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The Medieval Globe Books
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4-2017
Legal Encounters on the Medieval Globe
Elizabeth Lambourn
De Montfort University
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LEGAL ENCOUNTERS
ON THE MEDIEVAL GLOBE
THE MEDIEVAL GLOBE
The Medieval Globe provides an interdisciplinary forum for scholars of all world
areas by focusing on convergence, movement, and interdependence. Con
tributions to a global understanding of the medieval period (broadly defined)
need not encompass the globe in any territorial sense. Rather, TMG advances a
new theory and praxis of medieval studies by bringing into view phenomena that
have been rendered practically or conceptually invisible by anachronistic bound
aries, categories, and expectations. TMG also broadens discussion of the ways
that medieval processes inform the global present and shape visions of the future.
Executive Editor
Carol Symes, University of Illinois at Urbana-Champaign
Editorial Board
James Barrett, University of Cambridge
Kathleen Davis, University of Rhode Island
Felipe FernándezArmesto, University of Notre Dame
Elizabeth Lambourn, De Montfort University
YuenGen Liang, Wheaton College
Victor Lieberman, University of Michigan at Ann Arbor
Carla Nappi, University of British Columbia
Elizabeth Oyler, University of Illinois at Urbana-Champaign
Christian Raffensperger, Wittenberg University
Rein Raud, University of Helsinki & Tallinn University
D. Fairchild Ruggles, University of Illinois at Urbana-Champaign
Alicia Walker, Bryn Mawr College
Volume 2
LEGAL ENCOUNTERS
ON THE MEDIEVAL GLOBE
Edited by
ELIZABETH LAMBOURN
Copyeditor
Shannon Cunningham
Editorial Assistant
Kelli McQueen
Page design and typesetting
Martine MaguireWeltecke
Library of Congress Cataloging in Publication Data
A catalog record for this book is available from the Library of Congress
© 2017, Arc Humanities Press, Kalamazoo and Bradford
The authors assert their moral right to be identified as the authors of their part of this work.
Permission to use brief excerpts from this work in scholarly and educational works is hereby
granted provided that the source is acknowledged. Any use of material in this work that is
an exception or limitation covered by Article 5 of the European Union’s Copyright Directive
(2001/29/EC) or would be determined to be “fair use” under Section 107 of the U.S. Copyright Act
September 2010 Page 2 or that satisfies the conditions specified in Section 108 of the U.S. Copy
right Act (17 USC §108, as revised by P.L. 94553) does not require the Publisher’s permission.
ISBN 9781942401094
eISBN 9781942401117
mip-archumanities.org
CONTENTS
List of Illustrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Editor’s Introduction to “Legal Encounters on the Medieval Globe”
ELIZABETH LAMBOURN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
The Future of Aztec Law
JEROME A. OFFNER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Land and Tenure in Early Colonial Peru:
Individualizing the Sapci, “That Which is Common to All”
SUSAN ELIZABETH RAMÍREZ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
The Edict of King Gälawdéwos against the
Illegal Slave Trade in Christians: Ethiopia, 1548
HABTAMU MENGISTIE TEGEGNE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Mutilation and the Law in Early Medieval Europe and India:
A Comparative Study
PATRICIA SKINNER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Common Threads: A Reappraisal of Medieval European Sumptuary Law
LAUREL ANN WILSON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Toward a History of Documents in Medieval India: The Encounter
of Scholasticism and Regional Law in the Smṛticandrikā
DONALD R. DAVIS, JR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Chinese Porcelain and the Material Taxonomies of Medieval Rabbinic Law:
Encounters with Disruptive Substances in TwelfthCentury Yemen
ELIZABETH LAMBOURN and PHILLIP ACKERMAN-LIEBERMAN . . . . . . . . 199
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
LIST OF ILLUSTRATIONS
Plate
Plate 1. The Edict of Gälawdéwos in its Manuscript Context:
Tädbabä Maryam, MS Wängél. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Figures
Figure 1. Mapa Quinatzin, showing legal rules, cases, and
processes in Texcoco under Nezahualcoyotl (1431–72)
and Nezahualpilli (1472–1515). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Figure 2. Mapa Quinatzin, showing legal rules and penalties for
adultery in Texcoco under Nezahualcoyotl (1431–72)
and Nezahualpilli (1472–1515). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Figure 3. Three men and three women ask for justice in Tenochtitlan.
........
16
Figure 4. Litigants appeal decisions at the Council of Moteuczoma. . . . . . . . . . . . . 17
Figure 5. Page from the memorandum written by
Maḍmūn b. Ḥasan Japheth (Aden, ca. 1135),
showing the postscriptum query about ṣīnī vessels.
. . . . . . . . . . . . . . . . . 201
Figure 6. Qingbai bowl with combed decoration, twelfth century.
. . . . . . . . . . . . 212
Figure 7. Shard fragments of fine porcelain qingbai bowls
and lidded boxes from the entrepôt of Sharma, Yemen,
spanning the mideleventh to twelfth century. . . . . . . . . . . . . . . . . . . . . . . . 213
Maps
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Map 1.
Cities in the Basin of Mexico
Map 2.
Provinces of Ethiopia, Muslim Territories,
and Major Trade Routes in the Horn of Africa. . . . . . . . . . . . . . . . . . . . . . . . . . 77
Tables
Table 1. Formal Analysis of Adultery Rules
in Texcoco under Nezahualcoyotl. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Table 2. A Comparative Survey of Western European
Sumptuary Laws, Thirteenth and Fourteenth Centuries . . . . . . . . . . . . . 149
EDITOR’S INTRODUCTION TO
“LEGAL ENCOUNTERS ON THE MEDIEVAL GLOBE”
ELIZABETH LAMBOURN
The seven arTicles
gathered in this thematic issue analyze a variety of
legal encounters ranging from South Asia to South and Central America, via the
Horn of Africa, the Middle East, and Europe. According to its founding manifesto,
connectivity is one of The Medieval Globe’s core foci: “the means by which peoples,
things, and ideas came into contact with one another” during this era.1 As a sys
tem of ideas embodied in people and enacted on bodies—and also as a material,
textual, and sensory “thing”—law has been a primary locus and vehicle of contact
across human history. Our choice of the term “encounter” further underlines the
human components of these contacts: it is defined variously as “a meeting face to
face” or “the fact of meeting with a person or thing.”2 Honing in on acts of encoun
ter has encouraged our authors to reflect on the people behind and within legal
systems, and on human encounters with various material expressions of law.
As a scholar of the “nonWest” by training, my special aim was to ensure that
work on European legal worlds would be placed alongside the varied and vibrant
research on regions elsewhere on the medieval globe. (Future issues could, of
course, broaden this lens still further, through contributions on legal encounters
in Southeast Asia and the Far East, as well as across Austronesia, Oceania, or North
America.) Of necessity, the period explored here is a “long medieval.” Contributors
engage with sources covering more than a millennium, from the fifth to the six
teenth centuries, and we have all written in full awareness of the complex and con
tested nature of periodizing categories and labels.3 Until quite recently, for exam
ple, Americanists have not embraced the term “medieval” as a descriptor for pre
contact or early colonial eras.4 For South Asia, the term has often framed by literal
or metaphorical “scare quotes,” and the same has been true for subSaharan Africa.5
1 Symes, “Introducing The Medieval Globe,” 4.
2 OED: Oxford English Dictionary, 5:215, s.v. “encounter”
3 See Davis and Puett, “Periodization and ‘The Medieval Globe.’”
4 This is changing rapidly: see, for example, Pauketat and Alt, Medieval Mississippians.
The symposium “The Medieval Americas: Violence, Religion, and Cultural Exchange before
Columbus” was convened at the University of Illinois on April 3, 2015: <http://www.
medieval.illinois.edu/events/conferences/> [accessed October 3, 2015].
5 Again, this is changing: the symposium “Medieval Africa: The TransSaharan World,
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The articles gathered here do not ignore this problem; indeed, Patricia Skinner’s
essay provides a particularly detailed survey of the term’s loose chronological
application in recent South Asian historiography and sets it against more common
European usages. But on the whole, we have chosen not to see this as a barrier to
scholarly dialogue. Nor is the need to establish points of direct contact between
many regions of the globe an impediment to the exploration of synchronous his
tories or to meaningful dialogue among scholars across these regions. Ultimately,
such comparative and methodological exchanges may lead to the elaboration of
viable alternative terminologies, periodizations, and spatial imaginaries; for now,
we aim to advance The Medieval Globe’s project of doing (as well as theorizing)
globalized medieval studies. Hence each contribution offers a different, very indi
vidual example of this praxis, unified by our shared theme.
In keeping with this ethos of encounter, only three of our authors—Phillip
AckermanLieberman, Donald Davis, and Jerome Offner—might be described as
legal historians, in the sense that the study of past legal systems constitutes, or
at one time constituted, a primary area of their scholarly training and research.
The majority of scholars writing here—myself, Susan Ramí�rez, Patricia Skinner,
Habtamu Tegegne, and Laurel Wilson—are historians who use legal sources in
our research. Some of us do so regularly; for others, this is a new engagement with
legal materials and the specialist scholarship surrounding them. Contributors also
range from wellestablished scholars to those who have only recently completed
their doctorates. All answered a call for contributions that encouraged a broad
interpretation of where and how the idea of legal encounter might be explored:
whether at the intersection of different legal systems or within a single document,
corpus, or locale; or through human representatives or practitioners of different
legal systems. They were encouraged to think about legal encounters enabled by
mobility, via mobile peoples’ dealings with “Other” legal systems (legal extraterri
toriality is a particular issue here) or in jurists’ efforts to deal with forms of mobil
ity (social, religious, economic, sexual) within their respective cultures. They were
also urged to focus on places of legal encounter as well as legal encounters with,
and accommodations of, novel ideas, people, or things.
In this issue, two articles center in different ways on one of the most geograph
ically extensive and lengthy legal encounters in human history: that between
European and indigenous American legal systems as a result of European explora
tion and colonization from the late fifteenth century onwards. Both contributions
500–1700” was held at Harvard University on February 5–6, 2015. Africa, South Asia, the
Americas, and other regions are the focus of various ongoing projects sponsored by the
Global Middle Ages Project (GMAP): <http://globalmiddleages.org/> [accessed October 11,
2015].
ediTOr’s inTrOdUcTiOn TO “legal encOUnTers On The Medieval glOBe”
focus on the frequently cataclysmic encounters that took place in the “New World,”
although the questions they raise apply wherever Europeans, their laws, or their
assumptions about law, have ventured. In “The Future of Aztec Law,” Jerome Off
ner’s aim is to recover “the substance and nature of a legal tradition developed in
the Americas in isolation from the rest of the world and now forever lost in time.”6
Offner writes very explicitly for what he calls an “Old World” audience, present
ing a historiography of Aztec jurisprudence and legal practice and outlining the
special challenges posed by surviving sources. Although some of these challenges
are unique, Offner’s discussion addresses the perennial and pervasive problem
of teasing out the interplay among established rules, jurisprudential principles,
and actual behavior: the interface between law in theory and in practice. He
also draws attention to the ways that premodern/indigenous sources have been
shaped and contaminated by modern/imperialist categories and historical meth
ods: a problem familiar to scholars in many fields. For example, his discussion of
the graphic communication system (GCS) that mediated the Nahua language and
an array of cultural practices emphasizes the extent to which the past performa
tivity of so many medieval documents and recording technologies have been lost
or overlooked. Law resided first and foremost in people, not texts, and our study
of past legal sources will always be hampered by the impossibility of direct par
ticipant observation. In many ways, Offner offers a positive model for the future of
the global medieval.
In “Land and Tenure in Early Colonial Peru: Individualizing the Sapci, ‘That
Which Is Common to All’,” Susan Ramí�rez focuses very directly on the Spanish con
quest and settlement of Inca Peru and the encounter between European expecta
tions of land ownership and administration, and indigenous concepts of land and
its occupation. Iberian newcomers carried ideas of permanent ownership rooted
in ancient and medieval European precedents to the Inca empire’s many ethnic
groups, who conceived of the earth as so sacred “that it could not be possessed in
perpetuity by anyone.”7 Ramirez’s detailed discussion of often unpublished archi
val sources conveys the complexity and nuanced nature of this encounter over the
course of the sixteenth century.
This issue’s featured source showcases Habtamu Tegegne’s study of a newly
discovered legal text, “The Edict of King Gälawdéwos against the Illegal Slave
Trade in Christians: Ethiopia, 1548.” His recent find is an important contribution
to the study of the slave trade in the Indian Ocean during this pivotal century, but
his chief concern in this essay is to examine the immediate and longer term con
6 Offner, “Future of Aztec law,” 1.
7 Ramirez, “Land and Tenure in Early Colonial Peru,” 34.
ix
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texts in which this document should be interpreted. Tegegne situates the edict
(fetha in Ge’ez) within a deep history of Ethiopian law little known beyond spe
cialist scholarship. With its layering of Coptic Christian, Islamic, and postclassi
cal RomanoByzantine elements, “the intricate and hybrid Ethiopian legal system
exemplifies the interconnections and translation processes involved in the pro
duction of normative texts in many areas of the medieval globe, the result of cross
border communication processes and a special fruit of enduring CopticEthiopian
religious ties and interactions.”8 Parallel to this, Tegegne concentrates on situat
ing the promulgation of the edict within the contemporary regional politics of the
Horn of Arica, notably the decadeslong war between the kingdom of Ethiopia
and the neighbouring sultanate of Adal. Together with Elizabeth Lambourn and
Phillip AckermanLieberman’s study of the reception of Chinese porcelain within
the rabbinic systems of Aden’s twelfthcentury Jewish community (see below),
Tegegne’s analysis reveals the western Indian Ocean to be a place of significant
and farreaching legal encounters.
Indirect legal encounters are the topic of Patricia Skinner’s contribution:
“Mutilation and the Law in Early Medieval Europe and India: A Comparative
Study.” As its title makes explicit, this essay does not rest on evidence of contact
between European and South Asian legal systems, but argues that placing them
in communication with one another enriches the study of both. Skinner reminds
us of Marc Bloch’s assertion that comparison is “a means of better understanding
one’s own area of expertise, and exposing assumptions that a model developed in
one part of the world [is] applicable, uncritically, elsewhere.”9 On one level, this is
the intellectual encounter of a Europeanist with the unfamiliar sources and legal
scholarship of South Asia; on another, Skinner’s comparative exercise allows her
to distil common aspects of the operation of law in both areas that are easily lost
in narrower contexts. She observes that, in both Europe and South Asia, “written
law mattered […] and functioned as a symbol of rulers’ authority.”10 While this may
seem selfevident, all of the essays gathered here repeatedly point to the fact that
laws are often promulgated or systematized at times of conflict, fragmentation, or
rapid social change; this suggests that it was not so much law itself than the making of law, the processes of intellectual ordering and ceremonial publication, that
mattered most. Law produced a physical, visual, and aural record of law making:
a legal thing.
8 Tegegne, “Edict of King Gälawdéwos,” 75.
9 Cited in Skinner, “Mutilation and the Law in Early Medieval Europe and India,” 117.
10 Ibid., 120.
ediTOr’s inTrOdUcTiOn TO “legal encOUnTers On The Medieval glOBe”
This point is upheld and demonstrated explicitly in Laurel Wilson’s essay
“Common Threads: A Reappraisal of Medieval European Sumptuary Law,” an
ambitious comparative analysis of the mass of seemingly inconsistent and ineffec
tive sumptuary laws drawn up in the territories of Spain, Italy, France, and England
during the thirteenth and fourteenth centuries. As Wilson cogently demonstrates,
to read these laws as instrumental—as intended to effect real change—is to miss
what they actively did. Wilson shows that the earliest bodies of sumptuary legisla
tion reflect moments of rapid social change, in particular a multiplying urban elite
or gentry that occupied an “interzone” at the juncture of older knightly classes
and the upper bourgeoisie. In this context, sumptuary laws were not intended
to control the wearing of specific types, colors, or qualities of clothing; rather,
they affirmed traditional virtues and values, and ultimately sought to maintain
the social order. The fact that they were never, or rarely, upheld and frequently
repeated and reissued illustrates the core fact that “written law mattered” for its
symbolic, ordering function.
The final two essays included here are Donald Davis’s “Toward a History of
Documents in Medieval India: The Encounter of Scholasticism and Regional Law
in the Smṛticandrikā” and “Chinese Porcelain and the Material Taxonomies of
Medieval Rabbinic Law: Encounters with Disruptive Substances in TwelfthCen
tury Yemen,” coauthored by Phillip AckermanLieberman and myself. Both turn
around the organizing role of law in the face of what has been termed the “pro
miscuous profusion” of the real world.11 In Davis’s essay, the focus is the encoun
ter between Dharmaśāstra, the Sanskrit textual corpus containing systematized
discussions of all major legal topics, and the profusion of real world documents
involved in a variety of legal processes. Taking as his starting point a key chap
ter on documents from the twelfthcentury digest of Hindu law, the Smṛticandrikā
(Moonlight on the Laws), Davis offers a new English translation of the Sanskrit
text and, with it, a close commentary on the documentary taxonomies evinced in
this source and their relationship to known documentary types. He uncovers the
palpable tensions between the digest’s “scholastic compulsion to be true to the
commentarial tradition by not elaborating further categories of document beyond
those mentioned in the accepted roottexts” and the author’s own working knowl
edge of the abundance of documentary types that existed “‘in accordance with
local standards.’”12 Working outward from this tension, Davis is keen to reinvigo
rate the study of South Asian documentary cultures, in particular by moving his
discipline “beyond vague invocations of literacy and documentary culture in the
11 Clunas, “Trade Goods, Commodities and Collectables,” 45.
12 Davis, “Toward a History of Documents in Medieval India,” 169.
xi
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eliZaBeTh laMBOUrn
singular”13 towards a more developed understanding of regionally and chrono
logically specific literacies, documentary functions, material patterns, and other
issues. Like all of the contributors to this issue, Davis writes with the nonspe
cialist in mind; and, like Offner and Tegegne, he offers a concise and cogent intro
duction to legal corpora and their study, alongside a specialist discussion of the
opportunities that they represent.
The function of law in relation to “real world” objects and concerns is cen
tral to understanding the reception of new Chinese ceramic technologies among
the Jewish communities of the medieval Middle East: the topic of the essay co
authored by Phillip AckermanLieberman and myself. This essay brings rabbinic
sources into direct dialogue with material culture through a collaboration by
scholars specializing in each of these fields. It reflects part of a broader and very
recent new direction within the study of Middle Eastern material culture, and one
more commonly applied, experimentally, within the field of Islamic law. Recogniz
ing that the objects of material culture were the product of legal processes as well
as of craftsmanship, this strand of scholarship regards objects as sites of negotia
tion between the theory and the praxis of law. In this case, we focus on the encoun
ter between material taxonomies developed within rabbinic Judaism as part of
the regulation of purity (ṭohora) and impurity (ṭuma), on the one hand, and new
ceramic technologies and types of object that did not fit these categories, on the
other. Focusing on the earliest dated and located set of questions surrounding the
taxonomic position of Chinese porcelain within this system, the article explores
the implications of these questions for the history of porcelain’s (ongoing) legisla
tion within Judaism as well as the history of ceramic exchanges between China
and the Middle East.
