Costambeys-2007-Early Medieval Europe PDF

Disputes and courts in Lombard and
Carolingian central Italy
Marios
Original
Disputes
Costambeys
Articles
and
courts
inJournal
central
Italy
Blackwell
Oxford,
Early
EMED
0963-9462
XXX
2007
Medieval
The
UK
Publishing
Author.
Europe
Ltd
Compilation Blackwell Publishing Ltd
M C
This study examines the relationship between judicial courts and the
societies in which they operated as revealed by the documents of the abbey
of Farfa in the duchy of Spoleto. In a series of case studies it is shown
that disputants and judges could draw on a wide range of norms that
enabled them to manipulate the settlement process and to tailor it to their
own social advantage. Unlike many studies of disputes in central and
northern Italy of the early Middle Ages, here weight is given to those
aspects of disputing that took place outside the court. It is an approach
that casts fresh light on the transition from Lombard to Carolingian rule
in central and northern Italy. It also challenges the binary line between
the private and the public in dispute settlement. This, in turn, has
implications for how we view the so-called feudal transformation in
which the public was supposedly eclipsed by the private. 1
In the uplands of the Appennines, in the sala publica of Falagrina,
high in the summer of 845, the gastald Heric judged a case in a commanding tone appropriate to the former hometown of the emperor
This article owes most to the invaluable advice and forebearance of Geoff West and Paul
Kershaw, to both of whom I am immensely grateful. I have also beneted from the comments
of Matt Innes, Simon MacLean, Sarah Hamilton, Chris Wickham and Paul Fouracre, whom
I thank warmly. The views expressed here are, however, entirely my own.
The following abbreviations occur throughout: Manaresi = I placiti del regnum Italiae, ed.
C. Manaresi, 3 vols (Rome, 195560), vol. I; CDL = Codice diplomatico longobardo, vols I
and II, ed. L. Schiaparelli (Rome, 192933), vol. III, ed. C. Brhl (Rome, 1973), vol. IV/1,
ed. C. Brhl (Rome, 1981), vol. V, ed. H. Zielinski (Rome, 1986), cited with document
no.; ER = Edictus Rothari, LGrim. = Grimoaldi Leges, LLiut. = Liutprandi Leges, LRat.
= Ratchisi Leges, LAist. = Ahistul Leges, all in Leges Langobardorum (643866) , ed.
F. Beyerle, Die Gesetze der Langobarden, Germanenrechte. Neue Folge, Westgermanisches
Recht, 2nd edn (Witzenhausen, 1963); RF = Gregory of Catino, Regestum Farfense , ed.
I. Giorgi and U. Balzani, Il Regesto di Farfa, 5 vols (Rome, 18791914), cited with vol. and
document no.; CF = Il Chronicon Farfense di Gregorio di Catino, ed. U. Balzani, 2 vols
(Rome, 1903).
Early Medieval Europe () 265289

2007 The Author. Journal Compilation 2007 Blackwell Publishing Ltd,
Garsington Road, Oxford OX DQ, UK and Main Street, Malden, MA , USA
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Marios Costambeys
Vespasian.2 If this was clearest in his peremptory distraint of a property

disputed between local men and the abbey of Farfa, a sense of authority
is evident too in the reason given for Herics convening of the court:
for making the iustitia of individual men.3 I have left the term untranslated here because the obvious English word does not cover the full
range of meanings inhering in early medieval uses of iustitia.4 Perhaps
surprisingly, the placitum charter (or notitia) of the Falagrina case is the
earliest instance of the use of the term in this context in a document
from one of the best-attested regions of Italy, the duchy of Spoleto, and
one of the earliest from Italy as a whole. 5 It is also ambiguous: in this
case, Herics high-handed conscation of the property in question looks
on the face of it designed to force to court the abbot of Farfa to hear
the claims of six local men to part of an estate. It was an action,
however, that only led to the men admitting that they had no alternative proofs to offer, while the abbot could brandish a donation charter
and conrmations by two Carolingian emperors. Having begun by
resembling an arbiter of justice in the modern abstract sense, the
unfolding of the process in our document transforms Heric into an
accomplice in what looks like a dispute deliberately confected to bolster
Farfas credentials as landowner in Falagrina. This single document,
then, reveals some of the slippery malleability of the term iustitia. It
prompts us to think again about the relationship between judicial
courts and the societies in which they operated. This is a subject that
has been at the heart of debate on social and political changes leading
up to the year 1000. I will focus here rather on an earlier transition,
that from Lombard to Carolingian rule in Italy.
Although neither the location of Roman Falacrina nor that of any early medieval settlement
named Falagrina (nor, indeed, the relationship between the two) can be identied precisely,
excavations led by the British School at Rome have, at time of writing, found promising
evidence for both periods in a valley to the west of the modern town of Cittareale in upper
Lazio: I am grateful to Dr Helen Patterson for letting me know the unpublished results of
her work. In the early Middle Ages the name Falagrina was attached to a territory as well
as to a single place. See further P. Toubert, Les structures du Latium mdival: Le Latium
mridional et la Sabine du IXe sicle la n du XIIe sicle, 2 vols, Bibliothque des coles
franaises dAthnes et de Rome 221 (Rome, 1973), II, p. 1265 with n. 3.
Manaresi, no. 50, dated 10 August 845 (= RF II 286): pro singulorum hominum iustitia
facienda.
J.L. Nelson, Kings with Justice, Kings without Justice: An Early Medieval Paradox, in La
giustizia nellalto medioevo (secoli IXXI), Settimane 44 (1997), pp. 797823.
The rst, relatively isolated, incidence of this clause (ad singulorum hominum iustitiam
faciendum ac deliberandum) is in a Pistoiese notitia of 806: Manaresi, no. 19. But the life of
this formula really begins with this Spoletan document of 845. For Tuscan examples, see
Manaresi, nos. 61, 62, 69, 70, 102, 127; for northern Italy, F. Bougard, La justice dans le
royaume dItalie de la n du VIIIe sicle au dbut du XIe sicle, Bibliothque des coles
franaises dAthnes et de Rome 291 (Rome, 1995), p. 129, n. 77 (Manaresi, nos. 59, 66, 67,
77, 88, 99, 100, 101, 107, 110).
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2007 The Author. Journal Compilation 2007 Blackwell Publishing Ltd
Disputes and courts in central Italy
267
We know nothing more about gastald Heric; disembodied from his

social context we see him only in the traditional guise of the judge,
apparently a conduit of royal authority and therefore an important
component of those accounts of Italian history that centre on the development of state institutions. Recent work on disputes and courts in
northern and central Italy, while recognizing the importance in disputes
of local social conditions and out-of-court compromise, has still tended
to emphasize the formal institutions and structures available for airing
disputes which, it has been argued, provided a framework of norms
that shaped the way disputes unfolded. This is to take seriously the
language of the notitiae and the role they present for a gure like gastald
Heric. But I will argue here that it does not give sufcient weight to
those aspects of the disputing process that took place outside the court,
including norms that owed little to the mentality of a formal judiciary.
The impression that the public administration had institutional
weight and coherence is one at rst sight encouraged by the notitiae
produced by the courts.6 These show courts meeting regularly and in
public, usually in line with the civitas structure surviving from the
Roman period.7 The charters suggest those institutions effectiveness:
they were made, according to the common assumption, to record not
just a dispute but its resolution, by the court. The pattern of extant
survivals or copies is uneven but the documents generally cluster most
thickly in the records and archives of important monasteries, and
around none more than the abbey of Farfa in the Sabina. 8 Of the 337
documents dating from the period 739898 in Farfas early twelfthcentury cartulary, 26 are records of court hearings. 9 While tfully enjoying political independence from the kings in the north, the dukes of
6
Quotation from C. Wickham, Land Disputes and their Social Framework in Lombard and
Carolingian Italy, in W. Davies and P. Fouracre (eds), The Settlement of Disputes in Early
Medieval Europe (Cambridge, 1986), pp. 10524, reprinted with additions in C. Wickham,
Land and Power: Studies in Italian and European Social History (London, 1994), pp. 22956,
at p. 236.
For the structure of Lombard government in general, see S. Gasparri, Il regno longobardo
in Italia. Struttura e funzionamento di uno stato altomedievale, in S. Gasparri and P. Cammarosano (eds), Langobardia (Udine, 1990), pp. 237305; for its use of documents, see the
comments of Wickham, Land Disputes, pp. 2456; and N. Everett, Literacy in Lombard Italy
(Cambridge, 2002), pp. 1757.
The greatest number of original documents survives from a bishopric, Lucca. On the Farfa
archive, see T. Klzer, Codex Libertatis. berlegungen zur Funktion des Regestum Farfense
und anderer Klosterchartulare, in Il ducato di Spoleto, Atti del 9o congresso internazionale di
studi sullalto medioevo (Spoleto, 1983), pp. 60953; and M. Costambeys, Piety, Property
and Power in Eighth-Century Central Italy, Ph.D. thesis, University of Cambridge (1998),
pp. 3240.
The cartulary, known as the Regestum Farfense (RF ), was compiled by Gregory of Catino.
In Italy, the documentary records of court proceedings were generally known as notitia
(iudicati ), while placitum referred to the judicial assembly itself: see Bougard, La justice dans
le royaume dItalie, p. 119, n. 1.

