On Witnesses and Gifts — a very quick thought
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.
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.