Tag Archives: Customary law

Legal rhetorics and reality in Early Modern France: The factums

Jeam Coras, Arrest memorable du Parlement de Tolose - edition 1565

Arrest memorable du Parlement de Tolose (…) – edition Lyon: Antoine Vincent, 1565 – copy Université de Toulouse

How can we be sure to view things as they really were in the historical sources we use for our research in the field of legal history? It is by all means wise to look as closely as possible at relevant sources, preferably close to the events and problems we want to study. In particular Natalie Zemon Davis and Arlette Farge have made us aware of the importance of narrative sources to deepen our understanding of French legal history in the Early Modern period. Davis gave us in Fiction in the archives. Pardon tales and their tellers in sixteenth-century France (Cambridge-Stanford, CA, 1987) both the true and the fictional stories, just as she had done earlier for Martin Guerre [The return of Martin Guerre (Cambridge, MA-London, 1983)]. Thanks to Davis the lettres de remission have become a well-known resource, used also for other periods, lately for example by Walter Prevenier and Peter Arnade, Honor, Vengeance, and Social Trouble. Pardon Letters in the Burgundian Low Countries (Ithaca, NY, 2015). Arlette Farge, too, alerted scholars to the way narratives, rhetorics and expectations shape perceptions of reality in judicial resources, in particular in her essay Le goût de l’archive (Paris 1987).

In this post I want to expand on some notes about another very interesting source, the factums or mémoires judiciaires, a term perhaps to be translated as legal briefs, which I mentioned in passing in one of my recent posts concerning the French Revolution. However, this particular source does already appear in the late sixteenth century and lives on well into the second half of the nineteenth century. The possibility to compare the development of a genre over a number of centuries is most appealing, and therefore I would like to introduce the factums. I owe here much to a short notice published in 2014 by Léo Mabmacien at his blog BiblioMab: Le monde autour des livres anciens et des bibliothèques. A post in July at his blog rekindled my interest. The existence of new digital collections with factums is a further prompt to share my thoughts about this resource which merit attention not only in the Anglophone but also in the Francophone world. For French readers one of the main points of attention should be here to look beyond the central institutions and a France centered around Paris.

Getting a fuller picture

Léo Mabmacien’s post about factums is a real treat. In crisp and clear French he succeeded in creating a nutshell guide to the subject which leaves little to desire. In fact the idea to give here only a translation crossed my mind, but I am happy to rely here heavily on his account. The term factum stems from the Latin. In medieval legal consilia, pieces of juridical advice for courts, the exposition of a case is often introduced with the words “Factum est tale”, the case is such and so. A factum or mémoire judiciaire contains both a description of the case, the faits, and also moyens (literally the “means”), arguments to be used to argue the outcome of the case. The length of a factum can be anything between a few and many hundred pages in cases where as appendices pieces of evidences and other materials were included. Most factums do not have a title page.

The existence of factums is most interesting given the fact that French criminal court proceedings were in principle secret, as stated in the Ordonnance criminelle of 1670. Each step of a case at court proceeded by producing written statements. The final verdict, too, was presented in writing only. Oral pleading was introduced in the eighteenth century for civil law cases. Factums offer a window on French legal history like few other sources can do. A blog post in 2010 on factums of the Bibliothèque nationale de France had the evocative title ‘Factum, vous-avez dit factum ? Qu’es aquo ?’, “Did you say factum? Whatever is that supposed to be?”, and cites Robert Darnton who wrote in an article for Le Monde in 1995 there are media under the Ancien Régime we have forgotten about: the rumor in public, the factums of lawyers, the messages in your hand, the newsletters, the improvised songs on existing melodies… Darnton took up this theme in his 1999 presidential address for the American Historical Association.

Under the Ancien Régime the word factum was used also for violent pieces of writing in which someone asserted his views with forceful arguments. The juridical factums, too, do not only give legal arguments, but all kind of motivation to ascertain the offensive or defensive position of a party. An ordinance of the Parlement de Paris from 1708 demanded that each factum be signed by a lawyer, and contained also the name of the printer, without any other formality. Thus factums escaped the vigilance of French censors, and could indeed become a kind of platform for any kind of opinion, provided they were signed by a barrister, yet another feature making this genre attractive for historians. Mabmacien concluded his post with references to the vast collection of factums held in Paris at the Bibliothèque nationale de France (BnF), and to a virtual exhibition on factums created by the municipal library of Clermont-Ferrand.

A new generation of scholars

Some of the research cited by Mabmacien stems from the eighties and nineties of the last century, but in fact a lot of work started before 1900. Augustin Corda began at the BnF with the Catalogue des factums et d’autres documents judiciaires antérieurs à 1790 (10 vol., Paris 1890-1936). Volume 7 is a supplement, the volumes 8 to 10 contain registers. You can consult the volumes 1 to 8 in the Hathi Trust Digital Library. Charles Patey had published a few years earlier a succinct overview of some 200 factums in the BnF related to Normandy [Factums normands conservés à la Bibliothèque nationale (Caen 1888; online in Gallica)]. Apart from the factums mentioned in Corda there are at the BnF two massive card box catalogues for a total of nearly 86,000 items. The main study used by Mabmacien is an article by Sarah Maza who studied with Robert Darnton. Her article ‘Le tribunal de la nation : les mémoires judiciaires et l’opinion publique à la fin de l’Ancien Régime’, Annales ESC 42/1 (1987) 73-90 is available online at the Persée portal. In 1997 appeared the French translation – Vies privées, affaires publiques. Les causes célèbres de la France prérévolutionnaire (Paris 1997) – of her monograph Private lives and public affairs: the causes célèbres of prerevolutionary France (Berkeley, etc,, 1993).

There is more scholarly literature in French available online, and I had in mind giving here a judicious amount of links. However, when I encountered at Theses, the portal for French Ph.D. theses, the very recently defended thesis of Géraldine Ther, La représentation des femmes dans les factums, 1770-1789. Jeux de rôles et de pouvoirs (Ph.D. thesis, Université de Dijon, 2015) with its rich bibliography I decided to restrict myself to a few recent publications. Ther investigated an intriguing theme, the representation of women, a theme emerging with force during the French Revolution, but with rather different relations between these events and the preceding period than you would expect. The acts of a symposium held in 2012 at the École de Droit of the Université d’Auvergne (Clermont-Ferrand) can be consulted online in a special issue of La Revue Centre Michel le Hôpital 3 (April 2013) [Découverte et valorisation d’une source juridique méconnue : le factum ou mémoire judiciaire (PDF)]. The contributors discuss factums as a source for legal history, look at a number of libraries with large collections, and staff members of these libraries discuss the current projects for cataloguing and digitization. A third recent online publication with attention for factums has as its focus lawyers in Marseille and transcends the supposed and real chronological watersheds of the French Revolution [Ugo Bellagamba, Les avocats à Marseille. Practiciens du droit et acteurs politiques (XVIIIe et XIXe siècles) (Aix-en-Provence 2015) – online at OpenEdition]. A number of relevant online publications is also included in the section on sources and bibliography of the virtual exhibition in Clermont-Ferrand.

ImpressionThanks to the hard work of librarians and scholars you can now get online access to a substantial variety of factums. Let’s start with the collection I first encountered, Tolosana, la bibliothèque virtuelle des fonds anciens, a collection of digitized books at the Université de Toulouse, with a substantial number of legal works between 1500 and 1850, among them 300 factums from the sixteenth century – just three items – to the nineteenth century (82 items). Looking back it is most fitting I bumped into these mémoires judiciaires in the context of the Calas affaire, but effectively it is the other way around that explains definitely also part of the impact of the publications around this cause célèbre. In particular you can find here some 300 factums and mémoires judiciaires. Interestingly, here, too, the Early Modern period does not end at 1789. The second collection is La Coutume et le droit en Auvergne, Patrimoine de Bibliothèque de Clermont, a digital collection of the Overnia portal with a great variety of legal resources on customary law, especially more than six hundred mémoires judiciaires in the section for sources procédurales. The tree structure of Overnia enables you to filter for a number major legal topics with temporal subdivisions; the general search function can assist you, too. A similar large but technically very simple collection is Droit en Provence et en outre-mer (Aix et Marseille Universités) which brings us a great variety of sources, in particular a number of digitized factums; this collection is held at Aix-en-Provence. The digital items are only available as PDF’s. It is a pity that only few of the announced items from the nineteenth century have already been digitized, but at least there is an overview of them. Some of the items are recueils, collections with sometimes scores of factums. With the fourth collection we return to Paris. The Bibliothèque Sainte-Geneviève has created a digital collection concerning droit (law) in the Internet Archive with nearly one thousand publications. Some 860 of them are factums et mémoires judiciaires.