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Marios Costambeys
Spoleto were at least nominal heads of an administration that differed

little in its organization and methods from its northern counterpart. 10
But since the Farfa cartulary includes numerous types of document and
not simply court reports, it provides the necessary context for measuring the role and impact of the court in wider society. The Sabina is as
well served in this respect as those regions of tenth- and eleventhcentury France that have provided much of the sustenance for studies
of medieval conict and its management that place emphasis on social
process rather than institutional weight. 11
Although Carolingian re-organization after 774 meant that judges in
Italy had different titles counts and scabini, as opposed to gastalds
they still operated in tribunals of varying size and composition, exactly
equivalent to their Lombard predecessors. 12 Subtle shifts in the language of notitiae, such as the appearance of the term iustitia, need to
be read against this background of underlying continuity. In general
writers in the Carolingian period gave to iustitia meanings which veered
between a royal initiative aimed at correction (right, or righteousness)
and a defence of rights, in the sense of entitlements. 13 When it came
to local judicial hearings and their documents, though, the moral
world of the law comprised not royal abstractions of justice, but the
moral dimension of what was seen as just in the social circles within
which each particular court operated. 14 One issue that this raises is the
way in which the organic complexity in approaches to disputing related
to more visible structural features like courts and their records. Shifts
in the latter encourage notions of abrupt change that risk glossing
over complex processes that did not obviously unfold to the single
rise-and-fall rhythm of the power of a single institution.
The judicial structure provided one kind of normative framework for
disputing.15 It is associated in particular with the most accessible kind
10
11
12
13
14
15
S.M. Collavini, Duchi e societ locali nei ducati di Spoleto e Benevento nel secolo VIII, in
I Longobardi dei ducati di Spoleto e Benevento, Atti del 16 congresso internazionale di studi
sullalto medioevo (Spoleto, 2003), pp. 12566.
On the centrality of France in the historiography hitherto, see W. Brown and P. Grecki,
Where Conict Leads: On the Present and Future of Medieval Conict Studies in the
United States, in W. Brown and P. Grecki (eds), Conict in Medieval Europe: Changing
Perspectives on Society and Culture (Aldershot, 2003), pp. 26585, at pp. 2701.
Bougard, La justice dans le royaume dItalie, pp. 14058.
Nelson, Kings with Justice, Kings without Justice, pp. 8027.
C. Wickham, Dispute Processes and Social Structures, in Davies and Fouracre (eds), The
Settlement of Disputes, pp. 22837, at p. 231.
The use of the concept of norms by social theorists has a long pedigree, going back at least
to Durkheim (e.g. The Rules of Sociological Method, ed. and trans. S. Solovay, J. Mueller and
G. Catlin, 8th edn (New York, 1966)); more recently, see M. Mann, The Sources of Social Power,
vol. 1 (Cambridge, 1986), e.g. p. 22. For norms in early medieval Europe, see in particular
W. Brown, The Use of Norms in Disputes in Early Medieval Bavaria, Viator 30 (1999), pp. 15
40, at p. 16; and, for a rather different approach, J. Hudson, Court Cases and Legal Arguments
in England, c.10661166, TRHS, 6th ser. 10 (2000), pp. 91116, esp. pp. 915 and 10811.

269
of norm, written law. The application of the latter in court was part of
the rhetorical language of royal justice: early medieval royal legislation
usually implied (where it did not explicitly state) that the aim of written
laws was to resolve disputes, and this language reappears in charters
in such phrases as nita est causa.16 Courts, perhaps especially in Italy,
regularly made reference to written laws. 17 Regularly, but by no means
always. To understand many of the disputes whose records survive we
need to judge where the balance lay between publicly prescribed written
norms and informally transmitted oral ones. Despite a growing recognition that we should not draw too sharp a line between the two, 18
arguments about the power of royal authority still tend to rest on the
relative weight given to one or the other. Students of most medieval
societies are familiar with cases involving a clash between two norms in
particular, neither of them wholly enshrined in written law: that governing inheritance between family members, and that allowing landowners to dispose of their property freely, usually in gifts to the church.
If norms were both what framed and what assessed the cases of the
parties to a dispute, they were also what determined how it would be
played out: they governed the processing of the dispute. This did not
inevitably mean bringing it to a court. In practice there might be a
number of essentially extra-judicial factors that prevented them from
doing so. Recourse to a court in the process of managing a dispute was
generally much rarer than recourse to extra-judicial mechanisms that
remained available throughout the process of disputing, such as one-toone agreements, external mediation, rituals, pledges, and, of course, the
use of force.19 Recognizing the court as part of a wider process helps us
to question those statements in courts records that portray them as
adversarial arenas in which parties won and lost; in which the dispute
was nita. It does some damage to notions of the power of the court
based on such declarations.
This raises the problem of the likelihood of courts decisions being
enforced. Some charters hint that public ofcials involved themselves in
enforcing the transfer of disputed land. Thus, the notitia of a judgement by the duke of Spoleto in April 761 that estates at Magliano
Sabina be returned to the abbey of Farfa also recorded that the presiding tribunal took immediate steps to put this into effect: eadem hora
16
17
18
19
On this rhetoric, see P. Fouracre, Carolingian Justice: The Rhetoric of Improvement and
Contexts of Abuse, La giustizia nel altomedioevo (secoli VVIII), Settimane 42 (1995), pp. 771
803. On the formula nita est causa, Bougard, La justice dans le royaume dItalie, pp. 1201.
One among many examples occurs in CDL IV/1 12, on which see below.
Wickham, Land Disputes, p. 239.
Hudson, Court Cases, pp. 1056.
See Wickham, Land Disputes, pp. 24854.

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Marios Costambeys
ipsas casas retradere fecimus (in that hour we made [him] give back
those farms).20 Direct coercion on the part of judges could certainly be
an option, but, as likely, it might prove impossible. This is evident, for
example, in a case of 844 heard in Milan, in which the judges asked the
previous owner of the property to distrain it from its unlawful possessors so that it could be handed over to the monastery of S. Ambrogio.
He could not, and we have no sign that S. Ambrogio ever got the
property.21 Though such explicit cases of judicial impotence are hardly
less rare in our documents than those which describe judges steps
towards enforcement, the former are more striking, because they militate against the whole tenor of the placitum charter, and because they
accord better with the growing recognition of the importance of extrajudicial measures. Equally rare are references to rituals such as the
revestitura: physical and public acts which formally enacted all transfers
of land; in any case, how this ritual connected to a real movement of
ownership is as unclear as are rights of ownership themselves. 22
These limits on coercion are often taken, at least for this period, as
an indication of a natural eirenic tendency in dispute management, that
is, a consistent bias toward compromise and therefore towards stability
and peace.23 Even if this were so, it should not lead us to ignore the
intricate social psychology behind the involvement in a dispute of those
who held effective power within the society in which it arose. It may
be too simple just to state that those present at a particular hearing
directly reected the socio-political complexion of a locality (even if
that locality could be closely dened), its factions and interest groups.
Local interests need to be uncovered by comparing individual cases, and
cross-referencing with other evidence (principally, other charters) where
these are available. But when such men as witnesses and sureties can be
shown to have been local, we can more readily assume that they were
20
21
22
23
CDL IV/1 15.

Manaresi, no. 48, see further Wickham, Land Disputes, pp. 2489. In addition to other
cases mentioned below, a stark Lombard-era example is CDL II 168.
Carolingian-era documents up to the 870s consistently use the verb revestire for transfers of
land, suggesting that the act was that described elsewhere as revestitura the reinvesting
of the right to enjoyment of the property as distinct from traditio the transfer of legal
possession. See the examples in Manaresi, nos. 45, 47, 64, 66, 68. Bougard, La justice dans le
royaume dItalie, p. 136 identies the introduction of the term in Italy as a Carolingian
innovation. After the 870s, however, we nd rst tradere then investire used, suggesting
signicant confusion, at least by that time, between revestitura and traditio: examples are in
Manaresi, nos. 71, 77, 101, 102, 110, 111, 132, 135, 140. For a case that revolved around (and
therefore helps to dene) the act of revestitura, but also shows the confusion of vocabulary,
see Manaresi, no. 19, issued in Pistoia in 806. In general, see G. Diurni, Le situazioni
possessorie nel medioevo. Et longobardo-franca, Quaderni di studi senesi 64 (Milan, 1988),
pp. 578. The essential point was the same whichever wording or ritual was used, however:
the formal relinquishing of a landed estate was part of the liturgy of the land dispute.
For comment and references, see Brown and Grecki, What Conict Means, pp. 2733, and
Where Conict Leads, pp. 2824.

