Introduction

The Importance of the Usatges of Barcelona

[1] Law is a systematic force that humans create in order to regulate both public and private social relations. One may be said to “possess” a law if the applicability of the law depends on individual status or membership in a particular society; one may be said to be “subject to” a law if the applicability of the law is universal throughout a specific territory. The difference between “personal” and “territorial” law characterizes much of late antique and medieval legal and social history.

           From the fifth century of the Common Era, territorial law of the Roman Empire was replaced in many of the new Germanic kingdoms by the personal laws of the different groups that constituted these kingdoms. Roman law itself became the “personal” law of provincial Romans. The personal character of the “folk laws” later changed to accommodate the newer “feudal” relations between lords and vassals. From the twelfth century, the intricate and learned old territorial law of Rome was re-discovered. The study of the imperial codes began to undermine the older laws of personal status, the rules governing the relations between lord and vassal, and the essentially oral method of preserving and transmitting the older law. Kings and princes, served by men trained in the Italian or southern French centers of education in the Roman law, readily turned to me systematic and highly articulated jurisprudence of imperial Rome as a conceptual base that could be used to override or outflank older folk or feudal strictures. Under this influence, much of Europe shifted from “personal” legal systems toward [2] those with a territorial base. The rulers (whether holding a royal or some other princely title) governed “homelands” (patriae), and the laws they approved or enacted were valid as far as their power ran. Far from being displaced, however, feudal relations were now regularized and they eventually entered into the realm of written, learned law. No code of the twelfth century illustrates this complex process and reflects more of the various legal forces of the era as does the Usatges of Barcelona.

           The significance of the Barcelona code can scarcely be overstated in local Catalan and general European terms. Issued in the mid-twelfth century by officials and judges within the court of Count Ramón Berenguer IV of Barcelona (1131-62), the laws effectively defined both Catalonia itself and the dynasty that would rule it for five centuries. This disparate collection of feudal practice, peace and truce statutes, and excerpts from Roman and Visigothic law codes became the source from which all other Catalan laws flowed. In reality, its hybrid nature may explain how the Usatges came to be Catalonia’s fundamental law. As a composite of so many different legal elements, the code, or at least parts of it, gave something for almost everyone to claim. With the general acceptance of them in Catalonia, the laws began to influence legal forms in neighboring southern France and in realms of the Crown of Aragon. In time, they came to symbolize a Catalan nationalism long suppressed but not defeated by Castile.

           The Usatges were also highly significant in regard to contemporaneous European legal trends. The code serves as a juridical litmus test that can measure with some accuracy the transmission of learned Roman law from Italy or southern France into Catalonia. It also shows [3] how important the experience of rediscovered Roman law was to both royal administration and the renewal of legislation within Catalonia and throughout Europe. The creators of the Usatges were not simply scribes but were in a sense scholars who used new trends in learned law to rectify the judicial norms of their own land. When the learned law seemed to fail, they used its “style” to address new situations. If the local customary law was silent on a certain point, they simply fabricated novel and learned elements. In the case of the Usatges, they even occasionally acted as forgers on a grand scale, attributing their work to the court of Ramón Berenguer I of the mid-eleventh century. If, as Michael Clanchy has pointed out, such legal counterfeiters were indeed “experts at the center of the literary and intellectual culture”of the era. Their work, then, was not simply a transformation of customary feudal practice into writing, nor was it a true statutory law, since the sovereigns who commissioned it are not even mentioned in it. Like many other codes of the twelfth century, the Usatges comprised a set of academic laws which represented the feudal world not exactly as it was but as the “law givers” (legislatores) professed to see it.