Banner TolosanaThe first image in this post shows in black and white the title page of an early edition of a famous arrêt of the Parlement de Toulouse from 1560. This is a copy of the edition digitized for Tolosana. The book of Jean de Coras, a French legal humanist, contains his report on the very case of Martin Guerre. Nowadays it is easy to find a digital version of earlier – and later – editions using the Karlsruher Virtual Catalogue, and I will leave it to you to find them quickly. I did check in vain for this book in the Bibliothèque Virtuelle des Humanistes (Université de Tours) which figured here earlier in a post on legal humanism. However, you can trace this book  and its sixteenth-century editions and other works by Coras using the Universal Short Title Catalogue. Even if in this case Coras’ book uses a verdict of the case, and thus does not exactly present a mémoire judiciaire, its character is sufficiently close to factums to merit explicit mention here. It opens with a summary of the facts of the case, the factum, and then Coras comments the arrêt, sometimes word for word. Did I already say Tolosana does merit your attention by all means, and not just for two famous cases, Martin Guerre and the affaire Calas?

One of the factums in the Onslow case, 1830 - source: Overnia

“Consultations pour MM. Onslow puinés contre M. Georges Onslow”, 1832 – BM Clermont-Ferrand, no. A 10850 1 – image: Overnia

When looking for another image of a mémoire judiciaire I decided to look at the collection created at Clermont-Ferrand. By sheer luck I found very quickly something which can serve as a reminder not to look only at French legal history in isolation. The Overnia portal contains several sources documenting the life and works of Georges Onslow (1784-1853), a composer born at Clermont-Ferrand from an English family. After many successes as a composer of chamber music ill health forced him around 1830 to return to his native Auvergne. Other matters, too, clearly brought him trouble. In six factums written in 1830-1832 (nos. A 10850) the question of his right to inherit goods in England is discussed. Both French and English law figure in the arguments used by the respective lawyers. These sources can form a perfect starting point for yet another contribution about law and music in history, a theme figuring here lately, but anyone interested in comparative legal history might have a good look at them, too. You can easily compare these six documents with other mémoires in the section on successions of the Overnia portal.

At Clermont-Ferrand the university library has started the digitization of the 1100 factums in 40 volumes of the Cour d’Appel at Riom. As for now you can consult already nearly 100 factums collected by Jacques Godemel, and also one hundred factums collected by Jean-Baptiste Marie which cover the periof from 1792 to 1812.

Searching more collections

In fact it is really important to keep in mind the wide coverage of subjects in this genre. This becomes clearer when you look for factums in French archives. Scholars using historical sources in French archives can usually rely on the strict order of archival collections. Often you can restrict yourself to one particular série marked with a letter or combination of letters. The Archives nationales de France have created for the série U a useful PDF which mentions a lot of factums and mémoires judiciaires. A search for factums in the holdings of the French national archives yields an impressive result showing multiple séries with factums, not just within the séries B (Cours et jurisdictions de l’Ancien Régime) or U (Justice).

In this post Robert Darnton’s name appeared already three times. In The business of enlightenment. A publishing history of the Encyclopédie, 1775-1800 (Cambridge, MA-London, 1979) Darnton mentioned just one factum without much explication about the nature of this source (p. 48). Anyway, he inspired some of his students to do research on and with factums. A few years ago Darnton put on his personal website 500 eighteenth-century police reports on authors written between 1748 and 1753 [Paris, BnF, ms. Nouv. acq. fr. 10781-107833]. It would be interesting to check for authors of factums published in the mid-eighteenth century in these police reports. We can be sure at least a few of them only pretended to be barristers. In the manuscripts section of Gallica you can now look at digitized records of the Archives de la Bastille, yet another resource where you might find among the prisoners and people under surveillance of the Parisian police force authors of pamphlets and factums. Add to them the data and maps available at the web site of the project The French Book Trade in Enlightenment Europe (University of Leeds and Western Sydney University) which focuses – as Darnton alrady did – on Neuchâtel, and you will be quite busy for some time with following all these avenues.

At the end of this post you might be tempted to conclude that factums only in Southern France and in Paris. At my website Rechtshistorie I have brought together commented lists of digital libraries for many countries, and France is particularly rich in digital collections. I checked for factums in a number of digital collections which feature works on customary law or are located in one of the French regions where the droit coutumier was important, and I looked at the towns which were once seats of the parlements, for example Bordeaux, Toulouse, Grenoble and Dijon. Only for Grenoble in the small collection Droit dauphinois of the Université de Grenoble 2 et 3 I found a few plaidoiries (pleas) and one single factum.

Why should one take the trouble of looking outside the main French online resources? Alas at the portal Patrimoine numérique I found only the digitized factums at Aix-en-Provence. At Fontes Historiae Iuris, the very useful digital library for French legal history created by the Centre d’Histoire Judiciaire (Université Lille-II) you can find in the section Consultations ou plaidoyers d’avocats for three parlements some collections of pleas and mémoires (Toulouse, Paris and Lille (Parlement de Flandre)). There are links to digitized recueils d’arrêts, collections of verdicts, for seven parlements. Even if factums are a remarkable source on its own, it is their judicial context which can make them even more special, and thus it is a small service to point at least to some courts and their printed verdicts. At Gallica’s Essentiels du droit you can benefit – mainly for the nineteenth century – from the digitized Recueil Dalloz and other series in the section Sources jurisprudentielles. The section Histoire du droit with a number of classic works on French law (Domat, Loisel, Pothier) and droit pénal, too, can be most useful. The webmaster of the Portail Numérique d’Histoire du Droit told me last year he would like to add more links to relevant digital collections in France, but he has few moments to fulfill this wish.

In the very week the World Wide Web exists 25 years you might indeed reflect a few moments on the long way the virtual world has gone since 1991. The proliferation of digital resources for many fields of culture and society is both a marvel and something really difficult to grasp and use. As for scholarly work on factums I am as surprised as anyone by the meagre results in the Bibliographie d’histoire de la justice Française (1789-2011) at the Criminicorpus portal. Using the advanced search mode of the Bibliographie d’histoire de droit en langue française (Université de Lorraine, Nancy) brings you only to a small number of additional relevant titles, but Ther shows there is certainly more to be found.

A search for catalogues of collections of mémoire judiciaires yields currently apart from the two catalogues for the BnF a work by Jacques Droin for a Swiss library, the Catalogue des factums judiciaires genevois sous l’Ancien régime (Paris-Genève 1988). You might want to read the article by Michel Porret, ‘L’éloge du factum : autour des mémoires judiciaires genevois’, Revue Suisse d’Histoire 42/1 (1992) 94-99 [online, e-Periodica]. A quick search among digital collections of some Swiss towns, in particular Geneva and Neuchâtel, did not bring me yet to more digitized mémoires judiciaires. Factums and briefs appear in contemporary law, too, for example in Canada, but here we arrive of the end of my post. At the brink of the rentrée, the start of all activities in France after the summer holidays, I hope to have awakened your curiosity for a fascinating source and to have given you some guidance for your own investigations.