271
ipso facto interested parties. Moreover, this point can be extended to

those who presided over the court, the judges.
In seeking out the micro-politics behind disputes in Lombard and
Carolingian Italy and seeking to detect any changes between the
former and latter regimes we can turn to the records preserved by one
of the great ecclesiastical institutions of the peninsula, the abbey of
Farfa. The documents in Farfas cartulary, the majority of which not
surprisingly concern the region in which the abbey stood the Sabina
provide only an inevitably stuttering, incomplete and one-sided
account of that regions political community. We can nonetheless make
out more of the continuing narrative than the snapshots provided by
individual documents. I will here examine two cases from the cartulary
in detail, dating from 7501 and 811. They have been selected not because
they are particularly aberrant every one of the twenty-six extant eighthand ninth-century cases has its own peculiarities but because they
demonstrate with particular clarity how closely insinuated the court was
with, and how heavily dependent it was on, the local elite. As a consequence, the power of the courts ofcials the judges appears never
to have been independent of their immediate context. Thus, the outcomes of disputes can be seen to have been conditioned by the social
statuses of and relations between the parties involved. This dynamic
remained fundamental even after the Carolingian takeover of the duchy
of Spoleto had broadened the horizons of the Sabine elite and opened
opportunities to conduct disputes through new judicial institutions.
A document originally written in 751 in the duchy of Spoleto and
copied into Farfas cartulary helps to show the limitations on the royal
judiciary before both lay and ecclesiastical parties in the Lombard
period. It records that two brothers and priests, Grimuald and Anso,
contested with Farfa the possession of (part of ) the estate of their uncle,
and won.24 The two judges, both royal envoys (missi ) sent from the
Lombard kingdom proper into the duchy, 25 had ruled that they should
swear an oath, as much as they dared to swear, that those priests had
defeated the party of the monastery, and all their [property] should be
given back [i.e. to them].26 The judges seem to have made a decision
in favour of the norm of inheritance. But we know of this case not
because Farfa preserved the notitia of a judgement detrimental to its
interests, but because the victorious plaintiffs decided to settle for something less than the court had awarded them. What Farfa preserved was
a charta convenientiae: a document in which Grimuald and Anso made
24
25
26
CDL V 16 (= RF II 31).
For Aistulf s takeover of the direct administration of the duchy, see below, p. 281.
On the royal missi, see Zielinski, Studien, p. 148.

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Marios Costambeys
an agreement with the losing party the abbey that they would ignore
the perfectly good ruling upholding a perfectly good norm in their
favour, and would instead be content with the lease for a single lifetime
of a single estate from their uncles property. Not only was the courts
decision ineffective, but one norm, defending family inheritance, was
overridden by another, allowing properly constituted agreements.
In seeking to explain Grimuald and Ansos apparently self-detrimental
action we need to go back to the previous and recent history of their
uncles dealings with Farfa on the one hand, and his own family on the
other. We are unusually fortunate that in this case in addition to the charta
convenientiae we have another charter recording an earlier case concerning the property of the priests uncle, Claudianus, heard in the ducal
palace in Spoleto in December 750.27
Claudianus opened the case. He said that more than thirty years
previously, he had inherited a domusculta (that is, a farm directly
exploited by its owners) at Terentianus, on which he had built a monastery.28 Later, he fell gravely ill and issued a document giving the
monastery to Farfa.29 But he recovered from his illness, and stated his
desire to enter Farfa, taking all his property with him. His brothers
contended that when, all those years ago, it came to sharing out the
inheritance, instead of dividing the domusculta at Terentianus they were
persuaded by Claudianus to build a monastery there for the education
of their sons under his supervision. They claimed that he had made an
agreement with them, in writing, to return Terentianus and its monastery to them on his death. It is therefore not clear which party in this
case was the plaintiff and which the defendant. 30 Claudianus apparently
spoke rst, saying that now (modo) he wished to enter Farfa with his
property just as his donation charter had stipulated. His relatives spoke
second, with the counter-claim that in a written charter he had agreed
to return the property on his death.
Raising the issue of documents shifted the focus of the case away
from a set of primary, overlapping, and potentially contradictory norms
about the possession of property. On the one hand, there was the
27
28
29
30
CDL IV/1 12.

Its location can be identied no more closely than that it probably lay on the Farfa River:
E. Migliario, Strutture della propriet agraria in Sabina dallet imperiale allalto medioevo
(Florence, 1988), p. 97.
His statement may well reveal conscious knowledge of, and have been an appeal to, LLiut,
c. 6, which afrmed the validity of pro anima dispensations by the inrm, implicitly leaving
open the problem of those made by the perfectly hale that might conict with norms of
inheritance: Si quis langobardus, ut habens casus humanae fragilitatis, egrotaverit, quamquam in lectolo reiaceat, potestatem habeat, dum vivit et recte loqui potest, pro anima sua
iudicandi vel dispensandi de rebus suis, quid aut qualiter cui voluerit; et quod iudicaverit,
stabilem debeat permanere.
As in most cases of the period: see Bougard, La justice dans le royaume dItalie, p. 222.

273
thirty-year prescription, a norm reafrmed in the Lombard written

code but long pre-dating it.31 Both parties agreed that Claudianus had
been in possession of Terentianus for more than thirty years: 32 one
theory would be that this alone enabled him to do what he liked with
it.33 On the other hand, his relatives argued that his right of ownership
was limited by other primary, substantive norms. There were norms
about succession to property within the family, for one thing; in this
case, they had overridden these by applying another norm that allowed
properly constituted agreements.34 But the case did not turn on an
assessment of how far the facts accorded with one or other norm, or by
adjudicating between them. It came down to an issue of one document
against another, which each party brandished, apparently unprompted,
in court. Even when other dispute notitiae show that judges did ask
what proofs the parties had to offer, they did not ask for a particular
form of proof but left the precise evidentiary mode up to the disputants.35 In this case then, the litigants had themselves decided that the
dispute should move onto a secondary normative level, concerning the
norms governing charters.
In their examination of the charters, the judges were not concerned
with their respective dates of redaction; 36 they concentrated on their
form. The normative criteria by which those forms were assessed are
problematic, however. In this case, they led the judges to nd against
Claudianuss brothers and nephews, for the charter they had presented
comparuit fraudulenta, pro qua re nec notarium verum habebant nec
testimonia (appeared fraudulent, because they had neither a proper
notary nor witnesses).37 This is ambiguous. Was it the case that the
brothers could produce neither the charters scribe nor its witnesses in
person, or simply that the names of the scribe and witnesses were
31
32
33
34
35
36
37
See LGrim. c. 4; LLiut. c. 54; Wickham, Land Disputes, pp. 2345 with n. 7; and, classically,
E. Levy, West Roman Vulgar Law: The Law of Property (Philadelphia, 1951), pp. 17690.
Claudianus: Sunt modo anni non minus XXX., ex quo habuimus substantias divisas cum
istis fratribus meis. Brothers: iam plures anni sunt, ex quo habuimus divisas substantias . . .
Levy, West Roman Vulgar Law, pp. 1903 shows that in vulgar law the thirty-year rule not
only prescribed actions but bestowed right of possession; for possessio as the common denominator of the law of property designating all real rights normally combined with factual
holding, see ibid., pp. 6172 (quotation at p. 61).
A. Kosto, Making Agreements in Medieval Catalonia: Power, Order and the Written Word,
10001200 (Cambridge, 2001), pp. 1625.
Either this kind of question from judges to disputants, or a declaration by the latter in their
opening statements of the proofs they wanted to present, appears in the majority of our cases
up to the later ninth century. Simply to take the eleven cases in Manaresi up to 800, six were
decided on the basis of proofs offered by the parties without prompting from the judges:
nos. 2, 3, 5, 7, 8, 11. On the formulaic question from judges to disputants of whether they
wanted to offer proof either by charter or by witnesses or by inquest, see Wickham, Land
Disputes, p. 244 with n. 27 and the example in Manaresi, no. 64.
Wickham, Land Disputes, pp. 2402 with n. 19.
CDL IV/1 12.

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Marios Costambeys
missing from the document they presented, in effect, that it lacked an

