06/13/2018

Lombard Law-books in the Tenth and Eleventh Centuries

Thom Gobbitt

June 15, 2018 | Thom Gobbitt | HI Research Blog |

The early medieval Lombard laws comprise legislation issued in the name of various Lombard kings, from Rothari in 643 CE through until Aistulph in 755 CE, edited in the nineteenth century as the Edictus Langobardorum (Bluhme, ed., 1868). These laws comprise one of the many ‘barbarian’ law-codes that were written and used across early medieval western Europe. The extent to which the use of barbarian laws was for pragmatic legal literacy, or else as vehicles for royal ideology and ethnogenesis of – in the case of the laws on which I focus here and in my ongoing research – a Lombard identity, has been widely debated in the scholarship. It seems fair to suggest, however, that neither of these elements is mutually exclusive, although undoubtedly in varying proportions in different places and at different times. My own research stands at the intersection of two academic disciplines: The History of the Law and the History of the Book. I examine how the producers and users of different manuscripts updated and adapted both texts and the technology of the book to facilitate and direct their (anticipated) readers’ access to the laws.

Manuscripts containing different versions of the Lombard laws in fact continued to be produced and used up until at least the fourteenth century, demonstrating their continuing significance for centuries after their promulgation and even after the conquest of the Lombard kingdom under Charlemagne in 773-74 CE. Following the Frankish conquest, the Lombard Laws remained in use, augmented first by Frankish capitulary legislation, and later, when what was by then the Kingdom of Italy was incorporated into the Ottonian hegemony in the tenth century, with Saxon capitularies as well. Often laws and capitularies travelled together in the same manuscripts, sometimes alongside a range of other related texts such as historiographies, chronicles, documents relating to the institutions where the manuscripts were produced and/or used and so forth.

By around the turn of the eleventh century, it is argued that a new version of the laws and capitularies came into use, edited in the nineteenth century under the name of the Liber Papiensis (Boretius, ed., 1868), or ‘book of Pavia’ as it was argued that it was produced by legal scholars active in or around Pavia, the old Lombard capital. The Liber Papiensis has traditionally been positioned within the nascent framework of legal studies (Radding, 2002). Indeed, as has been amply demonstrated in the scholarship, the analysis of the Lombard Laws and the development of glosses, legal commentaries and other apparatus of legal studies, undertaken in and around Pavia in the long eleventh century, lay the foundations for the juristic revival of the Roman law in Bologna in the mid-twelfth century (Radding, 1997; Radding and Ciaralli, 2007). Modern scholarship has therefore argued on the evidence of the Liber Papiensis and the associated legal commentaries that the revival of the Roman law did not occur within a scholarly vacuum.

Conversely, however, it has been assumed that the redaction of the Lombard laws and those Frankish and Saxon capitularies which specifically related to Italy in the Liber Papiensis was a single authorial act, that occurred around or just before the turn of the eleventh century. It is argued that the production of this new text marked a fundamental and revolutionary shift in the manuscript and textual contexts of the Lombard laws, a sudden and radical change ‘from royal edict to scholarly compilation’ (Radding, 2002). As many of the clauses in the Liber Papiensis derived from different capitularies are out of place, sometimes even attributed to a different legislator entirely, Radding suggests that the redactor drew on older copies of the laws and capitularies stored in the archives, (presumably from the palace at Pavia), rather than on the contemporary manuscript traditions of laws and capitularies as circulating in the tenth century (Radding, 2002). I argue for a nuancing of this perspective in a forthcoming article by demonstrating that both the, older, Forma Communis and the tenth-century Italian Forma Langobardica variants of Charlemagne’s Herstal capitulary of 779 CE (Boretius, ed., 1883: 46-51) were drawn on by the compilers of the Liber Papiensis (Gobbitt, [in press]).

A particular feature of the Liber Papiensis is that it has been considered in the scholarship as a homogenous text, in which Lombard Law and a selection of Frankish and Saxon capitularies specifically relating to Italy were seamlessly united into a single volume, with the text and mise-en-page of both parts being formatted and edited in the same manner. In my forthcoming monograph I lay out the codicological evidence to show that the earliest instance in which the unification of two originally independent volumes of law and capitulary, into a single book - now Vienna, MS Cod. 471 - did not occur until at least the third-quarter of the eleventh century (Gobbitt, 2014). Moreover, the first surviving version of the Liber Papiensis produced as a single book from the outset - Padua, MS 528 - did not occur until the first quarter of the twelfth century. Some of the other characteristic features of the Liber Papiensis are likewise developed across the course of the eleventh century, such as the removal of the capitula numbering for clauses or the widening of the margins to incorporate the glosses and cross-references. In both these instances, the mise-en-page of the oldest surviving copy of the Liber Papiensis Milan, MS O 53 sup. & O 55 sup. has more in common with the Edictus Langobardorum, than with the later versions of the Liber Papiensis.

The separation of law and capitulary is more than a direct matter of the material contexts within which the legal texts were transmitted. By recognising that the two parts were still conceived of as semi-independent pieces, variations in approaches taken to the two parts can be seen and centred. The treatment of the prologues introducing each new law-giver or the legislation arising from different sessions within their respective reigns requires some consideration, and I am currently pursuing a case-study of the tenth- and eleventh-century manuscript contexts of approaches to the prologues of Liutprand. Liutprand issued legislation in some fifteen phases between 713 CE and 735 CE, with prologues introducing all of these sessions except for the laws of the twenty-first year of his reign (733 CE).1   Radding and Ciaralli note the total removal of all these prologues, and those of the other law-givers, as a defining feature of the Liber Papiensis, noting that from the manuscript contexts of the Liber Papiensis it would be impossible to deduce that Liutprand’s legislation was spread out over more than two decades, or likewise that Charlemagne’s legislation was issued in numerous capitularies (2007: 141).