The Emergence of Barcelona and Catalonia: A Maze Among Iberian Mazes

Spain was born in a violent geological past in which one range of mountains after another was thrown up across the countryside. As a result, the Iberian Peninsula entered history as one of Europe’s most mountainous regions. Nowhere has this mountainous aspect more touched [4] the affairs of homo ibericus than in the northeastern corner of the Peninsula known as Catalonia. In geological and geographical terms, Catalonia is a microcosm of Iberia itself. Ringed by cordilleras of various ages and heights, the land is itself divided by mountain ranges into three distinct zones. To the north, Catalonia is separated from and linked to France by the Pyrenees. The Pyrenean passes formed thoroughfares between Spain and France long before either existed as states. The route of the Via Domitia, which connected Perpignan to Barcelona, led down into Catalonia’s second geographical zone, that of the Mediterranean littoral. For most of its length, this costa brava is as Richard Ford described it in 1845: “wild and picturesque?” The very irregularity of the coastline and lack of navigable inlets has bestowed a position of commercial dominance on Barcelona, the only large port in region. By and large, these first two geographical zones constitute the region which came to be known as Old Catalonia. New Catalonia, the district conquered from Islam from the late eleventh century onward, forms the third. Bounded by the Segre River and the cities of Tarragona, Lerida, and Tortosa, this great wedge of fertile territory owes its existence more to riverine than to tectonic forces. As Catalonia’s greatest river) the Ebro, meanders from its source in the Sierra del Cadi to its mouth below Tortosa, a great alluvial basin is deposited and constantly resculpted. This swath of flatland, broken only occasionally by escarpments, has long lent itself to large-scale irrigational agriculture.

           [5] The political divisions of the land that would become Catalonia are clearly reflected from its geography. Thus it was no accident that Barcelona, the preeminent port of the region, came to dominate the Ebro huerta and eventually the Pyrenean uplands. Such a development, however, could only take place because of the remarkable drive of the counts of Barcelona as well as the fairly isolated geographical arena in which this expansion took place. From its physical nature as “a refuge and labyrinth,” Catalonia was given its political character.

The Triumph of Catalonia and the Count of Barcelona

Northeastern Spain has from prehistoric times served as a entrepot. Under the Roman Empire, the region comprised a large part of Tarraconensis, the most important of the Roman provinces carved out of the Iberian Peninsula. It retained its significance even after the Visigothic invasions of the fifth century. Despite the lingering importance of Tarragona as the province’s metropolitan see, Barcelona emerged as the area’s greatest administrative and commercial center. Even after the Visigothic ruling house shifted its power base to Toledo in the seventh century, Barcelona remained the most active port of the realm. Its clergy, though briefly falling under the spell of the Arian heresy in the late sixth century, formed a significant missionary force for the conversion of the large numbers of pagans still living in the eastern Pyrenees.

           The Muslim conquests of 711-18 destroyed the Visigothic kingdom. Northeastern Spain fell under the influence either of the new invaders or of the Frankish kingdom. Much of the northern half of the Peninsula was a staging point for Muslim military operations which [6] eventually spilled over the Pyrenees into the southern ranges of the Merovingian realm, only to be slowly driven back by such Frankish leaders as Charles Martel in the mid- eighth century. This Christian drive southward was capped by the victories of Charlemagne (769-814) and Louis the Pious (814-40) , which brought most of the Catalan coast as far south as Barcelona into the Carolingian orbit. This new territory quickly came to be called the Spanish March or marca hispanica.

           The uneasy stalemate between Christian and Muslim in the Spanish March, along with the distance of this battle zone from the core of Carolingian administration, made the delegation of power a fact of Iberian political life. Members of eminent Visigothic and Frankish families bearing the title of count or marquis held temporary dominion over the Spanish lands in the name of the Carolingian sovereign. Such marcher agents tended to transfer their official jurisdictions into heritable allodial tenures on which they founded or advanced their noble status. The beginnings of a regional social consciousness and political identity also stirred among the general population. Long referred to by the Franks as hispani, the Visigothic refugees had first settled in southern France shortly after the Islamic conquest. They held land from the Franks in a system known as the aprisio. By this arrangement, a cultivator gained full possession of undeveloped land if he worked it for a prescribed period. This same form of land settlement was carried into the marca hispanica by the hipani who accompanied the Carolingian invaders back into the Peninsula. Thus from the pockets of native noble power along the Pyrenees and among the scattered peasant communities in the isolated uplands, a new society was crystallizing [7] which from 844 even the Carolingian Emperor was forced to recognize.