A postscript

How can one search quickly for French scholarly publications when some online bibliographies seem currently not as helpful as you would like them to be? At Isidore, a French research portal, I could find more literature about factums and even links to digitized items. Some other libraries I did not mention here contain also some digital copies of factums, but they are not part of a mass digitization project. The digital portal Mémoire vive of the town Besançon is an example with some twenty digitized factums. A second thing worth noticing is the policy at Gallica, the digital library of the BnF, to harvest also digital materials from partner libraries. Thus factums at the Bibliothèque Sainte-Geneviève, Toulouse and Clermont-Ferrand can be found at Gallica. More surprisingly it becomes clear that the BnF, too, has digitized possibly many hundred factums, but alas the exact number is not established easily, because the filter function does not contain a filter for descriptions of factums from the vast collection of factums at the BnF in which the word Factum has been put at the very beginning of each description.

Medieval laws in translation

Languages can act as formidable barriers to our understanding of both past and present. Even if you happen to have a talent for foreign languages translations can help you in many ways to gain insight into the messages and form of a source. In medieval Europe many legal sources were written or only accessible in Latin. However, a number of medieval legal texts have been translated into the vernacular. In this post I want to look at a number of medieval translations of such sources and at two modern translation projects. Recent news about these projects offers me an occasion to write about this subject.

Medieval translators at work

In the Middle Ages translating the works of Aristoteles from Greek – or Arabic – into Latin formed probably the largest translation project of a millennium. The volumes with the scholarly edition of the Aristoteles Latinus project are still being published. For many scientific disciplines medieval translators took the trouble of translating important sources. In the field of law, too, one can point to translations. The most massive project, the Basilica, is not only a translation but also an adaptation of Justinian’s Institutes, his Digest, Codex and the Novellae. For some parts of the Justinian codification older Greek translations exist which the translators around 900 used in Byzance. A team at the University of Groningen led by H.J. Scheltema produced a modern critical edition of the text and the scholia, the accompanying glosses [Basilicorum libri LX (17 vol., Groningen 1953-1988)].

A very interesting example of a translated medieval legal text is Lo Codi, a legal commentary from the twelfth century originally written in Occitan, a language spoken in Southern France and Catalonia. Lo Codi has been translated in French, Castilian, Latin and Franco-Provencal. I wanted to check information about this text at the homepage of Johannes Kabatek at the Universität Tübingen. Since his move to Zürich this page has been removed, but luckily he has put them on his private website. At this webpage you can compare different manuscripts and versions. An article about Lo Codi by Kabatek from 2000 is also available online (PDF). Kabatek does show Lo Codi is an independent adaptation of the Summa Trecensis, and not just a translation.

Banner The Medieval Nordic Legal Dictionary

The first large-scale project I want to introduce in this post is The Medieval Nordic Legal Dictionary, a project led by the University of Aberdeen. Not only a dictionary will be the fruit of this project, but also translations of Scandinavian laws. Two volumes with translated laws have already appeared. A few years ago I wrote here about medieval Scandinavian laws, and it is surely helpful to be able to use these translations alongside the original texts. The page for laws of this project provides you with a quick overview of the main laws. the current editions and the planned or already published translations. The bibliography of the dictionary project shows that luckily for some texts translations appeared in the twentieth century, however, in a number of cases into current Icelandic, Norwegian, Danish or Swedish.

Some medieval legal texts have been translated in the sixteenth century. This month I saw an announcement for a lecture in Paris on April 6, 2016 by Patrick Arabeyre (École nationale des Chartes, Paris) on ‘Deux exemples de traduction vers le latin dans le domaine juridique : la traduction d’ordonnances royales par Étienne Aufréri (1513) et la traduction des Coutumes d’Orléans par Jean Pyrrhus d’Angleberme (1517)’ as a part of a conference on La traduction en vernaculaire entre Moyen Âge et Renaissance. The first subject of his lecture were royal ordinances edited by Étienne Aufréri in 1513, and he looked also at the translation by D’Angleberme of the Coutumes d’Orléans (1517). A second lecture by Frédéric Duval, also attached to the ENC, concerned the versions of Lo Codi. In April 2015 Duval presented a paper about French translations of the Corpus Iuris Civilis.

Nowadays the French Biblissima portal is a fine gateway to several projects concerning the production and transmission of manuscripts, and using the English interface it is very much accessible. One of the online databases at the École nationale des Chartes is called Miroir des classiques, “Mirror of the Classics”, a project in which Duval participates. Unfortunately this database does not yet contain any notice about translated legal texts, but eventually they will be included. How can one trace more medieval translations? For Ancien Français, one of the phases of medieval French, there just happens to be a resource that can help you. The bibliography of the Dictionnaire Étymologique de l’Ancien Français (DEAF) does lead you to a number of translations, many of them still only existing in manuscripts. The section C of this bibliography shows for example two thirteenth-century translations of the Code de Justinien. The entry at CodiFr mentions Lo Codi and states flatly this is a translation of the Codex Justinianus, a notice clearly in need of some updating. Under the letter I you will find both a complete translation of the Institutiones Iustiniani and an abridged version. Five manuscripts exist with a French translation of the Digestae. The Summa Codicis of Azo, too, exists in a French version, the Somme Acé. By the way, you can find a number of online dictionaries and textual corpora at the website of the Dictionnaire de Moyen Français. For the field of medieval canon law one has to single out the medieval French translation of the Decretum Gratiani. This translation has been edited by Leena Lofstedt, Gratiani Decretum. La traduction en ancien français du Décret de Gratien (5 vol., Helsinki, 1992-2001). I have not taken a complete tour of the sources of the DEAF, but it is certainly rewarding to look for yourself, and not only for matters concerning France. Anglo-Norman texts appear here, too.

Searching in manuscript catalogues will no doubt yield further results. A search in the digital catalogue for archives and manuscripts of the British Library brought me to ms. Royal 20 D IX, a late thirteenth-century French translation of the Authenticum and the Tres Libri, the books 10-12 of the Codex Justinianus. The database Manuscripta Iuridica at Frankfurt am Main contains for example for the French translation of the Institutes – usefully put together as Institutiones Justiniani, versio Gallica – references to thirteen manuscripts. The manuscript in London, too, has not escaped the attention of Gero Dolezalek and Hans van de Wouw, the creators of the Verzeichnis der Handschriften zum römischen Recht bis 1600 (4 vol., Frankfurt am Main 1972) used for the database, nor did they miss the French version of the Digestum Vetus, and the Infortiatum. For Azo you will find not only the translation of his Summa Codicis, but also a translation of his summa on the Digesta.

Twelve volumes and an addendum

Five years ago the last of the twelve volumes of the modern Dutch translation of the Corpus Iuris Civilis appeared. I wrote here a post about the presentation of the final volume in 2011, and in that post I looked also at other complete translations of the Corpus Iuris Civilis. On Friday April 15, 2016 yet another volume was presented at a symposium in Utrecht. Jop Spruit, the indefatigable founder of the project, translated with Jeroen Chorus also the Libri Feudorum, a twelfth-century text from Lombardy concerning customary law dealing with fiefs. Kees Bezemer wrote the introduction to this translation with facing Latin text. In my view the translators wisely choose to follow the version of the Libri Feudorum as found within the Corpus Iuris Civilis. One of the arguments to include this work on customary law into the curriculum of the medieval law schools was the presence of glosses by Accursius. The modern critical edition gives both the oldest and the most used version (Vulgata) [Karl Lehmann (ed.), Das Langobardische Lehnrecht, (Handschriften, Textentwicklung, ältester Text und Vulgattext, nebst den capitula extraordinaria (Göttingen 1896; online in the Internet Archive)]. However, more versions came into existence. At the symposium in Utrecht Jeroen Chorus gave a talk about possession in the Libri Feudorum. Dirk Heirbaut compared the feudal law in the Libri Feudorum, the Leenrecht van Vlaanderen and the Lehnrecht of the Sachsenspiegel. Rik Opsommer discussed the use of the Libri Feudorum in the practice of Flemish feudal law, and Kees Bezemer looked at the role of feudal law in Early Modern Europe with a focus on a case in seventeenth-century Germany which became the subject of a disputation defended at Frankfurt an der Oder. The best point of depart to start exploring Early Modern German juridical disputations is the digital library of the Max-Planck-Institut für europäische Rechtsgeschichte, Frankfurt am Main.

