[115] Previous chapters have examined the weakening of ecclesiastical rights in the city of Vic and over the castles of the diocese. Despite setbacks in the early part of the twelfth century, the church was able to preserve at least a substantial part of its earlier power in these areas. The fragility of church authority, as well as the creative ways in which it was defended, may also be assessed through the resolution of disputes between the cathedral and its lay opponents.

The bishop's defense of his traditional rights and jurisdiction is exhibited in certain quarrels discussed earlier -- the uprising of the townsmen and the disobedience of the castellan Ramon de Tous, for example. At this point it will be necessary to examine not only major issues such as these, involving the cathedral's vital interests, but also the entire range of disputes to which the cathedral of Vic was a party. The questions that arose between laymen and the church show the place and function of the cathedral cornmunity within secular society and also demonstrate the obstacles faced by the church in obtaining its claims as well as its skillful use of the available means of settling disputes.

In resolving conflicts with laymen, the twelfth-century church had to adapt itself to a system of justice that broke with the [116] Visigothic (and, ultimately, Roman) tradition of public courts, authoritative law, professional judges, and evidentiary procedures. In their place was substituted a judicial procedure that employed mediation rather than professional judgment to reconcile disputing parties. It was not important to discover the law applicable to a dispute and find, in the light of the evidence, for one party or another. Rather, the goal of this informal system was to effect peace between the litigants. Most resolutions brought about by this form of mediation were compromises that left both parties neither vindicated nor yet uncompensated.⁽¹⁾

The distinction between formal procedure and informal mediation is not just between types of law or even between authority and custom. Although in every society a certain number of problems are settled by respected but nonprofessional advisors or by conciliation between the parties themselves, the characteristic of medieval justice, from the dissolution of the Carolingian Empire to the reception of Roman law, was the monopoly enjoyed by the informal method of resolution. Informal justice can mean anything from simple violence to tribunals of notables. What these methods all share is an absence of codified procedure enforced by a central secular government. There were no professional judges, permanent courts, or sophisticated means for evidence. The informal procedures also tended to produce compromises regardless of the merits of the arguments or the dictates of positive law. This does not mean that informal justice was improvised. It proceeded according to established and complex rules, but these were governed by custom rather than by written regulations.

The arrival of the informal system was signaled by a number of earlier indications throughout Catalonia, but for the region of Vic its triumph did not come until the twelfth century. Before considering the informal methods of procedure, the significance of the shift from public to private solutions to quarrels must be considered.
 

THE SURVIVAL OF AUTHORITATIVE JUDGMENT

Aquilino Iglesia Ferreirós has shown that Visigothic law survived in Catalonia for centuries after the dissolution of the Visigothic [117] kingdom.⁽²⁾ The supremacy of the public authority was bolstered by the Carolingian conquest of the Spanish March, but the Frankish influence on Catalan judicial institutions has been exaggerated until recently. The basis for the supremacy of public courts lay in the older tradition of the Visigothic Liber Iudiciorum, which persisted during and after the Carolingian triumph.⁽³⁾

The influence of the Liber meant that the notion of law as the state's responsibility endured in Catalonia in the period 850-1050, a time when most of the rest of Europe replaced public law with the rough justice of local castellans or the settlement of disputes by informal mediation.⁽⁴⁾ The survival of the Liber was an aspect of the continuing power of the count of Barcelona and other Catalan counts. Political authority and the power of the public courts did not disintegrate in Catalonia as it did in most of tenth-century Europe. In addition, the strength of the Catalan counts ensured that the tradition of church-state cooperation would continue and that the church would serve as an aspect of government. The public courts remained effective, and conflicts were settled by formal procedure rather than by ad hoc mediation.

The Liber Iudiciorum was, naturally, not the Justinianic Code and cannot be considered a magisterially consistent body of law to the degree that the Code can. The Liber reflects the reduced power of the Visigothic king and his lack of a total monopoly on the means of judicial enforcement. It provides for informal methods for finding solutions to quarrels, methods that would be elaborated to suit an environment in which the public courts no longer intervened. Already in the Liber others might attend a trial as more than mere spectators, although the only actor remained the judge.⁽⁵⁾ Oaths and trial by ordeal or combat might be used if the evidence appeared uncertain. There was provision for one party to make a renunciation that terminated the litigation, a form of out-of-court settlement that would later become an important variety of mediated compromise, in which the renunciation, called an evacuatio was exchanged for monetary or other compensation.⁽⁶⁾ Until the early eleventh century these adjuncts to judicial proceedings were merely intimations of what would be fully developed under seigneurial justice: case-by-case resolution [118] without intervention from the public authority. Until at least 1020, however, despite such ominous signs as the introduction of the ordeal, the count's justice was supreme.⁽⁷⁾

Seigneurial justice developed in the eleventh century, accompanied by the so-called bad customs (mals usos), oppressive and degrading impositions on tenants that were considered bad because they defied the "good old law" of the Liber. The Liber was not an expression of custom but of positive law, and the rise of the malsusos signifies the crisis of public justice. It is also in the mid-eleventh century that litigants first openly and successfully defied the findings of the public courts.⁽⁸⁾

The crisis was not yet epidemic in Vic, and in this, as in other respects, the eleventh century saw the prolongation of the earlier order within the diocese; the true revolution came later. This delay was partly the result of the Peace and Truce movements, which, it should be emphasized, were designed not to supplant but to shore up the administration of public justice. Another adaptation to a seigneurial order that attempted to preserve some ancient state controls was the elaboration of the first redaction of the Usatges of Barcelona, which provided a basis for reconstructing comital power in accord with prevailing aristocratic norms.⁽⁹⁾

The impression one takes away from an examination of eleventh-century documents for the diocese of Vic is that little changed and that earlier practices remained intact. More significant than the ordeal, the Usatges, or even the Peace and Truce was the ancient institution of public courts administered by professional judges, who heard testimony, received written evidence, and still "found the law" in the case rather than serving as mediators trying to bring mutual satisfaction to the litigants.