           In spite of this growing social cohesion, the political reality of all the emerging realms of Christian Iberia remained distinctly hostile to centralization of any kind. Even the configuration of authority in the Spanish March militated against a single ruler. In political terms, the region was a cluster of comital and viscomital domains which recognized no overlord other than the distant Carolingian Emperor. In a very real sense, then, Catalan political history until well into the thirteenth century was bound up with the struggle for superiority on the part of one section of the land over all others. The chief agent of this conflict was an important Visigothic family of Urgel and Carcassonne, certain of whose members from the ninth century had acted as Carolingian delegated rulers in a number of counties of the Spanish March, including Barcelona, Ausona, and Gerona. From this authority base, the first count of Barcelona, Wifred I the Hairy (873-98) , followed two distinct paths to the domination of the marca hipanica – the conquest of neighboring Muslim territory and the extension of suzerainty over adjacent Christian counties. Both of these aims were furthered by an extensive castle building program which is reputed to have given Catalonia its name as “the land of castellans.”

           While Wifred set Barcelona on the road to dominion of its Catalan evirons and surrounding Muslim territory, his immediate successors were forced from this prudent course by a series of disasters which almost overwhelmed the dynasty. His grandson, Borrell II (951-993), seeing no advantage in alliance with a distant and ineffective king of Francia, [8] “separated from the kingdom of the Franks” and took Caliph al-Hakam II of Cordova (961-976) as lord. When the Muslim ruler died with only a small son to succeed him, one of the young caliph’s officials (later given the sobriquet “he who has been made victorious by Allah” (al-Mansur bi’llah) established a number of sweeping reforms, including the creation of an effective army. From 977, this new force harried the Christian states of the Peninsula to the very breaking point. In 985 al-Mansur unleashed his professional troops on Catalonia. With no possibility of Carolingian assis- lance, Borrell II faced the Muslim invasion with a makeshift host which was casily defeated by the Muslim veterans. Barcelona now lay open to the invaders, and on July 6,985 this “most noble of cities” was sacked and, like most of Christian Spain, left for dead. Yet with al-Mansur’s death in 1002, his reforms fell into disrepair, and by 1013 Muslim Hispania was fragmented into smaller political units, the ta’ifas, which were ruled by the kings of the factions, former governors, or agents of the caliph. In a mere thirty years, the Iberian situation had drastically altered, and Christian realms, once under constant threat of attack by the infidel, had taken the offensive and would shortly initiate one of the most important phases of the reconquista.

           Before Catalonia was ready for such foreign enterprises, however, a broadened local sovereignty base was essential. Such a development seemed impossible in the anarchic environment of early eleventh-century Catalonia. The network of castles that dominated Catalonia unleashed “a measured reign of terror” by the castellans on the surrounding populace [9] and defied all central control – even from the lords who had built the castles. The Count of Barcelona, Berenguer Ramón I (1017-35), vilified in his own land as “a weak knight. ..of little strength,” conducted few campaigns in Muslim Hispania and thus commanded neither golden tribute from the rulers of the ta’ifas nor respect from his own great men. Only through the efforts of his mother, Countess Ermessinda, was the Count of Barcelona able to retain his power. The possibility for the extension of comital authority took place during the reign of Berenguer Ramón’s son Ramón Berenguer I (1035-76). Spending much of his youth avoiding entanglement in a series of internecine wars among the great lords of Cerdanya, Pallars, and Urgel, this canny ruler capped his advance into adulthood by suppressing a two-decade long revolt by his cousin Mir Geribert in 1059. Attracting an increasing body of support, the Count was able to maneuver all of the Catalan barons into formal recognition of his overlordship. As suzerain of all the great nobles of the Spanish March, the Count strongly asserted his role as the principal judge of the land and surrounded himself with legal advisers who “judged, heard suits, and made rulings according to the [Gothic] laws.” He also felt confident enough to take measures of pacification not confined to the feudal sphere. In 1064 and 1068, he adapted the clerical peace and truce to civil ends. The importance of this action cannot be over-stressed since the pax et treuga gave the count of Barcelona enhanced ruling possibilities not only as a national protector but also as a national legislator. As Thomas Bisson has rightly pointed out, the peace and truce laid the legal guidelines for Catalonia’s “constitutional order” down into the [10] thirteenth century.