While ostensibly about legal encounters in the medieval past, this issue as a
whole is also very much about encounters “in the now.” Our sources have agency:
they acted in the pasts that we study; they act in the world now in multiple ways;
they act on us as we study them; and they act on others through the medium of
scholarly publication. Most prominent among these interactions, perhaps, are
the onetoone encounters between the scholars and their legal source materi
als. However, encounters among academic disciplines, methods, regions, and tem
poralities also permeate these pages. These encounters range from purposeful
crossdisciplinary collaboration, to comparative studies such as those of Skinner
and Wilson, to encounters “on the page” with other bodies of scholarship testified
in the footnotes of every contribution—and, of course, the plethora of verbal and
written exchanges among scholars, past and present, that our acknowledgements
13 Ibid., 172.
ediTOr’s inTrOdUcTiOn TO “legal encOUnTers On The Medieval glOBe”
only ever half capture. I think I can safely speak for my fellow contributors in say
ing that the process of producing this volume has helped all of us to articulate our
own standpoints far more clearly than if we wrote safely inside our own disciplin
ary confines and for our usual specialist audiences. Offner, for example, explicitly
marks his contribution as a place of encounter between the lost legal tradition he
studies and the nonspecialist readership to which he reaches out. Each of these
essays constitutes an act of scholarly generosity in digesting a complex body of
sources and scholarship for the benefit of new audiences.
In important ways, these essays also call attention to renewed encounters
with indigenous and premodern legal systems. In Mexico, a new generation of
contemporary Nahuatl speakers is returning to Aztec legal sources with new
questions and frames of reference. All over the world, rabbinic texts dating back
to antiquity continue to guide the behavior of observant Jews and to frame their
relationships with almost every material object in the (post)modern home. In all
of these encounters, the legal past is very much alive in the present. Recognizing
this helps to underline the vibrant range of research being undertaken on, and
from, legal sources. There is no human society that does not have law in some
form, and there is a rich and growing body of scholarly work examining legal cul
tures around the medieval globe. Yet while some of this work is being undertaken
within the discipline of legal history strictly defined, more often it is in the writing
of other medieval histories that fresh questions about the nature and function of
law and the creation of “legal worlds” are emerging. This makes for stimulatingly
diverse interpretations of law’s place in medieval studies, but it can also impede
exchanges between regional specialists and among disciplinary specializations,
lessening the overall impact and utility of this research. This issue of The Medieval
Globe is accordingly designed as a space of encounter for scholars of law in all its
aspects, in any context, and from diverse perspectives.
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Elizabeth Lambourn (elambourn@dmu.ac.uk) is Reader (Associate Professor)
in South Asian and Indian Ocean Studies at De Montfort University in the United
Kingdom, where she works on diverse aspects of mobility in the precolonial
Indian Ocean world. Coming to history from a background in the study of material
culture, her research is particularly focused on the identification and study of new
material archives and on Indian Ocean materialities.
Abstract This introduction presents and draws together the articles and themes
featured in this special issue of The Medieval Globe, “Legal Encounters on the
Medieval Globe.”
Keywords Law, legal systems, jurisprudence, global studies, medieval studies,
encounter, connectivity.
THE FUTURE OF AZTEC LAw
JEROME A. OFFNER
The year 2019 will mark half a millennium from the Spanish intrusion into
central Mexico. Throughout this region and beyond, the Spaniards encountered a
great world civilization, enormously complex and ancient, some small portions of
which a few members of their society managed to record, motivated by conven
tional religious, economic, political, and legal concerns, although often as well by
fascination with what they encountered.1 As the postcontact society and economy
changed, more rapidly in some areas than others, asserting and ascertaining the
content of precontact Aztec law became a vital concern of Spanish missionaries,2
colonists, colonial administrators, surviving indigenous elites, and indigenous
communities.3 Although the fate of indigenous law under the new Spanish hegem
ony is a compelling topic in itself,4 this article is concerned with recovering the
substance and nature of a legal tradition developed in the Americas in isolation
from the rest of the world and now forever lost in time. What we can know of this
unique tradition, nevertheless, remains of interest to millions of contemporary
Nahuatl speakers in Mexico as well as to Mesoamerican researchers and all schol
ars interested in comparative legal systems.
In the 1980s, I published a monograph and a series of articles on Aztec law,
concentrating on the city and small empire of Texcoco, where documentation on
precontact law was most plentiful. Although I was careful to communicate the
dynamism, factional disputes, and change in the Texcocan system in these works,
1 Townsend, The Aztecs; Coe and Koontz, Mexico; and Smith, The Aztecs, provide broad and
detailed descriptions of the civilization encountered, although there is no consensus view on
many of its aspects.
2 The term “Aztec” has increasingly been replaced by the name of the hegemonic ethnic
group, the Nahua (see below), in spite of the fact that there were many ethnic groups in
the region (e.g., Otomi, Totonac, Tepehua, etc.), often successfully living together, although
generally (but not always) under Nahua rule. The Nahuas were not themselves a unitary
group; subgroups exhibited significant cultural and linguistic differences that often, in
conjunction with differing economic interests, led to armed conflict. In this article, “Aztec”
will generally be employed to emphasize the political and legal administration of this multi
ethnic situation.
3 Gibson, The Aztecs under Spanish Rule, remains the classic study in this respect, along
with later work by Garcí�a Martí�nez, Los pueblos de la Sierra.
4 E.g., Cline, Colonial Culhuacan; Kellogg, Law and the Transformation of Aztec Culture;
Megged, “Between History, Memory, and Law.”
2
JerOMe a. OFFner
I reemphasized these aspects in an article in 1993 on interstate and intrafamilial
killing as vigorously pursued by the elite in Aztec societies.5 Although Mesoameri
can studies have continued to develop in the past two decades, no other investiga
tor primarily interested in precontact Aztec law has emerged, with the exception
of Carlos Brokmann Haro.6 In almost all other instances, Aztec law continues to
be mentioned only in decontextualized fragments. Meanwhile, some investiga
tors (such as Frederic Hicks and Pedro Carrasco) have persisted in declaring what
the content of Aztec law must have been as determined by their own Marxist and
Polanyist ideologies, especially with regard to land tenure and political structure.
Other investigators have taken an empirical approach to the available data, reveal
ing the nuances and complexities found in reality.7 In one of Hicks’s last articles,
for example, we see him working to reconcile the richness of detail regarding land
tenure, as reported in sources from Tlaxcala (just outside the Basin of Mexico),
with the strictures of his ideology.8
Perhaps the major current tendency, however, has been to mistake reports of
Aztec laws,9 whether in pictorial or alphabetic form, for the entirety of the Texcocan
legal system,10 with little consideration given to the evident but poorly understood
intricacies of Aztec jurisprudence and how it varied from town to town across the
empire.11 It is, in fact, in the richness of reports of precontact indigenous behavior
5 See comments below on limitations on the power of Aztec rulers.
6 Haro, La estera y la silla. This short monograph is essentially an extended review of
published work, rather than the product of original source research. Nevertheless, it follows
and presents both legal and anthropological issues well while deftly contextualizing the
Aztec legal system with special attention paid to the interests of Mexican readers. Some
areas of agreement and a few areas of disagreement with this valuable study are mentioned
below.
7 E.g., Harvey and Prem, Explorations in Ethnohistory; and Cline, Colonial Culhuacan.
8 Hicks, “Land and Succession in the Indigenous Noble Houses of SixteenthCentury
Tlaxcala.”
9 Or, more specifically, what may or may not be legal rules: see below.
10 Lee, “Reexamining Nezahualcóyotl’s Texcoco” and Allure of Nezahualcoyotl. See also
Mohar Betancourt, Códice Mapa Quinatzin.
11 Haro understands the importance of appreciating and analyzing the Aztec legal
system as more than just a list of legal rules. Nevertheless, he unaccountably believes that
adherence to legal rules in precontact Mexico was so strong that “true jurisprudence”
(jurisprudenica verdardera) could not develop: La estera y la silla, 13–14, 94. (The use of
“true” when coupled with a modern Western understanding of a concept usually signals a
lapse into ethnocentricity by a modern Western writer insisting that the cultural concepts
of “the Other” should be the same as or very similar to modern Western concepts.) On the
contrary, numerous reports regarding the creation and application of law in rapidly changing
The FUTUre OF aZTec law
that we can begin to appreciate the interplay between legal rules,12 jurisprudential
principles, and everyday conduct among the Aztecs, as well as the actual behav
ior within and attitude towards the legal system. At the same time, we can gain
hints regarding how the various legal systems regarded plaintiffs and defendants
and how legal process actually functioned. Such sources also record social discord
and dysfunction, as well as cohesion; and the intersection of indigenous concep
tions of law and morality.13 Chief among these are the works of Fray Bernardino
de Sahagún, a Franciscan friar who worked with indigenous informants in the six
teenth century to produce an encyclopedic account of Aztec culture.14
This necessarily brief article is written for specialists in Old World medieval
studies and is intended to: introduce the nature of and the challenges involved in
interpreting the surviving materials; highlight some interesting aspects of Aztec
law and society; and suggest fresh approaches to Aztec law, given new tools avail
able for research on Mesoamerica. The relative paucity of information compared
to other vanished legal systems, especially in the areas of case law, legal process,
and jurisprudence, presents many problems for students of comparative law; but
perhaps specialists can also find here new avenues of research into this distinc
tive legal tradition, a last representative of precontact jurisprudential thought and
Aztec society, a few of which are cited below, make it clear that jurisprudential thought was
both sophisticated and highly valued among the Aztecs. The reputation of Nezahualcoyotl,
the ruler of Texcoco (1431–72), rested in considerable part on his success in redesigning
and managing the legal system of Texcoco during tumultuous and divisive times. Specific
instances of legal reasoning, where legal rules did not fit the facts of a precontact case, can
sometimes be found carefully recorded across the contact boundary decades after the case
occurred. In addition, there were many regular meetings of legal personnel in which difficult
cases could have been discussed and decided both among themselves and in consultation
with the rulers, e.g. Offner 1983: 56.
12 E.g. Offner, Law and Politics in Aztec Texcoco, p. 56. “Legal rules” (leyes) were nahuatīlli
in Nahuatl, a noun derived from the verb nahuatiā, “to give orders to someone” (Karttunen,
Analytical Dictionary of Nahuatl, 157). It is worth noting that the verb nāhuati, “to speak
clearly,” and the noun nāhuatl, “something that makes an agreeable sound,” are distinguished
from the first pair of words by a long initial vowel ā instead of a short a.
13 See Burkhart, Slippery Earth, for the best description of Aztec mores and morality.
14 Sahagún’s account of Aztec culture includes extensive parallel passages in Nahuatl
and Spanish. His efforts were directed at eliminating Aztec religious practices by better
understanding them, but the enthusiasm of his informants was clearly contagious, and
all manner of data was incidentally collected along with the targeted information the
informants chose to share. See Klor de Alva, Nicholson, and Keber, The Work of Bernardino
de Sahagún; and León Portilla, Bernardino de Sahagún. Calnek, “The Sahagún Texts,” presents
an early and still very useful series of observations on indigenous and Spanish biases and
perspectives in Sahagún’s work.
3
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JerOMe a. OFFner
practice in what came to be called the New World. They may also find that the
problems and methods surveyed here are applicable to sources produced in other
areas of the medieval globe.
The Nature of the Sources on Aztec Law
and Two Introductory Examples
The remnant sources of precontact Aztec law are found principally in:15 a few
dozen Spanish alphabetic texts produced by Spanish colonists and Nahuas;16 per
haps two dozen published alphabetic texts of the Nahuas, produced in their lan
guage, Nahuatl; and several dozen published documents produced by Nahuas
employing a sophisticated graphic communication system (GCS) that was far
more complicated in its messaging than linear text.17 In addition, some alphabetic
15 This article does not provide a catalogue of such sources, both because of their number
and the deep contextualization of law in many sources. The numbers provided above are
rough approximations made more imprecise by the difficulty in separating reports of
precontact Aztec law from indigenous law as it developed in the colonial period. The major
sources of Aztec law are mentioned in this article, its bibliography, and in Offner, Law and
Politics in Aztec Texcoco. However, there are occasional mentions of indigenous law in the
161 reports from towns where Nahuatl was spoken, compiled in the Relaciones Geográficas
series (see Cline, “The Relaciones Geográficas”; Harvey, “The Relaciones Geográficas”).
The Handbook of Middle American Indians (vols. 12–15) and Supplement to the Handbook
(vols. 3–5) remain the definitive guide for sorting through the many hundreds of available
published sources to identify candidates possibly containing information on precontact
Aztec law. In addition, colonial archival and communityowned materials, including
pictorial manuscripts, are continually being brought to light with many finding their way to
publication.
16 As noted above (n. 2), the Nahuas were and are a diverse group of speakers of Nahuatl, a
member of the UtoAztecan language family. Representatives of this group are found in the
North American West (e.g., Shosoni, Comanche, Hopi) and Mexico (e.g., Yaqui, Cora, Mayo,
Huichol). Exactly when Nahuas arrived in Mesoamerica remains controversial: see Dakin
and Wichmann, “Cacao and Chocolate.” They did not enter in a single wave and the last surge
of migration, after ca. 1100 CE, was very likely motivated by extended drought conditions
and the perception of richer societies and more comfortable living conditions further to
the south—reasons sometimes mentioned in the indigenous sources. Among the members
of this last wave of migrants were the Mexica who founded Tenochtitlan and eventually its
empire. The Nahuas were not the only immigrant group in the region. Texcoco was founded
by groups of unknown linguistic affiliation whose later ruler, Techotlalatzin (ca. 1377–1409)
was credited with declaring Nahuatl the official state language. See Offner, Law and Politics
in Aztec Texcoco, 37.
17 Appreciation of the complexity of this graphic communication system has been
enhanced recently by the groundbreaking work of Katarzyna Mikulska (“‘Secret Language’”
The FUTUre OF aZTec law
sources were based on Nahua documents that had been originally produced using
their GCS. The distinctive nature of this evidence shapes the modes of argumenta
tion as well as what can be said or hypothesized about the Nahua legal tradition.
To illustrate the complexities of these historical materials and the methods
developed to deal with them, we will consider two examples from the available
sources: an early Spanish source based on indigenous pictorial manuscripts and
accompanying oral performances, and a slightly later indigenous pictorial source
rendered in the Nahua GCS, although with a degree of Spanish influence. This pair
of examples will begin to illustrate the range of both difficulties presented and
possibilities offered by the data.
The first example comes from the last pages of the Historia de los Mexicanos por
sus pinturas (History of the Mexicans through Their Paintings).18 This document
can be dated to about 1535,19 or within a generation of the Spanish intrusion. And,
as its title implies, it is written in Spanish and based on documents prepared in the
Nahua graphic communication system. The author of the document, perhaps the
early and celebrated Franciscan missionary Fray Andrés de Olmos, tells us that he
compiled the report from various libros y figuras (books and images) presented
and explained to him by viejos (old people) who had held indigenous religious and
political positions and who had therefore been present when texts and images
had been used in performance.20 Such coordination between indigenous written
and oral performances was vital to the Nahua GCS, and the complexity and volume
and Tejiendo destinos), with some aspects of it being applied to nonreligious documents by
Offner (“Ixtlilxochitl’s Ethnographic Encounter”). Although glyphs are found in considerable
numbers in such important historical documents as the Mapa Quinatzin or Codex Xolotl
(Códice Xolotl, ed. Dibble), they provide only a portion of the meaning communicated. Most
of the messaging is accomplished by richly generative sets of standardized images arranged
in similarly richly generative standardized methods on pages or in sculptural compositions.
These compositions have usually been casually swept into the Western conception and
classification of iconography. Although writing is usually taken to involve sets of signs of
similar size in some form of alineation, the Nahua GCS challenges this definition. Further,
these documents were only a part of an overall communication system that coordinated
them with oral presentation and performance, with the ultimate meaning tailored to the
composition of the audience. The deliberate multivalence of this system also facilitated
geopolitical analysis, diplomacy, warfare and other forms of statecraft, as well as negotiation
for rights to land, labor and tribute in both the precontact and postcontact eras. See
Offner, “Exploring”; “Improving Western Historiography”; and “Ixtlilxochitl’s Ethnographic
Encounter.”
18 Historia de los Mexicanos por sus pinturas (ed. Garcí�a Icazbalceta), specifically 258–62.
19 Gibson and Glass, “A Census,” 345.
20 Historia de los Mexicanos por sus pinturas, 228.
5
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JerOMe a. OFFner
of information that could be communicated in this way was more similar to the
multimedia environment of a play or a movie than to the experience of reading a
linear alphabetic text, which had little hope of capturing more than a small portion
of either the intended or available meanings.
The effort of understanding this alien communication system is rewarded
by far greater insight into Aztec and Nahua cultures, which require a departure
from persistent Western textcentric notions of the (largely illusory) advantages
ascribed to linear text, such as the supposed lack of ambiguity in such texts or
beliefs that such texts enjoy fixed meanings across time. For example, the Span
ish descriptor libros (books) used to describe the objects presented to the author
of the Historia is misleading, since common forms of written documentation in
the precontact era were screenfolds, or individual pages of indigenous paper or
animal skin. To confuse matters further, any Mesoamerican document, precontact
or postcontact, with even a minimal amount of illustration has come to be known
as a códice (or codex), although only a very few postcontact works actually take
the form of a codex.21 Most, if not all, indigenous written compositions were not
designed to be read from end to end, but served instead as reference or source
books. Furthermore, indigenous documents were not the statement or source of a
fixed and set text but were instead bases for explication, explanation, justification,
and elaboration of themes both visible on the page and known in the culture. The
Nahua graphic communication system thus allowed both specific and nonspe
cific messages to be conveyed, depending on the associated oral presentation of
the experts communicating the content of a document. Certainly, the document’s
content limited the range of possible presentations, and glyphs might name par
ticular places and people and dates might be specified, further limiting possible
interpretation and presentation, but it is unlikely that any one presentation of an
indigenous document was identical to another.22
In the context of Nahua studies, the Historia de los Mexicanos por sus pinturas
is therefore a very early and valuable source based on, but containing only a small
portion of, what was available in the (now lost or dead) indigenous sources and
people from which it was derived. Yet its legal content has been little studied. It is
also of particular interest because it is the recording of an ethnographic encoun
ter between a Spanish priest and a group of indigenous experts that serves as a
striking memorial of the gulf that persisted between the Spaniards and the Aztecs
more than a decade after first contact. Most of the insights into Aztec culture must
be obtained from inference and through indirection.