eschatocol?38 If, as would appear to have been the case, the point at issue
was the wording of the charter itself, then the court was drawing on
a complex normative tradition. The available written laws provided
no guide to the precise form of charters, although the Lombard code
does hint at a normative expectation that charters, whether of donation
or agreement, should be witnessed. Liutprand had ruled simply that
scribes should write all charters either according to the law of the
Lombards . . . or according to that of the Romans. 39 This may have
been a stipulation regarding the content rather than the form of a
charter, but it demonstrates that Roman norms were still current in
some way and assumes adherence to written Roman law on charter
redaction at least faute de mieux ; and there were Roman laws that
prescribed such things as charter witnessing. 40 That normative tradition
may lie behind a law of King Ratchis, issued only four years before the
Terentianus case, which is the only Lombard law to refer directly to
witnesses of any kind of charter, as opposed to witnesses of transactions
in general, or those called before a court. 41 It assumed that a charter of
sale was valid if it has been written by a public scribe and conrmed
by suitable witnesses and the witnesses subscribe or set their hands to
the charter which details the sale.42 Evidently, by the time this law was
issued the written witnessing of such charters was established practice.
But it should be stressed that it applies, quite explicitly, only to charters
of sale. If one reason that our charter was fraudulenta was the absence
of witness subscriptions, it was a reason founded on largely unwritten
norms concerning charter redaction of which only traces poke through
into the written record.
38
39
40
41
42
In general, see Wickham, Land Disputes, p. 240 with n. 19; a similar case is Manaresi,
no. 96.
LLiut. 91. This is Fischer-Drews translation the full Latin text is: De scrivis hoc prospeximus, ut qui cartolas scribent, sive ad legem langobardorum, quoniam apertissima et pene
omnibus nota est, sive ad romanorum, non aliter faciat, nisi quomodo in ipsis legibus
contenetur; nam contra legem langobardorum aut romanorum non scribant. N. Everett,
Literacy and the Law in Lombard Government, EME 9 (2000), pp. 93127, at pp. 1067,
gives a convincing interpretation of this provision; see also his Scribes (next note), pp. 66
8. LLiut. 115 decreed let the man who possesses by means of a forged charter lose his
property, but does not reveal how such a forgery was to be recognized.
Esp. Codex Theodosianus, 4, 4, 1. See further N. Everett, Scribes and Charters in Lombard
Italy, Studi medievali, 3rd ser. 41 (2000), pp. 3983, at 4850 with n. 30.
It is worth noting that the evidence for the middle Rhine in this period reveals certain formal
distinctions between sales and exchanges with religious houses, which were transacted with
the abbot in public spaces, and donations, transacted with the relevant saint at the religious
house itself: M. Innes, State and Society in the Early Middle Ages: The Middle Rhine Valley
4001000 (Cambridge, 2000), pp. 1034.
LRat. 8: . . . ad scrivane publico scripta, vel ad testibus idoneis rovorata fuerit et tam ipse
vinditr quamque et testes in ipsa cartola subscripserint aut manus posuerint. My translation
here differs from that of Fischer-Drew.

275
Similarly, in noting the lack of a notarius verus, the court was not
referring to an ofcial title or publicly sanctioned ofce. As N. Everett
has shown, a proper notary was revealed simply by his ability to write
charters according to the law.43 The written law in this context could
be either Lombard or Roman, as Liutprand had stipulated, and, since
scribes are unlikely to have carried around with them copies of the
Corpus Iuris Civilis, Roman prescriptions on charters probably simply
fed into norms of charter writing that were transmitted through tradition chiey, through the practical education of scribes. 44 As such, they
were bound to be exible. No set form of words would reveal whether
a scribe was a true notary or not. The notarys job seems to have been
to procure the witnesses, at least as much as it was to ensure the legality
of the documents form.45 In practice, and not just in Lombard Italy,
these were called upon later to conrm orally the provisions described
in a charter.46 If the court could require the testimony in person of
either scribe or witnesses or both, it might make little difference whether
the courts initial objection was to the absence of words on the parchment or of walking, talking scribes or witnesses. 47 In this case, then, it
seems that the relatives charter lost because no oral testimony could
be produced to support it. This is not surprising. The document was
over thirty years old, so whoever had written and witnessed it might
very well simply no longer have been alive. 48 The earlier date of the
relatives charter in comparison with Claudianuss might in a different
court hearing have been a point in their favour, for cases were often
decided on the basis of whoever possessed the earlier charter. 49 But here
it counted against them because the court had chosen to prefer one
normative standard (scribal and witness testimony) to another (date).
How much agency did the judges possess in this case? As we have
just seen, they had chosen one norm about charter validity over
another. But they had only been able to do so because the charter was
the mode of proof on which that hearing turned, and that had been
decided by the litigants themselves, through their pleas. Claudianus had
43
44
45
46
47
48
49
Everett, Scribes, pp. 4255. For demonstrations that notarius was not an ofcial position, see
A. Pratesi, Tra carte e notai. Saggi di diplomatica dal 1951 al 1991, Miscellanea della societ
romana di storia patria 35 (Rome, 1992), pp. 6582, 50720, 52135. Useful recent comment
with references is in Bougard, La justice dans le royaume dItalie, pp. 6670.
On the education of scribes, see Everett, Literacy in Lombard Italy, pp. 21529.
See J.L. Nelson, Dispute Settlement in Carolingian West Francia, in W. Davies and
P. Fouracre (eds), The Settlement of Disputes in Early Medieval Europe (Cambridge, 1986),
pp. 4564, at 529.
An analogous example concerned the church of St Hispanus near Tours, studied by Nelson,
Dispute Settlement, pp. 569.
For an example of a charters scribe testifying in court, see CDL IV/1 35; for charter witnesses
doing the same, Manaresi, no. 42.
See Wickham, Land Disputes, pp. 2412 for examples where the witnesses were dead.
E.g. CDL IV/1 15 (= RF II 45); also Manaresi, nos. 14, 22, 48.

276
Marios Costambeys
drawn attention to his having expressed in writing his desire to enter

Farfa with his property, and his relatives had attempted to trump this
document with one of their own. The case need not have turned on
written proofs at all, however. Although written Lombard law did have
something to say about acceptable modes of proof, its message was
ambiguous, if not contradictory. The original code of Rothari almost
exclusively envisaged oath-helping and the judicial duel as forms of
proof.50 Charters are mentioned in only a handful of instances. 51 Eighthcentury legislation refers more often to written evidence, as well as to
inquests and witnesses.52 But even where such laws explicitly established
a norm that a particular mode of proof was required, actual practice as
attested in surviving charters was often at variance with it. In cases of
disputes over property, the Edict of Rothari did require specic proofs,
namely that possession should be defended by an oath or by combat,
while Liutprand allowed charters to be taken as evidence in the limited
area of disputes over public property (puplicum), but still gave the primary role to the oath.53 In practice, however, there are very few cases of
oath-helping in any of the surviving notitiae and the practice all but
disappears from our evidence by 790. 54 This did not mark the conclusive triumph of written proofs, however: they were used alongside, and
often in combination with, oral testimonies, either directly on behalf of
a disputant (as may have been required in the Claudianus case) or to
an inquest. Procedural norms such as oath-helping, bearing witness and
testifying to an inquest were not set in concrete by formal legislation
and are often hard to differentiate. Their imprecision meant that one
could easily mutate into another. Witnesses adduced by a party to swear
to a point of fact were really performing much the same action as oathhelpers; while witnesses to an inquest were equally required to attest the
facts of a case, and although there was an assumption that they were to
be summoned by the judges rather than a disputing party, in practice
they were treated in much the same way as formal witnesses. 55 Ambiguity, if not confusion, of norms, then, meant that litigants themselves
could have a good deal of agency in a hearings procedures, because
they could select the modes of proof to be discussed.
50
51
52
53
54
55
E.g. ER cc. 1646, 198, 228.

ER c. 224 on manumission; c. 227 on charters of lease; c. 243 on forging charters.
On charters: LLiut. cc. 91, 115; LRat. c. 8. On witnesses: LLiut. cc. 8, 15, 63. On agreements:
LLiut. cc. 8, 91, 107; LAist. c. 16.
ER c. 228; LLiut. c. 78. It must be assumed that both laws envisaged that oath-taking would
follow the procedure laid down in ER c. 359, requiring different numbers of oath-helpers
depending on the value of the contested property.
See the perceptive discussion by Wickham, Land Disputes, p. 239, correcting Sinatti
DAmico, Le prove giudiziarie, pp. 18097, 391405.
Wickham, Land Disputes, pp. 2435.

277
One view would see this situation as allowing to judges the freedom
to exercise a power implied in the public nature of their ofce. While
their role was the apparently simple one of presiding over the court and
prescribing procedure, it can be argued that in practice this gave them
plenty of scope to impose their own choices from among the variety of
available norms.56 The Terentianus hearing, however, suggests that the
judges role was more complex and more limited, because, like many,
this case involved a number of normative layers. First, there was the
original dispute, about inheritance, donation and agreement. This was
essentially bypassed by referring to a secondary issue, of the modes of
proof that would be considered and this was a point addressed by the
litigants, not the judges. Finally, there were the norms about valid
charters, the single level on which the judges did have a role.
The judges power was limited not only by the litigants ability to
manipulate norms in pursuit of their disputing strategies; it was trammelled too by the need to conclude the hearing in a normative fashion,
and the practice here, as very often elsewhere, was for one or other party
to swear an oath: the party of Claudianus may tell their iustitia to
the holy gospels of God.57 As we have seen, an oath also concluded
Grimuald and Ansos initial hearing before the royal missi in the following year. That these were acts of critical importance can be seen very
clearly in this case. Claudianus prepared to give his oath before a group
of named individuals.58 What we can see of their identity indicates that
this oath served to connect the court hearing with the socio-political
context in which the dispute had originally arisen. This context determined whether anything decided at the hearing was actually enforceable; it may also have been the most signicant factor behind the
normative choices made by all parties during the hearing. The oath was
the act through which the parties left the arena of the court, and put
themselves once more into the hands of their peers.
The signicance of this is very evident if we examine the identities
of those present at the 750 hearing at Spoleto: the judges were mostly
56
57
58
Wickham, Land Disputes, p. 245. For the role of judges in general, see pp. 2334.
. . . pars Claudiani diceret eorum iustitiam ad sancta Dei evangelia . . .
Q(uo)d de p(re)senti p(re)paravit se ipse Claudian(us) facere eis ipsu(m) sacram(en)tu(m);
ipsi vero donaver(unt) ei et amiser(unt) sacram(en)tu(m) ipsu(m) ante p(re)sentia(m)
Immonis gast(aldii), Audualdi sculd(ahis), Teuderadi p(res)b(ite)ri, Alifredi actionar(ii),
Teudualdi gasindii, Gaideris seu Ursi centurion(um) et P(ro)bati atq(ue) Gustantii. I have
here indicated the abbreviations in our primary manuscript, Farfas twelfth-century cartulary,
and expanded them in the same way as did Carlrichard Brhl in the standard edition (CDL
IV/1 12). The Latin does not make entirely clear what happened: Claudianus prepared to give
an oath; but who is the subject of the next phrase? Did the (plural) losing party remit the
oath in the presence of the named men? If so, what did they donaverunt? Or did Claudianus
(ipse for ipsi) give (donaverit) the oath, and issue it (amiserit, in the sense of let it go) before
the oath-hearers? Either way, this set of men in front of whom the act(s) was/were performed
were (a) clearly important, and (b) different from the judges (see below).