The team of Dutch translators hesitated about the right number of the latest volume in the series of translated texts of Roman law. Twelve is such a beautiful number suggesting completeness! They finally opted for 12 Addendum. The set of twelve volumes can still be ordered from Amsterdam University Press.

Until now I have looked almost in vain for other translations of the Libri Feudorum. The translation by Lorenz Weidmann, Die Lehensrecht verdeutscht (…) was printed at least seven times between 1530 and 1541. The German bibliographical project VD 16 does not only make such statements possible, but it leads you also to the digital version of the first edition Augsburg 1530 (Munich, Bayerische Staatsbibliothek). Robert Feenstra wrote about it in his article ‘Kaiserliche Lehnrechte. Die Libri feudorum in deutscher Fassung nach Alvarotus und andere Inkunabeldrucke zum Lehnrecht. Mit Beiträgen über Johannes de Vanckel und die casus summarii des Baldus’, Tijdschrift voor Rechtsgeschiedenis 63 (1995) 337-354. There is also an online version of a translation by Jodocus Pflanzmann printed in an incunabula edition, Das buch der lehenrecht (Augsburg 1493; GW 7776). The Gesamtkatalog der Wiegendrucke (Staatsbibliothek zu Berlin) has a useful overview of editions and partial editions before 1501 of the Corpus Iuris Civilis. GW 7654 is a French translation printed at Paris around 1486 of Justinian’s Institutes, interestingly made in verses. The identification of the probable author, Richard d’Annebaut, is also given in the bibliography of the DEAF with references to the unique manuscript source, London, British Library, ms. Harley 4777.

Discussing the Libri Feudorum is entering a territory where three decades ago things might have seemed straightforward. Things have changed very much since Peter Weimar’s article ‘Die Handschriften der Libri feudorum und seine Glossen’, Rivista Internazionale di Diritto Comune 1 (1990) 31-98, reprinted in his volume of essays Zur Renaissance der Rechtswissenschaft im Mittelalter (Goldbach 1997) 171-238, and the study of Gérard Giordanengo, Le droit féodal dans les pays de droit écrit. L’exemple de la Provence et du Dauphiné XIIe – début XIVe siècle (Rome 1988). I must refer you here to online bibliographies such as the one provided by the Regesta Imperii at Mainz to see how much has been written recently about the approach of medieval lawyers to feudal law.

Of course it is possible to use modern translations of medieval legal texts, but in this post I wanted to investigate medieval translations. For searching modern translation one can benefit from the Online Medieval Sources Bibliography which even offers filters for translations containing also the original texts, translations in English, French or other languages. It might be helpful to end here with briefly noting the publication of the revised edition of Fred Blume’s translation of Justinian’s Code edited by Bruce Frier [The Codex of Justinian (3 vol., Cambridge, etc., 2016)]. The German translation project for the Corpus Iuris Civilis reached in 2012 its fifth volume with the books 28 to 34 of the Digest, edited by Rolf Knütel [Corpus Iuris Civilis, Band 5, Digesten 28-34 (Heidelberg 2012)]. Let’s hope the leaders and translators of such projects will and can benefit from the recent Dutch experience in completing a book project with nearly nine thousand pages.

A postscript

Frédéric Duval will present in June 2016 a paper about the late-medieval translations into French of parts of the Corpus Iuris Civilis at a two-day conference in Tours, Les traductions médiévales à la Renaissance et les auto-traductions (Tours, June 8-9, 2016).

Pronouncing the city’s law: aldermen as judges

In pre-modern European cities the aldermen were not just members of a city council charged with deciding on city policies. Creating and maintaining policy in the more pregnant sense of daily law and order was one of their prime tasks. In many cities a number of aldermen sat regularly as the city’s judges. In the past years a number of archives has created online databases to search for cases and verdicts in the records of aldermen. Outside the cities schepenen functioned within regional and manorial jurisdictions. We will meet some of them here, too. This post aims at showing you a wide variety of online search possibilities and presentations. The main focus of my post are aldermen in the Low Countries, called schepenen or in French-speaking regions échevins, I will look at seven projects. The Netherlands and Belgium will bring most of the examples adduced here, but I am sure elsewhere more can be found that would merit as much attention as the cities mentioned here.

Pronouncing the law

Curiosity to find out about recent projects for the digitization of the records of medieval and Early Modern aldermen was my first reason to starting looking for online databases and other projects. I was surprised I did not encounter quickly somewhere a list of relevant projects, or at least some links to similar projects at the websites with a particular database. Unfortunately this might suggest such projects are developed in at least relative isolation, or in the worst cases in splendid ignorance or with complete disregard of similar efforts.

The first project I would like to present concerns the records of a number of villages situated in the very heart of the Rhine and Meuse estuary. The schepenen conveyed at Tuil, the village most to the west of the contemporary province Gelderland, now a part of the municipality Neerijnen. Tuil gives the project its name, De Hoge Bank van Tuil, “The High Court of Tuil”. Nowadays we say in Dutch parlance these villages are positioned in the Rivierenland, the Rivers’ Country. Geographically it is more sensible to say they are situated in the Tielerwaard, “The March of Tiel”, between the cities of Tiel and Gorinchem.

The website for the Hoge Bank van Tuil is a project of three historians, Peter van Maanen, Gijsbert van Ton and Marco Schelling. It presents transcriptions of some 1,300 records from 1335 to 1525, from 1631 to 1637, and a number of scattered records yet to be integrated. The team has used records from several archives and printed editions. For some records the transcriptions are accompanied by images of the documents. This project aims at a reconstruction of the activities of this high court by combining data from a large variety of resources. As for now the records are not yet part of a searchable database, but they can be searched with the normal web browser search function. It is one thing to bring these materials together, but the material still needs editing before it can become the contents of a database. Exactly the preparation of this step is probably the main hindrance to tackle for further research in these regional records. Consultation with for example the Gelders Archief in Arnhem, the Regionaal Archief Rivierenland, Tiel, and the Regionaal Archief Gorinchem will surely be most helpful to start preparing a new phase for this project.

The very beginning

The Hoge Bank van Tuil came first in my post because it presents in a nutshell a number of very real questions and problems you face when you start with a project for the digitization of the records of aldermen. What period do you choose? Do you aim at a full reconstruction of archival records concerning a particular institution or jurisdiction, in this case a schepenbank? Do you restrict yourself to the records from one resource, be it records kept at an archive or records surviving sometimes only in print? Do you prepare from the start onwards for the creation of an online database, or would you like to stick with simple web pages? Sometimes you have to wait for the creation of proper archival guides and finding aids before even contemplating a project… Cities and their archival services often choose themselves for the digitization of judicial records. In the case of the Hoge Bank van Tuil three researchers decided to combine efforts for their project.

Logo Scabinatus

The project that prompted me to write about digitized verdicts of aldermen is concerned with verdicts of the échevins in Liège. The website Scabinatus 4000 was launched last autumn by the Université de Liège. The actual database contains acts from the vast series of scabinal registers kept at the Archives de l’État in Liège dating from 1409 until 1797. Some 1,750 (!) registers exist with each around 400 pages, good for some 750 acts. The registers 1 to 67 could be searched online already at a website of the Belgian National Archives, but this website with registers for the period 1409 to 1510 was last updated in 2007.

On the new Scabinatus website the registers 68 to 153 have been added, reaching now 1558. You can search for particular registers, a particular kind of acts (e.g. approbation, arbitrage, wills and witness statements), toponyms, a particular date or period, the kind of goods at stake, names, professions and social status. The website of the National Archives offered drop down lists for the kind of acts and the kind of goods. The scale of this project is clearly staggering. The functionality of the search screen is very detailed, and you are thus able to conduct all kind of searches. Comparisons in activities over long periods become here possible and fairly reliable. However, this database does not offer the complete text of acts, but only a summary with a lot of details. You will need to view the original registers for further research. This project has clear limits in time and resources which seems understandable in view of the sheer number of records to be processed.

