When it formed the heart of the Carolingian marca Hispania just after 800, Catalonia had spent over 200 years under Visigothic rule, followed by 80 years under Arab dominion. With Catalonia’s new position as a frontier region, the counts of Barcelona attained a higher degree of political independence from France in the process of the Carolingian Empire’s decomposition, and maintained complex, often not very peaceful relations with the Emirate and later the Caliphate of Cordoba. But what was the long-term impact of Carolingian rule on the legal culture of this region? It is well-known that the Carolingians pursued a fairly active legal policy in the territories they had conquered, as we can learn from their capitularies and charters as well as from their practice warranting local law and custom. Indeed, one of the most important manuscripts of Carolingian capitularies comes from Catalonia: the 11th-century Codex Ripoll 40, today housed in the archive of the crown of Aragon in Barcelona. This manuscript deserves emphasis as several Frankish legal texts were transmitted into Catalonia and copied there between the 9th and the 11th centuries. The Frankish influence on the legal culture of this region was remarkable: even in the post-Carolingian period that is relevant to my discussion here, we can observe the influence of Frankish legal traditions. However, the dominant legal culture remained Visigothic. Around 1000, in Barcelona, the so-called Liber iudicum popularis was written, a legal compilation that included, in full, the Visigothic Liber iudiciorum, the famous law-book compiled under the Visigothic King Reccesvinth and published in 654. A law-book clearly destined for judicial practice, several copies of it spread across Catalonia – or indeed the Spanish March – among them the most famous one today kept in the Escorial (El Escorial, Real Biblioteca del Monasterio San Lorenzo, Z II 2, 11th cent.).
The Liber iudicum popularis was composed by Bonhom, a legal expert, who was active before and after the year 1000 in Barcelona. A short editorial note at the beginning makes clear that Bonhom compiled his work under reign of the French king Robert II, the second ruler of the Capetian dynasty, and finished it on July 10th in the year 1011. Bonhom is mentioned in more than 120 legal documents, where he turns up as a judge and legal expert in different kinds of legal transaction, at different places such as Vic cathedral, the monastery Sant Cugat, the comital palace in Barcelona, Barcelona cathedral and the abbey of Sant Pere de les Puelles. His education seems to have been ecclesiastical, but as a judge he showed wide-ranging activities. As we learn from the preface, his compilation aimed at just judicial termination of all disputes and litigation, between the powerful and the poor, the guilty and the innocent, the just and the unjust, the veracious and the frauds, those who are right and those who are wrong, and between robbers and those who wish to use their property. We may perhaps see in Bonhom’s very name, as clearly derived from Latin bonus homo, a reminiscence of the boni homines, those persons often referred to in Frankish sources as lay judges. In Catalonia around this time, there was an advanced lay culture, in which lay judges consulted written legal texts and where lay notaries drafted charters – indeed not very different from Northern Italy at that time. The Liber iudicum popularis apparently sought to address a new social elite of lay judges, as has been emphasised by Jeffrey Bowman, who convincingly argued that the Liber iudicum popularis should be read as a mirror for judges.
The Liber iudicum popularis has an editorial note; a preface; a set of more general, often moralising texts referring to the conduct of judges; and another prologue on legislation. At the end it contains a glossary of legal terms taken from the Liber iudiciorum. The copies and fragments we have suggest that the Liber iudicum popularis was written in such a way that much space was left between the lines, but even more on the margins, as can be seen on the fragment of the Liber today kept at the Episcopal library of Vic (Vic, Arxiu i Biblioteca Episcopal, Fragment XV/3, 11th cent.) (Figure 1). We may suspect that this was done to leave space for commentaries and annotations, as the text indeed shows that scribes made ample use of this possibility. This suggests that the original text should in no way be altered, but could only be commented upon; we observe here the beginnings of juristic annotation on Visigothic law.