278
Marios Costambeys
different men from those who heard the oath. Only one man appeared
among both: Immo, the gastald of Rieti. 59 His fellow judges constituted
a panel of duchy-level standing, including a diaconus,60 a stolesaz,61 and
a sculdahis,62 as well as two gastalds.63 In striking contrast, the group
that heard the oath were all men prominent in that corner of the duchy
where lay both Farfa and, almost certainly, the property in dispute: the
Sabina.64 Immo was the most prominent of these in ofcial terms his
area of jurisdiction included the Sabina but the other eight oathhearers constitute a notable collection of local worthies: they included
a sculdahis, a priest, an actionarius, two centenarii or centuriones,65 and a
gasindius. The latter title means a sworn follower of the ruler, usually
taken to be the king, though in this case it might just as easily be the
duke; the actionarius and centenarius were managers of local estates, not
necessarily only those belonging to the sc. 66 Two of the men may well
have later become gastalds of Rieti themselves. 67 What we are seeing
here is a local landholding elite with shared broad interests; interests,
moreover, that centred to a signicant degree on the abbey of Farfa.
59
60
61
62
63
64
65
66
67
Immo was gastald in 749/50 and 751 (CDL IV/1 9, 10, 11, 12, 13 and CDL V 8); it is not
certain, though it remains probable, that his loss of ofce was a consequence of the fall of
Lupo: see Zielinski, Studien, pp. 2379 and below, p. 281.
It is just possible that this diaconus Arechis is identical with the Aricisus decanus who
witnessed a sale to Farfa in 764 (CDL V 41), in which case he just might be identical with
the Aricisinus who witnessed the agreement between Abbot Fulcoald and Grimuald and Anso
(CDL V 16).
As Brhl notes (CDL IV/1, p. 31), it is doubtful that this stolesaz Perto should be identied
with the homonymous gastald of Rieti in 745/6 (CDL IV/1 4; CDL V 7 and mentioned in
V 20): see also Zielinski, Studien, pp. 2367. On the ofce of stolesaz, see C. Brhl, Fodrum,
Gistum, Servitium Regis (Cologne, 1968), pp. 37780.
This sculdahis, Allo, may just be identical with the comes Halo who sat among the judges in
hearings in 776, 777 and 781 (CDL IV/1 28, 29, 35); he may equally be the father of Alerad,
who witnessed a donation to Farfa in 765 (CDL V 44), or himself have witnessed another
donation in 773 (CDL V 60).
Immo and Camerino gast(aldio) de Valva; this latter is surely suspicious, given that Camerino was better known as a place itself the base of a gastald: witnesses from there were
present at the palace at Spoleto around this time, see CDL V 11.
See above, n. 49.
ante presentiam . . . Gaideris seu Ursi centurionum: I am assuming that centurionum is
genitive plural, and that the word is equivalent to/exchangeable with centenarius, on which
see Bougard, La justice dans le royaume dItalie, pp. 15868.
On actionarius, see Costambeys, Piety, Property and Power, pp. 34453; and previous note
for the centenarius.
It is possible that the Probatus who heard Claudianuss oath is identical with the man of that
name who was gastald of Rieti 7515: CDL V 1622, and see CDL V 26 and 31. More
plausible, if we envisage a simple career advancement, is the identication of the actionarius
Alifred with the Alifred who was gastald of Rieti from 757 to 765 and again in 770 and 773:
CDL IV/1 24, 28, 30, 31, 32, 33, 35, 37, 38, 39, 40, 41, 42, 43, 55, 62, 63; doubly plausible if
the title of actionarius in this case does indicate an administrator of scal lands, since the
gastald certainly had scal responsibilities, on a wider scale: see Gasparri, I duchi, pp. 2032.
He might also be the Alifred who witnessed, without title, CDL V 14, 15 (a.749) and 19
(a.753).

279
At the heart of this network as it appears in the few documents

considered here is the sculdahis, Auduald, who, alone among the participants at Claudianuss hearing, also acted as a witness to the agreement
between Farfa and the two nephews, Grimuald and Anso. His presence
alerts us to the point that the context that conditioned the agreement in
751 must be related to the context that had determined the conclusion of
the 750 hearing. Audualds appearance at the head of the witness list of the
751 convenientia charter strongly indicates that he brokered that agreement.
We can trace his career with some certainty: rst appearing probably in
739,68 he was an actionarius by 745,69 and sculdahis from 746 to at least 761.70
He may have died by 765, and more certainly by 778. 71 His centrality
within a network of local power-holders is revealed by a simple statistic:
of the other eight witnesses who subscribed Grimuald and Ansos charter
of agreement, six appear in connection with Auduald in other transactions
(two on two occasions).72 Although as sculdahis he would not have been
responsible for a specic geographical area of his own up to six sculdahes
seem to have operated concurrently across the gastaldate of Rieti
Auduald seems to have been rmly rooted in the Sabina and among its
legally active class.73 This group was not without its own internal hierarchy,
however, and we can see Auduald also associated with a family, the
Pandoni, which had intermittently been at the very head of Sabine society,
providing both a bishop and at least two gastalds of Rieti. 74 Audald can
68
69
70
71
72
73
74
It is plausible that he was the Audualdus who attested CDL V 3 in 739.

CDL V 6: note that he cannot be identical with the archiporcarius Aduald, brother of Audolf,
who co-issued this charter of exchange and appears also in CDL V 8 and 13 and CDL IV/1 9.
CDL V 7, 12, 16, 17, 19, 20, 23, 26; CDL IV/1 12 and 15.
CDL V 44 (a.765) mentions an Audualdus exercitalis as the late father of one Godepert;
Audualdus is also the name of the late father of Teudemund in CDL V 78 (a.778): on this
family see Costambeys, Piety, Property and Power, pp. 2935.
The sculdahis Clarissimus also appears with Auduald in the witness list to CDL V 17 (a.752)
and 19 (a.753). Maurus medicus may also be the protagonist in a judgement that Auduald
witnessed in 753 (CDL V 20) and the head of the witnesses in CDL V 44, subscribed by
Audualds probable son, Godepert. Adeodatus also witnessed here, as he did in CDL V 16.
Also present with Auduald elsewhere, as well as in CDL V 16, were Adirisinus, who subscribed CDL V 23 (a.756), Aldo, who attested the earlier CDL V 6 (a.745), and the confusingly similar sculdahis Aduald, who also attested CDL V 17 (a.752).
On the sculdahis in the duchy of Spoleto, see in particular Bougard, La justice dans le royaume
dItalie, pp. 160 1. The basic study is E. Saracco Previdi, Lo sculdahis nel territorio longobardo di Rieti (sec. VIII e IX). Dallamministrazione longobarda a quella franca, Studi
medievali, 3rd ser. 14 (1973), pp. 62776; but note that the prosopographical information
given there is incomplete: see in addition J. Jarnut, Prosopographische und sozialgeschichtliche
Studien zum Langobardenreich in Italien (568774), Bonner historische Forschungen 38 (Bonn,
1972), pp. 37892. Also useful is P.M. Conti, Il ducato di Spoleto e la storia istituzionale dei
Longobardi, Quaderni di Spoletium 2 (Spoleto, 1982), pp. 514, 20913.
For Teutos family, see F. Felten, Zur Geschichte der Klster Farfa und San Vincenzo al
Volturno im achten Jahrhundert, Quellen und Forschungen aus Italienischen Archiven und
Bibliotheken 62 (1982), pp. 158, at 3858; and S. Gasparri, Il ducato di Spoleto. Istituzioni,
poteri, gruppi dominanti, in Il ducato di Spoleto, Atti del 9o congresso internazionale di studi
sullalto medioevo (Spoleto, 1983), pp. 77122.