21 See Boone, “Aztec Pictorial History.”
22 See Mikulska, “‘Secret Language.’”
The FUTUre OF aZTec law
Map 1. Cities in the Basin of Mexico. The inset shows the scribe named Coatl
(“Serpent”), who arrived in Texcoco with his people, the Tlailotlaque, during the reign
of Quinatzin (which ended ca. 1377) and who was carefully depicted in the Codex
Xolotl more than a century later, by a successor and perhaps direct descendant (Paris,
Bibliothèque nationale de France, MSS mexicain 1.1). Contour lines and city locations have
been adapted with permission from Jeffrey R. Parsons, Prehispanic Settlement Patterns in the
Texcoco Region, Mexico (Ann Arbor: University of Michigan Museum of Anthropology, 1971), 4.
7
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JerOMe a. OFFner
The legal materials included in this source begin with the ruling dynasty of
Tenochtitlan (now part of Mexico City; see Map 1), which came to be the most
important Aztec city well before 1519. In this section, a ruler is named, along with
length of rule; for example, Acamapichtli (ca. 1376–ca. 1396)23 is considered the
founder of the Mexica ruling line in Tenochtitlan, so his reign of twenty years is
noted along with what can be described as legal decisions, as well as jurispru
dential considerations and their supporting rationales, as elicited from the Nahua
witnesses by the Spanish author.
The first legal decision mentioned involves two women who had sex with
each other. Some legal process is detailed: they were stoned at a certain place
near the most powerful city of the time, Azcapotzalco, after the ruler of that city
had informed and gotten agreement first from the ruler of Coatlinchan and from
Acamapichtli of Tenochtitlan, which was probably the least important town of the
three at that time. A second decision arose from the death of the brother of the
ruler of Azcapotzalco, the powerful Tezozomoc (ca. 1371–ca. 1426). He married
his brother’s widow, but she went to the nearby town of Xochimilco and had sex
with a man, and the same three rulers as before had ordered them to be stoned.
The Spanish author then states—dicen (they say), referring to his informants—
that it was costumbre (the custom) that a widow should only marry her husband’s
brother, thus making a distinction between law and custom. Left implied is exactly
why the two were stoned—the commission of a maldad (wicked act/perversity) is
the only offense mentioned—but since it occurred after the ruler Tezozomoc had
taken her as his wife, the offense was presumably adultery, for which the penalty
was often stoning. We next learn that if a woman married someone other than her
husband’s brother, any lands and what they contained would be taken from her.
This is not conveyed so much as a legal decision but as a standard administrative
procedure, clearly to preserve resources among consanguineal kin. We know that
land could be attached to offices, to entities, or owned by individuals, including
women, with bundles of rights and duties attached to each situation, but we are
not told what types of land were involved in this case.24 Thus, we can already see
legal process and decisionmaking, along with administrative procedure, in opera
tion at this time and in relation to prevailing custom, all within a multiethnic, if
small, imperial structure centered on the city of Azcapotzalco. It is worth noting
23 The regnal dates of the first three rulers of Tenochtitlan are not precise but fall within a
fairly narrow margin of error when available sources are collated and compared: see Boone,
“Aztec Pictorial History,” 38, 152–53. Here, I reference the indigenous dates painted in the
Codex Mendoza.
24 Offner, Law and Politics in Aztec Texcoco, 93, 114, 124–39, 143–44, 146–47, 151, 167,
170–71, 205–6, 214, 217, 219, 222–23, 245, 279.
The FUTUre OF aZTec law
that these cases are reported as historical occurrences and not as hypothetical
examples for jurisprudential contemplation, although perhaps the informants
sought to engage the Spanish author in such an exercise by providing such striking
examples. The friars’ persistent interest in and puzzlement with regard to indig
enous sexual behavior and mores must have been obvious to the Aztecs by the
time of this interview.
As mentioned above, the Historia de los Mexicanos por sus pinturas was the
product of a new and daunting ethnographic interface, involving translation not
merely of Nahuatl to Spanish, hardly ten years after first contact, but also the
translation and comprehension of complex pictorial documents and oral perfor
mances. It is unlikely that the indigenous experts were allowed to develop their
full oral performances on particular topics,25 and the lack of shared knowledge
evidenced by the Spanish priest as he failed to engage with them productively in
expected ways must have been deeply disturbing and dismaying to the experts
as evidence of his appalling ignorance and lack of proper education. In addi
tion, little evidence of systematic questioning guided by Western legal training
can be detected in the testimony of the Spanish author.26 The linked mentions
of administrative procedure and custom in response to the case involving the
ruler of Azcapotzalco’s brother’s widow illustrate the complexity of information
generated by this ethnographic encounter, yet the author could only capture a
fraction of this information in his alphabetic script. The incomplete descriptions
of the legal cases and supporting jurisprudential thought, therefore, whether in
this or in other documents, were a product of inadequate ethnographic investi
gation and recording rather than defects or lack of sophistication in the indig
enous legal system. Further, the Spanish author had his own deeply inculcated
sexual mores and, as noted above, was trying to understand those of the Nahuas.
What we are seeing in this document, therefore, are notes on those aspects of the
interview that proved most striking and interesting to the interviewer; they were
not intended to be an adequate description of Nahua jurisprudential thought or
legal practice. I would suggest that what we see here is a typical “zeroing in,” by
25 We do not know how such oral performances were conducted; however, they involved
specialized language and gestures including song at times. Nevertheless, the entire process
would have been stunted by the lack of acculturation of the Spanish friar.
26 Alonso de Zorita (1512–88), a Spanish jurist with varied New World experience, was
in Mexico from 1556 to 1566: Warren, “Introductory Survey,” 73–74. This source provides
the best Westernderived analytical insights into Aztec law. Although by Zorita’s time
legal content and procedures had changed considerably, he brings out the complexity of
indigenous jurisprudential thought to a greater extent than other Spanish sources: Zorita,
Breve y sumaria relación.
9
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JerOMe a. OFFner
Spaniards, on legal rules as something easy to extract (that is, to decontextual
ize) and “understand,” however flawed that resulting understanding might have
been. When the History later turns to the cataloguing of legal rules, interpretive
problems caused by the resulting simplification and decontextualization of infor
mation become even more acute. The lost performative content of Aztec law con
tinues to be a key problem in its interpretation by the modern Western scholarly
tradition of legal study.
In contrast to this initial interest in sexual behavior, the document also details
three crimes involving maize, an important and sacred food crop for the Nahuas.27
Two boys stole maize seeds that had already been planted. They were sold as
slaves,28 and the price of five mantas (pieces of woven cotton cloth, a medium of
exchange or tilmatli) was given for each.29 A more complicated case involved a
woman who was observed stealing maize from a granary by a man who demanded
sex from her in exchange for silence. She submitted to his demand, but he revealed
her theft anyway. She then reported the whole story, and the man was given as a
slave to the owner of the stolen maize while the woman went free. We are left to
guess at the details of the jurisprudential reasoning in this fascinating case. In the
third case, two boys each stole five ears of corn while they were forming kernels or
grains. They were ordered to be garroted because stealing maize in this condition
was considered worse than stealing maize that had not yet formed any kernels.
During the reign of Huitzilihuitl (ca. 1397–ca. 1417), the History again returns
to sexual behavior, and we are told that a man from Texcoco discovered his wife
with a priest in the temple only three days after she had given birth. The three
rulers condemned the woman to death, but no punishment for the priest is men
tioned. In another case, a man killed his wife’s lover but not the wife herself, and
then reconciled with her, for which both he (as murderer and usurper of the
state’s authority) and she (as an adulteress) were executed.30 In the following
reign of Chimalpopoca (ca. 1418–ca. 1427), we are told that a woman encoun
tered a drunken man of whom she took sexual advantage; she was stoned, but the
man was not punished. In a final return to crimes of theft, we learn that a man put
another man to sleep with a spell and stole all the grain in his granary, with the
help of his (the perpetrator’s) wife. That couple was then executed for the crime.
27 Nicholson, “Religion in PreHispanic Central Mexico,” 401, 416–19.
28 There is still no thoroughgoing study of Aztec slavery as an economic and legal institution,
leaving a significant investigational avenue open for future scholarship.
29 See Anawalt, “Costume and Control.”
30 For an analysis of Aztec adultery law, see Offner, Law and Politics in Aztec Texcoco,
257–66.
The FUTUre OF aZTec law
We are next provided with a closing pair of what may be legal rules or jurispru
dential principles that caught the author’s fancy: a man could be enslaved for
stealing a turkey but not a dog,31 because it was said the dog had teeth to defend
itself.32
After brief military, genealogical, and political interludes, the Historia offers a
list of what are specifically said to be leyes (legal rules). Five involve conduct in war
and military legal process. The author records that one of five captains (who were
also acting as judges) “investigated the offenses and painted them” (se informaba
de los delitos y los pintaba) and then shared the images with the other four cap
tains and the ruler.33 Here we see the capacity of the Nahua GCS to be highly spe
cific when required and also its reliability as evidence produced in court. If all
agreed that an offense had been committed, five other officials carried out capital
punishment. Eighteen legal rules then deal with commercial offenses, including
theft, illegal sale of property, failure to repay a loan, and dealing with and in slaves.
Three (or four) legal rules involving drunkenness follow, and the list concludes
with two legal rules regarding incest, two more dealing with sexual offenses, and a
jurisprudential observation that the only sufficient proof for adultery was finding
the guilty parties together, at which point they would be stoned publicly.
Closely related portions of this report appear in another document, Estas son
leyes que tenían los indios de la Nueva España, Anáhuac o México (These are Laws
that the Indians of New Spain, Anahuac or Mexico Had). This document can be
securely dated to 1543 and attributed to a priest in Valladolid (Spain).34 It men
tions that some of the same legal rules we have just surveyed were not authentic,
because they were derived from a nonauthentic indigenous libro.35 It then reports
additional sets of legal rules that probably have a Texcocan origin.36 Texcoco was
31 In indigenous testimonies, the term gallina (hen) refers to a turkey hen; chickens were
a Spanish import.
32 Here, one can detect the possibility that the informant was deceiving the Spanish author
in some of the interviews on which he drew to compose this section, perhaps facilitated
by the author’s interest in the more striking scenes in the pictorial source, especially those
involving sex.
33 Historia de los Mexicanos por sus pinturas, ed. Garcí�a Icazbalceta, 260.
34 Estas son leyes, ed. Garcí�a Icazbalceta, 315.
35 Ibid., 310.
36 The fourfold division of the legal rules in this text matches, to some degree, the legal
jurisdiction of the four Texcocan councils: Offner, “Distribution of Jurisdiction.” The
description of a war declaration procedure for rebellious subject rulers and towns also
matches the war declaration scene in the Mapa Quinatzin, leaf 3 (fig. 1, col. 2, row 2) more
closely than any other description except for Ixtlilxochitl’s report: Offner, “Aztec Legal
11
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JerOMe a. OFFner
the second most important Aztec city at the time of contact and was renowned
for its legal expertise, beginning with the ruler Nezahualcoyotl (1431–72) and
continuing under his son Nezahualpilli (1472–1515). The claim of inauthentic
ity, then, may have to do with comments made by the informants of the author of
Estas son leyes, arising from rivalries between the elites of Texcoco and the more
powerful Tenochtitlan, which carried over from precontact times into the Spanish
colonial political and legal systems.37 It is certain that Nahua towns could have dif
ferent legal hierarchies, legal processes, legal rules, and jurisprudential thinking.38
At this point, it is instructive to consider the second example of an indigenous
source, the Mapa Quinatzin (Figure 1) from Texcoco.39 This document was com
posed in the Nahua GCS but with some Spanish influence in its composition.40 We
do not know why it was prepared. Possible purposes and uses range from indig
enous court recordkeeping and legal instruction to a presentation piece intended
for a Spanish audience. Further, we cannot determine how closely its presenta
tion of legal rules and precedents followed precontact indigenous practice. We
do know, however, that Toribio de Benavente Motoliní�a (1482–1568), an early
Franciscan missionary and perhaps the most acute ethnographer of the immedi
ate postcontact period, was able to apprehend a great many legal rules from Tex
coco by consulting indigenous documents prepared with the Nahua GCS. It would,
he said, take a few explanations to understand them, and these were sometimes
supplemented by additional consultations with un buen maestro (a good master).41
Another outstanding selftrained ethnographer from a halfcentury later, Fer
nando de Alva Cortés Ixtlilxochitl (d. 1648), tells us that Nezahualcoyotl promul
Process.” At least three other legal rules are closely related to the legal vignettes in the Mapa
Quinatzin, leaf 3 and leaf 2 (the flight of a slave into the palace to obtain freedom).
37 Offner, “Dueling Rulers.”
38 Here, I take issue with Jongsoo Lee, who attempts to argue that the legal system was the
same in all towns: “Reexamining Nezahualcóyotl’s Texcoco.” This is part of a larger revisionist
agenda that attempts to strip Nezahualcoyotl of any individual authorial agency, whether in
jurisprudence or poetry/song: an argument founded on faulty pictorial document readings
and lack of sound ethnographic and historiographic methodology.
39 The Mapa Quinatzin consists of three extant paper leaves, all now kept in the Biblio
thèque nationale de France. The first depicts early Texcocan history; the second portrays
some aspects of Texcocan political and legal structure and administration. The third
(Paris, Bibliothèque nationale de France, MS Mexicain 396) describes the legal content
discussed here. A highresolution digital image can be found online at <http://gallica.bnf.fr/
ark:/12148/btv1b10303825m> [accessed September 4, 2015].
40 See Lesbre, “Manumission d’esclaves”; “Mapa Quinatzin”; and “Los fuegos del Palacio Real.”
41 Motoliní�a, Memoriales, 359.
The FUTUre OF aZTec law
Figure 1. Mapa Quinatzin, portion of leaf 3: showing
legal rules, cases, and processes in Texcoco under
Nezahualcoyotl (1431–72) and Nezahualpilli (1472–1515).
Paris, Bibliothèque nationale de France MSS mexicain 396.
gated eighty laws and that jurisdiction over these laws was divided among four
councils in Texcoco.42
The appearance of the legal vignettes in the Mapa Quinatzin (see Figures 1
and 2), then, may or may not be similar to what Motoliní�a, or the author of Estas
son leyes, used to write their compilations of legal rules. They begin after a strip at
the top of the leaf, filled with historical information, including town conquests and
42 Ixtlilxochitl, Obras historicas, 2:101. The author was a castizo (three quarters European,
one quarter indigenous American) and descendant of Nezahualcoyotl of Texcoco, although
his family was from nearby Teotihuacan (not to be confused with the great Classic Period
site of the same name). He became fascinated by the history of Texcoco by his twenties
and, working closely with a variety of native informants and well as Spaniards, produced
the best known explication of an indigenous pictorial document, the Codex Xolotl, itself the
greatest surviving example of Nahua historiography. For complementary examinations of his
at times astonishing linguistic, cultural, and ethnographic expertise and accomplishments,
see Whittaker, “The Identities of Fernando de Alva Ixtlilxochitl”; Offner, “Ixtlilxochitl’s
Ethnographic Encounter.” The Nahuas employed a vigesimal counting system, so twenty or
“one count” of legal rules for each council would make a pleasing symmetry, although the
evidence for such distribution of jurisdiction can only be partially assembled. See Offner,
“Distribution of Jurisdiction.”
13
14
JerOMe a. OFFner
Figure 2. Mapa Quinatzin, leaf 3, column 3:
showing legal rules and penalties for
adultery in Texcoco under Nezahualcoyotl
(1431–72) and Nezahualpilli (1472–1515).
Paris, Bibliothèque nationale de France
MSS mexicain 396.
a conversation (to the right) between the
rulers of Texcoco and Tenochtitlan. This
narrative appears to be a continuation of
a prior page (perhaps leaf 2 of the map,
or an entirely lost folio). Underneath this
strip are four columns containing legal
information. The grid organization is like
no other part of the Mapa Quinatzin and
has its closest analogues in the types of
documents priests used to generate prog
nostications of individual lives, based on
dates of birth, or the marriage prognos
tication pages in the Codex Borgia.43 The
items within each column are similar, but
it is initially unclear whether the columns
are to be read from top to bottom or vice
versa; or from right to left, or left to right;
or whether they are to be read in any set
order at all.44 Probably, as is the case with
the more complicated Nahua documents, such as the Texcocan Codex Xolotl, or the
screenfolds used for prognostication, they were to be contemplated all at once as an
organized extracted fragment of an interlocking system of thought—jurisprudential
in this case, from which examples could be drawn for various instructional purposes.
43 Codex Borgia, 58–60. A digital edition of the exquisite Codex Borgia (Rome, Biblioteca
Apostolica Vaticana, Borg. Mess. 1) is available at <http://digital.vatlib.it/en/view/MSS_
Borg.mess.1> [accessed September 5, 2015].
44 The marriage prognostication pages in the Codex Borgia, for example, are ordered by a
sequence of numbers used for prognostication, from two to twentysix. Twentyfive vignettes
related to each of these numbers are arranged across the three pages in boustrophedon
fashion, beginning with two on the lower right of page 58 and ending on the upper left of
page 60. (The pages themselves are read from right to left in the screenfold). Further, the
favorability of each number shown in the vignettes is generated by an underlying but not
depicted indigenous divination procedure: a sort of algorithm. See Offner, “Starting from Zero.”
The FUTUre OF aZTec law
The progression of jurisprudential instruction or analysis may be contained
in the visual ordering of the page: the commonality of offenses by column has fre
quently been noted. The other folios of the Mapa Quinatzin have a general (but not
thoroughgoing) toptobottom organization, so perhaps the top of each column is
a good place to start. This approach certainly works for the third column, where
adulterers are shown temporarily confined in a prison before punishments are
administered. And the fourth column contains cases involving legal corruption,
with a case from the reign of Nezahualcoyotl shown on top. Legal rules against
theft occupy the leftmost column, and the second column lists offenses against the
state. Returning to the third column, where a man and a woman are depicted in a
wooden cage with stones weighing down the top to prevent their escape, we see
two sets of punishments for two types of adultery just below this image. The more
serious offense, where a woman’s husband has been killed by her partner, is pun
ished more severely: the adulterous man suffers a horrific death by burning as salt
water is repeatedly splashed on him. The woman’s punishment is a comparatively
mild strangulation. The more common punishment for adultery is then depicted
below: stoning for both offenders. Here the folio has unfortunately been trimmed,
so we cannot see the additional scenes in this column.
What we are missing, as we attempt to understand this document, is
Motoliní�a’s “buen maestro” to tell us why the columns are arranged in this order
and the rationale underlying the progression of cases in each column. But whether
pre or postcontact, this is clearly a snapshot of Texcocan jurisprudential thinking.