The Gothic and Frankish framing of Catalan legal culture around 1000 becomes evident from the collection of texts ostensibly put at the beginning of the manuscript. The compilation starts with a prologue which points out that the idea of law goes back to Moses, while mercy and truth trace back to Jesus Christ. We then find learned information on the idea of justice in the Old and New Testament, followed by chapters on good and bad judges, and their ideal behaviour; the author adds chapters on witnesses, on fraud and negligence, and on the features, or indeed stereotypes of individual peoples. These are, of course, mostly, negative, though there is one exception: the virtue of the Goths: fuit et est usque hodie – “as it remained until today”. There are further chapters, the most important of which states that princes should obey the law. Most of these texts ultimately derive from the writings of Isidore of Seville, in particular his “Etymologies” and the “Sentences”.
Frankish influences in the Liber iudicum popularis are most clearly visible in the lists of kings contained in the manuscript’s first part. These do not begin with Roman emperors, but with Visigiothic kings: namely with King Alaric I, under whose rule the Visigoths came to Italy and to Gaul, from where they eventually moved on to Spain. Here we find all Visigothic rulers and the length of their reign, up to the last King Roderic, whose death fighting against the Arabs in the year 711 brought Visigothic rule to an end: Et ingressi sunt Sarraceni in Spania: “and the Saracens invaded Spain”. Their dominion was regarded as illegitimate, none of their emirs or caliphs is even mentioned, let alone the Umayyads. From a Catalonian perspective, history only continued in any noteworthy form when the Franks took Barcelona and Louis the Pious expelled the Saracens from there, and when he created the county of Barcelona. The list is continued by a catalogue of Carolingian rulers, until finally Hugh Capet became king in 987; following that we see the Capetian kings. Even 200 years after the manuscript was written, a scribe added the reign of Philippe Auguste. The narrative of legitimacy is clear: only the Frankish rulers were the legitimate successors to the Visigothic kings.
For Bonhom, the history of the Franks in Catalonia also was one of legislation. Most significant here is the so-called de auctoribus legum here. This text (under its title ‘Prologue to the Bavarian law code’) can also be found in dozens of manuscripts of Bavarian, Aleman, Salic and Ripuarian law and must have been imported from Francia into Catalonia. It narrates a history of legislation that begins with Moses in order to give the world history of law-giving a Christian – or indeed Judeo-Christian – framing. It repeatedly refers to obstacles to legislation, though Theodosius II eventually manages to produce a codification of Roman law. Up until this passage, the whole text is actually based on Isidore of Seville’s Etymologies, which must have been brought to Francia sometime in the seventh century. However, in what follows, the texts depart from Isidore, by stating: “Then each people developed their own laws from their customs, for an old custom should be considered as law”: Longa enim consuetudo pro lege habetur. We thus encounter the historical mission of the Franks to provide each people under their rule with a written law. As a result, the Frankish Empire is glorified as a multi-ethnic Christendom based on an ethnically defined legal pluralism: first the Franks, then the Alemans and the Bavarians. It is, of course, not a coincidence that we do not find this text in any other manuscript of the Visigothic law from Northern Spain (such as Léon, for example), but only in the Catalonian Liber iudicum popularis. The message here was that the Franks, as they had respected the laws of the Alemans and the Bavarians in other parts of their Empire, would also want to have Visigothic law observed in the Spanish March. This could indeed be understood as an important, programmatic statement. The integration of this prologue thus tells us a lot about the construction of Frankish legitimacy in ruling Catalonia.