New roads to the records of aldermen

Logo Itinera Nova

At Louvain (Leuven) the municipal record-office has combined forces with a German partner, the Universität Köln, for its joint project Itinera Nova. The city of Louvain can boast a series of 1128 scabinal registers from 1362 to 1795. The project started in 2009, and more than one million pages will be transcribed by volunteers. 255 registers are now available online, mainly for the periods 1362-1460 and 1550-1590. Knowing the difficulties sixteenth-century handwriting can pose it becomes very interesting which role the transcribing software MONK, a tool created at the university of Groningen, has played here. The MONK website presents extensive word samples from the Louvain registers. The Itinera Nova project in cooperation with the department at Cologne for Historisch-Kulturwissenschaftliche Informationsverarbeitung involves crowd-sourcing. An online tutorial helps volunteers to start transcribing pages with a basic knowledge of palaeography. On April 25 and 26, 2013, Louvain hosted an international congress with the title Itinera Nova: Tools, People & History, The blog De Digitale Archivaris [The Digital Archivist] published a series of posts in Dutch about this congress. The website of Itinera Nova can be viewed in Dutch, English and French. You can browse at will and conduct general searches, and there is an advanced search option with drop down menus. You can also restrict a search to a particular register or period. From the transcriptions you can go directly to images of the original register. Registered users can get access to the annotation screen.

One of the major assets is a search interface for annotations. Compared to the project for Liège the texts of the records seems to be the focus and very heart of the project at Louvain. The Scabinatus project allows much more the serial analysis of similar acts, but the website does not bring you to the actual records, images or transcriptions. The approach for Liège seems to have been determined by scholars, the approach at Louvain is much closer to the general public. The schepenen of Louvain served as a court of appeal for other cities following the rule of hoofdvaart. Later in this post we will meet Den Bosch, one of the cities which went to Louvain for this purpose.

Dutch projects

For those readers waiting for a regular element of my blog, commonly known as the Dutch view, I will discuss next some Dutch projects. In March 2013 the Regionaal Archief Tilburg launched the Charterbanka charter database, the result of the combined efforts of archivists and visitors of the regional archive working together in a crowdsourcing community with its own website. The Charterbank contains some 450 medieval charters mainly issued by local schepenen from Tilburg and surrounding places. The search interface has fields for place, date, record number, inventory number, and persons adding their seal. In the result view you can enjoy images of the document, read the transcription in a rather small column, consult information about the seal or seals when present, and check for relevant literature and comments. This project focuses on the late Middle Ages and Early Modern period with a regional approach. Charters until 1312 from Noord-Brabant can be found online in the Digitaal Oorkondeboek van Noord-Brabant.

At ‘s-Hertogenbosch (Bois-le-Duc), commonly called Den Bosch, the regional record office, with as its current name Brabants Historisch Infomatiecentrum, has created an online database with records created by both schepenen and notaries in small towns and villages in the present-day province Noord-Brabant. With some 180,000 records the harvest seems at first rich, but only in a few cases you can study a long period, mainly for Lith and Veghel. Resolutions of the Dutch Supreme Council for Brabant, the Raad van State in The Hague, from 1629 onwards, are also present in this database. In my view they constitute a very important source, but they are in a different class, even if they deal with the villages and towns of Brabant. The Dutch description of the database emphasises the possibility to search for persons in these records. Online projects with a genealogical approach flourish at this regional record office, and I could trace many of my own ancestors using the results of these efforts, but for dealing in real depth with other records this approach is narrow. Scans of many records are available, but you will encounter many items which surely touch upon history and legal history but do not strictly concern the activities of aldermen. The useful overview of processed records and items bears witness to the wide range of records deemed fit for inclusion. However, the word genealogie (genealogy) in its URL seemed at first telling. By choosing in the left-hand menu Gescande bronnen (“Scanned resources”) you can already search directly in a number of digitized registers of schepenen, by selecting the schepenprotocollen.

Very much city-centered are the efforts at the Stadsarchief Den Bosch for the analysis of and access to the series of aldermen’s charters and registers starting with the famous Bosch’ Schepenprotocol. In this massive series running from 1360 to 1811 the schepenen of Den Bosch dealt with matters concerning voluntary jurisdiction, passing acts on the purchase and sales of real estate, probate inventories, acts concerning guardianship, etc. I must strike a harsh note: to my surprise there is here no online database. The information for a database concerning the criminal jurisdiction has been assembled in the project Dataschurk (“Data Villain”). You can download all relevant inventories, an inventory of criminal dossiers and summaries of the dossiers themselves, and there are indexes on record number and name.

Decades of painstaking research have resulted in a rich harvest of materials. The Bosch’ Schepenprotocol itself can be consulted on microfiches. It will certainly take courage to create a workable database which brings all information together and makes them accessible in a most reliable way. Luckily archivist Geertrui van Synghel can guide your research with her guide Het Bosch’ Protocol: een praktische handleiding (‘s-Hertogenbosch 1993), and her study “Actum in camera scriptorum oppidi de Buscoducis”: de stedelijke secretarie van ‘s-Hertogenbosch tot ca. 1450 (Ph.D. thesis Leiden 2006; Hilversum 2007) with a cd-rom containing 5735 scabinal charters and acts written by the city’s secretaries until 1450. The Bosch’ Schepenprotocol transcends the city borders with the letters of surety enabling the confinement of psychiatric patients, even at institutions as far away as Liège. In his comment Christian van der Ven (Den Bosch, BHIC) announces that preparations for a digital version of the Bosch’ Schepenprotocol are in a final phase.

Making choices about periods and subjects

Logo Stadsarchief Amsterdam

Last week The Guardian included the city archives of Amsterdam in a survey of Europe’s best free museums. The building of the Stadsarchief Amsterdam is surely imposing, but the reason for being featured here are the archival records kept here and the way their contents are disclosed more and more online. When I look at sources with a relation to legal history you can choose from a substantial variety of resources. The example I present here is restricted to a particular class of verdicts, those concerning “averij grosse“, general average or in German “Grosse Haverei”, cases in maritime law in which either a ship, a cargo or both had suffered unavoidable damage in emergency situations, and costs thus made or yet to be made or recovered had to be divided in an equal way [Archief van Schout en Schepenen, nos. 2806-2924, Vonnissen terzake van averij grosse, 1700-1810]. A separate chamber of the schepenen for “Assurantiën, Averijen en Zeezaken” dealt with relevant affairs.

Two splendid overviews of the history of European private law, Helmut Coing’s Europäische Privatrecht, I: Älteres Gemeines Recht (1500 bis 1800) (Munich 1985) 554-555, and Reinhard Zimmermann’s The law of obligations. Roman foundations of the civilian tradition (Oxford 1996) 406-412, provide you with basic information about the legal principles at stake, the role of the Lex Rhodia de iactu (D. 14.2.2), and references to important commentaries, including those issued in the period of the Roman-Dutch law. Zimmermann gives the date of publication of the first edition of Quintyn Weytsen’s early treatise in Dutch on general average as 1651. According to the information in the Short-Title Catalogue Netherlands this can be corrected to a first appearance in print in 1617 as an appendix to Cornelis van Nieustad’s Curiae Hollandiae, Zelandiae & West-Frisiae decisiones (…) Item een tractaet van avarien gemaeckt door Quintijn Weytsen (…) (Leiden 1617), and a first separate edition in 1631 [Een tractaet van avarien, dat is Ghemeene contributie vande koopmanschappen ende goederen inden schepe bevonden (Haarlem, 1631)].

Quintyn Weytsen (1518-1565) became a councillor in the Court of Holland only in 1559, and in 1561 and 1562 he was also charged with hearing accounts in the province of Zeeland, information easily gathered from resources such as the Dutch Biografisch Portaal and the Repertorium van ambtsdragers en ambtenaren 1468-1861 (The Hague, Huygens Instituut). Some of the later editions of his work, specifically Adriaen Verwer’s Nederlants see-rechten, avaryen, en bodemeryen (editions e.g. 1711, 1716 and 1730) contain also two ordinances concerning general average from 1551 and 1563 which no doubt prompted him to write his treatise. The lapse of half a century before a printed edition was published is remarkable. The 1617 edition gives no introduction at all for Weytsen’s text, and therefore his short text (from p. 226 onwards) might have been circulating already in manuscript – or perhaps a much read pamphlet? – long before.