The flexibility of the Nahua GCS ranges from the general, as in the punishment for
common adultery, to the specific: the name of a corrupt judge killed during the
reign of Nezahualpilli (1472–1515) is notable (col. 4, row 2). We see an emphasis
on widely applicable legal rules, but, at the same time, we see specific cases that
were quite possibly cited later as legal precedents.45
In an interesting contrast, the Codex Mendoza from Tenochtitlan places no
emphasis on codified law or legal precedent but instead shows the scene of a judi
cial hearing of uncertain substance and outcome (Figure 3).46 On the following
page, we see the court of appeals in the ruler’s palace, with the (bearded) ruler
45 See Brokmann Haro (La estera y la silla, 93–95) for a brief but useful discussion of
the roles of precedent and custom in the Aztec legal system. Accurate assessment of the
emphasis placed on each in Aztec jurisprudence requires much greater contextualization
through intensive source study. See below.
46 Most of the nonalphabetic content of this manuscript (Oxford, Bodleian Library, MS.
Arch. Selden. A. 1) can be found online: <http://bodley30.bodley.ox.ac.uk:8180/luna/
servlet/view/all/what/MS.+Arch.+Selden.+A.+1?sort=Shelfmark%2cFolio_Page%2cRoll_
%23%2cFrame_%23> [accessed September 5, 2015] .
15
16
JerOMe a. OFFner
Figure 3. Three men and three women ask for justice in Tenochtitlan;
four judges hold court, with judges-in-training behind them.
Codex Mendoza, fol. 68r (detail): Oxford, Bodleian Library MS. Arch. Selden. A. 1.
Reproduced courtesy of the Bodleian Library, University of Oxford.
himself, Moteuczoma, the court of last appeal, near the top of the palace (Figure 4).
The section of the Codex Mendoza in which these scenes appear is certainly not
related to indigenous precontact modes of presentation but was instead designed
as a representation of Aztec life for Spanish inspection. It is possible to propose
some similarities of purpose for the Mapa Quinatzin and the Codex Mendoza. It is
also possible to argue that schools of jurisprudence differed between Texcoco and
Tenochtitlan, although comparatively little is known of jurisprudence and legal
process in Tenochtitlan. And it may be only the choice of artists for the Codex Mendoza or the charge given to them by that city’s surviving elite that led to their lav
ish attention to ethnographic details of Aztec life and only a superficial portrayal
of legal process in Tenochtitlan. In any case, in the only examples we possess, each
city and its elite chose to present their legal system in quite different ways. In Tex
coco, it is a prominent part of the Mapa Quinatzin. In the Codex Mendoza, it is a
small portion of the codex’s ethnographic section, itself small in comparison to the
many pages expended on military conquests and tributes due to the conquerors.
The FUTUre OF aZTec law
Figure 4. Litigants (at lower right) appeal decisions at the Council of Moteuczoma:
decisions of the four judges could be appealed to Moteuczoma Xocoyotzin
(shown seated, with beard, at the top of this drawing of his palace).
Codex Mendoza, fol. 69r: Oxford, Bodleian Library MS. Arch. Selden. A. 1.
Reproduced courtesy of the Bodleian Library, University of Oxford.
17
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JerOMe a. OFFner
Aztec Legal Rules and Legalism at Texcoco
An important matter to consider at this point is the nature of Nahua legal rules
and their role in Aztec jurisprudence. As mentioned above, “legal rules” were
nahuatīlli in Nahuatl and shared a semantic field with “orders.” But were these
legal rules, jurisprudential principles, or ethnographic summary observations by
the Spanish? The evidence tends strongly toward the first option, and in an inter
esting way. I have already traced the considerable evidence for “legalism,” or strict
adherence to legal rules in adjudication, in the city of Texcoco.47 After a difficult
“warring states period” in the Basin of Mexico and surrounding regions that cul
minated in the fall of Azcapotzalco in 1428, Texcoco emerged with Tenochtitlan
as leader of a new Aztec world order.48 Nezahualcoyotl was faced with uncertain
allies and subordinate rulers, as well as disloyal relatives, multiple ethnic groups
in conflict, and rapidly developing imperial and economic systems that further
fomented social disruption. Nezahualcoyotl and his court responded to this period
of extreme divisiveness and chaos by promulgating a legal code to standardize
the legal systems of diverse ethnic groups in different places. He also standard
ized legal administration and processes in order to limit corruption by reducing
the discretionary power of judges. These measures increased the efficiency of the
courts while the severe sanctions and public and participatory punishments in the
code enhanced social control.49
The legal content of the Mapa Quinatzin discussed above supports the empha
sis on strict application of legal rules to cases. Not only does it catalogue these
rules, but it shows at least two unpleasant futures for errant judges. And in the
Historia de los Mexicanos por sus pinturas, we see an abrupt change after the reign
of Chimalpopoca, in 1427, from anecdotes of legal decisions to the formalization
of legal rules, indicating that Tenochtitlan may have institutionalized a similar sys
tem.50 Unfortunately, however, we have no certain evidence that this was the case,
and judges in Tenochtitlan may have used precedent, legal rules, and jurispruden
tial reasoning to varying degrees as cases came before them. Of course, to some
extent, the same must have been true of Texcoco, in that codified law can never
encompass all that can happen among human beings. When the legal rules were
insufficient to settle a case, the judges could resort to jurisprudential principles,
47 Offner, “Aztec Legal Process” and Law and Politics, 66–69, 71–85.
48 The Aztecs traditionally conceived of political authority as coming from three cities.
Thus, Tlacopan, with ethnic and cultural similarities to the fallen Azcapotzalco, became the
least important member of a ruling Aztec triple alliance along with Tenochtitlan and Texcoco.
49 Offner, Law and Politics, 82.
50 Haro, La estera y la silla, 108.
The FUTUre OF aZTec law
such as the principle of a reasonable man,51 or they could rely on precedent. And
so it is not surprising when we see, in Estas son leyes, how cases with facts not
specified in the code might be handled: “For other offenses they [the judges] also
made [the perpetrators] slaves, but [these decisions] were discretionary; but the
above said were legal rules with which no judge could dispense, except for killing
the one who committed them, so as not to make him a slave.”52
In summary, however, it must be acknowledged that while we do have strong
evidence for legalism in Texcoco, we cannot assume that this approach was used in
other Aztec polities. Indeed, Texcoco’s reputation for expertise in the legal process
may well have arisen from its emphasis on legalism and accompanying rigor in
supervising the legal process and punishing errant judges. (As we have noted, two
such instances are highlighted in the Mapa Quinatzin). That is, its reputation was
forged by the close, disciplined, and reliable relationship it maintained between
legal rules and/or jurisprudential principles and their application to facts dur
ing the legal process, rather than by promulgating wellregarded legal rules. To
my mind, these facts accord with an overall Nahua epistemology. Working from
the totality of a system of jurisprudence instilled through careful training, sup
ported by pictorial transmission of both legal principles and specific cases, Nahua
jurists could proceed from the general to the specific, applying pertinent legal
rules to cases but also judging wisely in the cases that did not fit a specific rule.
We see this range of responses in the surviving indigenous pictorial materials.
In the alphabetic texts, except when they report directly on pictorial sources, we
see, in contrast, a sort of failed fieldwork—a narrow focus on decontextualization
of individual rules, without sufficient regard to the structure and wisdom of the
indigenous schools of jurisprudence that produced and wielded them. It should
be remembered, then, that the reported legal rules are dismembered fragments of
sophisticated schools of Nahua jurisprudence.
Other Methods for Contextualizing Aztec Law
One of the neglected tasks in the study of Aztec law is the cataloguing of all reported
Aztec, Nahua, and Otomi legal rules,53 jurisprudential principles, and related
51 Offner “Aztec Legal Process” and Law and Politics, 69–71.
52 Estas son leyes, ed. Garcí�a Icazbalceta, 315: “Por otras cosas también hací�an esclavos,
mas eran arbitrarias; mas estas sobredichas eran leyes que ningún juez podí�a dispensar en
ellas, si no era matando al que las cometí�a, por no hacerlo esclavo” This mention of judicial
discretion is, in my opinion, further evidence of jurisprudential thought among the Nahuas.
53 The Otomi were the second most prominent ethnic group after the Nahuas, who appear
to have arrived later. They spoke a tonal language from an entirely different language group.
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JerOMe a. OFFner
ethnographic observations or summaries available in the sources. A related task
would be to link these items to particular political systems in particular towns,
begin their systematic analysis, and thus to gain additional insight into indigenous
forms of jurisprudence.
Table 1. Formal Analysis of Adultery Rules in Texcoco
under Nezahualcoyotl (after Offner 1983: 262).
Social
class of
criminal
Was
adulteress’s
husband killed?
Type of
Evidence
Sex of
Criminal
Punishment
Direct
Irrelevant
Public stoning*
Irrelevant
Strangulation, body
dragged to a temple
outside the city and
thrown into a barranca
Female
Strangulation, body
dragged to a temple
outside the city and
thrown into a barranca
No
Indirect
Nonpilli
(nonnoble)
Yes
Irrelevant
Male
Pilli
Irrelevant
Irrelevant
Irrelevant
Burned alive, water
and salt applied
during the process*
Strangulation,
remains cremated
after adornment
* The body was probably also dragged to a temple outside the city, where it was thrown
into a barranca. Both of these legal rules are depicted on Mapa Quinatzin, leaf 3, column
three, rows 2 and 3. Row 1 of Column 3 shows accused or guilty parties imprisoned in an
opensided jail with stones on top to prevent escape through the top. Cf. Lee 2008 who
mistakes the first row as a device for crushing adulterers with a heavy stone and omits from
his drawing of this scene the gloss for Row 1: “coauhcalco tetlaliloya(n)” or “cuauhcalco” “in
the wooden house” “tētlālioyān” “the place where people are made to sit.” This leads him to
an erroneous analysis of Texcocan legal rules on adultery.
The FUTUre OF aZTec law
In the documentary examples provided above, we saw how the Historia de los
Mexicanos por sus pinturas contains frames of reference composed of an ethno
graphic encounter and rich ethnographic details. These frames of reference are
summarily stripped away, in a manner that should be instructive to us today, in the
later Spanish document Estas son leyes. The visual impact and richness of detail
of the Mapa Quinatzin, even without its accompanying oral presentations, has
proven more resistant to Spanish or modern decontextualization. Additionally,
Sahagún’s works and other sources contain a myriad of references, often indirect,
to precontact beliefs, customs, and actual behavior that have a clear potential to
enhance understanding of the legal system and jurisprudence of Tenochtitlan.
Treating these rich data as an integrated whole, therefore—with proper allow
ances for political and temporal localization—will help reduce the distortion that
they have suffered through their inadequate reporting in modern European texts.
In 1983, I made such an effort in a study involving the legal rules against adul
tery, drunkenness, and theft as observed in Texcoco and surrounding towns, using
a method of componential analysis.54 Table 1 presents a summary of legal rules
under Nezahualcoyotl, although it is clear from the available sources that there
were different schools of jurisprudential thought regarding adultery, even within
the small Texcocan empire.55
Legal rules, a few cases or legal decisions and jurisprudential principles, are
useful first steps along the way to understanding Aztec legal systems, but they
also need to be considered within their cultural and societal contexts. Some addi
tional insight can be gained by a study of the Nahuatl language and specific terms
and expressions having to do with legal matters. For example, tēuctlatoā meant
“to hold court” and is a compound of tēuctli, “lord,” and tlatoā, “speaks.” The verb
for judging or sentencing was tzontequi, composed of tzontli, “head of hair,” and
tequi, “to cut.” Nahuatl terminology delineated four steps in the judicial process:
accusation, investigation, decision and sentencing, and execution of punishment.56
Witnesses were expected to tell the truth and “swore” on the earth goddess in a
deeply embedded traditional gesture called tlalqualiztli, literally “eartheating”
or “the eating of earth.”57 Nevertheless, there was also a word for bribing or cor
rupting a judge: tēmpachoa, from tēntli, “lips/mouth,” and pachoā, “to cover,” as
well as two more expressions for a judge abusing his authority by putting some
thing under his petlatl, “mat,” and icpalli, “seat” (petlatitlan, icpaltitlan tlaaquiā, or
54 Offner, Law and Politics, 255–79.
55 Ibid., 257–66.
56 Reparation was sometimes considered along with punishment: Ibid., 245–50.
57 See Olko, “Body Language in the Preconquest.”
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JerOMe a. OFFner
tlapachoā).58 At present, these expressions are only dictionary entries, so another
productive avenue into the future of Nahua law is to study the texts and contexts
in which such words appear. For example, we know from the inquiries of Fray
Bernardino de Sahagún, who relied on informants mostly from Tenochtitlan, that
the law could be described as a snare: “This saying was said of one who accused
one before the ruler. He was told: ‘Take care, for the snare, the trap lie quivering
before authority, that is, in the presence of the ruler.’”59 Recent archival work is
also turning up previously unknown legal terms deeply contextualized in Nahuatl
texts. For example, tlatecpāntzin, a word for a decision and decree in a civil case,
was recently discovered by Benjamin Johnson in a sixteenthcentury manuscript.60
The reverential suffix -tzin attached to the noun form, coming more than a century
after the reign of Nezahualcoyotl, who reportedly issued the decree, shows that
the decisions he made at that time were still held in the highest regard.
At the same time, paying attention to the social and political context of these
systems is, of course, essential but extremely difficult. And the nature of these con
texts has, in fact, been the subject of somewhat feckless disputation due to the
intrusion of nineteenth and twentiethcentury political ideologies from Europe
into Mesoamerican studies. It is one of the great ironies of Mesoamerican studies
and their influence on contemporary Mexico that the concept of lo indigeno—what
is “the indigenous”—has largely been shaped by this renewed European conquest.
Indeed, a key characteristic of this middle and later twentiethcentury work on the
Aztecs was its reliance and insistence on intrusive Western ideologies, decontex
tualization, and advocacy. In many senses, this was not a historiographic exercise
at all but instead amounted to recruitment of fragments of indigenous data to fit
predefined stages of Marxist or Polanyist economic formation. As a result, modern
students approaching this literature must become diligent textual archaeologists,
sorting through layers of odd and often distorted semantic penumbrae surround
ing and obscuring such terms as communal land tenure, corporate landholding,
usufruct rights only, and so forth.61
58 Petlatl, icpalli was in fact a Nahuatl expression meaning “authority.” Brockmann Haro
(La estera y la silla, 9) titled his book after this diphrasism in Nahuatl, which was intimately
related with political and legal authority. (He misspells petlatl as petatl, however.)
59 Sahagún, Florentine Codex, bk. 6, 243: “Injn tlatolli, ilviloia: in aqujn ixpan moteilviaia
tlatoanj, anoço in aqujn itlan nemj tlatoanj: ilviloia. Ximjmati: ca vncan neujujxtoc in
tzonoaztli, in tlaxapuchtli in jxpan petlatl, icpalli: qujtoznequj: in jxpan tlatoanj.”
60 Johnson, “Nezahualcoyotl and a tlaxilacalli,” referencing Texcoco, 1581, Biblioteca
nacional de antropologí�a e historia, 3a Série de Papeles Sueltos, leg. 7, exp. 218, fol. 10r.
61 Offner, “Improving Western Historiography.”
The FUTUre OF aZTec law
More than thirty years ago, I presented an alternative interpretation to this
“first principles” approach to characterizing this civilization as a form of despo
tism directing an economy integrated solely by redistribution.62 The Aztecs are
more accurately characterized as a collection of serially warring and allying city
states with economies integrated by market forces as well as redistribution. While
centralization of power in Tenochtitlan seems to have accelerated sharply during
the reign of Moteuczoma Xocoyotzin (1502–20), this process was interrupted by
the Spanish intrusion. An earlier attempt at centralization of power by Tezozo
moc and his successor son Maxtla of Azcapotzalco ended in the later 1420s with
a successful revolution by Tenochtitlan and Texcoco, supported by powerful allies
inside and outside the Basin of Mexico, and we can by no means exclude the same
fate befalling Tenochtitlan absent the Spanish intrusion.
Among the data mined from sources to support and present the authoritarian
view of Aztec society were sumptuary laws, particularly those that are attributed
to Moteuczoma Ilhuicamina (r. 1440–69).63 In 1980, Patricia Anawalt evaluated
the evidence for sumptuary laws and concluded that “the recorded laws reflect
a creed more than a reality.”64 As the leading expert on Aztec textiles, this was no
casual conclusion on her part. She carefully summarized the evidence for alleg
edly strict control of the circulation of tilmatli (cloaks) in sources such as those
found in Sahagún’s writings and in Diego de Duran’s Historia de las Indias de Nueve
España,65 and contrasted them with incidental reports of behavior from those
same sources to show that “tilmatli circulated in Aztec society through means
other than those recognized by the official sumptuary laws.”66 Tilmatli were also
sold in the marketplace and were awarded as prizes, and could be sold by the
recipient. Anawalt concludes by saying:67
62 Offner, “On the Inapplicability of ‘Oriental Despotism’” and “On Carrasco’s Use of
Theoretical ‘First Principles.’”
63 Peperstraete (La “Chronique X,” 143) suggests that certain conquests and perhaps the
legal reforms of this ruler may instead belong to the later ruler of the same initial name,
Moteuczoma Xocoyotzin. She argues that the indigenous structuring of the narrative required
the rise of the empire towards its zenith under the first Moteuczoma (Ilhuicamina) and its
later fall under the second Moteuczoma. Reports of reforms under the second Moteuczoma
would not accord with this preferred narrative pattern.
64 Anawalt, “Costume and Control,” 43.
65 Peperstraete (La “Chronique X,” 13–23) provides an excellent short study of Fray Diego
Durán (ca. 1537–88), born in Sevilla, who spent some childhood years in Texcoco (1543–50)
and entered the Dominican order in 1556.
66 Anawalt “Costume and Control,” 41.
67 Ibid., 43.
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JerOMe a. OFFner
A detailed study of the chronicles makes it apparent that Aztec society
was becoming increasingly dependent on luxury goods. In so doing, it
abandoned the frugality of earlier days, an echo of which survived in
the official severity of the sumptuary laws. No doubt the descriptions of
these regulations, which come to us from the contemporary Indian infor
mants, represent an idealized image of the military and political order in
preConquest Tenochtitlan.