Of sixteen eleventh-century cases whose records are preserved in Vic's capitular archives six were heard by public judges.⁽¹⁰⁾ In another three cases the issue was discussed before panels of great men of the region that included at least one person who was a judge by profession and not merely for the occasion.⁽¹¹⁾ Bishop Oliba heard one case.⁽¹²⁾

More remarkable than the persistence of professional judges in the eleventh century was the infrequency of compromises. Of [119] the total of sixteen cases, only two were settled by mutual concessions of the sort that the succeeding century would make de rigueur.⁽¹³⁾ Another case, not quite a compromise, shows clearly both the beginning of limitations on the court's power and the preference for conciliation over upholding the majesty of the law. In 1077 a hearing took place in which Sunyer and his wife Chixol disputed possession of a piece of land.⁽¹⁴⁾ In accordance with the rules of procedure, the judges examined written evidence and questioned the litigants. In the course of the examination Sunyer admitted that a document offered in support of his claims was a forgery. Rather than condemning him, however, the judges, "for the sake of peace," allowed him to withdraw his case against Chixol by means of an evacuatio in her favor. This ended the litigation and spared Sunyer from punishment. As yet there would be no compromise -- Chixol won totally -- but already concord was more important than punishment according to the law.⁽¹⁵⁾

Traces of the gestating new order of informal procedure and compromise appear in almost all of the sixteen eleventh-century disputes. In the case of Sunyer and Chixol, for example, the tribunal included one professional, a certain Adalbert, iudex, but he heard the case ("in audiencia"), while two local magnates actually decided it ("in placito"). Six others were mentioned as present for the trial ("instantibus"). In another case, heard between 1091 and 1099, a panel that included one judge recommended a trial by combat.⁽¹⁶⁾ A dispute in 1058 was settled without judges at all. The issue was aired in the presence of ten clerics and laymen, and an unspecified number of leading men (boni homines) saw the discussion.⁽¹⁷⁾ Yet even in this most informal proceeding the traditional rules remained sufficiently strong so that written evi'dence was submitted and evaluated, and one side was vindicated without compromise.

The last of these eleventh-century cases was a compromise that demonstrates the procedures that would come to typify the judicial order of the next hundred years. In 1099 Guifré Isarn of Savassona challenged the bishop and chapter of Vic over land donated to the church by a priest.⁽¹⁸⁾ While the priest lived, Guifré [120] had recognized his life interest in the land and his payment of annual dues to the cathedral in recognition of its ownership. Now, with the priest dead, Guifré was disputing the right of the church to absorb the property. The controversy was argued in the presence of aristocrats, clerics, and others, four of whom were named, but no professional judges. In what was presented as a spontaneous agreement (although we may assume it to have resulted from negotiation), Guifré and his wife were allowed to retain the use of the land during their lives and that of their son. The property would finally revert to the church after the son's death. We shall see how difficult it would be for the church ever to acquire direct control over land held in such life-tenure arrangements.
 

RESOLUTION OF DISPUTES IN THE TWELFTH CENTURY

Twelfth-century records of litigation are more numerous than those for the eleventh century. The sixty-six cases that involved the church as a litigant have been singled out for consideration. Of this number, only one involved a professional judge, and he served only as a consultant.⁽¹⁹⁾ Table 4 lists the disputes between the cathedral and its opponents (almost always laymen) by subject. Few of these disputes were major issues of church lordship. With exceptions, such as the litigation with Ramon de Tous, the importance of these quarrels is as a group, not as individual events in the history of the diocese.⁽²⁰⁾

Although most questions arose over small parcels of land or minor exactions, the issues could be complex. Some rough generalizations may be made about the men with whom the church quarreled over particular issues. With the great men of the region questions arose over invasions of ecclesiastical rights and revenues (such as tithes) or the imposition of arbitrary exactions (such as the mals usos). Disputes with lower-ranking families most often involved the refusal to acknowledge some form of church suzerainty, particularly when land was bequeathed to the cathedral.

To understand the twelfth-century church and its resistance [123] to what it perceived as usurpation of its rights, the resolution of disputes is more important than their subjects, for the degree to which the church sustained its claims shows its strength in society. Its adaptation to changes in resolving disputes is an aspect of its ability to innovate. The significance of the twelfth century is not that laymen usurped church lands and rights with impunity. It was during the eleventh, not the twelfth, century that invasions of ecclesiastical castles and jurisdiction were most blatant. In those heroic times the church resisted by enlisting ecclesiastical and secular allies, by invoking the Peace and Truce of God, and by threatening excommunication.⁽²¹⁾ In the twelfth century, however, its only recourse -- and one of limited effectiveness -- was the system of informal procedure and compromise settlement. This system was administered by groups of regional notables, and, in the absence of public courts, the church was placed at the level of an interest group, competing with others as an equal, not as the embodiment of a superior spiritual or political authority.

The interval during which the informal system held sway in Vic was brief, especially in comparison to the rest of Europe. It was largely a phenomenon of the twelfth century, for by 1200 the count had reimposed the supremacy of his courts.⁽²²⁾ Despite the absence of comital support, the public courts, and the sweeping condemnations made possible by the Peace and Truce, the twelfth-century cathedral was not helpless. Its lands and rights were not dismantled, and the informal system provided a [124] measure of order. In accepting this network of dispute resolution, the cathedral was flexible and adaptable, as it had been in other respects. It defended itself by whatever means were available, relinquishing such outmoded weapons as the Truce and taking up energetically the remedies offered by the informal system.

Because disputes were not resolved according to a single, written set of guidelines, a high degree of variation is evident among settlements. Conflicts that are resolved by means other than submission or violence are normally classed according to the degree of third-party involvement.⁽²³⁾ Negotiation is a process between the parties themselves to resolve their dispute without any outsider's participation. Mediation is a process of conciliation undertaken by one or more go-betweens who have no power to compel an agreement but whose role as intermediary is sanctioned by the disputants. Settlement by arbitration means that the parties agree to abide by an arbiter's decision before it is announced. The ordeal and trial by combat are forms of arbitration in which the third party is divine. Although arbitration is binding on the parties consenting to it, it differs from the other form of binding settlement, adjudication, by virtue of being an agreement between disputants. An adjudicated dispute does not require the prior consent of the disputants, and the judge or tribunal intervenes to enforce its decision independently. judgments in the modern state and in Romano-Visigothic law are of this sort. The state intervenes as the representative of the public interest and stands above the private issues raised by the dispute in question.