What this meant in legal practice can be learned from the marginal glosses attached to the Liber iudiciorum. When publishing the Visigothic Code for the first time in 654, the Visigothic King Reccesvinth forbade the use of other law-books at court. His law is contained in the Liber iudicum popularis and reads in translation as follows: “We both permit and desire that the laws of foreign nations (aliena gens) shall be studied for the sake of the useful knowledge that may be obtained from them, but we reject and prohibit their employment in the business of the courts. For although they may be couched in eloquent language, they abound in difficulties; and so long as the methods, principles and precepts contained in this body of laws suffice for the purposes of justice, we are unwilling that anything more be borrowed, either from the Roman laws, or from the institutions of foreigners.“ This sounds indeed very general, as it also seems to have puzzled our 11th-century judge. For the Liber iudicum popularis has two marginal commentaries on this passage alone, both of which can be dated into the 11th century by the hand-writing. The first comment aims to explain the word alienae gentis by stating: Tam Romane quam Salice uel cuiuscumque gentis nisi solum modo Gotice. In translation, “both Roman and Salic and of any other people with the sole exception of the Gothic”. This sought to make clear that the general rule (which was originally directed against the use of Roman law at Reccesvinth’s time) should, at the time when the compilation was made, also apply to the Frankish people’s law, namely Salic law: only Gothic law should be used before a court. The second comment refers to the whole provision and is framed almost like a public announcement so that it could not escape anyone’s attention. It reads in translation as follows: “By granting a license, we wish that Gothic men (Goti homines) should know alien laws, Roman and other, as they are more prudent, wise and useful. However, we prohibit and interdict that they have or use for judgment among themselves any other law except the Gothic one.” At first sight, this sounds like a mere confirmation of Reccesvinth’s law: Knowledge of alien law is ok, and also useful; but no use of alien law at trial. However, on closer inspection, the wording inter se, meaning “among themselves”, points to an important reinterpretation which confines the regulation to cases in which Goths were litigating against one another. From legal practice as we know it from other regions of the Frankish kingdom, and notably also from Northern Italy, we may conclude that in a constellation before court, where one party was a Goth, and the other a Frank, things had to be handled differently. Here, we may surmise, the principle of the personality of law would be respected, which prescribed to apply the law a person had by birth. If the defendant was indeed a Frank, this would have meant the application of Salic law, also in Catalonia. What also strikes us here is the role of Roman law. Indeed when the Liber iudicum popularis was written, there were no Romans remaining in Catalonia; they had already disappeared in the 7th century. But Roman law was still regarded as useful, in particular for studying law in general and for interpreting Visigothic law. However, it could not be used in court.
At the end of the Escorial manuscript, two texts were appended with prayers to be spoken when conducting an ordeal with boiling or cold water. Interestingly, there are no ordeals mentioned in the Visigothic code, in which judicial proof had to be given by witnesses, by written testimony and also by oaths, which comes very close to late Roman legal practice. This was very different in Frankish law, and it is by Frankish influence that these prayers were added, possibly for cases when the defendant was a Frank. Of course, there is no mention that this had been borrowed from Frankish legal practice.
Catalonia clearly was conceived of as a frontier society from the creation of the Spanish March; it had once belonged to the duchy or kingdom of Aquitaine, but around 1000, it formed a separate region centred around the county of Barcelona. Over a period of roughly two hundred years, the foundations of its future legal ethnic identity were laid. Within these two hundred years, this region, formerly part of the Western Empire, had acquired a distinctive Visigothic character. This becomes visible in legal terms through the fact that the Visigoths eventually could territorialise Visigothic law by prohibiting the use of Roman law before court. The price of this was, however, that the Visigothic law code appears more highly Romanised than any other barbarian law code. Catalonia maintained its Visigothic character after the end of the Visigothic kingdom. The Carolingians sought to propagate their rule in Catalonia as a direct continuation of Visigothic rule – almost wiping out the period of Arab domination from historical consciousness. As we have seen, the Carolingians introduced the principle of personality of law exclusively with regard to those Frankish groups that came to settle in the Spanish March. Ethnically-defined legal pluralism thus retained a dual structure in Catalonia. We can see this legal pluralism reflecting the influx of larger groups of military elites, as is documented for the Spanish March by the famous Carolingian aprisio privileges granted to the military settlers, the Hispani. And we may suspect that it were these groups in particular who had an interest in having their conflicts settled by the use of combat or ordeal as probatory practice. The principle of personality of laws was applied in support of these groups, which the rulers intended to maintain their legal identity as one that differed from those of the indigenous groups. As one can imagine, this became increasingly difficult through intermarriage; still, it is important that there was some kind of policy behind the fact that there were multiple legal identities defined in ethnic terms.