Anawalt’s insights into law as reported in the written and pictorial sources were
both early and profound, but they have not been sufficiently appreciated, and
her methodology has not been applied to other important areas of Aztec life. For
example, these same sources could be explored for references to other items sup
posedly strictly regulated, such as pulque (an alcoholic drink derived from the
maguey [agave] plant). With regard to consumption of alcohol in Aztec society, we
find that its use was not in fact restricted to those over fiftytwo years of age (one
full count of the Aztec calendar round). For example, in a legal case cited above,
wherein a woman took sexual advantage of a drunken man, the man was not pun
ished. Anawalt’s insights, however, go beyond observing the variance between
legal rules, idealized conceptions, and actual behavior. Her work demonstrates
how the mere presence of legal rules in the sources creates a false impression of
strict social control in the eyes of modern investigators. She also exposes how the
acceptance and promotion of the reported sumptuary laws by ideological propo
nents have created a false image of an authoritarian society.68
In the same way, excessive and uncritical reliance upon reports of land ten
ure, most often bequeathed to us by or on behalf of societies’ elites, has long been
a convenience of those seeking to classify civilizations according to the antique
grand developmental theories originating in the nineteenth century. In 1981, I pre
sented some of the considerable evidence for individual landholding and a market
in land among the Aztecs.69 But such landholding practices were not supposed to
exist, according to various Marxist and Polanyist theoretical formulations, and so
the evidence has been for the most part either ignored or subject to attempts to
explain it away. Nevertheless, persistent known as well as continuously discovered
data are eroding and contradicting the theoretical strictures of the past, leading to
emerging ambiguity even in the works of archaeologists. In the third edition of
his introductory work The Aztecs, Michael Smith presents the conventional view
68 For an evaluation of recent scholarship on sumptuary laws in a European context, see
the article by Laurel Wilson, “Common Threads,” in this issue.
69 Offner, “On the Inapplicability of ‘Oriental Despotism,’” 46–48, and “On Carrasco’s Use of
Theoretical ‘First Principles.’”
The FUTUre OF aZTec law
regarding land tenure: “the tlatoani [ruler] owned or controlled the land within
his citystate.”70 A few pages earlier, however, when describing calpolli land held
by commoners rather than nobles and usually seen as the least likely to involve
individual ownership, Smith cites a passage from the work of James Lockhart and
states that “rights for use of an individual plot could be sold, but the land remained
under the general jurisdiction of the calpolli and altepetl (citystate).”71 Lockhart,
for his part, writes:
A land sale, then, was openly brought before the authorities, and a feast
like ritual accompanied the transfer like any other. Indeed one way of
looking at a transaction of this type is that the seller for a consideration
relinquished his allocation from the altepetl/calpolli and permitted the
authorities to reallocate it in the usual way to the buyer.72
Such circumlocutions reveal a struggle to negotiate equivalences and differences
among modern Western conceptions of land ownership and Aztec and Nahua con
ceptions. They stand in contrast to an important source on land tenure which is
straightforward in reporting that a commoner in need of funds to maintain his
important ritual status as a “receiver” of Huitzilopochtli (the most important god
of the Nahua of Tenochtitlan) “sold his land” (quinamaca itlal) or “somewhere he
arranged a loan” on it (“canah netlacujlli quichioa”).73 He did this with various
types of land, including calpolli land (“quichioa in calpollali”). The passage says
nothing about permissions and feasts, only that he might lose a certain type of
land on which he owed labor service tequitl (“ximmilli ie in ipan tequjtia”), if he
did not produce that service (tequitl)74 for the land. And the text names several
other types of land this commoner might sell or on which he might get loans: “the
enclosed land, the marshy land, the dusty land” (in chinamitl, in chiauhtlalli, in
teuhtlalli). This brief passage, offered as an aside by one of Sahagún’s informants,
is full of evidence of the sophistication of precontact land tenure and the Aztec
economy. It should also be noted that these “receivers” of Huitzilopochtli indulged
in a little drunkenness, with no comment made about illegality, at the end of their
period of expenditure, fasting, and service.
70 Smith, The Aztecs, 155 and 134.
71 Ibid., 135.
72 Lockhart, Nahuas after the Conquest, 154.
73 Sahagún, Florentine Codex, bk. 3, 9.
74 Tequitl, at least as described in many colonial documents, could also involve the provision
of tribute in kind, although almost always related to products for domestic consumption:
maize, turkeys, eggs, and so forth.
25
26
JerOMe a. OFFner
As I proposed in 1981, what is going to be required for the future of Aztec
law is a more careful and exacting study of the bundle of rights and duties involv
ing land (or involving other people, entities, and property) that existed in Aztec
and Nahua societies, and evaluation of the extent to which these rights and duties
were accepted, influenced actual behavior, and were enforced.75 The anachronistic
notions of “private property” or “communal land” employed in the developmen
tal/comparative schemes of the last century and a half lead to little more than a
rediscovery of the original Western discriminations built into such formulations.
Meanwhile, excessive claims of state control of the economy (made by followers of
Marx and Polanyi) have, in retrospect, not only stunted investigations into Aztec
slavery and its implications for the role of labor in the Aztec economy, but also
inhibited inquiry into Aztec commercial law. Nahuatl terminology reveals a rich
set of terms for buying, selling, charging, paying, loaning, lending, and borrow
ing—and also the price, cost, wholesale, and retail—that originated in a complex
precontact economy. Sahagún’s work is full of incidental mentions of economic
and commercial behavior, including the existence of canoeborne fresh water sell
ers, whose very existence in an allegedly authoritarian society with a redistribu
tive economy seems more than a bit curious. And while Westernlanguage dic
tionaries of Nahuatl have existed since the sixteenth century, terse translations
of indigenous words do not capture sufficient context for their emic content to
be apparent, since modern dictionary users have generally operated from their
culturally specific etic perspectives. This again points back to the need to study
law, in context, in Nahuatl documents. Finally, the popular image of Aztec rulers
as unrestrained autocrats, especially as mapped onto contemporary Mexican
politics, needs changing. I have already delineated some of the power blocs and
competing interests with which even powerful rulers such as Nezahualcoyotl and
Moteuczoma Ilhuicamina had to struggle to maintain their power.76
Conclusion
In summary: whether we are discussing sumptuary laws regulating the consump
tion of clothing and drink, legal rules of land tenure, or Aztec labor law and com
mercial law, the detailed consideration of ethnographic information, adequately
reported and analyzed, can render more accurate and meaningful comparison of
medieval civilizations that emerge as rather more complicated than those sug
75 Offner, “On the Inapplicability of ‘Oriental Despotism,’” 46–48.
76 Offner, “Distribution of Jurisdiction and Political Power” and “Dueling Rulers and Strange
Attractors.”
The FUTUre OF aZTec law
gested by narrow, modern paradigms. And it is along this path that much of the
future of Aztec Law lies. The richest source of ethnographic data for the Aztecs
and Nahuas remains the work of Fray Bernardino de Sahagún. Descriptions of
precontact behavior by his indigenous informants should be investigated in order
to throw light on a number of basic issues: the variance among legal rules, juris
prudential principles, and everyday conduct; the actual behavior within and atti
tude towards the legal system among ordinary people, and vice versa; the need for
additional information on legal process; reports of social discord and dysfunction,
as well as cohesion; and the intersection of indigenous conceptions of law and
morality.
Through this source, and a few others, we can begin to see the participants in
Aztec society going about their daily lives. We need not, therefore, rely exclusively
on topdown reports by relative cultural outsiders regarding the legal system. To
some degree we are fortunate that the most prominent Aztec legal system, that of
Texcoco, was legalistic and did give priority to the strict application of the facts of a
case to the exigencies of applicable legal rules, but we can also see that these legal
rules and jurisprudential principles existed because the actual behavior of people
frequently conflicted with them. And as we see from Anawalt’s inquiry into Aztec
sumptuary laws, the appearance and prominence of legal rules in the sources cre
ate the illusion of far greater social control among the Aztecs than actually existed.
What survive in the sources as legal rules are therefore important but decontex
tualized fragments of sophisticated systems of jurisprudential thought based on
indigenous observation and contemplation of human behavior. Recovering these
systems of thought will require understanding and evaluating both old and new
evidence in novel ways. In other words, the future of Aztec law will more resemble
ethnography than the old method of a priori imposition of Victorian era social evo
lutionary schemes, carried over into Mexico by Europeans in the twentieth cen
tury, and which declared Aztec society to be authoritarian, despotic, and limited in
its humanity and range of expression. And, happily, the field of Nahua ethnography
is already changing, through the contributions of contemporary Nahuatl speakers
who are now exploring their own cultural history. I look forward to the future of
Aztec law.
27
28
JerOMe a. OFFner
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Jerome A. Offner (joffner@hmns.org) is Associate Curator of Northern Meso
america at the Houston Museum of Natural Science and an expert on the Aztecs,
their history, culture, law, and politics. His groundbreaking study, Law and Politics
in Aztec Texcoco (1983) was the winner of the 1985 Howard F. Cline Prize in Latin
American history. More recently, he has turned his attention to the Aztecs’ graphic
communication system and the study of native pictorial documents from before
and after the conquest of 1519 CE. Along with a team of scholars from five
European countries and Mexico, he is currently investigating the greatest of the
Aztec pictorial histories, the Codex Xolotl, which reports on the remarkable life of
the most famous Aztec jurist, Nezahualcoyotl (r. 1431–72 CE).
Abstract This article models a methodology for recovering the substance and
nature of the Aztec legal tradition by interrogating reports of precontact indig
enous behavior in the works of early colonial ethnographers, as well as in pictorial
manuscripts and their accompanying oral performances. It calls for a new, richly
recontextualized approach to the study of a medieval civilization whose sophisti
cated legal and jurisprudential practices have been fundamentally obscured by a
long process of decontextualization and the anachronistic applications of modern
Western paradigms.
Keywords Aztec, Nahua, Mesoamerica, Mexico, Texcoco, Tenochtitlan, Tlacopan,
law, jurisprudence, legal procedure, Fray Bernardino de Sahagún, Fernando Alva
de Ixtlilxochitl.
LAND AND TENURE IN EARLy COLONIAL PERU:
INDIVIDUALIZING THE Sapci,
“THAT wHICH IS COMMON TO ALL”
SUSAN ELIZABETH RAMÍREZ
By taking away said [native] lands and giving them to Spaniards and forc
ing the very same Indians to work the same lands that they lost[,] so that
they [the Spaniards or Spanish authorities] say that they confiscate the
lands because they [the natives] cannot cultivate them; and then they
force the same individuals to till them[;] then what can an Indian feel
when they take away his land and they deprive him of his freedom to
have it worked for him and they force him to work it for the person who
confiscated it[?]1
This arTicle OUTlines the transition from indigenous customs regard
ing land possession and use to European property law as gradually imposed and
implemented by the Spanish colonial state in the Viceroyalty of Peru in the six
teenth century. The iconic confrontation between Francisco Pizarro and the Inca
ruler Atahualpa on the plaza of Cajamarca in 1532, and its aftermath, has been
examined from many different angles over the years. The military advantages
of that faceoff quickly took center stage.2 The quest for gold and silver focused
many.3 The attendant evangelization efforts interested multiple researchers.4
General studies of the negotiation that marked the permanent establishment of
Spanish administration in the Andes have yielded insightful perspectives on the
process of settlement and reorganization.5 But one of the least studied aspects of
1 Carta de Fray Diego de Angulo al Rey Phelipe, AGI/AL 316, 25IV1584; reprinted in
Barriga, Los mercedarios en el Perú, 178: “en quitarles las dichas tierras y darles a españoles
[. . .] se las hacen labrar a los propios indios a que se las quitaron de manera que dicen se
las quitan por que no las pueden labrar y despues se las hacen labrar a los mismos, pues
que puede sentir un pobre indio que le quitaron su tierra y le quitan la libertad para hacerla
labrar a el para si y se le hacen labrar para quien se la quitó.”
2 Hassig, Aztec Warfare; Guilmartin, “Cutting Edge”; Chaliand, Mirrors of a Disaster.
3 Lockhart, Men of Cajamarca; Loredo, Los repartos; De la Puente Brunke, Encomienda y
encomenderos.
4 Ricard, Spiritual Conquest; Griffiths, Cross and the Serpent; Duviols, Cultural Andina y
represión and Procesos y visitas; Espinoza Soriano, Juan Pérez de Guevara; Early, Maya and
Catholicism; Lippy, Choquette, and Poole, Christianity Comes to the Americas.
5 Lockhart, Spanish Peru; Ramí�rez, World Upside Down; Ramí�rez, “Chérrepe en 1572”;
34
sUsan eliZaBeTh raMi�reZ
this story is the history of land and tenure in this mostly agrarian, peasant society.
The anthropologist John V. Murra pioneered studies of native tenure by combing
the Spanish chronicles for and listing different categories of native holdings.6 The
ethnohistorian Marí�a Rostworowski found, commented on, and published sev
eral sixteenthcentury manuscripts dealing with land holdings, without question
ing the European filters inherent in these recorded proceedings.7 Silences in the
sources led me to wonder about the native perspective on land holding, which I
eventually began to investigate in the mid1990s.
This essay builds and elaborates on this research, incorporating data from fur
ther investigations in the archives of Spain (Madrid and Seville), Bolivia (Sucre
and La Paz), and Peru (Cuzco, Puno, and Lima), giving it a wider Andean perspec
tive. It argues that the many different ethnic groups under Inca sway regarded the
earth as sacred, so sacred that it could not be possessed in perpetuity by anyone.
It was considered sapci or “that which is common to all.”8 It then focuses on the
encounter of radically different conceptions of land and rights of possession and
use precipitated by the Spanish conquest of the Andeans in 1532. In so doing, I
outline the conflict over rights to use and to appropriate agricultural resources
as defined by the unwritten native customs and the imported Iberian laws in the
sixteenth century. The sources, summarized here, show that native customary
rights remained important in the quotidian lives of peasants despite an overlay of
colonial legalities that often, overtime, displaced native peoples and fixed them in
place on lands different than those occupied before 1532.9
Some of the reasons why this story is so complicated and remains to be
delineated are that Spanish descriptions of the colonial process and impositions
obscured native practices. Garcilaso de la Vega, a bilingual (QuechuaSpanish) and
welleducated mestizo10 born in southern Peru to a rich, upperclass father and a
Mumford, Vertical Empire; Wernke, Negotiated Settlements; Murra, “Derechos a las tierras.”
6 Murra, “Vida, tierra y agua.”
7 Rostworowski de Diez Canseco, “Nuevos datos;” “Dos manuscritos inéditos;” and “Las
tierras reales.”
8 Also spelled: sacassi, sapsi, and sapcis. See De la Puente Luna, “That Which Belongs to
All”; Ramí�rez, “Social Frontiers”; Ramí�rez, World Upside Down, ch. 3; Ramí�rez, “Rich Man,
Poor Man.”
9 I use the terms “custom(s)” or “customary” to refer to the unwritten, orallytransmitted
tenure norms and practices of the natives, as opposed to the “laws,” here defined as the
written decrees and judicial sentences of the Spaniards. The Crown published a compilation
of these in the fourvolume Recopilación de las leyes de los Reynos de las Indias (hereinafter
RLI) in 1681.
10 That is, the offspring of a native and a Spaniard.
land and TenUre in early cOlOnial PerU
native woman, notes in very unambiguous language that contemporary sixteenth
century Spanish chroniclers did not understand what they observed and could
not communicate easily with natives because most Andeans did not understand
or speak Spanish and the great majority of the Spanish11 did not speak or under
stand even one of the Andean languages and dialects.12 Thus, many of the eyewit
ness chronicles and later accounts and the information they contain are filtered
through prisms of European understandings. Native societies were preliterate at
the time of contact, so they left no written records behind.13Most commoners con
tinued to speak their native languages even into modern times. Often, therefore,
even after native leaders learned Castilian under colonial rule, the testimonies of
most commoners passed through Spanish and mestizo translators, scribes, nota
ries, lawyers, administrators, and adjudicators onto the page.
Another barrier to understanding is the difference between the late medi
eval Spanish language and our modern translations of it. The word tierra, today,
usually equated with land, soil, or ground, was, in the sixteenth century, synony
mous with people. The word pueblo nowadays means a town; whereas, in indig
enous minds it represented a “people,” “lineage,” or ethnic group.14The word
“province”(provincia) that is ubiquitous in early Spanish sources is never specifi
cally defined there. In sixteenthcentury Spain, users of the word understood it
to mean “villages … organized into federations.”15 If the phrase “ethnic groups”
is substituted for villages, this meaning accords well with its use in the Andean
manuscript sources. Instead of a bounded territory, a “province” in the sixteenth
and seventeenth centuries referred to jurisdictions delimited in population and
ethnic terms. Viceroy Francisco de Toledo (1569–81), for example, defined a par
ish as 400 families, enough to support a priest, without regard as to where the
families resided. A provincial governor, corregidor,16 had responsibility over an
11 I use the term Spaniard or Spanish to refer to peninsularborn individuals and those
born in America of Spanish parents; the latter are also known as creoles.
12 Vega, Royal Commentaries, 50–51.
13 To record information, the natives used quipus (khipus), knotted and colored strings,
as well as drawings, pottery, and textiles. Unfortunately, scholars have not been able to
decipher more than the numbers recorded in the knots of the quipus. See Urton, Signs of the
Inka Khipu, 20; Urton and Quilter, Narrative Threads; Salomon, Cord Keepers.
14 Ramí�rez, “From People to Place.”
15 Weeks, “European Antecedents,” 63–64.
16 There were two types of corregidores: municipal and de indios (of natives). Both are
discussed below.
35
36
sUsan eliZaBeTh raMi�reZ
urban population and/or specific native ethnic groups regardless of where they
built their homes.17
My discussion begins with a brief overview of the Inca empire, a loose mosaic
of ethnic groups, united (at least in theory) by the worship of the sun and its
human descendants (the Incas), kinship ties, and mutual obligations. In this
empire, rights to agrarian resources were flexible, changing, and allencompass
ing. But these customs were gradually replaced by Spanish property rights that
proved more inflexible, permanent, and limiting. Attention to colonial institutions
and major legal initiatives and their effects on tenure rights and peoples’ lives
organize the remarks. Examples come from two of the three main Andean geo
graphical regions: the irrigated coastal plains and the mountain sierras. (I have
not included the largely hunting, gathering, and gardening populations of the
eastern lowland jungles that remained largely unaffected by Spanish colonialism
before the nineteenth century.)