Obviously, in a negotiated, mediated, or arbitrated settlement each side will tend to receive some of what it demands. Adjudication, as enforcement by an independent and superior authority, is more likely to vindicate one side. To that extent, the informal procedure that bypasses the courts and employs respected members of the community implies a compromise solution.

People in the twelfth century did not make these particular distinctions among negotiation, mediation, and arbitration. Instead, they used three terms that superficially resemble modern classification: the diffinitio, in which one party unilaterally renounces its claim, the concordia, a reconciliation and compromise, and the [125] placitum, a hearing before an ad hoc tribunal.⁽²⁴⁾ Of the sixty-six twelfth-century quarrels involving the cathedral of Vic, thirty were settled by a diffinitio, twenty-four by a concordia, and twelve by a placitum.

The diffinitio seldom refers to any obvious third-party intervention and therefore appears to resemble a negotiation. This initial impression is incorrect, not only because there were often mediators offstage, but also because the diffinitio, the descendant of the Visigothic evacuatio implies an admission of wrongdoing and has at least the form of a capitulation (even if, in fact, this often masked a compromise). Concordiae are more clearly compromises, but they could be negotiated between the parties themselves, mediated, or arbitrated.⁽²⁵⁾The placitum was more formal, but its place within the modern typology of resolution lies between arbitration and adjudication, not as the equivalent of the latter.

All three medieval settlements were possible methods of compromise, and all were informal, taking place without reference to public authority. Nevertheless, they all proceeded according to certain rules; they were not completely ad hoc resolutions. Their operation will be described in the concluding section of this chapter. Suffice it at this point to note that their similarities exceeded their differences and that the role of third parties and the frequency of compromise varied among the categories. For the cathedral of Vic the most important feature of the three means of settlement was their common impetus to compromise and the influence this had on the church's ability to withstand erosion of its rights.
 

THE PREVALENCE OF COMPROMISE

Table 5 shows the distribution of the sixty-six twelfth-century disputes by decade and by pontificate. What survives in the archives does not, of course, include every dispute that took place. To some extent, therefore, the increased number of quarrels later in the century corresponds to an increase in total surviving documentation. Nevertheless, the church was obviously an active [126] litigant throughout the century, although what this implies about its strength can be discerned only by examining the results of litigation. If disputes are analyzed taking into account the relative length of each bishop's pontificate, it is Pere de Redorta and Guillem de Tavertet who appear to have been most energetic (although this is only an impression, since it is impossible to know how many documents have been lost).

That there were numerous twelfth-century disputes may be interpreted in opposite ways. It may be argued that the frequent conflicts imply that the church was aggressive and expansionist. Lawrence McCrank reasons in this fashion in considering the mass of litigation entered into by the Cistercian monastery of Poblet as evidence of a policy of ruthless aggrandizement.⁽²⁶⁾ At the same time, frequent disputes might indicate weakness in the position of the church, a failure to resist encroachment. Moreover, to the extent that the cathedral of Vic advanced legitimate claims in its conflicts with laymen, the prevalence of compromise suggests contraction rather than expansion, inability to secure rights rather than overweening arrogance. Naturally, it is [127] difficult to assess the relative merits of rival demands, especially since the documents reflect the opinions of the church. But, even without delving into the impossible question of the justness of the cathedral's complaints, there is sufficient testimony in its records of dispute settlements to indicate that it was not wholly triumphant. Despite the vigor of its response to secular pressure, the cathedral of Vic never approached the ascendancy that Poblet held over its rivals for land and jurisdiction.

The most basic evidence for the limits to the twelfth-century cathedral's power is the frequency with which its claims were vitiated by compromise. As the goal of conflict resolution became the satisfaction of both sides, aggression against the church seldom went totally unrewarded. The same would not be true for Poblet or Santes Creus, although compromises were not rare in their affairs either, because the active protection of these monasteries by the count-kings assured resistance to many demands and even (if McCrank is correct) victory when it was undeserved.⁽²⁷⁾

In the twelfth-century disputes, the cathedral of Vic was seldom totally victorious. Even the procedure that would seem most solemn and objective, the placitum, subordinated determination of right to the satisfaction of each party. Although relics of formal judgment were sometimes preserved in the placitum (for example, testimony of witnesses and examination of written records), the result was normally not a serenely impartial determination of fact but a compromise settlement. Of the twelve placita that included the church as a litigant during the twelfth century, only three found unequivocally for one party.⁽²⁸⁾

The diffinitio was more clear-cut with regard to form, but despite the language of capitulation, only half of the thirty diffinitiones ceded anything to the church free of reservation or remuneration.⁽²⁹⁾ Among the total of sixty-six documents, only twenty-two show a simple vindication for the claims of the church.⁽³⁰⁾ The remainder are compromises, whatever their procedural type, an indication of how difficult the position of the bishop and chapter was at this time.

How much the triumph of compromise challenged the [128] cathedral is evident in controversies that occured when the cathedral was left property in a will. Table 6 lists disputes resulting when a donor's descendants refused to recognize the terms of his will. Seldom did the church manage to obtain a disputed donation without having conditions attached that delayed transfer of the property. The typical compromise left the heirs with a life interest while recognizing ecclesiastical title, but delay could be extended over several generations. The canon Miró Guitard, in a will published after his death in 1108, left certain allods to the bishop and chapter of Vic.⁽³¹⁾ His son, Ponç Miró, occupied the land and was excommunicated. In 1110, by means of a diffinitio, Ponç renounced the allods and received half the property back to enjoy during his lifetime.⁽³²⁾ It is not certain when Ponç Miró died, but it is clear that his heirs in their turn disputed the right of the church to the donated allods. In 1172, sixty-four years after the original donation, Ponç de Congost and Pere de Soler, sons of Ponç Miró, finally renounced all claims over the allods, but only after litigation.⁽³³⁾

The life-tenure compromise was a popular solution to cases [129] other than those arising from disputed bequests. For important issues over substantial amounts of land or money the delays could be monumental, even in the era before the triumph of informal compromises. Tithes in the parishes lying within the castrum of Gurb occasioned centuries of strife during which "temporary" arrangements allowed the Gurb-Queralt lords to maintain at least partial exploitation of these lucrative revenues. Although the rights in question were not the same as those created by disputed bequests (they were incidents in a continuous dispute), they presented the church with the same problems in gaining unquestioned sway over lands and rights (see Table 7). The patience and persistence of the church is impressive, but the futility of this enterprise is also striking. Transfer of the tithes was postponed for several generations, usually by vesting them in the hands of a Gurb-Queralt who was a member of the chapter. Membership in the cathedral community symbolized the legal tie binding the tithes to the church, but the family continued to receive the income much in the same way that it would keep possession of the property of oblates offered to the chapter along with an endowment. At the time of the life-tenure arrangement of 1118, the bishop and chapter stated that their acquiescence was performed "non legaliter set condescendendo," a perfect encapsulation of the cathedral's view of the prevailing spirit of compromise.