The pages on general average at the website of the municipal archive of Amsterdam were launched in Autumn 2013. They offer a succinct introduction to the doctrinal side of things, and introduce you to the procedure before the bailiff and schepenenOne of the important things stated is that both the Dutch East India Company and the West India Company did not use the services of this court, because the administrators took care of freighting and transport. Statements confirmed on oath before Amsterdam notaries about cases of avarij formed the starting point of the procedure; you can find them using an index of these scheepsverklaringen (PDF), some 5,400 cases. The hint to check the Amsterdamsche Courant for its notices about shipwrecks and averages in its scheepstijdingen is most useful. You can check this newspaper in digital format at the new Delpher portal of the Dutch Royal Library. Do reckon with variant spellings such as avarieavary, avarij and averij! The suggestions to look in other record series for further information are most helpful. In the database of the Amsterdam city archives you find a digital version of the index created in 1980. The search interface allows you to search for the names of shippers and ships, harbours of depart and arrival, and dates. Two examples of cases from 1726 and 1780 help you to prepare your specific search actions. A search action leads you to further information on a particular case, often supplemented with thumbnail images of the documents.

Can I mention anything negative about this project in Amsterdam? With just two titles about general average this information is rather to short, and the reference to the article by Ivo Schöffer lacks the page numbers (pp. 73-133). Elsewhere on the website a treasure page has been dedicated to the case of the vessel St. Antonio di Padova which was attacked by pirates off La Spezia in 1704. The ship commanded by Jan Lens suffered a lot of damage during a four-hours fight. Repairs were made in Genua. The page shows a part of the notarial statement on this case. Somehow the section on general average does not link directly to this showcase, the only relevant page translated completely into English. In view of the international standing and importance of this archive the maIn point to criticize is alas the absence of a page-to-page translation into English of its marvellous website. The Amsterdam city archives ask people to pay for full-scale images of scanned documents, but before deploring this you must realize they offer a very rapid scanning on demand service.

Different situations, different approaches

In many fields awards and prizes are given yearly for the best project. Is it possible and sensible to do this for this group of six random picked projects? In a bird’s-eye view we saw:

  • transcriptions from the Rivierenland in the Hoge Bank van Tuil
  • large-scale indices and an analytical approach in the Scabinatus 4000 project for Liège,
  • crowdsourcing, transcriptions and images, with even an annotation tool for Itinera Nova at Louvain
  • images and transcriptions of charters at Tilburg
  • indexes for both scabinal and notarial registers, and a growing number of scanned registers for the province of Noord-Brabant
  • inventories, indexes and finding aids concerning the wide judicial functions of the schepenen of Den Bosch – with a printed guide and a cd-rom of the earliest records but without a database –
  • finally the verdicts from Amsterdam concerning maritime law from a distinct period, with an online searchable index and scanned images which have to be paid for.

If you put these seven projects into a grid you can probably more easier see which qualities they share or lack. What makes these projects successful or not? I cannot predict what visitors of these websites will want to know nor what they would like to have at hand on the screen of their computer or tablet. Some researchers might want to start making grand analyses as quickly as possible and therefore applaud transcriptions and online indices, others prefer painstaking transcriptions of the originals or of images provided by an archive. The pioneers for the Rivierenland have not yet reached the phase of building a database. One archive, the city archive at Den Bosch, does not provide a database, and I suppose this is a policy decision, because so much energy has already been put into the resources in question during more than twenty years. For other cities printed critical editions of the verdicts of schepenen exist, and thus the need for an online database might be less urgent.

Even though this is a rather long post I still feel I have treated all projects presented here rather briefly. It is wise not to judge their qualities too quickly! A stronger objection is the choice of examples which is very much personal, but at least also for a part guided by the lack of an easy overview of relevant digitization projects for this particular kind of resource. I would not feel ashamed if this post serves as a stepping stone for more and better.

A postcript

In his comment Christian van der Ven of the BHIC at Den Bosch stresses the actual cooperation of Dutch archives for this kind of projects. I have taken over his factual corrections, and the important information about online access to a number of registers of schepenen already avaiable now at the BHIC, and the appearance of the Bosch’ Schepenprotocol in digital form in the near future.

Centuries of law in Normandy

The classic French legal historiography makes a wonderful neat and crisp distinction between two kinds of law prevailing in a large part of France. Either the droit écrit, written law in the particular sense of learned medieval law, or the droit coutumier, customary law, dominated one or more regions. Within the pays de droit coutumier the customary law of a particular region could influence other regions as well, and this is the case also for commentaries on and collections of the coutumes of a region. Perhaps the best known example are the Coutumes de Beauvaisis by Phillippe de Beaumanoir, edited by Amédée Salmon (2 vol., Paris 1899-1900; reprint Paris 1970). I noticed an announcement for a conference celebrating the eleventh centenary of the law in Normandy at Cerisy-La-Salle from May 25 to 29, 2011, and the bibliographical information provided there stimulated me to look further into Norman and Anglo-Norman law in medieval and modern times.

In Custodia Legis, the blog of the law librarians of the Library of Congress, published on January 18, 2011 a post by Meredith Shedd-Driskel on ‘Coutumes of France in the Law Library of Congress‘. This post has as its central point a beautifully illuminated manuscript of the Grand Coutumier de Normandie. The seven large historiated initials shown in this post make you longing for more. Seeing only one other page and the book’s cover does not make up for the fact that I had expected more, beginning with a complete digital version of this manuscript. Last year for example the Library of Congress published a substantial digital collection of their old books on piracy and documents about piracy trials, which induced me to write a post about pirates. The Library of Congress kindly informed me that they have not planned to digitize this manuscript. On French coutumes this library has published a book by Jean Caswell and Ivan Sipkov, The coutumes of France in the Library of Congress: an annotated bibliography (Washington, D.C., 1977; reprint Clark, N.J., 2006). Used together with André Gouron and Odile Terrin, Bibliographie des coutumes de France. Éditions antérieures à la Révolution (Geneva 1975) one can start further research.

Medieval manuscripts concerning the law of Normandy

In this post I will try to put the fifteenth century manuscript at Washington, D.C., in the context of other manuscripts and editions of the Grand Coutumier de Normandie as far as they can be consulted online. At least one manuscript has been digitized completely. The manuscript at Harvard University (Harvard Law School, Ms. 91) is written about 1300 and is less lavishly illustrated than the manuscript in Washington. The Huntington Library in San Marino, California, has two manuscripts of the Grand Coutumier de Normandie, HM 1343 in Latin from the first half of the fourteenth century with some illuminated pages, and HM 25862 with the French text from the second half of the fourteenth century. Ernest-Joseph Tardif discussed in his work Coutumiers de Normandie: textes critiques (2 vol. in 3 parts, Rouen-Paris 1881-1903; reprint Geneva 1977) the various versions of the text and edited them. His book is available online at Gallica.

Several manuscripts with the Coutumes de Normandie are illuminated. Most manuscripts are held by libraries, but some are kept at archives, such as the manuscript Rouen, Archives Départementales de Seine-Maritime, ms. 10. The Enluminures website brings you to three illuminated manuscripts held in French municipal libraries (Cherbourg, BM, 13 and 17, and Rouen, BM, 877). How to find more manuscripts in a quick way? Do portals bring you as much as you would like them to do? The Europeana portal brought me to just one manuscript, Paris, Musée du Petit Palais, Duteil 95, of which one can admire four illuminated pages at their website. CERL, the Consortium of European Research Libraries, has created a portal for searching manuscripts and early printed books until 1830; the search for printed books is mainly in a number of national bibliographies. It brings me through Calames to the manuscripts Paris, Bibliothèque Sainte-Geneviève, 1743 and 2995. Checking on the Liberfloridus website for the illuminated manuscripts of both this library and the Bibliothèque Mazarine yielded no results. The Danish Royal Library in Copenhagen has two manuscripts, NKS 688 oktav and Thott 1012 kvart. Searching in the REX database of this library eventually ends with a third manuscript, Thott 303 oktav, with the Latin version.