Kin-Based Communities, ca. 1532
Spanish chroniclers agree, and later native testimonies support, that Andean
populations under the uncertain, unstable hegemony of the Incas on the eve of
the Spanish invasions in 1532 lived scattered over the landscape in family com
pounds and small hamlets, from sealevel on the beaches of the Pacific Ocean to
the eastern slopes of the snowcapped Andean mountains. The Incas, the hegem
onic ethnic group in the Andes at the time, had been actively incorporating other
distinct ethnic groups into their fold during at least the previous century, either
by taking captives in “good wars” (by conquest) or inviting these groups to ally
with them. Ritual gifts of fine tunics, distinguishing helmets and headdresses, and
litters demonstrated the expected generosity of the Inca ruler to compliant ethnic
lords. The exchange of women between leaders guaranteed the establishment of
blood ties in the next generation and the promise of union and cooperation into
the future. Regardless of how they were subjugated, populations had to accept
the Inca gods, primarily the Sun (the Inca emperor’s father) and the Moon (the
emperor’s mother); to learn to speak the Inca language of Quechua (if they did not
already speak it); and to provide tribute labor when requested, be it for building a
ceremonial center, terracing a mountainside, maintaining the roads, constructing
storage or burial towers, carrying messages, fighting a war, or running fresh fish
from the beaches to wherever the Inca happened to be resting. The Inca ruler and
17 Sahlins, Boundaries; Ramí�rez, “From People to Place”; Vega, Royal Commentaries, 50–51;
Elden, Birth of Territory; Osborne and Van Valkenburgh, “Home Turf”; Mantha, “Shifting
Territorialities.”
land and TenUre in early cOlOnial PerU
his court often traveled across the landscape maintaining contact and reinforcing
the alliance with these distinct groups. Ceremonial centers (at Huánuco Pampa,
Quito, Tumipampa, Hatunqolla, Charcas, Vilcasguaman, Incawasi and Cajamarca,
for example) with the hallmark features of Inca architecture (trapezoidally
shaped windows and doors, finelyshaped stone construction, storage silos, raised
daises (ushnus),18 and monumental structures show the importance and range of
this movement to reinforce the personal ties that motivated sometimes distant
populations to undertake long pilgrimages to attend ceremonies to venerate the
ancestors, enjoy the hospitality of the emperor, and cooperate in imperial goals.19
The status of similarly itinerant ethnic leaders, likewise, reflected the number
of subjects that would respond to a call for action. A noteworthy chieftain (curaca)
whose followers numbered 5,000 families, outranked a native lord who held sway
over a thousand (guaranga) or a hundred (pachaca). Kinship ties united hundreds
of these family groupings into lineages and these into ethnic groups who each
believed that they all descended from one apicalancestor or couple. Early colonial
testimonies from native witnesses on the north coast attest to the fact that lead
ers at different levels of the administrative hierarchy were joined by exchanging
brides.20 Authority and society itself were relational, based on kinship, not ter
ritory.21 Kin of one ethnic group often lived and cultivated next to members of
other ethnic groups, a pattern dubbed ocupación salpicada (scattered occupation).
Members of each lineage occasionally traveled to their respective ceremonial cen
ters to worship their ancestors and their generosity on significant dates, much
as Muslim, Christian, and Jewish neighbors might each attend religious ceremo
nies in different locations on different days.22 A hierarchy of hereditary authorities
led these events, orchestrating the planning, agenda, and supply of each event.
Activities included singing and dancing, sacrifices, storytelling, and feasting—all
of which helped to reinforce lineage and ethnic group unity. Individual and group
gifts thanked the ancestors for the blessings of health and fertility for themselves,
their animals, and their seeds. The population was careful to make appropriate
offerings, for to ignore or madden the ancestors by neglect would negatively affect
their lives. Drought, disease, earthquakes and other problems could be sent by the
ancestors should they become disaffected.
18 Ramí�rez, “The Link.”
19 Niles, Shape of Inca History. This section is based, in part, on Ramí�rez, World Upside
Down; and Ramí�rez, To Feed and Be Fed.
20 Ramí�rez, “De pescadores y agricultores.”
21 Ramí�rez, “Social Frontiers.”
22 With the significant difference that different groups might worship the same gods
37
38
sUsan eliZaBeTh raMi�reZ
Although the term sapci is applied to resources (in general) used to benefit
a population, early sources clearly show that Andeans regarded land as well as
mineral outcrops and guano deposits (fertilizer) from offshore islands as open
and common for use by all.23 It was, as the leader of the Guamanes (who lived in
the Chimú Valley) stated, in 1566, “a common thing and open to all and which
no one could have nor acquire [permanent] possession of,”24 Individuals freely
used as much as they could use for as long as it remained fruitful.25 Thus, farm
ers could take possession of any vacant, unused land by working it—clearing it,
plowing it, sowing it, watering it (if needed), weeding it, and harvesting it. Rights
to a piece of land continued until it was abandoned, due to infertility, prolonged
drought, the death of the possessor and his/her descendants, or another cause. In
this situation, the land reverted to its natural, wild state, at which point another
family could start the process again. Native testimonies recorded by ecclesiastical
inspectors to the northcentral highlands26 and the remnants of a native register
from the coastal community of Lambayeque dating from the 1580s show that, if
anyone remembered a previous possessor, a new user made appropriate sacri
fices to his/her memory before beginning to plow the untilled fields anew. One
entry from the Lambayeque register records the memories of Pedro Ulcum, Gra
viel Xecllon, Andres [here the page is torn], Pedro Cupllon, and Miguel Chanan,
all born in that town. The lands called Zallan had been planted by their forefa
thers. Minepoata possessed [los tuvo] them first. Then Tequen planted them. They
continued to name in chronological order at least eight more tillers of that one
piece of land to December of 1611, in order to register their possession.27 Some
fields on the coast and in the highlands had stones (guancas, huancas, or wank’as)
in their centers that represented preceding cultivators, at which current farmers
placed offerings periodically.28
23 Salomon, The Cord Keepers; 2004b, 140–47, 270; Gonzalez Holguí�n , Vocabvlario;
Sherbondy, “Organización hidráulica,” 142; Pease and Robinson, Collaguas; De la Puente
Luna, “That Which Belongs to All”; Ramí�rez, To Feed and Be Fed, ch. 3; Guaman Poma de
Ayala, Nueva corónica, 162 [186], 308 [336], 325 [353], 474 [515], 589 [621], 780 [816],
810 [864].
24 AGI/J458, 1871: “cosa general y como para todos y de que nayde [nadie] podra tener
ny adquirir posesion.”
25 For an intriguing parallel from Africa, see Elias, Nigerian Land Law and Custom,
especially ch. 5; and Dike, “Land Tenure System in Igboland.”
26 Duviols, Cultural Andina y represión and Procesos y visitas de idolatrías, 237, 507, 715.
27 ANCR/1586–1611, 14–14v.
28 Dean, Culture of Stone, 44–46.
land and TenUre in early cOlOnial PerU
Ideally, peasants cultivated many separate pieces of land in widely dispersed
ecological niches. These societies measured plots in topos, representing the area
needed to provide support for a couple. But the size of each topo was relative. It
varied in size, depending on fertility and expected yields.29 Thus, a smaller piece
of maize land under irrigation was needed to support a peasant couple than one,
perhaps at a higher elevation, needed to feed the same people. Farmers with large
families cultivated many more pieces of land than those with small families. Ide
ally, these would have been located at various altitudes up and down the Andean
slopes in separate fields. Such geographical diversity allowed farmers to match
potato varieties30 with the best field locations to improve productivity and guar
antee subsistence. If the crops of one plot became blighted, froze or dried out for
lack of rain or irrigation, others would survive to be harvested. Members of the
same lineage or ethnic group farmed plots at days’ walks away for this reason. At
each site, a hut or house provided temporary shelter. Thus, agricultural popula
tions, like their leaders, were mobile, often traveling hours or days from one field
to another.31
Populations that relied on irrigation may have been somewhat less mobile
as the available lands were concentrated along the banks of the river and water
canals. Ongoing research suggests that lineages built irrigation ditches and
retained rights to the water and the land it irrigated.32 All members of a group
had rights to land and had to participate in communal, periodic canal cleanings
to maintain their access. Yet, the same rules prevailed as to the rights to use the
ground. Failure to use land to the point that it appeared abandoned signaled that
it was open to others. Even outsiders (forasteros) could use such land as long as
they participated actively in lineage or ethnic activities (ayni), be they ceremonies,
sacrifices, or irrigation canal cleanings.33 Indeed, it was advantageous for lords to
accept outsiders into their groups and there was keen competition among author
ities for the loyalty and labor of peasants, regardless of lineage identity, because as
mentioned earlier their status depended on the number of people who they could
mobilize for different reasons.34 The commoners also traveled personally to take
advantage of various resources. Thus, farmers might travel to the seashore to burn
29 Rostworowski de Diez Canseco, Pesos y medidas.
30 Families had over 600 varieties of potatoes to choose from, for example.
31 Murra, “‘El control vertical.’”
32 AGNP/Donaciones D4–812, 1722. See also Salomon and Urioste, Huarochirí Manuscript.
33 This is evident in the thinking of Felipe Guaman Poma de Ayala. See Adorno, “Court and
Chronicle,” especially 75.
34 Ramí�rez, World Upside Down, especially 35–36; AGI/J458, 2039–40, 2044–44v.
39
40
sUsan eliZaBeTh raMi�reZ
seashells for lime (needed for releasing the active ingredient in coca leaves), col
lect salt and seaweed, or hunt sea mammals (sea lions). Others no doubt left their
fields to take birds that inhabited backbeach lagoons and lakes. A few walked to
mineral outcrops to extract copper, silver, and gold.35
Custom obliged each family to also work fertile land for the support of the
religiopolitical authorities and the veneration of ancestral gods. Lords directed
native labor. Planting was a celebrated occasion marked with feasting and rituals
acknowledging communal efforts and ancestral blessings, which reinforced lin
eage identity and solidarity. Communal tribute labor (ayni: mutual help, reciproc
ity) embodied a duty and responsibility for the welfare of them all. Evidence from
Chincha on the southcentral coast shows that these lands, dubbed by the Span
iards the “lands of the Inca” or the “lands of the Sun,” were plots designated to be
worked by ethnic populations with the produce being designated to be delivered
to the Inca storehouses or used to stage ceremonials in honor of one of their many
gods. The primary documents on lineage religious practices that span the entirety
of the colonial era (published by Pierre Duviols for the northcentral highlands,
Ana Sánchez on the Lima hinterland, Mario Polia Meconi for the Andes as a whole)
show that each bloodline also worked lands to support the veneration of their
ancestors. Harvests produced maize that was ground, cooked, and made into cakes
and beer to serve as offerings on ritual occasions. These “lands” did not remain in
the same place year after year, but were rotated based on fertility and other con
siderations. This was a point that the Spanish failed to grasp; they assumed that
the lands of the Inca and the Sun were fixed in place and immutable over time.36
Yet, it is apparent that these lands could be any that would serve the purpose and
needs of the lineage or ethnic groups at a given season for a particular crop.37
Tenuous Tenure
Landholding was not an immediate primary concern for the men who accom
panied Francisco Pizarro on their trek south from their landfall in what is now
Ecuador in 1531–32. Leaders and men were more focused on the imagined quick
wealth that seemed feasible given the gold and silver acquired on a previous expe
dition. The actions of Pizarro, himself, suggest that, in addition to seeking treasure,
he planned on establishing a base from which to initiate contact with the Andean
ruler. Thus, in the valley subsequently called after an ethnic chief, Lachira, Pizarro
35 Ramí�rez, “Ethnohistorical Dimensions.”
36 ACT, 1:88; ART/CoO l. 148, exp. 46, 13VII1565.
37 Castro and Ortega Morejón, “Relación de Chincha.”
land and TenUre in early cOlOnial PerU
founded the first Spanish city in the Andes, known as San Miguel de Tangarará
(today known as San Miguel de Piura). He chose householders and citizens (vecinos) and from their ranks appointed members of a town council (cabildo). The
city, as was the tradition in Spain, held propios (common ground), which could
be rented or sold to provide the council with revenue. Each householder received
grants (mercedes) of a house lot (solar) and a suburban garden plot (huerta).38
Pizarro also, most importantly, entrusted to his meritorious followers groups of
the indigenous population. He made Hernando de Soto39 guardian of the popula
tion loyal to the native lord of the Tumbes, for example.40 Juan Roldán became the
trustee of the peoples of Túcume on 3 of February 1536 by these words:41
Because you Juan Roldan, citizen of this town of Trujillo, have served his
majesty in these kingdoms, [and] are one of the first settlers of them,
[and] have married with the intention of remaining in them and have
your wife and house like an honorable person; I, Don Francisco Pizarro,
precursor, captain general and governor for his majesty … by this pres
ent act in the name of his majesty … deposit in you the people of Tucome
with the person of the cacique principal Conocique [lord of a thousand
adult men], … and with the [subservient] lord named Ponopo with all
their Indians and principal persons [….] .
These grants, called encomiendas, made the Spaniards masters of the population,
able to approximate the Spanish ideal of a gentleman who could not be ordered
about (able to say: a mi no me manda nadie).42 In return for protecting their native
38 Ots Capdequi, España en América, chs. 1–2.
39 Carlí�n Arce, Historia general, 38, and Reseña histórica, 78.
40 For lists of encomendero grants by Pizarro, La Gasca, and others, see De la Puente
Brunke, Encomienda y encomenderos, 395–497; León Gómez, Paños e hidalguía, 73–74;
Varallanos, Historia de Huánuco, 227–28; Loredo, Los repartos, 141–361; Espinoza Soriano,
Juan Pérez de Guevara, 24, 54–60.
41 AGI/Escribaní�a 502A, 7: “Don Fran[cis]co piçarro adelantado capp[it]an general e
g[overnad]or Por su mag[esta]d en estos rreinos De la nueba castilla. Eta. Considerando
que bos Juo[n] rroldan v[e]z[in]o desta billa de truxillo a veis seruido a su mag[es]t[ad] en
estos dichos rreinos e que sois de los primeros pobladores della e que os abeis casado con
yntençion de permanesçer en ella e tener v[uest]ra mujer e casa como pers[on]a de honrra
por e[l] presente en nombre de su mag[esta]d [. . .] os deposito el pueblo tucome con la
pers[on]a del cacique prençipal conoçique [. . .] e otro.”
42 Pizarro’s actions mirrored the Spanish monarchy’s practices during the Reconquista of
founding municipalities and often granting them privileges, including lands on which families
could settle and farm, see Weeks, “European Antecedents.” Earlier tenure arrangements and
farming practices in Islamic Spain are summarized by Imāmuddin, “AlFilāhah (Farming).”
41
42
sUsan eliZaBeTh raMi�reZ
charges and teaching them the rudiments of the Christian faith and promising
to maintain a horse and arms ready to serve the king, these men and trustees
(or encomenderos) were to receive the products of native labor as tribute. The
encomiendas became a basis for the wealth and position of this initial group of
Spaniards on the scene and those who were with Pizarro as he made contact with
Atahualpa and pushed further afield into and across the Andes. It was an effec
tive institution in a situation where the invaders did not know the geographical
extent of Inca hegemony or the population of the realm. The encomienda specifi
cally entrusted the subjects under various indigenous lords to Spaniards who then
asked or demanded that they produce goods for his own use and that of his family.
Land was not mentioned and was not part of the grant. Natives, declared by the
Crown to be free, remained in their homesteads to use common resources to pro
duce the food, fiber, and the other products demanded by their encomendero and
amo (lord, master). However, because encomendero demands were unregulated
until the late 1540s, the institution quickly became a tool of exploitation of the
native population and enrichment for the approximately 500 persons who were
eventually entrusted with the Andean peoples.43
Once Pizarro and his men had captured Atahualpa in midNovember 1532 and
had received his gold and silver ransom over the next months, many conquistadores requested permission to return to Spain. Still facing thousands of hostile native
troops, Pizarro astutely acquiesced to only a handful of these requests. These men
departed, loaded down with their shares of treasure. As they traveled overland
to Piura and Paita (the fishing village that became Piura’s major port) and by sea
to Panama and then to Santo Domingo and Seville, news of their fabulous wealth
spread, initiating a “gold rush” as merchants and adventurers retraced their paths
into the Andes.
Many of these who arrived too late to receive an encomienda faced limited
options. They could return from whence they came; they could join an outgoing
expedition to explore new areas for treasure and subject populations; they could
seek employment in the house of an encomendero; or they could start a business.
The last two options proved the most viable for many. Native peoples provided
The parallels between tenure arrangements in Spain and the Americas will be discussed
below.
43 Lockhart, Men of Cajamarca, 12. Data from 1548 shows that encomienda incomes
(based on the value of the products sold on the open market) varied from 991 to 7206 pesos
with the average being slightly over 2000 pesos in one district in the north. Subsequently,
encomienda labor would enable encomenderos to launch complementary business
enterprises that vastly multiplied their wealth. See Ramí�rez, Provincial Patriarchs, 20–24,
37; and Angulo, “Cartulario,” 191–206.
land and TenUre in early cOlOnial PerU
their encomenderos with fish, maize, potatoes, and animal flesh from ducks, tur
keys, camelids, and guinea pigs as tribute; but they had no experience raising
European livestock or cereals. So, encomenderos hired or established partnerships
with these latecomers to raise livestock on the pastures (defined as any vegeta
tion that was not deliberately cultivated [such as crops], including weeds between
cultivated plants and stubble left after the harvest in native fields and grasses
growing between the rows), which the Crown declared common in the 1530s.44
A notarial register from 1539 contains an agreement for the establishment of a
partnership to raise livestock on the coast near the city of Trujillo (founded in late
1534).45 No document suggests that the natives were consulted on the locations
for these activities. Such latecomers who became some of the first Spanish settlers
of rural areas chose sites at which they constructed a shelter for themselves and
corrals for the livestock. Horses were the most valuable animal; but, though less
valuable per head, the numbers of imported swine, beef cattle, goats, and sheep
grew more quickly.46 As herds and flocks multiplied, shepherds built additional
corrals at varying distances from this hub, which later was called an estancia,
from the verb estar, to be or to be located or centered at a place. Some of these
Spaniards who served as mayordomos (overseers) and custodians of encomendero
herds, subsequently went into business for themselves. In less than three decades,
some had herds numbering in the thousands of head.47
Given that royal officials rarely ventured into the countryside, the historical
record is mostly silent about early native views on Spanish occupation. Imperial
appointees remained concentrated in such cities as Lima and Cuzco. Thus, the
most usual interactions between the native population and Spaniards were with
their encomendero or his agent, a priest, and a growing number of Spanish travel
ers and vagabonds. What documents exist attest to native discontents, usually in
indirect references written by sympathetic Spaniards, especially priests who had
frequent contact with native parishioners. Thus, the Bishop of Cuzco, Fray Vicente
Valverde, wrote an important letter to His Majesty Carlos I (Emperor Charles V)
in 1539, stating that natives came to him asking that he support and defend them
because “some Christians take their lands […] [and] I am no judge with compe
44 Ramí�rez, Provincial Patriarchs, 45; RLI, v. 2, leyes 5–7, tit. 17, lib. 4, 112v–113r.
45 Ramí�rez, Patriarcs Provinciales, 64.
46 In 1539, the will of Juan de Barbarán, a member of Pizarro’s original company and an
encomendero, already listed 393 pigs and 586 sheep as patrimony (not counting personal
mounts: horses and a mule). Ramí�rez, Provincial Patriarchs, 24; Angulo, “Cartulario,” 197–98.