280
Marios Costambeys
be seen acting alongside either Bishop Teuto or his powerful brothers

on at least two occasions.75
The Pandoni are only the most prominent of a relatively extensive
group of Sabine landholders that had a close and sustained relationship
with the abbey of Farfa, articulated by movements of property. There
is even a hint that one member of the Pandoni later became Farfas
abbot: Probatus, who held that position from 770 to 781, had a name
also borne by known members of the family. 76 More concretely, at least
one document attests the fruitful relationship between Bishop Teuto
and Fulcoald, Farfas abbot at the time of the Claudianus hearing. 77
Fulcoald (abbot from 740 to 759) was a notable example of a kind of
monastic leader familiar throughout the Latin west in the earlier eighth
century: he can be seen winning favour from successive dukes of
Spoleto,78 ensuring that he was succeeded as abbot by his relative
Wandelbert,79 and, above all, increasing his abbeys property holdings
through an astute policy of purchases and exchanges, and the consistent
encouragement of donations from the local elite. 80 This constructive
activity is attested for Farfa by the charters that the monastery preserved;
documents that in this case allow us to suggest identities between
nearly all of the oath-hearers at the conclusion of the 750 court case
and homonymous witnesses to other transactions between Farfa and
Sabine landholders.81 These men seem to have been part of a community with shared interests centred at the abbey, for whom overseeing
the transfer of Claudianuss land was only one of a number of activities
they carried out for the benet of the abbey. Although the connections
that we can trace between these men often look quite circumstantial,
their effects were anything but, because the circumstances in question
concerned the movement of property. As successive recent studies have
revealed, these were the building blocks of local power: it lay not in
land per se, but in what was done with that land.
75
76
77
78
79
80
81
CDL V 20 (a.753) and 23 (a.757); see CDL V, pp. 99 100 for the family in this context.
Felten, Zur Geschichte der Klster Farfa und San Vincenzo al Volturno, pp. 3853;
Costambeys, Piety, Property and Power, pp. 3248.
CDL V 22 for an exchange between Bishop Teuto and Fulcoald personally.
His mother had been given a nunnery in the Sabina by Duke Transamund II: CDL IV/1 7.
His good relationship with Duke Lupo is evident from CDL IV/1 311 and 13.
CF I, pp. 18 and 151. These activities are strongly paralleled by, for example, Fulcoalds
contemporaries among the abbots of monasteries founded under the auspices of the English
mission in Francia and points east.
CDL IV/1 311 and CDL V 6, 7, 9, 10, 11, 12, 16, 18, 19, 21, 2, 25, 26, 27.
The gasindius Teuduald may be identical with the notarius who wrote the rst extant Spoletan
ducal diploma, CDL IV/1 1; he may also be the homonymous witness to CDL V 4 (a.744)
and 19 (a.753), though in neither does he claim the title gasindius. The centurio Gaideris may
be identical with the Gaiderisinus, son of Maurus, who witnessed CDL V 38 (a.764), and
with the homonymous witness to CDL V 40 (of the same year). Gustantius may be identical
with the Constantius who witnessed a donation to Farfa in 747 (CDL V 10).

281
What this local network achieved in the case of Grimuald and Ansos
claim against Farfa in 751 went against the grain of Italian politics at
that moment. Even the date clause of the convenientia charter reveals
that a dramatic shift had just taken place earlier in 751. Aistulf had
ousted his brother Ratchis from the throne of the Lombard kingdom,
and promptly removed Ratchiss ally Lupo from the dukedom of
Spoleto. The latter had clearly been of some importance to Farfas success
up to that point: support from local landholders had complemented
a close bond of patronage between Duke Lupo and Abbot Fulcoald.
With the advent of Aistulf s direct rule over the duchy of Spoleto,
endowment of the abbey declined strikingly (the king gave only one
estate to the abbey himself, and during his entire reign it received only
two other outright gifts)82 Farfas position, however, was evidently not
wholly dependent on the rulers support, as the deal between the abbey
and Grimuald and Anso makes clear. The witnesses to that charter were
clearly associated with the oath-hearers who had a year earlier sought to
enforce the transfer of Claudianuss lands to Farfa. That that agreement
defended the abbeys possession of that property, and did so, moreover,
in contradiction of a clear decision by two missi of King Aistulf, reveals
the tenacity of local power structures, even against the background of
dramatic political changes at a higher level. Other instances when the
sculdahis Auduald acted to Farfas benet at this time only reinforce the
point that local interests could override the decisions of the government.83
There was good reason, then, for the norm that required that court
hearings conclude with an oath. It formally brought the courts decision
before those on whom its enactment would depend. When the interests
of that group coincided with the aspiration of the court, enforcement
would surely follow. What happened when local interests and court
aspiration did not match up, on the other hand, is very evident from
the fate of Grimuald and Anso in 751. It is a fair assumption that the
royal missi s hearing of those brothers claim also ended with an oath.
But whoever heard it did not put it into effect. Instead, the brothers
had to strike a deal with Farfa, and that they were forced into doing so
is evident from our identication of the witnesses to that deal as stalwart
supporters of the abbey. Grimuald and Anso may have thought that the
change of ruler in Spoleto might allow them to recover their uncles
land. If so, they made the same mistake as those historians who have
often overestimated the effective power of the king, and undervalued
that of the dominant class closest to the scene. In the eighth-century
82
83
CDL III 23 conrms CDL IV/1 8, 10, 13 and one lost diploma. Aistulfs single gift is CDL
III 28. Non-royal gifts are CDL V 18 and 19.
See for example, and in addition to the charters mentioned in the previous note, CDL V 17
and 23, both issued during Aistulfs reign.

282
Marios Costambeys
Sabina, the local elite felt no absolute requirement or compulsion to

enforce the decisions of law courts just because they were law courts.
What we have seen quite clearly, and other studies of this period have
shown, is that disputes were certainly processes rather than events. The
court hearing was only one event, one scene in the drama of the dispute. While managing the dispute was essential, therefore, the law court
was not: if it sometimes appears so to us, it is because it is from the
court that we get our document. Nevertheless, while recourse to a court
may not have been the only way to manage disputes in this society, it
was certainly one of the most useful. This was emphatically not because
it was the place where impartial absolute justice was handed down from
on high. Rather, it was because conicting norms were inherent in this
society and the court generally offered a way of reconciling them that
took place in the presence of many people and accurately reected the
real structure of power within the community it served. Thus it was not
simply that courts gave opportunities to disputing parties to choose
strategies, they were events at which all interested powers had agency.
In the duchy of Spoleto of the mid-eighth century, the interests that
are most apparent in these disputes are those of the elite landholding
families; they were articulated and controlled according to norms that
were current within that social class, rather than imposed from outside.
It is very hard to see any recognition that a court possessed or represented an authority that was independent of local interests, autonomous,
and, above all, superior.
Did this situation change after the advent of Carolingian power into
central Italy? Did the looming presence of rulers who apparently had a
more deliberate sense of their own role as administrators of divinely
derived justice mean that legal and judicial norms were any more
autonomous, any less implicated in the socio-politics of local elites,
than they had been under the Lombard kings and dukes? 84 A case that
took place sixty years after that of Claudianus shows that, in the Sabina
at least, courts decisions were still conditioned by local interests, not
least when it came to their enforcement. A notitia of 811 relates that a
court including the duke of Spoleto (by now the Frank Guinichis) and
the bishop of Rieti heard a certain Clarissimus being accused of seizing
lands at Casaprota belonging both to the duke himself and to Farfa,
and of destroying their boundary markers. 85 A panel of judges had
already ruled that the land should be returned to both abbey and duke,
but Clarissimus noluit iudicium eorum facere (did not want to carry
84
85
On the Carolingian ideology of royal justice, see Fouracre, Carolingian Justice.

RF II 197 (= Manaresi, no. 23). This is my understanding of the phrase signata cappilavit.
For Casa Perota as the modern Casaprota, see E. Saracco Previdi, Lo sculdahis nel territorio
longobardo di Rieti (sec. VIII e IX), p. 675 with n. 383.

283
out their judgement). Clarissimus denied that he had refused to comply. His opponents displayed a record (breve) of that earlier hearing,86
which included the information that Clarissimus had not wanted to
carry out the judgement, and was signed by the judges on that occasion.
The bishop of Rieti then called upon these latter men to testify to the
veracity of the breve, which they did. The present judges then made
( fecimus) Clarissimus both return the land to representatives of the
duke and of Farfa, and give to the same men a pledge that he would
pay them compensation.87
This case includes many of the same elements that we saw in the
earlier record of the Terentianus dispute. There are plenty of orationes
recta, but the number of different mouths in which they are placed
makes it clear that, as in the earlier case, the hearing followed no strict
adversarial format. Proceedings opened with Farfas advocate (advocatus)
addressing not the alleged miscreant but the other plaintiff , a representative of the duke. We are not given the latters response, but instead
move to a brief denial from Clarissimus that he was unwilling to
comply with the earlier judgement. At this point, apparently without
prompting, the litigants then offered their chosen mode of proof, by
producing the record of that earlier hearing, which the judges on that
occasion were then asked to verify. As in the Terentianus case, therefore, a document was worth little without supporting testimony. These
witnesses interrogator, however, was neither the apparently pre-eminent
judge present, the duke of Spoleto (perhaps cup-tied because he was
also one of the litigants), nor his representative nor that of Farfa, but
another of the judges, Hisemund, bishop of Rieti. Once the document
had been authenticated, the hearing moved quickly to a decision, and
to the oaths that afrmed the intention to enforce the judgement. As
with the Terentianus hearing, then, the point at issue was not really the
substantive one of who legitimately owned the land: in this case that
seems to have been resolved in full at the earlier hearing. The norm that
this court applied was a procedural one, precisely concerning the enactment of the decision of the previous court. Specically, it revolved
around Clarissimuss alleged unwillingness to comply with the courts
verdict, an unwillingness that should certainly be read, as it was at the
time, as violating the procedural norms that moved the process of dispute management from the courts decision to its enforcement. 88 As we
86
87
88
On the difference between a breve and a notitia, see Bougard, La justice dans le royaume
dItalie, pp. 746.
. . . statim ipsa hora fecimus ipsum Clarissimum retradere ipsam terram . . . Et fecimus
ipsum Clarissimum dare guadiam . . . ut eis componeret, sicut ille qui malo ordine in terram
alienam introibit [sic] aut signata cappilauit.
Et ipsi iudices iudicauerunt ut ipsam terram nobis retraderet, sed ille noluit iudicium eorum
facere.