More manuscripts in French libraries can be found using a more usual website, the Catalogue collectif de France. I will not list all these manuscripts, but only stress the need to use multiple search terms. When you look for coutumier and Normandie you will find here twelve manuscripts, searching with coutume and Normandie gives you fifty results, including later commentaries and collections of ârrets, the verdicts of the Parlement de Rouen. If you are not aware of the Latin version you would miss it completely. Paris, Bibliothèque nationale de France (BnF), Arsenal 804, called Summa de legibus Normannie (sic), and Rouen, BM, 818, Jura et statuta Normannie, are among the few manuscripts with the Latin version.

I could scarcely have made more clear the importance of not only using online catalogues, but also checking the printed versions and the often very detailed indices of manuscript catalogues. In the field of medieval canon and Roman law Gero Dolezalek has put on the website of the Leipzig law faculty alongside his information on medieval legal manuscripts also an extremely rich, fully commented and updated collection of links to online information about medieval manuscripts. The fine list on online resources by Bob Peckham (University of Tennessee at Martin), the impressive list of manuscript links compiled at the Kungliga biblioteket in Stockholm, and the marvellous gateway to manuscript studies of the Senate House Library, University College London, however useful for its purpose, lack such comments. The very least you should do for the manuscripts in Paris is to check also the online manuscript catalogue of the BnF. It is not wise nor really feasible to present in a simple blog post a complete list of medieval – and later – manuscripts with the different versions of the Coutumier de Normandie, including the rhymed versions and collections of maximes. In the bibliography at the University of Heidelberg created for the online version of the Dictionnaire Étymologique de l’Ancien Français you can find in a nutshell a bibliography of the Coutumier de Normandie and other French coutumes, including manuscripts and main editions of the most important versions.

Printed books and the history of the Coutumier de Normandie

Creating such an overview is not just a question of careful using manuscript catalogues, but of research in the existing literature about this text. Let’s turn to digitized books with the Coutume de Normandie or comments on it. The Jacob Burns Law Library of the George Washington University, Washington, D.C., recently acquired a copy of the first edition, an incunable from 1483. In the Spring 2010 issue of their news bulletin A Legal Miscellanea you can find a short, clear and substantial introduction to this and other early editions, besides a good sketch of the importance and role of Norman customary law. Finding this first edition in the online version of the Gesamtkatalog der Wiegendrucke (GW) was not easy, because somehow searching for coutumier or coutumes did not work. With the other main search website for incunabula in Germany, the INKA catalogue of the University of Tübingen, it becomes clear this edition is present in the GW with number M43587, where luckily a link is given to a digitized version at Troyes. In the online version of the Gesamtkatalog all editions of municipal and regional statutes, statutes of religious orders and synodal statutes, are filed under the headings Statuta civitatum, Statuta ordinum, Statuta synodalia and Statuta regnorum. Seven incunable editions exist for the Coutumes de Normandie. Legal historians should consult with profit the many digitized versions of incunable editions of medieval statutes indicated in the GW.

Visiting a relatively small number of digital libraries brings you to digitized editions of the Grand Coutumier de Normandie. The Bayerische Staatsbibliothek in Munich has several editions, to be found using the OPACplus database. Among important editions it is good to remember the first edition of Le grand coutumier de France (Paris 1539) with the gloss of Guillaume Le Rouillé. At the moment of writing the OPACplus is not working completely as it did. In Paris Gallica has for instance digitized Le grand coustumier du pays et duché de Normandie (Rouen 1515), and not only Tardif’s modern edition, but also another edition of the Latin version, Summa de legibus Normanniae in curia laicali ou Coutumier latin de Normandie (Rennes 1896).

The Fontes Historiae Iuris portal at Lille brings together two editions of the Norman customary law, Pierre de Merville’s La coutume de Normandie reduit en maximes (..) (Paris 1707) and L’ancienne coutume de Normandie (Jersey 1881) by William Laurence de Gruchy, recently reprinted and expanded with an English translation  by Judith Ann Everard (Saint Helier 2009). At Lille you find also easily the links to commentaries by Berault (1612), Routier (1748), Le Royer de Tournerie (1778), and also the remarkable Dictionnaire analytique, historique, etymologique, critique et interpretatif de la coutume de Normandie by Daniel Houard (4 vol., Rouen 1780-1782). The Tarlton Law Library of the University of Texas at Austin has a small but remarkable online exhibition on the history of legal dictionaries, featuring also Houard. At the Hathi Trust digital library you can find his Traités sur les coutumes anglo-normandes (4 vol., Rouen 1776). In this digital library you find also the edition by A.J. Marnier of the ârrets present in a number of manuscripts, Établissements et coutumes, assises et arrêts de l’échiquier de Normandie, au treiziéme siècle (1207 à 1245) (Paris 1839). Let’s not forget to put the law of Normandy in the perspective of the droit coutumier at large. The Centre Lorrain d’Histoire du Droit has put the four volumes of Charles Bourdot de Richebourg’s Nouveau Coutumier General (…) de France (Paris 1724) online. The center at Nancy, too, maintains the Bibliographie d’histoire du droit en langue française, no laurels needed.

The legacy of Normandy’s law

The medieval customary law of Normandy is still living law on the Channel Islands, especially on Jersey. Willem Zwalve wrote about the use of the old Norman customary law in a case at Jersey from 2001, ‘Snell vs. Beadle. The Privy Council on Roman law, Norman customary law and the ius commune‘, in: “Viva vox iuris romani”: Essays in honour of Johannes Emil Spruit, L. de Ligt (ed.) (Amsterdam 2002) 379-386, available online at the digital repository of the University of Leiden. For Jersey the study by Charles Sydney Le Gros, Traité du droit coutumier de l’île de Jersey (Jersey 1943; reprint Saint Helier 2007) has a position somewhat akin to that of works stemming from the Romano-Dutch tradition in South-Africa. At Guernsey lawyers do look for time to time to the Coutumes des bailliage, duché et prévôté d’Orléans et ressort d’iceux by Robert Joseph Pothier (Paris 1740 and later editions). The edition Paris 1780 has been digitized at Gallica. His Traité des obligations (1761) and other treatises were destined to influence the creation of the Code civil, and it is remarkable that this earlier work, too, still has its area of influence.

Large parts of the digitized French cultural heritage can be found using the Patrimoine numérique website. I looked at institutions in Normandy. Normannia is Normandy’s digital library. The Patrimoine site mentions it, but the URL of the website is lacking. As for now I could find for the field of legal history just a few things. Using the rather limited search functionality – just lists ordered by date, author and title – I did only find a small book from 1786 called Recherches historiques sur les droits de la province de Normandie and some Caen guild statutes from 1679, both OCR scanned. The Bibliothèque municipale of Caen has digitized books, but these can only be consulted on spot, and I could not reach the website. A list at Bibliopedia offers you a handy selection of French digital libraries. The municipal library of Rouen has a database with selected images, also from manuscripts. For searching literature on Normandy the Catalogue Collectif Normand can help you, as does the earlier Bibliographie Normande in the journal Annales de Normandie. Les Normands, peuples d’Europe is a portal at Caen. Dipouest is a database at the Université Rennes-2  for searching articles on the history of Ouest-France in scientific journals.

Of course I am aware that much more can be said. Just one example: the libraries of Yale and Harvard, too, have rich holdings for the history of French customary law. It has been a tour d’horizon of Normandy. If you really want to look further into French legal history you might as well have a look at the recent guide to histoire du droit en ligne created for the Jurisguide website of the Université Paris-I by Isabelle Fructus of the Bibliothèque Cujas. At the website of this library you can still visit the online exhibit on the bicentenary of the Code civil (1804-2004) which has a generous section on earlier French law, including the various coutumes.

A postscript

In November 2011 Harvard Law School announced the acquisition and digitalization of a newly found medieval manuscript of the Summa de legibus Normannie. Charles Donahue Jr. comments on the manuscript with the sigle HLS MS 220.