[131] Patience did not, in the long run, go completely unrewarded. The mortal illness of Berenguer de Queralt and his consequent mood of repentance allowed the church to accomplish what centuries of legal maneuvers had not. It will be recalled that Berenguer, in his last illness, asked his mother to agree to whatever the bishop wanted with regard to the Gurb tithes.⁽³⁴⁾ Bishop Pere allowed Sancia and her castellans at Gurb to retain part of the revenue of one church (Sant Andreu de Gurb) and all of another (Sant Bartomeu del Grau).⁽³⁵⁾ The cathedral had to redeem the tithes of S. Andreu from a debt of 180 morabetins in order for the Queralt and the church of Vic to share in its income. The financial position of the Queralt worsened, and in 1197 their castle of Gurb was placed under episcopal control until its revenues should satisfy creditors of the family, an ironic conclusion to years of strife but, it should be noted, a victory for the bishop and chapter.⁽³⁶⁾

Although the cathedral had problems of its own in raising money, its position was advantageous compared with that of the higher aristocracy, which was committed to a life of increasing display supported by fixed agricultural revenues. Money proved an important tool with which the church could manipulate the informal system of judgment. On nine occasions during the twelfth century the church obtained a diffinitio from its opponent in return for a sum of money. If life tenure was the typical solution for disputes settled by concordiae or placita, cash was the common price for a diffinitio (see Table 8).⁽³⁷⁾

As is the case for compromises in general, the position of the church revealed by these payments for diffinitiones may be evaluated in contrasting ways. Either the renunciation for money is proof of an inability on the part of the church to secure legal rights without rewarding usurpation, or it shows successful circumvention of the problems created by the absence of formal justice. The degree of success is impossible to measure, but the impression conveyed by the surviving records is similar to that already described for urban jurisdiction, castles, and the overall place of the church in society: adaptability, success in protecting a significant portion of ancient rights, withdrawal in impossible situations, strong resistance in others.

[132] In the twelfth century a structure existed for resolving conflicts, however far from notions of ideal justice it might now seem. Problems were approached in a manner that avoided both the strident, expansionist litigation of Poblet and the complete acceptance of lay usurpation. Twelfth-century conflicts never seethed with the fury of the thirteenth-century struggles between the church and the Montcada over control of the city. Those later battles would take place in a legal climate of restored formal judgment, but they would also finally cripple the lordship of the church.⁽³⁸⁾
 

THE PROCEDURES FOR RESOLVING DISPUTES

The three informal methods of resolution all tended to produce compromises, and to analyze their procedures is not to consider radically different outcomes. Nevertheless, a closer look at the informal system will show some of the complexity of twelfth-century society and the relations of the church with that society.

The diffinitio, concordia, and placitum were the usual categories [133] of informal settlement, but not the only ones. Trial by ordeal or combat was one way to dispense with examination of evidence and professional judgment. An ordeal was really a means of proof and so might take place within any of the three above-mentioned procedures. Its peculiarities, however, merit its consideration as a separate means of settlement.

The ordeal was never popular in the region of Vic, undoubtedly because Visigothic law and formal judgment remained strong along with the power of the bishop in the eleventh century. There is one example of a trial by combat sometime between 1091 and 1099.⁽³⁹⁾ The castellan of Tous and Bishop Berenguer quarreled over the perpetual question of the alberga in Tous and other issues, and a panel of judges (one professional, two clerics, three magnates) recommended that the conflicting oaths of the principals be tested by arms (undertaken, one hopes, by intermediaries). There is no record, unfortunately, of the outcome.

In another case, in 1100, the limited attraction of the ordeal is apparent. A certain Arbert refused to recognize claims by the senyor of Taradell to levy payment from Arbert in return for "protection" (baiulia) over his property.⁽⁴⁰⁾ The castellans of Muntanyola and Eures presided and took their duties seriously, for despite the status and outlook they shared with the lord of Taradell, they found no evidence to support his claims. Arbert was willing to prove himself by the ordeal of boiling water and a cauldron was prepared at the entrance to the church of Santa Eugenia de Berga. The Taradell entourage protested as the ordeal was about to begin and stated that they would not accept its result.⁽⁴¹⁾ At that point a compromise was announced-arranged with the "approval and counsel" of several local notables -- by which Arbert had to accept some Taradell control over part of his land. The malleable form of mediation and compromise was clearly more familiar and comfortable for the judges and the Taradell than was the ordeal.

The rarity in the twelfth century of another method of dealing with conflicts -- invocation of spiritual penalties -- is more surprising than the limited appeal of the ordeal. Excommunication was employed sparingly and against less important opponents [134] of the church, and the Peace and Truce of God were never employed at all. Both had been used by the cathedral in the previous century, and excommunication would reappear in the thirteenth century during the jurisdictional conflicts with the Montcada.

In five twelfth-century disputes the church resorted to excommunication.⁽⁴²⁾ In only one of these was the quarrel over something more than a specific piece of land, and in that case the enemy was an ecclesiastical opponent, the monastery of Ripoll.⁽⁴³⁾ In 1132 an order of excommunication and interdict was imposed on Ripoll after years of fruitless negotiation marked by the monastery's evasions (supported by the count of Barcelona) and the efforts of the bishop to enlist higher church authorities (including the pope) in his defense.⁽⁴⁴⁾ The excommunication was signed by the bishop of Girona and by Archbishop Oleguer of Tarragona, as well as by Bishop Ramon of Vic. In 1134 a settlement was reached that recognized the jurisdiction of the bishop over crimes committed on Ripoll's lands, with the exception that members of the monastic community could settle their internal disputes unless appealed to the bishop.⁽⁴⁵⁾

This conflict was unique among those of the twelfth century by reason of the solemn and sweeping nature of the excommunication, but it was unusual, in addition, as a dispute over vital areas of ecclesiastical lordship. Only in the case between the bishop and the townsmen of Vic (ca. 1185) were the issues so fundamental.⁽⁴⁶⁾ As did that later case, the Ripoll affair aroused intense and successful resistance by the cathedral. Normally, however, excommunication was rare and applied to relatively minor opponents.