           Though the reign of Ramon Berenguer I set the stage for the advance of his comital office on all fronts, this foundation of power was not built on until the eve of the twelfth century. In the intervening three bloody decades, several assassinations within the count of

Barcelona’s family brought his land to the brink of civil strife. With the reign of Ramón Berenguer III (1097-1131) , however, the possibilities of a greater Catalonia began to emerge. Ironically, many of the early territorial gains of this young man – “very pleasant, generous, and accomplished in arms” – came into his hands without the drawing of a sword. In 1111 and 1117 respectively, the count fell heir to the small but strategic Pyrenean counties of Besalú and Cerdanya, leaving only two other major sections of the old marca hispanica outside the direct control of the Barcelona house. In 1112 he concluded a marriage with Countess Douce of Provence which would eventually extend the influence of the Barcelona house beyond the Pyrenees.

           Profiting from the disarray of Muslim ta’ifas that bordered his lands, Ramón Berenguer III followed his predecessors’ policy of extorting “yearly tribute” (parias) from the rulers of these states, who paid these sums in the misguided hope that the Iberian Christian states would accept their cash in lieu of their land. Such tribute money did not, however, prevent the count from engaging in such urban reclamation schemes as the resettlement of the long-ruined town of [11] arragona in 1118. Nor did the flow of Muslim gold northward into the count’s coffers dissuade his people from slowly recovering territory in the no man’s land between his own realm and the ta’ifas of Lerida and Tortosa. Rather than closing ranks against the invaders, the Muslim kinglets were their own worst enemies, often allying with Christian forces against their coreligionists. It was widely and bitterly asserted among contemporary Muslim intellectuals that both Christian greed and the immorality of their own people had “weakened the bonds of the community of the Prophet”

           With such an atmosphere of general despair, it is little wonder that ta’ifa society fell under the severe influence of the Almoravids. This Berber dynasty had gained control of the majority of North Africa before it intervened in Hispanic affairs with the impressive victory over a joint Christian army at Zallaqa in 1086. When the count was forced to beat back a Muslim invasion on his own soil in 1108, his stance toward Muslim Spain entered a distinctly warlike phase that culminated in 1114 with a crusade against the Balearic Islands. Conquering a portion of the chain’s largest island, Majorca, he could only hold it for a year because the Muslim population so outnumbered his own forces. Despite this setback, a clear precedent of territorial aggrandizement at the expense of the infidel had been established. It would not be lost on the next count of Barcelona, Ramón Berenguer IV (1131-62).

           The new count, like his counterpart in Aragon, Alfonso I the Battler (1104-34), was passionately committed to the war on Islam and in 1134 dedicated himself for a full year to the [12] service of the military religious order of the Templars. With these martial goals firmly fixed before him, Ramón Berenguer proceeded to lay plans for the invasion of the two major ta’ifas that bordered his land. These aims came to fruition in 1148 and 1149 when he commanded a polyglot crusading army in the conquest of Tortosa and Lerida.

           The rapidity of Ramón Berenguer IV’s conquests starkly emphasized how different were the lands he now ruled. In Old Catatonia, the descendant of the Spanish March, the feudal and principal order imposed by Ramón Berenguer “the Old” in the 1060s and 1070s was largely locked in place. In the newly-conquered territory, New Catatonia, a brand of feudalism existed but lords exercised fewer quasi-public rights, and vassals on all levels received extensive privileges and exemptions as an inducement to settle the new lands. Both sections were tied together by the count of Barcelona’s claim to rule them by virtue of his office of princeps. Despite the differences between these two regions, a political unity was beginning to form between them, and this unity largely resided in their allegiance to the count of Barcelona as sovereign. A similar kind of monarchical unity in regnal diversity developed in 1137 when the marriage of Ramón Berenguer IV to Queen Petronilla of Aragon lashed two very different countries to the will of one ruler.