A guide to researching coutumes

Only belatedly I noticed the short guide to the official redaction and reform in the sixteenth century of French coutumes provided in 2009 by Isabelle Brancourt, a scholar blogging about her research on the Parlement de Paris in the eigtheenth century. She notes the bibliography by Martine Grinbert on this process of redaction, Ecrire les coutumes. Les droits seigneuriaux en France (Paris 2006).

Bibliographical information and links

Even though this is another late addition, mentioning the website of the journal Tabularia edited at the Université de Caen is useful. You will find not only digitized issues of this journal, but also a yearly bibliographical chronicle and more relevant links for the history of Normandy. The Université de Rouen has started the project Bibliothèque David Hoüard: bibliothèque numérique de droit normand with digitized works from the sixteenth century onwards on customary law in Normandy. At the website of the Université de Caen linguists have created under the title Français légal ancien de Normandie digital versions of a number of old legal texts from Normandy.

Summer holiday on a Frisian island

It is summertime, and the living is easy! Time to leave my home town, and to spend a few weeks without e-mail or internet, even without any major library, archive or museum within train, biking or walking distance. The Frisian island of Terschelling is my holiday destination for the third successive year. Legal history will not be on my mind, but a couple of days ago I realized there is a connection between Terschelling and legal history which I have mentioned several times on my blog. Is there no escape possible from Staatsbosbeheer, the Dutch National Forest Service?! You can check my March posts on the fortifications around Utrecht and the Breukeleveen duck decoy for it. Looking at the history of Terschelling yields some interesting facts on legal history, and the National Forest Service, founded in 1899 and since 1998 an independent service formerly part of the Ministry for Agriculture, is just a new element in it.

Arriving at Terschelling

The Frisian islands form a part of the fifty islands in the North Sea from the Dutch navy port of Den Helder up to Denmark. Nowadays five islands belong to the Dutch Waddeneilanden, Texel, Vlieland, Terschelling, Ameland and Schiermonnikoog. At some moments in history several Dutch islands have been abandoned because they changed into sand plates. The most eastern Dutch island in the Wadden Sea, Rottumeroog near the estuary of the river Ems, was the last abandoned island, now reserved for bird life.

Until the Saint Hubert Flood of 1287 Terschelling was not an island at all: one could reach it on foot from Frisia. Soon the island became important for the Hanseatic fleets. For centuries the city of Zwolle was in charge of keeping the sea route of the Koggediep. In 1322 count William III of Holland gave Terschelling as a fief, including the low and high jurisdiction, to Klaas Popma, a scion from a mighty Frisian family. From 1322 to 1615 Terschelling remained a fief of Holland; its archive is kept at the Dutch National Archives in The Hague. An inventory of it was made in 1976 by C.E. Schabbing, now available also online. Terschelling was ruled as a grietenij, a Frisian district. In 1482 Rienck Popma concluded a commercial treaty with the English king Edward IV. The Popma family was not the only claimant to the jurisdiction of Terschelling: the provost of the Saint Donatus at Brugge and Cornelis van Bergen competed with them in the early sixteenth century. The final possessor at the end of the sixteenth century, Charles of Aremberg, discovered he owned an impoverished island. In 1499 troops of a Frisian warlord had plundered the island, and in 1569 the castle of the Arembergs had been burnt down. In 1615 he sold it to the States of Holland. In 1666 English troops devastated Terschelling during Holmes’ Bonfire. They left only the Brandaris light house undamaged and captured a Dutch commercial fleet. For this the Dutch took their vengeance with the Raid on the Medway, the famous 1667 raid on the Thames. In the eighteenth century whaling helped the islanders to gain some prosperity.

In 1612 Terschelling had been divided into two separate municipalities. During the reign of the Dutch Patriot government, in 1805, Terschelling – Skylge in Frisian – became again a Frisian island, but in 1814 it was added to the new province North-Holland, and the island was united into one municipality. The archive of the two nedergerechten is kept at Tresoar – Frisian for treasury -, the Frisian provincial archive and library in Leeuwarden. In 1942, during the German occupation of the Netherlands, it was decided to add Terschelling again to the province of Friesland, a decision confirmed by Dutch law in 1951.

In 2009 UNESCO added the Dutch and German part of the Wadden Sea to the World Heritage List, thus acknowledging the natural beauty and ecological quality of this natural area. This surely crowns the efforts of the Dutch Waddenvereniging, the society for the protection of the Wadden Sea. Schiermonnikoog is even owned by Natuurmonumenten, the Dutch Society for Natural Monuments. Lots of tourists visit the islands to enjoy all this, and this puts a serious threat to nature. The Dutch National Forest Service takes the main responsibility to protect the rich variety of landscapes, not just the dunes, beaches, moors, woods and polders, but also the shallows, the archetypical Wadden, a wetland environment altering eternally with the tides. Pliny the Elder wrote you cannot decide what belongs here to the sea and what is definitely land. The Boschplaat, formerly a sand plate, became from 1866 onwards factually part of Terschelling, formally confirmed by the building of a nine kilometer dike between 1931 and 1937. It is now the largest natural reserve, a third part of the island.

On Texel, Vlieland and Terschelling the Dutch Forest Service leases most houses and plots (in long lease); in fact even the use of dunes for water supply is leased this way by Staatsbosbeheer. Last year they announced a very substantial increase for the rents due to them which had not been changed in fifteen years. This enormous increase threats the local economy which centers around tourism. No wonder the inhabitants and municipalities of these isles protest vehemently against this proposal. Next year the Dutch Forest Service which runs also a number of camping sites, will raise its prices there drastically, too. Complaints have been expressed in the Dutch Parliament and even at the level of the European Commission, also about the alleged policy of forcing house owners to raise the official tax value of their properties.

Ameland dimly visible from the beach of Terschelling

Terschelling is not the only Frisian island with an interesting legal history. Schiermonnikoog – literally “Island of the Grey Monks” – belonged to the Cistercian abbey of Klaarkamp near Rinsumageest. After 1580 the States of Friesland held this island as confiscated ecclesiastical property, but between 1638 and 1945 it was a privately owned island. The lords of Ameland claimed from 1424 even the status of an independent principality, a status preserved by the Frisian States in 1704 when they became the lords. Only in 1814 Ameland became fully integrated in the Dutch administration. On Amelands legal history F.A.J. van der Ven has published  ‘”It takes three generations to make a gentleman”, oftewel enige opmerkingen en mededelingen over de rechtsgeschiedenis van Ameland’, Groninger Opmerkingen en Mededelingen 25 (2008) 51-74; earlier she wrote Een omstreden eiland. De eigendom van het eiland Schiermonnikoog in geding (Ph.D. thesis, Groningen 1993).

I have skipped the period in which Jacoba of Bavaria – to English readers better known as Jacqueline, countess of Hainaut – held Terschelling as a fief, but I would like to mention the fine new biography on her by Antheun Janse, Een pion voor een dame. Jacoba van Beieren (1401-1436) (Amsterdam, 2009). I could have pointed to the longevity of the particular Terschelling form of customary rights, the nabuurschap, of which some forms still exist. The variety of small museums on Terschelling can give you a vivid image of this and much more. Archival records concerning Terschelling are present not only in The Hague and Leeuwarden. The municipal archive from 1811 on is in West-Terschelling. Thanks to the Dutch archival search portal Archieven.nl, a website with a multilingual interface, one can search at home for many records. Medieval charters from Frisia published in the Groot placaat en charter-boek…van Friesland (5 vol., Leeuwarden 1768-1793) and also the Ostfriesisches Urkundenbuch (2 vol., Emden 1878-1881) can be found at the website Cartago. Tresoar, the Frisian archive at Leeuwarden, has its own digital treasury, with for example an incunable of the Freeska Landriucht, and you can use the Digitale Historische Bibliotheek Friesland. More Frisian archives are present on Fries Archiefnet. Enough is enough for now! I am sure I will enjoy Terschelling even more than before, and I am happy that during the coming weeks I will not escape completely from legal history. I hope you have enjoyed this long post, but much more can be said about Frisia and legal history.