Another method of extrajudicial resolution was violence. The threat and application of violence was not so much a means in itself as an instrument of negotiation for powerful laymen. Violence may have occurred more often than the records indicate, particularly judging by the rather offhand manner in which its appearance was noted. In 1173, for example, Guillem Ramon de Taradell promised in the final clause of a diffinitio to follow the bishop's wishes in amending damages -- specifically, setting fire [135] to the parish church of Sant Genís de Taradell and beating its clergy.⁽⁴⁷⁾ The language of the document does not imply that this was an unheard-of atrocity, and it is significant that no actual or threatened excommunication is mentioned. On the other hand, Guillem did have to make restitution.

The ordeal, excommunication, and violence must be regarded as unusual methods of resolving conflicts and as strategies of negotiation. Even when they were used, however, the ultimate resolution generally emerged by means of one of the three standard informal procedures.

The diffinitio posed as capitulation by one side, but we have seen how often the form was contradicted by compensation. The concordia claimed to be a spontaneous reconciliation negotiated by the parties, but in fact it normally involved third parties in some mediating role. The placitum was the closest thing to adjudication, but here as well compromise ruled, and the judges functioned as mediators or arbiters behind the impressive title of judges. Behind the procedural distinctions, compromise and third-party intervention were universal. What varied was the degree to which these third parties could dictate a settlement and the manner and timing of their intervention. Even in the most simple diffinitio, outsiders were present as witnesses. Their signa at the close of a document implies their presence at the public act for which the written record provides evidence. The ordinary diffinitio included the attestation of at least two people who had no immediate relation to the disputants.

A step nearer to real intervention came in those agreements performed in the presence of persons whose names appear in the text of the document (in presencia of X, Y, Z). They did not always attest at the bottom of the parchment, but their role was more active than that of ordinary witnesses who did attest. Settlements achieved in the acknowledged presence of specific third parties exist for all three types of procedure.⁽⁴⁸⁾ The presence of these men at the physical event is emphasized by the text of the documents, whereas that of the attestors is only implied. In the words of one diffinitio, those present served as viditores et adiutores, implying a role as both witness and mediator.⁽⁴⁹⁾

[136] In quarrels between the church and laymen the presentes were drawn from both lay and clerical rank. In an issue concerning the castle of Tous, for example, six castellans and three canons were present.⁽⁵⁰⁾ The clerics were men of high ranks -- the archdeacon, precentor, and sacriscrinius of the chapter -- and this was usually the case among clergy who served as presentes. It is hard to determine if the explicitly stated presence of third-party persons means that they were genuine mediators. They may have functioned as witnesses whose confirmation might prove useful in any subsequent conflict over the same matter. Nevertheless, their status was usually sufficiently elevated and their role in other disputes sufficiently active to make it likely that they were indeed mediators.

The next level of intervention by a third party comes in documents that state that a solution was arrived at with the counsel (consilium) and approval (laus) of respected members of the community.⁽⁵¹⁾ The counsel of these individuals is most conspicuous in concordiae, the most common form of mediation. Not all concordiae were settled in this fashion, however, and not all settlements laude et consilio were concordiae.⁽⁵²⁾

The men who offered their approval and counsel may be conidered genuine mediators. They were important clerics and powerful laymen of the same sort as the presentes. It is likely that in most cases they were chosen by the principals to the dispute. In a concordia between Bishop Ramon and Risball de Font, for example, a settlement came about with the aid of clerics chosen by the bishop and of knights and probi homines who appeared for Risball.⁽⁵³⁾ In this case the mediators represented each side rather than serving as impartial negotiants, but the line between impartiality and involvement is impossible to draw with precision because, even in cases that included outside mediators, the balance between clerics and castellans implies predispositions.

Similarly difficult to discern with certainty is the border between mediation and arbitration. In at least two concordiae the parties chose men whose decision was binding.⁽⁵⁴⁾ In 1199, already under the influence of a movement toward greater precision in such matters, men called arbiters and compositores were stated to [137] have been elected by both sides.⁽⁵⁵⁾ A year earlier, another issue involved what at first appear to be only mediators (individuals whose approval and counsel were sought), yet they are later called pacis assertores, which implies a role as arbiters.⁽⁵⁶⁾

The most formal procedure was that of the placitum, but in terms of modern classification, despite its solemnity, the placitum most resembles a dignified form of arbitration. Judges of placita presided with the consent of the disputants if they were not in fact selected by them. Although judges were more likely to weigh evidence than would be those men who settled concordiae, their decisions, which normally gave something to each side, place the placita close to the concordiae resolved by arbitration.

The most impressive placitum entered into by the cathedral was in the dispute of 1174 with Ramon de Tous, heard by a panel of local magnates and clergy presided over by the archbishop of Tarragona.⁽⁵⁷⁾ A large number of witnesses were examined, particularly in regard to the alberga claimed by the bishop. Written documents were presented, and the judges were impressed by this authoritative evidence.⁽⁵⁸⁾ Although the judges found largely in favor of the bishop, even here the desire for conciliation was strong enough to allow Ramon de Tous to clear himself of the charge of disobedience by oath and also to come to an informal agreement with the bishop over how many knights in the bishop's entourage would be entitled to lodging. Ramon was also allowed to clear himself of the charge of damaging the bishop's honor by having someone else swear for him. However formal the structure of this hearing, its result was not very different from what a concordia would have produced. It was more an arbitrated compromise than an authoritative judgment.