284
Marios Costambeys
have seen, this was typically achieved partly through the swearing of
oaths, and it may very well be that what our charter is referring to in
this case is Clarissimuss unwillingness to swear that he would perform
the actions required of him by the initial group of judges.
There is also, however, a basic dissimilarity between this case and the
Terentianus dispute in terms of the efcacy of different courts judgements. In the earlier dispute, the judgement reached at the lowest level
at which the case was heard the ducal court was fully implemented.
A contrary decision made by the royal missi following an appeal (which
is what Grimuald and Ansos plea amounted to) had to be watered
down in a compromise to an extent that made it virtually useless. In
this later case, on the other hand, the decision of the local court could
not be put into effect; in the apparent absence of fullled oaths the
dispute continued, and the next stage in the process was to make an
appeal in another, apparently superior, court, one presided over by the
duke and the local bishop. It is interesting, too, that Farfa preserved the
record of this later hearing (which is how we know about it), and not
that of the earlier one in which, presumably, its rights and those of the
duke to the lands in question had actually been upheld. It would seem
that the document the abbey needed was not one that conrmed that
the land belonged to it, but one in which Clarissimus admitted that it
did not belong to him. The notitia that Farfa retained was really only
relevant to any repeat dispute with Clarissimus.
The danger that Clarissimus would continue to evade courts decisions, and had already been able to ignore one, seems to have stemmed
from his social (if not economic and political) status, which was on a
par with that of those who had sat in judgement at the initial hearing.
The landowning class in the Sabina was not especially large, and many
names recur frequently in the charter evidence from Farfa. Often they
can be shown to belong to the same person. 89 In this context, Clarissimus does not look like a man wholly without friends. The name
appears as that of a witness in a number of Farfa charters. Two are close
enough in date and circumstance to suggest an identity with the Clarissimus of the 811 court case, and their witness lists correlate with each
other fairly well (four of the seven witnesses to the second appear in the
rst, plus one of its issuers).90 If, as seems likely, this is our Clarissimus,
then in 804 he was witnessing alongside two men who were to be his
89
90
For demonstrations of this, see Costambeys, Piety, Property and Power, pp. 290317; Felten,
Zur Geschichte der Klster Farfa und S. Vincenzo al Volturno, pp. 3858.
RF II 153, of 792, a donation witnessed by, inter alia, Clarissimus, Ansefridus, Hildericus,
Opteramus and Probatus. A Probatus and his brother Picco issued RF II 175 in 804, witnessed
by Clarissimus, Audolf, Opteramus, Gualdipertus, Hildericus, Gudipertus and Ansefridus.
Both charters were written by Constantinus, who describes himself, tautologically, as
notarius scriptor.

285
judges in 811, Audolf and Gudipert. Of course, the fact that these men
acted as witnesses together does not prove any further association, let
alone friendship, and in any case much could change in seven years. As
co-witnesses, though, it is very probable that they were of similar social
status and, given the place where these charters were redacted, came
from the same locality.91 Overall and in general these men were a closely
connected group. Three of the six judges of Clarissimuss original hearing were in fact brothers, while the other three all appear together with
one or more of them as witnesses or judges at other times. 92 In 811 they
were perfectly prepared to nd against Clarissimus and in favour of an
abbey with which they were intimately associated: three of the six
were direct benfactors of Farfa, and one, Audolf, was the brother of
Farfas advocate Scaptolf, and himself later fullled that role. 93 But
they could not force him to comply with that decision. Through his
deance, Clarissimus negated the procedural norm that assumed that
judgement would lead to penalty and took the dispute outside the
formal arena of the court and into an informal one involving the personal positions and power of the litigants and judges. The plaintiffs
were now required to take action to move the dispute onto a new
formal stage at a higher court.
This latter case suggests that the forces that governed the relationship
between courts and the local societies that they served in the mid-eighth
century had undergone little fundamental change even sixty years later,
and some forty years after the Carolingian conquest. In both periods,
the records that we have are very often concerned not with substantive
norms that might establish absolute rights to property, but with procedural ones that governed the selection and presentation of modes of
proof, their authentication, and the actions and performances that moved
disputes along a normative path. The law certainly the written law
appears to have been very much a secondary matter. Furthermore, the
judiciary as an institution possessed power only in so far as it could
control the processing of disputes, and, as we have seen, that depended
to a great extent on where specic judges stood in relation to the
91
92
93
Both RF II 153 and 175 were issued at Rieti.

Spento, Statius and Toto were brothers: RF II 194, 195. The other three judges Leutherius,
Audolf and Constantinus witnessed an offersio charter of 801 alongside Spento and Statius
(RF II 167), and Leutherius and Audolf appeared again beside all three brothers in a court
hearing in 806 (RF 184 = Manaresi, no. 21). For the families, especially that of Audolf, see
further Collavini, Duchi e societ locali, pp. 1378. Among the additional judges who
appeared in the second hearing of Clarissimuss case, Ioseph and Gudipert had also judged a
case in 807 alongside Spento (RF II 204). Further associations between two or more members
of the group are apparent in RF 205, 208, 220 and 229.
Spento, Statius and Toto gave extensive donations to Farfa in 809 (RF II 194 and 195), and
Spento supplemented this in 816 (RF II 220). Audolf was advocate of Farfa in 821 and 829
(RF II 251 and 270; Manaresi, nos. 32 and 38: Statius was a judge in the former case).

286
Marios Costambeys
litigants within the power structure of the locality where the dispute
originated. It may seem that Clarissimus had been taken to task by a
higher court, but, apart from the duke himself, everyone else involved
in this hearing seems to have been based in the Sabina.
The cohesiveness of the social group of Sabine landholders seen in
the Clarissimus case, as well as the persistence of the normative friction
between pious donation and the rights of heirs, is evident from another
case played out in 81314, in which many of the gures in the Clarissimus case reappear. The dispute concerned a bequest to Farfa, seized
on the benefactors death by one of his sons-in-law and contested by
the other.94 The case moved up through a hierarchy of courts: three
formal hearings before a ducal tribunal failed because of the contumacy
of the defendants (the son-in-law and his father). 95 The fourth hearing
was held before an impressive panel including three bishops, a royal
judge, and various gastalds and scabini, and headed by Charlemagnes
cousin and chief Italian envoy, Abbot Adalhard of Corbie. 96 Once
again, the proofs offered were those selected by the parties themselves,
and once again proceedings moved quickly on from the initial issue of
ownership, in this case coming to focus on two written agreements
(convenientiae) that the defendants had made, one with Farfa to respect
the father-in-laws bequest, the other, contradictorily, with the fellow
son-in-law to divide the property between them. Their lame plea, that
these conicting agreements had been made nescienter, was not accepted,
and they were ordered to pay composition. They evidently did not, so
a fth hearing was convened, held before all of the previous tribunal,
with the addition of two dukes, including that of Spoleto, and the
count of the palace. This was just about everyone who mattered in early
Carolingian Italy, bar the king himself. 97 Here the defendants offered
the plea that they could not afford the composition: wildly implausible,
since the father was gastald of the Marsi. 98 Nevertheless, the judges felt
bound to suggest a compromise, involving equitable division of the
dead mans estate between the two sons-in-law and Farfa. By this time,
therefore, the mechanism in which disputes were processed allowed the
defendants to escape coercion by a local oligarchy, as had happened to
Grimuald and Anso. Many of the judges of the initial hearings belonged
94
95
96
97
98
RF II 205 and 207 = Manaresi, nos. 27 and 28.

RF II 205 = Manaresi, no. 27, a document drawn up on 8 December 813 at Pupiliano
(location unknown).
This is recorded in RF II 207 = Manaresi, no. 28, dated February 814.
Bernard was king of Italy at this date. The charter is dated by his reign and that of Charlemagne: news that the latter had died on 28 January 814 had evidently not reached Italy at
that point.
The father, Romuald, had acted as a judge in another of Farfas cases, recorded in 801: RF II
165 (= Manaresi, no. 14).