Catalonia: The Bonds and Divisions of a Nascent Society
 

The prototype for all the realms of Christian Iberia was the defunct but partially-remembered [13] Visigothic kingdom. A view of this state and its institutions is preserved in the monumental Visigothic law code of the region, the “Book of Judges” (Liber Judiciorum; Fuero Juzgo) which con- stituted the prime legal text throughout the Christian portions of the Peninsula until the eleventh century. With the sudden demise of the Visigothic kingdom, other influences gradually came into play. In the land that became Catalonia, Frankish political forms soon grew to dominate. An “official” nobility emerged from the remnants of the Visigothic noble class, and other wealthy hispani who acted as Frankish agents. These “princes” (principes) or “wielders of public authority” (potestates) generated the ruling families in each of the Catalan counties, including that of Barcelona. In reality, however, the exigencies of Catalonia as a frontier wne ringed by infidel enemies prevented the immediate duplication of a strong Visigothic-type monarchy and nobility. Instead, small farming communities developed in the countryside and around the largely-deserted urban sites. This “society of free men” generally owned their own land and had some degree of power in the communal groups they were part of. By the mid-eleventh century, the Catalan countryside had changed from a scene of allodial land tenure and peasant liberty to one dominated by castles and those who staffed them. The castellans and garrisons were effectively supported by the land and population that surrounded the fortress. While the castellans were obliged to turn over control of their fortresses to the “official” lords who owned them, they increasingly retained these strongholds as their own bases. A corps of [14] professional warriors, uncontrolled even by their own overlords, was thus unleashed on the surrounding rural population.

           Between the sack of Barcelona in 985 and the victory of Ramón Berenguer “the Old” over his last principal rival in 1059, the “militarization” of Catalan society, to use Archibald Lewis’s phrase, took place. Relations between weak and strong men were established in the Spanish March by the adoption of Carolingian forms of allegiance and conditional service in exchange for lordly grants of land. In the world of shifting alliances and rivalries that comprised eleventh-century Catalonia, the pressing need for loyalty was accomplished by the linkage of vassalic dependence to feudal tenancy. The personal alliance was solemnly realized in the ceremony of “homage” (hominaticum) in which one man acknowledged himself to be a lord’s man, or vassal. To seal the pact, the vassal took an oath of “fealty” (fidelitas, affidamentum) which was properly sanctified by having the oath-taker touch the Gospels or stand on an altar during the ceremony. By this ritual, the vassal, whether noble or not, formally promised to safeguard the life and limb of his lord, hold fiefs and castles granted by his master according to conditions acceptable to both parties, and finally to be the lord’s “helper, with righteous faith and without deceit.” The lord, for his part, swore to defend his vassal, maintain his rights and provide for his well- being. The most tangible and significant result of homage and fealty was [15] the lord’s investiture of his vassal with a fief. Up until the eleventh century, the fevum or terra de feo was a grant of fiscal land made to various types of vassals, including officials and castellans. Despite differences in terminology, the fief in Catalonia was considered by ilie 1050s the opposite of the alod.

           The fevum personalized the relationship between lord and vassal. The commendation of a fief gave the vassal only provisional “control” (potestas) over it. He promised orally and in the written “pact” ( convenientia ) that he would relinquish such custody whenever requested by the lord and would not usurp or legally contest ownership of ilie fief “whether at war ar at peace with his lord” (iratus et pacatus). The fief, as the core of a relationship of mutual allegiance and duty, was fated to outlast the alliance that brought it into being. While the investiture of feudal land was initially only for the lifetime of the vassal, ilie bond formalized by the granting of such land did not normally expire wthi a vassal’s death, since his place could be taken by his son or nearest male relative. From this ongoing connection between lordly and vassalic families, the steps to the heritability and finally alienability of fiefs were short ones. The viability of the “system” was lessened as the feudal holding became more important than the feudal relationship. The drive to gain as many fiefs as possible often left a vassal with more than one lord. Even with the emergence of “liege vassalage” (solidancia) in eleventh-century Catalonia, the temptation to garner a number of fiefs gave the same vassal more than one “liege lord” (melior senior) whom he was bound to honor above all others. The situation might be further complicated if his best lords were implacable enemies and thus he had to choose one over the [16] other for battle service. This constant fragmentation of fidelity perpetuated the kind of anarchy that had given rise to feudal forms in the first place. The regime of Catalan castles as well as the feudal relationships that tied castellans up to the old nobility and down to the peasantry was in sore need of ordering. This drive for a reestablishment of public authority came from two different directions. With the accession of Ramón Berenguer I in 1035, the count of Barcelona began consistently reasserting his role of public authority. His actual power, however, was often not great enough to suppress the rampant violence that held the Catalan countryside in its grip and so another institution of the old order, the Church, had to step in and try to regulate the society it served.