47 Ramí�rez, Provincial Patriarchs, 78–80.
43
44
sUsan eliZaBeTh raMi�reZ
tence to deal with the matter […] [but this is] an abuse of the Indians.”48 Similar
accusations arrived in Spain from another religious who noted, in 1541, that the
encomenderos kept their charges so busy that they had no time to plant and (in the
long run) lost their fields;49 and that Spaniards took the lands of dead natives (to
the chagrin and suffering of their families).50 The same account related that the
Spanish robbed and abused natives to the extent that to defend their families, per
sons, and possessions the natives killed some of their abusers.51 Despite the fact
that the Crown was concerned and had sent royal orders to appoint “protectors”
of the natives,52 local municipal councils (dominated as they were by encomenderos) resisted such nominations. Because these actions would infringe on their
prerogatives, the councils invoked bureaucratic delaying tactics to postpone the
protectors’ involvement with “their” natives. Tragically, also, most natives did not
know how to find justice
[b]ecause the Indians of the land of Peru and their Lords receive many
abuses and fatigues and other oppression from their masters [the enco
menderos] and other Spaniards, which are not known nor can be known,
because the Indians have no understanding [abilidad, capacity or knowl
edge], nor know to whom to complain nor who can remedy and favor
them [….]53
The writer recommended that a “protector” visit the countryside annually to bring
justice to these peoples,54 although this was a practical improbability. Likewise, a
48 Lissón y Chávez, La iglesia de España, vol. 1, no. 2, especially 115 : “Le[s] toman sus
tierras algunos christianos [. . .] [y] no soi juez para entender en ello [. . .] [era] agrauio de
indios [. . .].” Another accusation about Christians taking their lands is on page 69 of the same
source.
49 Lissón y Chávez, La iglesia de España, vol. 1, no. 3, 62.
50 Ibid., vol. 1, no. 3, 84.
51 Ibid., vol. 1, no. 3, 57.
52 See, for example, the Royal Decree of 1542, published in Lissón y Chávez, La iglesia de
España, vol. 1, no. 3, 120–22; and the instructions for the protection of the natives sent in
another Royal Decree of 1546 to Fray Juan Solano, published in Lissón y Chávez, La iglesia de
España, vol. 1, no. 4, 148–50.
53 Lissón y Chávez, La iglesia de España, vol. 1, no. 3, 72 : “Por quanto los dichos yndios
naturales de la tierra del peru e los Señores della reciben muchos agravios e fatigas e otras
opresiones de sus amos y de otros españoles, las cuales no se saben ni se pueden saber,
por no tener abilidad los yndios ni saber a quien se quexar ni, quien les ha de remediar e
favorecer [. . .].”
54 Ibid., vol. 1, no. 3, 74.
land and TenUre in early cOlOnial PerU
Spaniard (Licenciado Martel de Santoyo) wrote a long treatise in 1542, on how to
remedy some of Peru’s problems in which he suggested that lands that had been
appropriated by Spaniards be returned.55
Natives were not the only ones vying for land. Herding activities also provoked
conflict among the Spanish population. Disputes date to 1541, when some persons
occupied an area and tried to keep others from building corrals or grazing their
animals nearby. Carlos V and his advisors became worried that if this practice
spread all the good pastures would be partitioned within a few years and settle
ment of Peru retarded. Therefore, the king reiterated that, as was the custom in
Spain, pastures were to be held in common.56
Simultaneously, disease, overwork, and flight decimated the Andean peoples.57
The populations of both coast and highlands had already plummeted by 1532,
due to disease that spread faster than Spanish exploration. Chroniclers relate
that Guayna Capac, the last Inca ruler before the civil war between Atahualpa and
his brother Huascar, died from an unknown illness near Quito a few years before
Pizarro’s invasion. Some scholars estimate that up to 50 percent of the native pop
ulation had already died by 1532. Historical data from the sixteenth century show
that many native lineages suffered declines of up to 90 percent before the end of
the sixteenth century.58 This depopulation left abundant vacant lands that could
be and were occupied without title by Spanish immigrants, the encomenderos, and
their herds.
The Introduction of European Ideas of Property-Holding
Interaction between the Iberianborn population (and the second and subsequent
generations) and the natives intensified markedly at midcentury and friction
escalated. In response to the combination of the native demographic crisis, high
demand for European foodstuffs and wine (which was being supplied by sea from
Central America, the Caribbean, and Spain at suitably high prices), and past chal
lenges to royal authority,59 the central government authorized reform measures
55 Ibid., vol. 1, no. 3, 110.
56 BAH/ML, t. 21, 191–92; see also AGNP/RA, l. 27, c. 95, 1610.
57 Cook, “Indian Population of Peru”; Powers, Andean Journeys.
58 Ramí�rez, World Upside Down, especially 26–29; Cook, “Indian Population of Peru.”
59 The first Viceroy, Blasco Núñez Vela, intent on introducing legislation that would
undercut encomendero power, was defeated in battle by encomendero forces and beheaded.
This was followed by civil war, which only ended in the late 1540s with the pacification
efforts of the King’s representative, Licenciado Pedro de la Gasca.
45
46
sUsan eliZaBeTh raMi�reZ
that impacted, directly or indirectly, tenure arrangements. These included found
ing Spanish towns, beginning officially to grant individuals property with clear
title (mercedes) for agricultural purposes, appointing new officials (the corregidor de indios, an administrator with jurisdiction over natives) who distanced the
natives from their encomenderos and brought a measure of opportunity for the
redress of grievances, concentrating the native population in Spanishstyle towns,
called reducciones (reductions), and commissioning inspectors to take justice into
the hinterlands.
The Spanish monarch’s authority to make mercedes emanated from the “dis
covery” and “conquest” of the population and his succession to the presumed
titles and rights of the Incas. In theory, the Spanish king’s claim to eminent domain
was based on Pope Alexander VI’s bull Inter caetera divinae magestatis, issued 4
May 1493, which thus exported an ancient “Old World” doctrine that all land won
by conquest could be distributed by the conqueror. It granted the “Most Catholic”
monarchs Ferdinand and Isabella and their heirs and successors the lands, cities,
forts, places, rights, and jurisdictions to all the islands and continents discovered
up to 100 leagues west of the Cape Verde islands. The bull’s only restriction was
the prohibition against the usurpation of lands belonging to a Christian prince.
The Treaty of Tordesillas (4 June 1494) subsequently moved Spanish jurisdiction
270 leagues further to the west.60
Using this authority, the Spanish monarchs and their representatives con
firmed the natives’ communal use and possession of land (dominio útil), thus
legitimizing their previous tenuous rights, based as they were solely on oral testi
monies61 and occupation and use.62 According to the climate of opinion, the Crown
considered indigenous peoples as minors and dependents to be provided for and
60 AGI/AL 101, 1642; Valdez de la Torre, Evolución, 50–51.
61 Recorded oral testimonies of provincial peoples, specifically regarding their land use
and tenure, start as early as 1565 with references sometimes extending back to preHispanic
times. See, for example, Ramí�rez, “De pescadores y agricultores”; Rostworowski de Diez
Canseco, “Etnohistoria,” 35–41; AGI/J458, 2125–25v, 2131; ANCR/1586–1611. On native
agency in general, see Ramí�rez, “Chérrepe en 1572”; Ramí�rez, Provincial Patriarchs; Ramí�rez
World Upside Down, especially ch. 5; De la Puente Luna, “Into the Heart of Empire”; Noack,
“Caciques” (on natives manipulating the written word to secure a desired outcome regarding
chiefly succession); and the essays in Drinot and Garofalo, Más Allá de la dominación. On
Spanish laws (as early as the Laws of Burgos of 1512) confirming native usufruct rights, see
Guevara Gil, Propiedad agraria, xvii, 129.
62 Oral testimonies are recorded in the 1565 inquiry published in Ramí�rez, “De pescadores
y agricultores”; the testimonies published by Rostworowski de Diez Canseco (“‘Mercaderes
del Valle de Chincha”); and the unpublished records of the review of an Audiencia judge’s
activities in 1566–67 (AGI/J458).
land and TenUre in early cOlOnial PerU
protected.63 Therefore, the monarchs never gave them absolute, feesimple prop
erty rights to the land.
Land grants to Spaniards, in contrast, implied both direct dominion (dominio
directo) and usufruct rights (dominio útil), provided certain provisions were met.
Land grants became valid titles, for example, only after the grantee had cultivated
the land for a specified number of years. The grantee was also enjoined from sell
ing the land to another individual for a definite period and prohibited indefinitely
from selling or donating the land to the Roman Catholic Church.64 Moreover, land
grants were subject to royal confirmation, although few grantees bothered to seek
confirmation at this time. Finally, mercedes were issued with the condition that
they cause no harm to third parties (for example, the natives).65 The king repeat
edly cautioned his representatives not to disturb the possession of lands held
communally by the lineages.66
The Spanish monarchs delegated their authority to make land grants to gover
nors, viceroys, and certain town councils. Pizarro distributed both urban and sub
urban real estate around the cities he founded.67 Town councils later assumed this
power, making liberal grants of house sites to encomenderos and nonencomen
deros alike. Viceroy Don Antonio de Mendoza (1551–52) made the first known
grant of about fifty fanegas de sembradura to a nonencomendero of Trujillo for
agricultural purposes in 1550,68 while traveling overland to Lima. In the follow
ing years, more cabildos partitioned abandoned tracts of land among recent arriv
als, sometimes identified as “poor farmers” (labradores pobres), on which to grow
wheat and other foodstuffs.69
63 Ots Capdequi, España en América, 19, 28, 157.
64 The prohibition against donating lands to the church was unevenly observed in later
years. See Guevara Gil, Propiedad agraria, 90.
65 For that reason, many early land acquisition records contained an almost requisite clause
stating that the lands had belonged to the Inca, sun or moon: Honores, “La asistencia jurí�dica
privada,” 6 and 8; Guevara Gil, Propiedad agraria, 13, 23 (recording that lands had been of
Viracocha Inca and were dedicated to the sun), 172 (recording that these were empty lands
of the Inca).
66 RLI, v. 2, ley 5, tit. 12, lib. 6, fol. 242; Ugarte, “Los antecedentes históricos,” 368–74; BAH/
ML, t. 97, 1535, 133–35; Lissón y Chávez, La iglesia de España, vol. 1, no. 2, 76; Ots Capdequi,
El estado español, 39, 135; Guevara Gil, Propiedad agraria, 13, 28, 90, 192.
67 Guevara Gil, Propiedad agraria, 7; Honores, “La asistencia jurí�dica privada,” 7.
68 A fanegada (de sembradura) was the land that could be planted with a fanega
(approximately 1.5 bushels) of seed. This was not an absolute measure, because the amount
of land that could be sown with a fanega of seed was a function of the type of seed (e.g., corn,
cotton, chilis) and the soil fertility, climate, water availability, and other factors.
69 ART/LC, 1564; ACT, 1:11, 177, and 202–3; Ramí�rez, Provincial Patriarchs, 25, 51, 66;
47
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sUsan eliZaBeTh raMi�reZ
The municipal council of Trujillo, for example, had been making grants since
Pizarro’s departure without the official sanction of the king or any other author
ity. In 1558, the Viceroy Marqués de Cañete (1556–61), in an effort to formulate
the first coherent land distribution policy, questioned the legality of the council’s
actions and apparently moved to annul the grants. Pedro Gonzales, with power
of attorney from the council, hastily departed for Lima to persuade the viceroy to
confirm its previous actions. Under pressure, the Marqués allowed these unau
thorized grants to stand in a royal decree issued in Lima on 21 February 1558. The
minutes show that the council continued to make grants near the city until at least
the end of the 1560s, but rarely outside the immediate vicinity of the city.70
One reason for these unauthorized actions was the lack of royal officials in
the area. This was effectively remedied in the 1540s, when a corregidor municipal
(municipal governor with executive, judicial, and administrative jurisdiction over
specific populations) was named. His control was weak at best in the early years,
given encomendero opposition. Most corregidores made no pretense of being able to
impose their will on all. The multiplicity of his duties forced him to routinely dele
gate authority to lieutenants when he left town to visit distant settlements to imple
ment royal decrees.71 Over time, however, his administrative and judicial impartial
ity was thwarted as, by the mid1550s, a feeling of common interests between the
corregidor and Spaniards replaced the initial resistance and distrust of this author
ity. This was especially true of the encomenderos who began to serve as the corregidor’s guarantors, that is, an encomendero guaranteed that the corregidor would
appear at his residencia, a judicial review at the end of his term of office at which
he answered any charges of incompetence or misuse of power. Such arrangements
made him a less zealous representative and advocate of the crown’s interests.72
Another reform measure resulting from the mounting intercultural friction
between the Spanish and the natives and the fact that there were few authorities
outside the cities to whom the natives could appeal to for help, moved Governor
Garcí�a de Castro (1564–69) to appoint a second type of corregidor, the corregidor
de indios, with specific jurisdiction over the natives in 1566. Whereas a corregidor
municipal exercised jurisdiction over the Spanish and mixed population of the Span
Keith, “Origins of the Hacienda System,” 153; Guevara Gil, Propiedad agraria, 7–8, 13, 15, 23
(for Cuzco).
70 ACT, 1:11, 37, 67, 77, 82, 95, 98, 186–87, 202–3, 264, and 298–99; ART/CoO l. 147, exp.
21, 11IX1562. See also Ots Capdequi, España en América, 41 (on the cabildo’s loss of the
right to grant land).
71 Cabero, “El Capitán Juan Delgadillo”; ACT, 1:48–50, 59, 371.
72 ACT, 1:353, 358, 359; ART/Vega, 1567.
land and TenUre in early cOlOnial PerU
ish cities and towns, the corregidor de indios supervised the natives and dealt with
the problems of intercultural contact, but at a salary equal to less than half that of
the corregidor municipal of Trujillo.73 As a cultural broker and ombudsman in rural
areas, the corregidor de indios had an ambiguous role. Theoretically, the natives’
welfare was one of his primary responsibilities. He was to be an impartial authority
who would listen to appeals for justice. His duties included enforcing labor laws,
which prohibited natives from working as porters or mill hands; making sure that
native laborers were promptly paid; and monitoring the collection of tribute.74
But the corregidor de indios did not solve all the natives’ problems with the
Spaniards. Spokesmen for the populations of Chérrepe and Pacasmayo appealed
to him for payment of damages to their corn and cotton fields and irrigation net
work caused by the livestock of Pedro de Morales and Gaspar de Soria. Cabildo
officials had ignored their complaints. When they approached the corregidor, Don
Diego de Valverde, he stalled. To make matters worse, at the insistence of Morales,
Valverde ordered the native spokesmen whipped and shaved. To native men, cut
ting of the hair was second only in severity of punishment to exile. Then, to reas
sert his authority, Valverde sent them to work as laborers for Morales.75
In each of these cases the attitude of both officials and corregidor is explained
by conflicts of interest. Council magistrates were farmers and livestock raisers,
whose own animals damaged the natives’ fields and irrigation networks just as
the animals of other settlers did. The corregidor’s inaction can be explained by his
clear identification with such agrarian interests. The corregidor, theoretically an
outside, impartial representative of the crown and protector of the natives, was by
the 1570s and 1580s participating in the agricultural bonanza. Father Toribio de
Mogrovejo, the Archbishop of Lima, wrote to King Philip II from the northern val
leys in February of 1590 to report that the corregidores commonly forced lineages
to plant fields for them and grind wheat into flour. Moreover, the corregidores,
emulating the encomenderos, used the natives to generate revenue to supplement
their salaries by requiring them to produce commodities on previously unfarmed
land or spinning and weaving textiles for sale in the southern markets. Moreover,
the lineages constituted a captive market for horses, mules, wine, and other goods,
which the corregidor could force the natives to buy, sometimes at exorbitant prices.76
73 ACT, 1:249 and 2:147; Eisen, “Indians in Colonial Spanish America,” 108; AAT/Causas,
1570; AGNP/R l. 3, c. 7, 1582, 133; ART/Vega, 1587; AGI/AL 464, 1583.
74 Valdez de la Torre, Evolución, 63; ACT, 1:353; ACT, 3:11; ART/O 1591, 144v–45, and
1609; Keith, “Encomienda.”
75 ART/Mata 1580; CoO 27VII1580; AGNP/R l. 3, c. 7, 1582, 101–3.
76 ASFL/Reg. 9, No. 2, Ms. 11, 1590; and Ms. 2; Lissón y Chávez, La iglesia de España, vol.
49
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Furthermore, like the case of the corregidor municipal, some of the leading citi
zens of the towns and largest agrarian interests posted bond so that the corregidor de indios could assume office.77 Being the sponsor of a corregidor sometimes
gave a guarantor the opportunity to resolve conflicts directly. The corregidor often
named a guarantor as a lieutenant, thus giving him official jurisdiction over his
own interests.78 Bribes and threats also influenced the corregidores’ action.79 It is
not surprising, then, that the natives rarely got results when they appealed to the
corregidor or local officials for help. Long distances and the infrequency of visits
by outside authorities regularly allowed corregidores and city officials to act, in
many cases, with impunity.
Worse, and defying preHispanic traditions, even top native officials were
frequently closely allied with local Spanish interests. Encomenderos, for exam
ple, served as godfathers to native lords’ children. Consequently, these children
sometimes took the encomendero’s name. Thus, Captain Diego de Mora, the first
encomendero of the Chicamas and Chimús, became the godfather to Don Juan
de Mora, the son of Don Alonso Caxahuaman, cacique at the time that Pizarro
invaded. According to Jorge Zevallos Quiñones, a prominent local archaeologist
and historian, he became the chief and ruled until late in the sixteenth century.80 In
other cases, lords, like Don Antonio of the Chimús, entered into a partnership with
Spaniards of the city of Trujillo.81 Likewise, encomenderos and even the viceroy
sometimes intervened in the native succession process to impose their choices,
which left the newly installed lord subject to his patron’s whims.82 Documentary
and secondary sources show that as a result of their inability to find remedies for
abuses locally, the natives supported individual leaders’ and delegations’ trips to
the capital (and later to Spain) to present their petitions for justice at court.83
At about the same time as the appointment of corregidores de indios, a sec
ond type of official, a visitador or inspector, made tours of rural areas. Visiting
3 no. 15 (16II1590), 538; ART/CoAG 24XII1582; CoR 30VI1576; AGNP/R l. 3, c. 7, 1582,
99v–107; AGI/J457 1151–51v; J460, 365v; and J461, 1430v.
77 ACT, 2:146; ACT, 3:15; AGNP/R l. 2, c. 5, 1582, 27v–28; ART/Vega, 1587.
78 ACT, 2:266.
79 ART/MT 1578; ACT, 3:11–13; AGNP/R l. 3, c. 7, 1582, 135.
80 Zevallos Quiñones, Los cacicazgos, 13–15.
81 Ramí�rez, “De pescadores y agricultores;” Ramí�rez, Provincial Patriarchs, ch. 5, esp. 132.
82 Ramí�rez, Provincial Patriarchs, 28; Zevallos Quiñones, Los cacicazgos, 135.
83 De la Puente Luna, “Into the Heart of Empire”; AGI/J458, 1546–47, 1888v. On the
litigiousness of natives in the sixteenth and seventeenth centuries, see Honores, “La
asistencia jurí�dica privada” and “Colonial Legal Polyphony”; Herzog, “Colonial Law.”
land and TenUre in early cOlOnial PerU
officials and authorities of the capital were much more sympathetic to natives’
complaints than were local authorities who became beholden to local interests.
