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On Witnesses and Gifts — a very quick thought

27 December, 2011

In a comment at this ranty post about charters and witness lists, Historian on the Edge said, basically, what I have been assuming about charters for years. This makes me happy and feel far less stupid, because he is one of the smartest people I know. As I said at the time, I could have been panicking over nothing, but I think I’m not.

It comes down to this: “what exactly is a witness?”

(This is still not as clear as I’d like. I am for some reason not thinking as clearly as I’d like. I think it might be the new meds, or lack of breakfast…)

But here are the kernels of the argument, as clear as I can figure out (in no particular order):

  • Witnesses are everybody on the witness list

  • Witnesses are people fulfilling a particular legal function
  • Witnesses are people who were there
  • Witnesses were listed in order of importance and amount to which the transaction affects them
  • Witnesses may not actually have been there, but they signed or affirmed a charter later
  • Witnesses may not actually have been there, but their names were added because it was important to record that they had otherwise affirmed a charter OR because they SHOULD have been there

The thing is, not all of those things play well together. I think (or at least I think that I think, right now) that this is in part down to something that was brought up at H.o.t.Edge’s own blog a while ago: what is a gift? Our friend Isidore pointed out that it was something given. There are lots of ways to give, after all. And some of them don’t fit our notion of a gift, which we are taught to think of as something that is given without an understanding of obligatory reciprocation. Presumably to a medieval Christian (or any Christian?) the only absolutely complete gift, the only true gift, is God’s Grace. Nothing else can measure up to that.

But I sort of digress.

The point is, “thing that is given.”

I think that my confusion, and a problem in our historiography, approach, and thinking on charters and witnessing is based on a similar conflation of a noun and verb. Is a witness a person who fulfills a particular legal role — a role that can only be fulfilled by a certain type of person? That is true of some documents now, I think. In my state, for example, beneficiaries cannot witness a will. People other than the couple and the officiant have to witness a certificate of marriage. The word testis might imply that, and clearly there are readings of Rechtsgeschichte that say so. If we follow this line of thought, then some of the things in my witness lists don’t make a lot of sense: people don’t witness their own charters. They might sign them, but people don’t witness their own actions. That’s why witnesses are needed.

But…

If we see ‘witness’ as a verb, or a function (if you will, and not in the strict sense of, “the Latin clearly uses a noun”), then it makes perfect sense to have a witness list that includes a much larger number of people.

So… a witness list may not be a list of witnesses in the strictest legal sense, but rather, people who were there (or should have been there), who in some way or other needed to give their assent, consent, acquiescence, grudging acceptance, acknowledgement, etc., to the transaction. It’s not a list of “witnesses”, but rather of “people who witnessed.” This is how I’ve generally seen the names on a witness list, by the way. But I think it is problematic, because it doesn’t really account for those cases where a scribe tries to differentiate between people — although that may be evidence for the list itself being “everybody concerned” — and because, when the lists become narrower, we don’t know why. Does it reflect a change in legal understanding? in social practice? in scribal practice? We only have what we have. It’s the things our sources don’t tell us that are, I think, the most interesting questions. But I sometimes worry that I, or we, also conflate “what they don’t tell us” with “important to know,” and that might not always be true. Hmmm.

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4 Comments leave one →
  1. 27 December, 2011 10:51 pm

    I don’t know your material enough to know whether this is a test you can perform, but one question to ask might be: when a grant is contested, or otherwise revisited at court: who comes to swear as witness? In my stuff there are a few instances of what the scholars of the area call reparatio scripturae, the replacement of a now-lost document, and in some of them the original grantors come out to redo their grant, and in some others are brought to testify who were there and “heard with their ears and saw with their eyes”, and so on. But those latter are I think never the actual witnesses of the original document – because they say who was! So I think that suggests that witnessing the ceremony and being a witness to it might also be different things. The latter ensure or guarantee that the ceremony unrolls in a legal fashion (or maybe witness the document’s drafting), but anyone who was there and can remember may get brought as legal witness later. BUT, I think sometimes at big ceremonies there is also an attempt to get everyone there listed. And of course I never know how much Catalonia is any kind of model for elsewhere anyway.

  2. 27 December, 2011 11:23 pm

    An anecdote:

    We bought our house from a widow who had remarried and gone to live with her new husband. The house was hers alone and had been since the death of her first husband. Nonetheless, our lawyer asked the second husband to come along to the closing. He explained to the second husband that he thought it a courtesy to include him, even though he had no legal standing with respect to the transfer. It was my suspicion that the lawyer included him as a precaution, so that later on, perhaps after his wife’s death, he could not claim ignorance and attempt to cloud the title.

    Conjecture:

    If even in 1980s Virginia a lawyer thought it sensible to include someone with no legal standing in the transfer, it might well be that some medieval convenors would do the same. Some of the people on the witness list may have been there because their assent (or at least lack of objection) was required. Some as potential witnesses: the sort of person who was both disinterested and likely to be believed if it came to legal proceedings. But some as a courtesy or a precaution: either they’d be insulted to be excluded or could later cause trouble. It may well be that even the convenor wouldn’t be sure which category someone might fall into, just thinking that it would be good for the person to be there; the scribe would have less idea; we?

  3. Susan permalink
    28 December, 2011 5:33 am

    So this may be completely irrelevant, but as I read this I thought of the use of the term “witness” in Christian practice as someone who tells the story. This might help explain the presence of people who may not have been physically present at the granting of the charter, but who were able to tell the story.

    Sorry, I’m jet lagged, so my brain is fuzz. But if it helps…

  4. 31 December, 2011 11:39 am

    Why thank you. As it happens, I am one of the smartest people *I* know, too. Except when I am just slobbing about in jeans and a T-shirt, that is.

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