           As the tyranny of castles over the Catalan rural districts deepened, two populations emerged – one skilled in the use of arms and the other largely unarmed. The “helpless” (inermis) group largely consisted of churchmen and peasants. Though both groups fell under the castle’s domination, the former had an authority and property base from which to operate while the latter did not. The personal status of the peasants did not always change, but the control over their own lives most assuredly did. They might remain free, but they were also weighed down with burdens onerous enough to pose a constant threat to their liberty. In addition to the growing number of services peasants owed to their immediate lord which, in time came to be know as the “evil customs” (mals usos), they suffered largely in silence from the depredations of the castle warriors.

           The second division of the largely unarmed population, the clergy, began to exercise a new influence in this changing society. Often large landowners who depended on peasant labor, the churchmen were not inclined to allow the destruction of public peace, especially when clerical institutions were engulfed in the unending waves of castellan violence. Though most [17]of the great churchmen sprang from the region’s old nobility, they did not turn to the path of arms to defend the “helpless” population but fell back instead on Carolingian traditions of civil protection of church lands. When public authority could not contain a social violence which held nothing to be sacred, the Catalan clergy took matters in their own hands. Turning to the “peace of God” (pax Dei) , a form that had developed in the southern French clerical circles in the tenth century, the Catalan churchmen adapted it to their homeland. At a number of small assemblies between 1027 and 1068, the prelates of the Catalan counties, led by Bishop Oliba of Ausona, established peace laws within their own dioceses. The statutes that emerged from these meetings declared the zones around churches, monastic sites, and cemeteries to be “circles of peace.” They also proclaimed protection for all of the unarmed people in their ecclesiastical zone of jurisdiction and their property. In a uniquely Catalan development, the clergy established a treuga or truce for the holiest periods of the ecclesiastical year. Though excommunication was threatened for those who violated the peace or truce, malefactors were perhaps slowed but not deterred by the fear that their actions might ultimately cost them salvation. Without armed force to bring violent criminals to justice, the pax et treuga constituted more of a moral impediment than a complete judicial response to the endemic violence of eleventh-century Catalonia.

           While the spread of feudal ties and the proclamation of the peace and truce were makeshift answers from the ranks of a Catalan society that was itself falling apart, the final response to the disintegration came from the count of Barcelona, whose weakness had initially allowed the localization of authority which centered on individual castles. By a slow process of [18] asserting his power and authority on the basis of his long-neglected roles as high judge and protector of his people, the count began to expand his power by virtue of his superior legal claim. A milestone in this journey was the creation of the Usatges of Barcelona.

 Custom into Law in the High Middle Ages

From the late Empire of the fifth century to the rebirth of Roman legal studies in the twelfth century, written territorial laws and non-written local custom existed side by side in all the emerging societies of Europe. With the withering of public authority in the tenth century, the place of royal statutory law was largely taken by feudal custom as well as by the ecclesiastical peace and truce. As rulers began to reassert their claims to supremacy in the eleventh and twelfth centuries, they came to view the control of law in all of its aspects as a viable means of attaining a broadened base of allegiance. Legislation, which proclaimed the sovereign’s “care over the commonwealth,” also reasserted a lapsed public role that effectively cut across feudal and class lines.