287
to that group concerned with Clarissimuss case who were identiably

associated with Farfa.99 By digging in their heels, the father and son had
ensured that the dispute would rise up the hierarchy of courts, provoking the intervention of those who had no afliation with sectional
interests in the Sabina. The extra layer of judiciary that Carolingian
government had brought to the duchy of Spoleto therefore offered not
a surer fount of justice, but a higher likelihood that disputes might be
managed through compromise.
The limits of courts effectiveness are best appreciated if we reverse
this last point: the more localized the level at which a court operated,
the more completely was it dominated by local interests. This is most
obvious in the Terentianus dispute, in which local verities overrode the
decision of royal envoys. In the Casaprota dispute, repeated referrals
may have brought the case into the presence of the duke in this
context, a supra-local gure but the hearing was still run, and the
outcome determined, by men from the Sabina. Only in the last case
does the use of the full panoply of courts show that the higher up the
formal hierarchy a dispute travelled, the more the judiciary could make
itself felt as a judiciary, rather than as a collection of aristocrats with
their own interests.
In this latter case, the fact that the increasingly ponderous weight of
royal government bearing down on the parties, far from leading to a
decision based on factual norms, only promoted compromise, suggests
important lessons about the way norms worked in this society. A
signicant proportion of norms operated outside the governmental
framework, and beyond its ability to control or change them. The
judiciary needed norms, but norms did not depend on the judiciary, or
on the ruler. As long as this remained the case, as it did, I would argue,
throughout our period, disputants had a relatively unregulated power
to choose between a menu of relevant norms. The difculty that all
rulers faced of enforcing decisions on the ground meant that what was
paramount in court was not jurisprudence or the assessment of facts
according to abstract rules, but procedure. Perhaps especially in land
disputes, norms had only a limited utility as guides to right and wrong.
In this context, the role of the judge looks quite peripheral, especially
in the lower courts. Judges lacked any clear guidance about which norms
to apply in which circumstances, and any autonomous means of enforcement. Their own interests must often have been deeply implicated in
the disputes that passed before them. Their role was chiey to ensure
99
Of the seven judges named in addition to the duke in RF II 205 (= Manaresi, no. 27), the
associations of four Hilderic the gastald, Ioseph, Statius and Adolf are all evident in the
documents mentioned above, nn. 9093.

288
Marios Costambeys
that procedural norms were allowed to do their work: for a compromise

to be reached, or an intensity of local pressure to be attained such that
a dispute was settled or managed. Only through exible attention to
multiple available norms might disputes reach resolutions that would
stick. In such circumstances it must often (perhaps usually) have been
impossible for judges to distinguish their interests qua judges from their
more personal interests. The practical operation of government was too
bound up with such interests to allow it any completely independent
or impersonal status. It is telling that so many of the cases from this
period preserved in the charters of the abbey of Farfa, cases, in other
words, that the abbey won, had had to go through several layers of
court hearing before being resolved. This is true of at least fteen of the
surviving twenty-six charters.100 The progress of the cases reveals the
sheer number and variety of those required to judge if a settlement
was to stick.
Seen in this light, judicial assemblies of the eighth and ninth centuries look less different from the seigneurial justice of the tenth and
eleventh than is often allowed, even in the Sabina where the placitum
tradition proved weakest.101 It has often seemed necessary to characterize
the transition from Carolingian to post-Carolingian modes of dispute settlement as a switch from a robust, impersonal public order of
power to a weak, privatized one, not least because a feudal revolution
has to be seen as having overthrown a preceding, Carolingian, ancien
rgime. The focus on structures that the vocabulary of revolution
implies has the merit of placing in an overarching interpretive model of
historical change the many small conicts that our sources relate. But
it runs the risk of over-schematizing myriad, interwoven small-scale
developments that did not simply unfold according to the varying
power of a single institution. The judicial structure was associated with
a rhetorical stance about justice in the abstract, and about decision and
enforcement, expressed through the language of the charters as well as
in royal rhetoric, that was always greater than the ability of the courts
to avoid the vagaries involved in the wider process of disputing. This
process needed such structures, but served also to undermine them.
Eventually for Italy, as for medieval Europe as a whole, it would
become possible to distinguish self-interest and the interest of the state,
and to see the two pulling sometimes in the same direction and sometimes against each other.102 In the Lombard and Carolingian period,
100
101
102
CDL IV/1 12, 14, 15, 26, 28, 29, 35; RF II 161, 165, 171, 183, 184, 207, 257, 270.
C. Wickham, Justice in the Kingdom of Italy in the Eleventh Century, in La giustizia
nellalto medioevo (secoli IXXI), Settimane 44 (1997), pp. 179255, at pp. 237 9.
Brown and Grecki, Where Conict Leads, pp. 26970.

289
however, disputants had an extent of choice in their disputing strategies

that meant that power as expressed through the courts was correspondingly diffuse.
For an epilogue we can return to the Falagrina case with which we
started. As we saw, the president of the judicial tribunal, gastald Heric,
had distrained lands simply, it seems, in order to provide their owner,
the abbey of Farfa, with even more secure title to them. The court here
appears as a vehicle for the abbeys interests, an impression only reinforced by the facts that the land in question had originally been given
to Farfa, fty-three years earlier, by a member of the Pandoni family,
and that a number of members of the tribunal are identiable as laymen
associated with the abbey.103 By this time, in fact, it is even more difcult
to assess whether this was a real manipulation of the public judicial
apparatus by an interested party, or whether the object of manipulation
was the document itself. The notitia in question constitutes an early
step on a journey of transition that Italian dispute notitiae underwent,
towards a standardization that makes them much less useful as evidence
for practice.104 The creeping appearance in the Farfa collection of charters with stylized or ctive passages may intermingle with more realistic
reportage, suggesting gradual change in the instruction or preference of
notaries rather than the imposition of new ways of working. The trend
may also be less marked in the Sabina than elsewhere, with documents
of a new type appearing from the 830s. 105 But the Falagrina document
is still a symptom of an emerging attitude that distinguished the documentary, bureaucratic component of disputing from real social forces:
law detached itself from life, and in Italy has remained detached ever
since.106 It is beyond the scope of this paper to assess this change, fully
under way by the later ninth century. 107 In the two centuries preceding
it, the existence of a variety of overlapping norms together with the
relative informality of the court, and the compromised position of the
judge, meant not only that personal interests dominated any aspirations
to impersonal governance, but that court records actually reveal this to us.
University of Liverpool
103
104
105
106
107
Costambeys, Piety, Property and Power, pp. 2746.

Wickham, Justice in the Kingdom of Italy, pp. 17982; and see the remarks on the Sabine
documentation at p. 188.
E.g. RF II 282.
E. Galli della Loggia, Lidentit italiana (Bologna, 1998), p. 42.
See Bougard, La justice dans le royaume dItalie, pp. 30739.


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Disputes and courts in Lombard and

Carolingian central Italy

Early Medieval Europe () 265289

Vespasian.2 If this was clearest in his peremptory distraint of a property

Early Medieval Europe ()

Disputes and courts in central Italy

We know nothing more about gastald Heric; disembodied from his

Early Medieval Europe ()

Spoleto were at least nominal heads of an administration that differed

Early Medieval Europe ()

Disputes and courts in central Italy

Early Medieval Europe ()

CDL IV/1 15.

Early Medieval Europe ()

Disputes and courts in central Italy

ipso facto interested parties. Moreover, this point can be extended to

Early Medieval Europe ()

CDL IV/1 12.

Early Medieval Europe ()

Disputes and courts in central Italy

thirty-year prescription, a norm reafrmed in the Lombard written

Early Medieval Europe ()

missing from the document they presented, in effect, that it lacked an

Early Medieval Europe ()

Disputes and courts in central Italy

Early Medieval Europe ()

drawn attention to his having expressed in writing his desire to enter

E.g. ER cc. 1646, 198, 228.

Early Medieval Europe ()

Disputes and courts in central Italy

Early Medieval Europe ()

Early Medieval Europe ()

Disputes and courts in central Italy

At the heart of this network as it appears in the few documents

It is plausible that he was the Audualdus who attested CDL V 3 in 739.

Early Medieval Europe ()

be seen acting alongside either Bishop Teuto or his powerful brothers

Early Medieval Europe ()

Disputes and courts in central Italy

Early Medieval Europe ()

Sabina, the local elite felt no absolute requirement or compulsion to

On the Carolingian ideology of royal justice, see Fouracre, Carolingian Justice.

Early Medieval Europe ()

Disputes and courts in central Italy

Early Medieval Europe ()

Early Medieval Europe ()

Disputes and courts in central Italy

Both RF II 153 and 175 were issued at Rieti.

Early Medieval Europe ()

RF II 205 and 207 = Manaresi, nos. 27 and 28.

Early Medieval Europe ()

Disputes and courts in central Italy

to that group concerned with Clarissimuss case who were identiably

Early Medieval Europe ()

that procedural norms were allowed to do their work: for a compromise

Early Medieval Europe ()

Disputes and courts in central Italy

however, disputants had an extent of choice in their disputing strategies

Costambeys, Piety, Property and Power, pp. 2746.

Early Medieval Europe ()

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