While this reflects the general practice seen in the manuscripts of the Liber Papiensis, there are some fine points of variation. The prologue for Liutprand’s first year survives in three of the seven surviving manuscripts (London, MS Add. 5411, Paris, MS Lat. 9656 and Vienna, MS Cod. 471). In addition to these, the prologues for Liutprand’s fourteenth and nineteenth years can be found in Milan, MS O 53 sup., while a prologue for the ninth year survives in the turn-of-the-twelfth-century Venice, MS Lat. V. 81 (2751) – roughly a century after the Liber Papiensis text was thought to be redacted. In addition to these, a smattering of rubrics and other such paratextual markers also survive, prompting the reader to the change in legislative phase. The contexts of the Liber Papiensis’ transmission therefore seem to have employed a number of variant routes in which different fragments reflecting the legislative phases were transmitted, as presumably these stray fragments were copied from the exemplar by the scribes, rather than sourced from a separate and re-introduced contemporaneously to the production of the new copy of the laws.

Conversely, general strategies to remove - or at least truncate - the prologues introducing Liutprand’s legislation may also be seen in some of the tenth-century manuscripts of the Edictus Langobardorum, suggesting that related strategies were already being experimented with. For instance, Paris, MS Lat. 4613 has heavily truncated versions of the prologues for the fifth, eighth, ninth, eleventh and twelfth years, in which the content is reduced to naming only the law-giver and date of issue, while all narrative discussion of the contents is removed. The prologue for the fourteenth year is removed fully. The situation cannot be assessed for neither the fifteenth nor sixteenth years, as the corresponding folios for each have been lost, but all the other years have their full prologues. In the tenth-century manuscript, Madrid, MS 413 the prologues for the fourteenth, fifteenth and sixteenth years are removed, while all the others remain. In addition to the full version of the prologue for the eleventh  year (fol. 89r, ll. 4-16), a truncated version of the prologue for the eleventh year is also given, on fol. 92r, ll. 6-11 (depicted in the image above). In the early eleventh-century manuscript, Cava, MS 4, most of the prologues are given in full, but those for the fourteenth and fifteenth years are also removed, while a truncated version of the prologue for the ninth year is given on fol. 88v, ll. 14-18, along with a full version of the same prologue a few pages later, on fol. 91r, l. 19 – fol. 91v, l. 16. Each of these manuscripts represents, admittedly, reasonably isolated instances in the removal of prologues (although with suggestive parallels between specifically which prologues have been removed). The tenth-century Wolfenbüttel, MS Cod. Guelf. 130, however, stands out in that every single one of Liutprand’s prologues apart from that of the first year has been silently removed.

Evidence for the focusing or complete removal of prologues introducing the various legislative phases of Liutprand can therefore be seen to predate the eleventh-century Liber Papiensis and be attested in numerous instances throughout the preceding century. While Radding makes no mention of the truncation or removal of some of Liutprand’s prologues in in Paris, MS Lat 4613, he does observe an initial trend towards the association of capitularies issued in multiple legislative phases with their corresponding law-giver while removing some of their individual prologues (Radding, 2002). For Radding, however, this does not make the Paris manuscript an earlier variant of the Liber Papiensis, as he sees it as being confined to the capitularies, and that similarly the capitulary collections have not been selectively edited to only include those which were directly relevant to Italy.

From this initial survey, however, it would appear that in some of the tenth-century manuscripts, editorial filters were already being applied to both Lombard laws and Frankish and Saxon capitularies. In this, I would argue the foundations of the Liber Papiensis can be seen, and I would argue that rather than seeing a single redaction happening at a single point in time at the hands of a single intellectual redactor (or group of such redactors), it is better to consider the redaction as having emerged from numerous smaller changes iterated across – at least - the tenth and eleventh centuries. Many of these changes can be seen in the manuscript contexts, as produced and used by scribes and readers. The fact that these were not applied homogeneously to law and capitulary in the tenth century becomes a less relevant ground for marginalising this behaviour from the contexts of what is seen as the Liber Papiensis, when it is remembered that in the eleventh century the laws and capitularies are transmitted in conceptually related but materially independent volumes, reflecting a greater degree of separation between the two types of legislative text than has previously been imagined. The shift to focusing specifically on Italy remains a defining feature of the Liber Papiensis, as does integrating the sudden flourishment of apparatus for legal studies that began to be produced from the late-tenth to early eleventh centuries.

The many innovations seen in the Liber Papiensis across the eleventh century may well represent the ongoing work of legal professionals bringing different and developing needs to the legal texts which they were producing, augmenting and using. But as surely as these studies in the legal contexts of the Lombard laws and the Italian legal context of the eleventh century lay the foundations for the juristic revival in the mid-twelfth, so also did they build, directly and otherwise, on the extensive work that had already been achieved in the preceding centuries. Rather than breaking with an old tradition and developing a new from previously neglected archives, what has appeared in hindsight as a single moment of intellectual innovation, may have arisen from a widening scope of sources seen and revised in multiple iterations and through multiple perspectives.

The producers of each manuscript witness of the laws and capitularies augmented and updates the version(s) of the texts they were drawing on as exemplars, in response to their understanding of the laws and related materials, and in anticipation of the ways in which their readers - of which they themselves may well have numbered - would want to engage with the books and laws. Each writer and reader, then, is taken to be an intellectual and affective contributor to the development of the Lombard laws and the cultures of legal literacy in which they read and wrote, and in relation to the developing technology of the manuscript law-book.

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