasions whose entire ideology was the maintenance of justice”
and “in the Italian kingdom public rituals were ... heavily, explicitly,
associated with the law”. It is likely that from the last decades of the
twelfth century onwards the rituals focused more on the individual case than on
“law” or “city administration” in general. For this
purpose, it seems that different and new rituals–as e.g. elaborated forms
of elections–were now being employed. For voting
in Italian city communes, see H. Keller,
“Wahlformen und Gemeinschaftsverständnis in den italienischen
Stadtkommunen (12.-14. Jahrhundert)”, in: Wahlen und Wählen im
Mittelalter, ed. R. Schneider
and H. Zimmermann (Sigmaringen,
1990: Vorträge und Forschungen 37), pp. 345-374.
[62] If one looks at the forespeca (Fürsprecher),
who appears in courts north of the Alps up to the fifteenth century, in
categories such as “role-playing”, “estrangement through
speech” and “creating an autonomous discourse”, it can be
argued that this institution comes close to what is observed here. A detailed
analysis of the differences cannot be given here, but in general it can be said
that the forespeca still acts in the context of “improvised
theatre”. For a brief survey, see H.
Winterberg, “Fürsprecher”, in: Handwörterbuch zur
deutschen Rechtsgeschichte 1 (Berlin, 1971), col. 1333-1337.
[63] Clanchy, From Memory to Written Record, p. 193; Ong, Orality and Literacy, p. 82:
“By contrast with natural, oral speech, writing is completely artificial.
There is no way to write ‘naturally’”.
[64] If a text was read out or performed, the written text
almost disappeared, and what was heard was attributed to the one who read out
the text (H. Wenzel, Hören und
Sehen, Schrift und Bild: Kultur und Gedächtnis im Mittelalter (Munich,
1995), pp. 216 ff.; id.,
“Boten und Briefe. Zum Verhältnis körperlicher und nicht-körperlicher
Nachrichtenträger”, in: Gespräche–Boten–Briefe:
Körpergedächtnis und Schriftgedächtnis im Mittelalter, ed. H. Wenzel (Berlin, 1997: Philologische
Studien und Quellen 143), pp. 86-105, at pp. 88 ff.). It is difficult to say what part the author plays in
the minds of those who hear a text. Bäuml states that, for medieval literature
which was read out or even performed, it is not yet clear whether the audience
attributed what was heard to the author or to the reader: “Was in
primärer Oralität kein Problem war, ist in der Vokalität durch die Gegenwart
des Textes dadurch kompliziert, daß ... der Autor als persona und der
Vorleser einander ‘opakisieren’” (F.H. Bäuml, “Autorität und Performanz”, p. 261).
For our purposes, this is of minor importance as long as the audience does not
attribute the “otherness” of speech to the text.
[65] Certainly, speech is here not only bound to written
texts, but to written Latin texts, which may have strengthened the
“otherness” of the communication. However, Latin was heard in
church and, especially in the thirteenth century, spoken more and more in
schools and universities (in the form of open verbal disputes!). For the abbot
of the monastery of San Ambrogio or the trained lawyer of his adversary,
hearing Latin in court probably did not mean any “estrangement”
that could mark a difference from their everyday life. For a brief survey of
the use of Latin in the Middle Ages, see F.
Brunhölzl, “Lateinische Sprache und Literatur”, in: LdM 5 (1991), col. 1722-1735, esp. col.
1733; for England, see Clanchy, From
Memory to Written Record, pp. 260 ff. In Germany, during the thirteenth
century even in law books the vernacular was the common language; see P. Johanek, “Rechtsschrifttum”,
in: Die deutsche Literatur im späten Mittelalter (1250-1370), ed. I. Glier (Munich, 1987: Geschichte der deutschen Literatur
von den Anfängen bis zur Gegenwart, 3.2), pp. 396-431, with brief glances
at France and Scandinavia.