In all issues, whether settled by advice, mediation, arbitration, or judgment, a compromise was achieved and guaranteed by the clergy and laity who served as representatives of the community and who were able to ensure a measure of order. Even the Queralt, Lluçà, and Gurb lords -- not always well-disposed to the cathedral -- helped to find compromise solutions in disputes to which the church was a party.⁽⁵⁹⁾ Certain figures emerge repeatedly in placita and in informal mediated or arbitrated settlements. [138] Pere de Tavertet, a sacriscrinius and later sacristan of the chapter, was a judge in two placita but also intervened in a concordia by giving his approval and counsel.⁽⁶⁰⁾ The lay magnate Guillem Grimau was one of the judges who heard the placitum between the bishop and Ramon de Tous in 1174, and he also gave his approval and counsel two years later.⁽⁶¹⁾ Gilabert de Centelles was a mediator in 1177, served as one of the first vicars of Ausona in 1198 (he heard a case in that year in his official capacity), and was elected an informal arbiter (compositor) in 1199.⁽⁶²⁾

The informal system was indeed a system and not a patchwork of inept solutions. From the cathedral's point of view, such informality complicated its efforts to vindicate its claims entirely, but to argue that the church's position was helpless or that it was victimized during the twelfth century would be incorrect. Without embracing every implication of the informal system, the church did bring its cases before ad hoc tribunals and sanctioned mediation of its affairs. Members of the chapter often helped to solve purely lay matters.⁽⁶³⁾ The church fit into the spirit of litigation and compromise.

The triumph of informality and compromise did not, therefore, mean the destruction of ecclesiastical lordship, although the church's jurisdiction could no longer be considered supreme throughout the diocese. The church did not fare any worse under the regime of informal resolution than it would when the competence of the public courts was restored at the end of the twelfth century. That restoration did not necessarily come about because of the public courts' manifest superiority; nor were they necessarily perceived by contemporaries as more fair.⁽⁶⁴⁾ The public courts were restored under the influence of the revived Roman law and in the course of the reconstruction of royal power over such things as provincial administration and the Peace and Truce.

Given the smooth operation of the informal mechanisms, the advent of the revived form of public justice was, if not glorious, certainly striking. In a period dominated by compromise and procedural informality, a quarrel in the closing years of the century stands out. A dispute arose between the knights of the Order of the Hospital (the Hospitallers) and the Sentfores family [139] over the typical problem of a bequest made by a deceased Sentfores and rejected by his relatives.⁽⁶⁵⁾ The knights obtained a favorable decision from the bishop, but it was flouted by Pere de Sentfores and his sons. The Hospitallers brought their case before the king in 1199 or shortly before, appearing in the role of suppliants bemoaning the threats and violence of their enemies, whom they accused of stealing livestock, burning trees, and threatening with a drawn sword one of the brothers of the order. The royal vicar for Ausona (the office had been created in 1188) chose a professional judge to hear the case, a man who was a iudex by reason of royal office, not prestige or learning alone. Before the case was heard, the judge compelled the litigants to pledge sums of money to ensure compliance.

The judge heard oaths and examined documents and testimony offered by the parties. His decision was in keeping with the stern implications of the pledge requirement. The Sentfores were ordered to pay three hundred sous for damages to cattle and other property. The Hospitallers were to receive from them an additional thirty sous for the destruction of their wine and ten sous (payable immediately) for the crime of threatening with a drawn sword (evaginato gladio). As the Sentfores did not have the substantial fines in ready money, they were directed to place land in pledge until their debt was paid.

This case made it abundantly clear that violence could no longer be considered a negotiating strategy. Although the fine was paid to the Hospitallers and not to the king, the judgment implied that violence was not merely a private injury but a crime against public order. Restitution was paid not, as in the Taradell example, only for damages sustained but also for the breach of law. The judicial decision contained no hint of compromise. The position of the Hospitallers was sustained, and, far from offering the Sentfores some consolation, the finding penalized them beyond the mere loss of their claim to the disputed land. It is also clear that the court intervened in this case as the instrument of the state, although a vestige of informality was maintained with the "presence" of Bishop Guillem, the sacristan, and other probi homines.

 [140] The judgment of the Hospitallers' complaint, so strict, expeditious, and definitive, is in profound contrast to the habits of mediation and compromise that had held sway during the rest of the century. Although the diffinitio, concordia, and placitum were not yet dead, they were giving way before royal supremacy.

The triumph of public justice was an expression of reawakened interest on the part of the count-king in the province of Ausona and an aspect of the growth in royal power and sophistication. The church of Vic would not benefit greatly from this restoration. Although it had lost some claims in the twelfth century by having to resort to informal resolution, it had managed to salvage many others. In the thirteenth century, it would consistently lose ground to the superior force of the opponents of the cathedral, notably the Montcada family. Whatever judicial remedies were theoretically available, they were less important than the strength of opposition to ecclesiastical lordship. The advent of royal power is significant in itself, independent of whatever changes it may have brought to Vic. It closed a century in which the adaptability of the church had been tested and, to a surprising degree, found sufficient.

1. On the triumph of this informal system, see G. Duby, "The Evolution of Judicial Institutions: Burgundy in the Tenth and Eleventh Centuries," in Duby, The Chivalrous Society (London, 1977), pp. 50-55; Yvonne Bongert, Recherches sur les cours laïques du X^e au XIII^e siècle (Paris, 1949), pp. 57-111. For a succinct description of how the informal methods differed from authoritative law, see Fredric L. Cheyette, "Suum cuique tribuere", French Historical Studies 6 (1970), 287-299.

2. Aquilino Iglesia Ferreirós, "La creación del derecho en Cataluña,"AHDE 47 (1977), 99-423. On this subject the following are also important:Walter Kienast, "La pervivencia del derecho godo en el sur de Francia y Cataluña," BRABLB 35 (1973-1974), 265-295; Michel Zimmermann, "L'usage du droit wisigothique en Catalogne du IX^e au XII^e siècle: Approches d'une signification culturelle," Mélanges de la Casa de Velázquez 9 (1973), 233-281. On the durability of Visigothic law in Ausona, see Font Rius, "En torno a la apliccación," pp. 363-364.

3. Iglesia Ferreirós, "La creación," pp. 103-113.

4. Bonnassie, La Catalogne, 1:183-202.

5. Iglesia Ferreirós, "La creación," p. 172, citing Liber Iudiciorum, 2.2.2(MGH, Legum, Sectio 1, Leges nationum germanicarum, Vol. 1, Leges Visigothorum, ed. Karl Zeumer [Hanover and Leipzig, 1902], pp. 59-60).

