Modern international law sets out that reparation should take the form, singly or in combination, of restitution (restoration of the situation which existed before the act was committed), compensation (reparation by equivalent), or satisfaction (‘an acknowledgment of the breach, an expression of regret, a formal apology or another appropriate modality’) (ILC Articles 2001, art. 34-7). Legal redress, in other words, is not just material but also symbolic. We know that this also applied to the Middle Ages, where the historiography has often been focused on the symbolic aspect with many good and well-known studies on deditio and penance by scholars such as Gerd Althoff, Hermann Kamp, Geoffrey Koziol, Rob Meens and Sarah Hamilton. Less ink has been spilt on this issue using the evidence from treaties, despite it being plentiful. As a start, I want to focus on the language of redress and the extent to which the evidence shows a differentiation between material and symbolic redress in the way the historiography seems to anticipate.
Some twelfth-century treaties seem to make a fairly clear distinction between the symbolic and material aspects of redress for wrongs. For instance, the Treaty of Toul, concluded in 1171, records how Frederick Barbarossa and Louis VII agreed that anyone employing mercenaries would be excommunicated until he had provided restitution according to an estimate of damage (‘ad probationem suam restituat’), and, additionally, had made fitting amends to his bishop (‘dignam faciat emendationem’). This difference in the language of redress is retained in the next line of the treaty stating that the archbishops, bishops and lords would march in arms against the wrongdoer and ravage his land until he had provided restitution (‘fuerit restitutum’) and made fitting amends (‘digne fuerit emendatum’) to the lord of the land. In both lines, the first phrasing more clearly refers to material reparations while the second plausibly referred to the symbolic aspect, with that made to the bishop meaning penance while that to the secular lord indicating deditio or one of the many other forms of providing symbolic redress including homage, fealty, clasping of hands or giving/exchanging the kiss of peace. Having said this, we know from the work of Henriette Benviste that at a local level, emendare/emendatio could be used to indicate a fine, paid to the lord or bishop, in addition to the compensation paid to a victim. It is possible that this might also have been the meaning in this treaty. Nevertheless, the last line in this section of the treaty seems to make clear that what was meant was symbolic rather than material redress when it states that he who has taken these brigands into his service cannot judge or swear in any court or in any dispute, until he has provided satisfaction for that which he has caused (‘rem emendaverit’). The use of emendare rather than restituere here shows that it was the public gesture of acknowledging the wrong which would transition a wrongdoer from conflict to peace, enabling him to be received back into the Christian community and resume his full societal duties and rights.
That the expectations in the Treaty of Toul reflect actual practice after conflict is clear. For instance, the Treaty of Milan (1158), concluded after a siege, refer both to the money the Milanese promised to pay the Emperor Frederick I in reparation for damages (‘pro emendatione iniuriarum’), and that the Emperor by the terms of the treaty received the city back into his favour (‘in gratiam suam recipiet’) and publicly absolved the citizens from the ban (‘publice a banno absolvet’) (The Deeds of Frederick Barbarossa, tr. C. C. Mierow, pp. 221-3). Similarly, in July 1189, having suffered catastrophic defeat, the English king Henry II renewed his homage to the French king (‘rex Anglie iterum fecit homagium regi Francie’), restoring Philip as his lord (‘quia ipse…reddiderat regem Francie dominum suum’), and agreed to pay him 20,000 marks of silver (‘Et rex Anglie dabit regi Franci viginti millia marcarum argenti’) (Howden, Gesta, ii, 70).
In the Treaty of Toul the language of redress then seems to make a distinction between symbolic and material redress, and this seemingly reflected actual practices. However, many treaties use less precise language of redress and in some treaties the language of redress had a slightly different legal (and procedural) context. For instance, the Partition of Benevento, concluded between two Lombard princes in southern Italy in the mid-ninth century, has a clause stipulating that those of Prince Radelchis’ men who had committed homicide in the part belonging to Prince Sikenolf would be handed over to the latter. If they were unwilling to give satisfaction (‘si satisfacere non fuerint ausae’), they would pay (‘componam’) Sikenolf three thousand gold byzants for ‘nobilibus’ and for ‘rusticis’ they would ‘pay according to the law (fiat compositio secundum legem).’ That the latter part of this clause referred to material redress is evident, but the ‘satisfaction’ in the first part of the sentence may at first glance appear to refer to more symbolic redress. This is, for instance, how scholars dealing with dispute resolution at the lower levels of society have frequently viewed this particular word and its derivatives. A careful reading, however, reveals that the expectation here was that if the person killed was ‘nobilibus’ satisfaction would be made with three people (‘satisfaciant illud tres personae’), whosoever Sikenolf would choose, and if the killed was ‘rusticis’, with three people from the location where the killing had taken place (‘tres personae de ipso loco, ubi homicidum fuit perpetratu’). This is unlikely to refer to making satisfaction in the sense of symbolic or material redress for committing a wrongful act, but rather it refers to the procedure of defending the accusation of having committed a wrong. In other words, the treaty anticipated that anyone accused of homicide would defend themselves with three compurgators, and if they could not, or dared not, then material redress would be made. Using the word satisfacere in this sense clearly follows usage in the Lombard laws, where, as an example, ‘satisfaciat ad Evangelia’ referred to offering an oath on the Gospels (The Laws of King Liutprand, c. 43).
Clearly then, while satisfaction has long been acknowledged as an important feature of symbolic redress at different levels of medieval society, the Partition of Benevento shows that it is difficult to use the language and terminology in treaties to make a distinction between material and symbolic redress. Perhaps more importantly, the evidence from treaties and the language of redress show that the distinction between material and symbolic redress – frequently espoused in the historiography as the difference between the ‘ritual’ and ‘legal’ aspects of conflict resolution – is artificial. Both formed an essential part of the process of how individuals and communities transitioned from conflict to peace and can be seen in a much wider context of what has become known as transitional justice in the modern period.
More on that anon.