6. Iglesia Ferreirós, "La creación," pp. 200-201, citing Liber Iudiciorum, 2.1.25 [MGH, Leges Visigothorum, pp. 71-72]. In southern France, where the Visigothic influence was less well preserved, the evacuatio or guirpitio, became the accepted informal procedure in the

tenth century; see Lewis, Development, pp. 216-219.

7. On the introduction of the ordeal, see Iglesia Ferreirós, "La creación," pp. 193-197, who disagrees with Bonnassie's assertion that there was no ordeal in Catalonia from 988 to 1020 (Bonnassie, La Catalogne, 1:194).

8. For example, the famous defiance by Mir Geribert of a decision in favor of the monastery of Sant Cugat (Cartulario de "Sant Cugat" del Vallés, ed. José Rius Serra, 3 vols. [Barcelona, 1945-1947] 2:nos. 527, 529).

9. Iglesia Ferreirós, "La creación," pp. 254-255; Bonnassie, La Catalogne, 2:711-728.

10. ACV, c. 6, 807 (1004), 1370 (1023), 1207 (1033), 1406 (1047); ACV, c. 9, Ep. II, 51 (1051); ACV, c. 6, 1624 (1077).

11. ACV, c. 6, 1833 (1039), was heard by two judges, with at least 19 prominent clerics and laymen in attendance; ACV, c. 6, 2155 (1049), was judged by 1 professional, 5 laymen, and 1 cleric. ACV, c. 9, Ep. II, 85 (1091-1099), was heard by 1 professional, 2 clerics, the seneschal of the count, his brother, and 1 other layman.

12. ACV, c. 9, Ep. II, 29 (1022).

13. ACV, c. 6, 1406 (1047), a sensible compromise worked out by the judge in a matter concerning the right of first refusal for a piece of land; ACV, c. 6, 2155 (1049), a dispute over water rights, solved by allowing each litigant partial use. Neither of these cases rewarded usurpation, a tendency visible already elsewhere; see Duby, "Evolution," pp. 52-53.

14. ACV, c. 6, 1624.

15. The law could be defied, as in ACV, c. 9, Ep. II, 51 (1051), in which the heirs of a certain Gerbert withdrew in defiance from a case after the judges accepted the testimony of witnesses discrediting their claims.

16. ACV, c. 9, Ep. II, 85.

17. ACV, c. 6, 262.

18. ACV, c. 9, Ep. II, 93.

19. ACV, c. 6, Ep. I, 37 (1147), involved a "Bernardus de Bruiano, iudex Cerretanie." A secular dispute involving the viscount of Cardona was settled by the bishops of Vic and Girona and others, including a professional judge named Miró. In another secular dispute Berenguer de Calonge, a professional judge, served as a mediator, but not in his official capacity.

20. Litigation with Ramon de Tous over fundamental aspects of ecclesiastical lordship took place in 1174 (ACV, c. 6, 1746) and 1183 (ACV,c. 6, 1924).

21. See Chapter 4, note 3, for examples of excommunication and the Peace and Truce of God.

22. Even if one defines the period of informal settlement and waning public courts as 1020-1200 for Catalonia (and the evidence from Vic suggests that during most of the eleventh century the public courts in fact continued to function), the interregnum in public authority over judgment began later than in Burgundy (Duby, "Evolution," pp. 5557) or in southern France (Lewis, Development, pp. 214-219). It also ended in Catalonia sooner than in southern France (Cheyette, "Suum cuique tribuere," pp. 291, 297-299).

23. For the typology of informal means of settling disputes, I rely on the summary of the literature given in Laura Nader and Harry F. Todd Jr., eds., The Disputing Process -- Law in Ten Societies (New York, 1978), pp. 8-11.

24. These terms had other applications. A simple donation might be called a diffinitio, as in ACV, c. 6, Ep. I, 19 (1106), 20 (1114-1115). Placitum could be used to describe a series of disputes prior to the resolution reported by the document. Thus ACV, c. 6, 2329 (1153) opens: "Ego Bernardus de Rochafórt, post multa placita et multas contenciones . . . definio prephatum honorem de Nauarcles. . . ."

25. A concordia negotiated by the parties themselves: ACV, c. 6, Ep. I, 34 (1142). A mediated concordia: ACV, c. 6, 2421 (1172). A concordia brought about by arbitration: AME 10, 5 (1171).

26. McCrank, "The Cistercians as Landlords," pp. 256-274, 281-283; idem, "The Frontier of the Spanish Reconquest and the Land Acquisitions of the Cistercians of Poblet, 1150-1276," Analecta cisterciensia 29 (1973), 65. The strength of Poblet is not surprising, given that it operated in recently settled, and therefore more unstable, territory with the active favor of the count.

27. For acquisitions by Poblet during its early years, see Jaime Santacana Tort, El monasterio de Poblet (1151-1181) (Barcelona, 1974). For the wealth acquired by Santes Creus in the late twelfth and thirteenth centuries, see Eufemià Fort i Cogul, El senyoriu de Santes Creus (Barcelona, 1972). On the ability of frontier monasteries to undermine peasants' rights, see Lewis, "Land and Social Mobility," p. 319.

28. ACV, c. 6, 1628 (1105), 2397 (1171); ACV, LD, ff. 125v-126 (1198). The church won in each case.

29. These are: ACV, c. 6, Ep. I, 4 (1108); ACV, LD, ff. 124 (1116), 112-112v (1125), 103 (1128); AME 7, 8 (1138); ACV, c. 6, 2329 (1153); ACV, LD, ff. 120v (I 154), 99 (1164); ACV, c. 6, 382 (1166), 2424 (1 173), 2420 (1173); AME 7, 9 (1176); ACV, LD, ff. 129-129v (1177), 98 (1178); ACV, c. 6, 2517 (1187).

30. In addition to the diffinitiones listed in note 29 above, two concordiae upheld unequivocally the cathedral's position: ACV, c. 6, 2421 (1172), 1854 (1195). Five placita found for the church without compensating its opponent: ACV, c. 6, 1628 (1104); ACV, c. 6, Ep. I, 37 (1147); ACV, c. 6, 2397 (1171); ACA, perg. Extrainventario 3146 (1175-1185); ACV c. 6, 1854 (1195).

31. ACV, LD, ff. 33-33v.

32. ACV, c. 6, 2235.

33. A renunciation made for the good of their souls, ACV, c. 6, 2421:"animas nostras a tanta iniuria et rapina liberantes."

34. AME 9, 37 (1164).

35. AME 9, 35 (1165).

36. The arrangement over Gurb is contained in the will of Sibilia de Queralt (AME 9, 52 [1197]; Bofill i Boix, "Lo castell de Gurb," pp. 696-699).

37. Only one concordia included a cash payment, a loan of 200 morabetins to Bernat de Merola (ACV, c. 6, Ep. I, 34 [1142]).

38. On the jurisdictional disputes of the thirteenth century, see Gudiol,"Les bregues"; Junyent, La ciutat, pp. 71-72; Engels, "Die weltliche Herrschaft," pp. 20-23; Shideler "Les tactiques."

39. ACV, c. 9, Ep. II, 85.

40. ACV, c. 6, 2213.

41. Ibid.: "Et postea fuit paratus Arbert per suum corpus quando habuit missa dicta ut misesset suam manum in ipsa caldaria qui calefiebat ante ostium ecclesie Sancte Eugenie, et istos [Ramon Bermund de Taradell and his castellans] clamantes supradictos noluerunt recipere. "

42. ACV, c. 6, Ep. I, 4 (1108); ACV, c. 6, 2235 (1110); AME 4, 75 (1132) [settled in 1134; AME 4, 77]; ACV, c. 6, 1594 (1136), 1768 (1179).

43. AME 4, 75 (1132), 77 (1134). A. Pladevall discusses this episode in his "Conflictes entre les exempcions monàstiques i els drets episcopals dels segles XII al XIV," I Col.loqui d'història del monaquisme català (Santes Creus, 1967-1969), 1:268-271. He regards the issue as one of monastic obedience to the bishop rather than a jurisdictional problem, which is how I see it (Freedman, "Church and Society," pp. 140-142).

44. AME 4, 75: "Et ad cumulum superbie sue [that of the abbot and monks of Ripoll] michi ad concilium domni pape proficiscenti machinati sunt ut domnus comes Barchinonensis per literas suas michi denunciaret ne aliquam de eis uel aduersus eos ante domnum papam querimoniam facerem, et si aliquid contra hoc temptarem nullam de cetero haberem in eo fiduciam."

45. AME 4, 77.

46. ACA, perg. Extrainventario 3146 (1175-1185).

47. ACV, c. 6, 2420 (1173): "De aliis uero malefactis, scilicet de percussionibus clericorum et de ecclesia Sancti Genesii et de igne, faciamus mandamentum episcopi."

48. For example, diffinitio: ACV, c. 6, 2420 (1173); concordia: ACV, LD, ff. 131v-132 (1131); placitum: ACV, c. 6, 2397 (1171).

49. ACV, c. 6, 1670bis (1147).

50. ACV, c. 6, 1924 (1182).

51. Nine settlements were arrived at with the approval and counsel of third-party persons: ACV, c. 6, 2291 (1136), 1594 (1136); AME 10, 5 (1171); AME 13, 21 (also ACV, c. 6, 1756 [1176]); ACV, c. 6, Ep. I, 47 (1180); Ep. I, 50 (also ACV, c. 6, 1827 [1185]); ACV, LD, ff. 128v-129 (1193); ACV, c. 6, 1854 (1196); AME 8, 10 (1198). In AME 10, 5, and AME 8, 10, the intervenors dictated a settlement and thus acted as arbiters.

52. For example, ACV, c. 6, 1594 (1136), was a diffinitio.

53. ACV, c. 6, 2291 (1136).

54. AME 10, 5 (1171); AME 8, 10 (1199). On arbitration in northern Europe, see Karl S. Bader, "Arbiter arbitrator seu amicabilis compositor. Zur Verbreitung einer kanonistischen Formel in Gebieten nördlich der Alpen," Zeitschrifi der Savigny-Stiftung für Rechtsgeschichte, kanonistische Abteilung 46 (1960), 239-276; Bongert, Recherches, pp. 159-182. The procedure antedates by many centuries the application of the terms arbiter, arbitrator, etc., borrowed from canon law (Cheyette, "Suum cuique tribuere," p. 291).

55. AME 8, 10 (1199): "Tandem vero ab utraque parte arbitri fuerunt electi siue compositores huius rei. . . ."

56. ACV, c. 9, PGT, Dec. 23, 1198: "Tandem uero laude et consilio Guillelmi, gratia Dei Vicensis episcopi, et Petri capellani, Raimundi de Podiata, Andree de Tonna, Petri de Prato de Seua, Petri de Rieria, Raimundus de Plano, Arnaldi de Rieria, et aliorum multorum, facta est inter eos et successores eorum firma et stabiles transactio in hunc modum scripta. Primum siquidem laudauerunt dicti laudatores ac pacis assertores. . . ."

57. ACV, c. 6, 1746.

58. Ibid.: "Super hoc cognouerunt predicti indices quod secundum illa instrumenta que ibi producta sunt a tanto iuro et a tam uenerabili conuentu, et precipue cum fuerant per litteras diuisa. . . ."

59. Berenguer de Queralt was an arbiter in AME 8, 10 (1199). Bernat Guillem de Lluçà gave his approval and counsel in ACV, c. 6, 1594 (1136). Members of the Gurb family appear as mediators or arbiters in ACV, c. 6, 1594 (1136); AME 10, 5 (1171); AME 13, 21 (1176); AME 8, 10 (1199).

60. ACV, c. 6, 1876 (1185); ACA, perg. Extrainventario 3146 (1175-1185) (both placita).ACV, c. 6, Ep. I, 47 (1180) (a concordia).

61. ACV, c. 6, 1746 (1174), 1756 (1l76).

62. ACV, c. 6, 1760; ACV, LD, ff. 125v-126; AME 8, 10, respectively.

63. For example, ACV, c. 6, 2359 (1162); AME 11, 33 (1178); ACV, c.6, 1837 (1181).

64. Hence Cheyette's doubts over the truth of what he calls the "better mousetrap theory," which states that authoritative justice was so manifestly superior that people flocked to the reconstituted public courts to have their disputes settled ("Suum cuique tribuere," pp. 89-90).

65. The Hospitallers' complaint is preserved in ACV, c. 9, Ep. II, 92 (ca. 1199), and the royal court's judgment is ACV, c. 6, Ep. I, 57 (1199).