Hundreds of native petitions presented to an Audiencia judge, Dr. Gregorio Gonza
les de Cuenca, who spent two years traveling the back trails of the north between
Trujillo, Chachapoyas, Piura, and Guánuco, exhibit the level of frustration and con
flict experienced by the natives he encountered. These unpublished documents
indicate that the natives contested European occupation as early as the 1550s.84
They complained about harsh treatment, overwork, and occasional water short
ages, but rarely because the Spanish usurped unexploited crop land (which was
still unusual as long as tribute fed the Spanish and casta population).85 Instead,
they protested most bitterly about the damage caused by imported livestock that
destroyed vegetation and infrastructure. Their petitions explained how European
animals hurt their fields (chacras), pastures, and irrigation canals. Native plots
were usually unfenced, because women and children shepherds supervised the
camelids, which were their only grazing animals. Furthermore, the animals ate a
strawlike ichu grass that grew at altitudes that were above most maize and some
potato lands. So, they did not threaten most harvests.
European animals, in contrast, roamed in large groups, often with less super
vision. They did not distinguish between a weed, a maize stalk, or a potato plant
as they wandered, often entering and consuming the crops in native fields. Pigs
grazed more rapidly and consumed more than goats, causing the peasants to com
plain.86 They also uprooted forage. Sheep nibbled, gnawed, and cropped vegeta
tion close to the ground, causing friction. On the open range, such overgrazing
and the loss of plant cover, contributed to erosion and, subsequently, floods. The
animals also stumbled and fell as they crossed irrigation canals, breaking down
their edges and sending dirt, sand, and vegetation into the bottoms to obstruct the
water flow.87 To prevent damage to the city water supply, the town council of one
84 I found one court case with references back to the late 1550s, recording a dispute over
land between Alonso Carrasco and the natives Don Francisco Chuminamo and Xobal Supian
(ART/CoPedimento, 22III1564).
85 There were, however, conflicts over land between native lineages. See Adorno, “Court
and Chronicle,” especially 68–69; Rostworowski de Diez Canseco, “Etnohistoria”; ART/
CoPedimento 31VIII1563 and CoR 3VI1564.
86 AGNP/RA, l. 27, c. 95, 1610.
87 The history of the impact of the importation of European livestock has received
much recent attention. Most scholars, to date, have focused on Mexico. See, for example,
Melville, A Plague of Sheep (still the best for central Mexico in early colonial times); and
Sluyter, “Landscape Change”; Sluyter, “From Archive to Map.” For Spanish Peru, see Wernke,
Negotiated Settlements.
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coastal city ruled that no one could corral animals near irrigation canals above the
urban zone; but, in more remote areas, the damage to the irrigation infrastructure
continued as the animals multiplied exponentially. The chieftain of the Ferreñafes
voiced his despair in September of 1566:
[I,] Don Fran[cis]co palarreffe lord of this encomienda of ferriñafe declare
that the pigs cows and other cattle belonging to Juan Roldan and Lorenço
de Camudio encomenderos of Tucume and Illimo and their brothers and
servants greatly damage my fields and those of my Indians and the rest
of the Indians of this encomienda because the lands of this encomienda
are adjacent to the lands of Tucume and Illimo and besides this they [the
cattle] break [down the walls of] our irrigation ditches and they damage
us in other ways in great detriment to us and of the said fields.88
He asked that a local authority place markers on the fields so that boundaries
could be recognized and that they order that the said cattle not enter their fields
nor damage their irrigation canals nor harm them in any way.89 To put a stop to
such practices, Dr. Cuenca ordered several estancias moved, noting that because
of the vast areas of vacant land with abundant grasses this should cause no major
hardships to the breeders.90 He also imposed distance limits between estancias
and areas of native cultivation. Subsequent similar complaints show that the 1566
orders to move estancias away from native fields were either not enforced or dis
tance proved a poor deterrent.91
These petitions, although written by paid Spanish and mestizo scribes with
the help of translators who put words in natives’ mouths, show, too, that some of
the petitioners had grasped the rudiments of Spanish concepts of proprietorship.92
88 AGI/J458, 2068: “don fran[cis]co palarrefe prinçipal deste repartimi[en]to de ferriñafe
digo que los puercos bacas y demas ganados que Juan Roldan y lorenço de çamudio
encomenderos de tucome e Yllimo y sus hermanos y criados tienen hazen muchos daños
en mys sementeras e de mys in[di]os y de los demas yn[di]os deste repartimiento por estar
juntas las tierras deste repartimi[ent]o con las delos d[ic]hos tucome e yllimo y demas desto
nos qyebran y rompen las açequias y nos hazen otros muchos danos y en gran perjuyzio y de
las d[ic]has sementeras.”
89 AGI/J461, 1554.
90 ACT, 1:21–22 and 2: 3–4; AGI/J458, 1840v.
91 Guaman Poma de Ayala, Nueva corónica, 944. For other personal complaints, see: ASFL/
Reg. 9, no. 2, Ms. 26, 1647; AGI/AL 270, 481 and 589; J461 1443v and 1580v; ACT, 2:3; ART/
Rios 1582 and Mata 1580; CoO 30IX1582; l. 154, exp. 222, 22II1585; and 1597.
92 Note that the most widely spoken native language, Quechua, has no words for owner,
ownership, or property. Possession and “ownership” of land became issues in the seventeenth
land and TenUre in early cOlOnial PerU
The practice of working for the lineage lord and bringing him gifts of produce
began to be called terrazgo, which the Spanish translated as rent. One lord asked
for title of communal lands that until the visit of Dr. Cuenca had been used “for the
corn fields that are worked communally”.93 Furthermore, a few of the native lords’
petitions requested titles (mandamiento de amparo, real amparo or amparar en
posesion, orders supporting their possession) to the lands that they, and their
fathers and grandfathers used, lest someone in the future try to take their fields
from them.94
The final reform measure was the decision to concentrate the remaining,
very dispersed native population in villages called reducciones, modeled on Span
ish towns with central plazas and perpendicularly intersecting streets in the
1560s70s.95 The imperial legislation on which this effort was based made kin
related lineages, living dispersed over large areas and occasionally gathered at
ceremonial centers to venerate their ancestors, into concentrated populations liv
ing in towns, communities in a physical sense, with Spanishallotted territories
made up of one or more pieces of lands that in later years they had to defend.
Kinship and lands thus were melded (at least theoretically) into one institution.
Yet, for the natives, the traditional conceptualization of the ground and related
customs still governed its use.96
The first Crownmandated, organized efforts in this regard occurred in the
1560s under the direction of Dr. Cuenca, mentioned above. In July of 1566, he
ordered that the scattered settlements of Chérrepe be reduced to two.97 In the
next decade, Viceroy Francisco de Toledo extended the program to his entire
jurisdiction. Uprooting and regrouping the natives in a few large settlements,
the officials reasoned, would facilitate religious indoctrination and accultura
tion and help maintain the segregation of natives from Spanish mistreatment and
corrupting influences. A less publicized but nonetheless significant reason was
century, especially as native populations began to recover. Wightman, Indigenous Migration
and Social Change, 54; Adorno, “Court and Chronicle”, 68.
93 AGI/J458, 2063v65: “para las sementeras de maiz que se an de hazer de comunidad.”
94 AGI/J458, 2038–29; 2125–25v, 2131; Guevara Gil, Propiedad agraria, xxiii, 186–87;
Honores, “La asistencia jurí�dica privada,” 8.
95 For the royal decrees governing this institution, see RLI, v. 2, tit. 3, lib. 6, f. 198–201.
96 Martí�nez, “Evolución de la propiedad territorial,” 443. Although I disagree with Martí�nez’s
characterization of Peruvian land as “territory” and “property” before the reducciones, I do
agree that the officials in charge of reducciones assigned property to native lineages which
they subsequently held and defended as corporate holdings.
97 Remy Simatovic, “Los curacas,” Appendix 1 (AGI/J459, fols. 3061v–3063r).
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administrative expediency—facilitating tribute collection and control.98 Official
statements regarding the reducción program stressed its positive features—sav
ing the infidels and protecting them from direct Spanish exploitation through
segregation. Laws governing the program promised added safeguards. Lineages
were not to lose their lands; and an ejido, or reserve, with a diameter of one league
for common grazing and future urban expansion, was to be designated around
all villages. Other lands were designated for shared cultivation. If the new settle
ments were far from their traditional fields, making daily access difficult, natives
were to receive new ones near the reducción. The lineages on whose land the new
town was built were to be recompensed with other land. The few Indian lords
with hereditary rights to cultivated land were to be allowed to sell them if they
wished. Abandoned land was to be held in common,99 although Philip II changed
his mind on this issue, releasing a royal order in 1568, declaring that vacant lands
automatically became the crown’s property. He reserved the right to distribute
them for himself and his successors.
But there was a great gap between legal theory and actual practice. It did not
always produce the expected outcomes. In one case in 1572, Toledo sent Juan de
Hoses to resettle the dispersed members of the lineage of N� oquique (one of three
that made up the ethnicity of Chérrepe). He justified his actions stating that the
people of N� oquique lived in unhealthy sites, so isolated that the priest rarely vis
ited, a condition which allowed the natives to meet to practice their pagan rights
unmolested. He stressed that the move was for the natives’ own physical and
spiritual welfare. He ordered the farmers of N� oquique to rebuild their dwellings
around the monastery of Nuestra Señora de Guadalupe and the fishermen in their
ranks to reestablish themselves in the town of Chérrepe on the coast.
In this instance, the natives protested. The inhabitants petitioned the viceroy
and royal Audiencia almost ten months before the actual order for them to leave
their homes was given. They asked that they not be resettled, fearing that a trans
fer to a different climate would cause them to sicken and die. In fact, the native
chronicler Felipe Guaman Poma de Ayala condemns Toledo for the reducción pol
icy, writing:100
98 AGI/P185, r. 24, 1541; J456, 419; J459, 2842 and 3062; J461, 928v; Arroyo, Los
franciscanos, 34; Ramí�rez, “Chérrepe en 1572”; Cabero, “El Capitán Juan Delgadillo,” 94;
Mumford, Vertical Empire; Jackson, “Elites indí�genas”; Martí�nez, “Evolución de la propiedad.”
99 Valdez de la Torre, Evolución, 67, 76 (citing a decree of Philip II, dated 1573); RLI, v. 2,
tit. 3, lib. 6, leyes 8–9 and 14; fols. 199r–199v; BAH/ML, t. 97, n.d. [1568], 52 and 334).
100 Guaman Poma de Ayala, 1613/1936, 951[965]: “Don Francisco de Toledo, bizorrey,
mandó despoblar y rreducir de los pueblos desde rreyno. Desde entonses se a muerto y se ua
acauando los yndios deste rreyno por las causas ciguientes: El primero, porque se apartaron
land and TenUre in early cOlOnial PerU
Viceroy Don Francisco de Toledo ordered the abandonment and reset
tlement of the people. Since then the Indians of this kingdom have died
and are disappearing for the following reasons: the first, because they
removed the Indians from some towns, places, and corners that their
most important native wise men, doctors and philosophers had selected
and were approved by the Incas for their climate, lands and water to [best
ensure the] growth of the population. Since then, the Indians in their new
towns have died and are disappearing. Where there were ten thousand
persons—soldiers of war, without [counting] the women, old men and
children—now there are not ten tributepaying Indians [….] said places
are humid and disease prone. And there enter illnesses that the wind
brings; in parts stinking, pestilential winds blow in from the sea,[.…]in
other parts, it is caused by the sun or the moon or the planets [….]
As a result, natives, in some cases, did lose their best lands. Those on the coast,
for example, were resituated closer to the beach, where the lowlying fields were
subject to a heavy mist in the winter and fog cover that hindered germination
of seeds and fostered such problems as the growth of harmful fungi and insects.
Furthermore, these and others lost access to irrigation water, having been moved
to the end of the channels, where flows decreased to a trickle in dry years. While
natives in many cases did move and rebuild their homes in these new towns, many
abandoned them and returned to their traditional homesteads as soon as the
Spanish left and they deemed it to be safe to travel.101
Where successful, this planned concentration opened up large swaths of fer
tile lands and shared pastures to Spanish colonization. Estancias, like those infor
mally founded in the immediate aftermath of the invasion, were easy to establish
with little capital investment after the initial purchase of a breeding pair and little
labor. One shepherd could oversee up to one thousand sheep at a time and earned
less than the value of ten head a year. Partnerships, as mentioned above, could ini
los yndios de unos pueblos que tení�an escogidos citios, rincones por sus principales sauios y
dotores, lesenciados, filósofos y aprouado de los primeros Yngas los tenples y tierras y agua
para multiplicar la gente. Adonde auí�a dies mil personas, soldados de guerra cin las mugeres
y biejos y niños, agora no ay dies yndios de tributo … los quaales [sic] citios causa en partes
tierra úmida y pistilenciales y pasa por ella. Y ací� entran enfermedades que trae aquella
ayre; en partes biene aquella ayre de la mar que es pistilencial y hedor. … en otras partes, lo
causa del sol o de la luna o de las planetas que apunta y da la fuerza en los citios y lugares.
Todos los quales es causa, como tengo dicho.” Guaman Poma de Ayala, Nueva corónica y buen
gobierno, 951 [965].
101 Abercrombie, Pathways of Memory, 283; Espinoza Soriano, Juan Pérez de Guevara,
122–25; Glave, El virreinato peruano, 4–5; Duviols, Cultural Andina y represión, 403–6; AGI/
J458, 942v43.
55
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tiate breeding on the vast areas of open range which had been abandoned, the so
called tierras baldías or vacas (wasteland; untilled, uncultivated or empty lands).102
More open ranges were a great windfall to Spanish cattlemen, but natives ben
efited less. With the exception of the southern highlands where natives pastured
abundant camelids, most natives had fewer livestock.103 Any advantage to these
few did not compensate for the damage done to the majority. Herds of imported
animals continued to be a major source of conflict between the natives and the
Spanish when the latter allowed their animals to roam freely into the unfenced
native fields. Spaniards paid little heed to royal decrees mandating native protec
tion that were against their interests, especially where there was little effective
law enforcement by officials representing the king. In fact, Spaniards sometimes
purposely allowed their animals to graze in native fields, defending this practice
to the bewildered natives by citing the definition of pasture.104 Breeders knew that
if natives could not subsist and produce tribute goods on their traditional lands,
they would be forced into the growing labor market.
Crops generally required greater investment than estancias. Spaniards
reacted to local grain shortages and growing markets in Tierra Firme and Lima
by planting wheat on some of their plots on the edge of town. Continued expan
sion near the city proved impossible when the decrees that limited the distance
which native labor could travel to work began to be implemented. Mixed farms
called labores de pan sembrar (or de pan llevar: the forerunners of the hacienda)
included land planted in grain and land left as natural pasture for grazing work
animals. It required a significant sum to purchase hand tools, plows, oxen, and
carts. Wage costs were also greater, because as a laborintensive activity farm
ing required constant and specific administration to synchronize and coordinate
plowing, planting, weeding, and irrigating various fields at once by large numbers
of workers. On the coast, as the native labor supply dwindled, those few who could
began to spend large sums to purchase slaves to maintain and expand production.
But most farmers still had no title to the lands they used. Similarly, stockrais
ing did not imply exclusive rights to any, unless the breeder had a merced. Most
others only acknowledged de facto rights to those occupied by the corrals that
were built to enclose the animals at night. The question of the ownership of land
and pastures was not a predominant preoccupation much of the time.
102 Guevara Gil, Propiedad agraria, 13, 23.
103 See the analysis of three wills of native lords in Ramí�rez, “Rich Man, Poor Man,” and Diez
de San Miguel, Visita hecha.
104 AGI/AL 121, 1566, 5; P 185, r. 24, 1541, 75; RLI, v. 2, lib. 6, tit. 9, ley 19, f. 231v; and
BAH/ML, t. 97, 1541, 181; and t. 21, 191–92.
land and TenUre in early cOlOnial PerU
The First Visita de la Tierra, or the Opportunity to Purchase Title
By the last decade of the sixteenth century, a select few Spaniards had acquired
titles by gaining mercedes from a traveling viceroy or inspector, or their local
municipal council. But many more Spanish settlers occupied lands without spe
cific titles. This situation discouraged producers from investing and enlarging
their farms. To secure their investments, they began seeking ways to establish
their rights to the lands they occupied. At first, Spaniards planted on recently
abandoned land that was easy to clear and required relatively little work to
restore the irrigation networks, where they existed. Given the native demographic
collapse, vacant land was relatively abundant and easy to occupy; there was lit
tle need for them to encroach on land still being actively used by natives. They
also took advantage of the creation of a forced, rotating labor system (the mita) to
acquire land. They simply remained in possession of land worked by the natives
when temporary workers rotated every few weeks. The land eventually became
identified with the Spaniard who occupied it continuously and quietly assumed its
control and disposition. The result was a de facto transmittal of possession over
the years.105 Some also used an ostensible rental arrangement as another ploy to
acquire land. Spaniards leased native lands and later asserted that the rental was a
sale, claiming that possession throughout the intervening years constituted proof
of ownership.106
Gradually, however, the legal uncertainties associated with these stratagems
led the Spaniards to prefer formal sales. Some purchased land from native lords
for token payments, often paid in kind, despite royal disapproval and at least one
decree prohibiting such transactions.107 In 1566, Dr. Cuenca specifically prohibited
the sale of land by native lords and other commoners, unless absolutely necessary.
Item, because the curacas, without having power to do so, sell on their
own authority the lands of their communities as their own, thus causing
their subjects great harm […] and because, if the Indian population ever
increases in numbers there will be a scarcity of land, it is ordered and
mandated that no curaca or native official can sell community lands to
Spaniards or any other individual, unless the sale is of urgent necessity
or of evident utility to the community […].108
105 ART/Rios 1979; Mata 1565; Vega, 1567; MT 1578; LC 1559, 10X1561 and 16V1564;
BNP/B871, 1627; and AAT/Causas 1570.
106 ANCR/1586–1611; AGI/J461, 1443–43v.
107 Guevara Gil, Propiedad agraria, 19, 21, 23, 103, 126–27, 130, 135–36.
108 ACT, 2:16–17: “Yten, porque los caçiques, sin tener poder para ello, venden por su
auturidad las tierras de los rrepartimy[ent]os por suyas, siendo de la comunydad, de lo qual
57
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sUsan eliZaBeTh raMi�reZ
Cuenca realized that if such sales were not banned the native population would
lack sufficient land to provide for its own needs if the peoples ever increased to
previous levels. But, in later years, natives and Spaniards alike took advantage of
the provision’s loophole to continue these transactions.109
But tenure insecurity and mounting evidence of usurpation of native lands
turned viceregal benign neglect and intermittent interventions in the machina
tions of distant Spanish officials and citizens into affairs of concern.110 Actions fol
lowed. The most noteworthy occasions of direct intervention were the visitas de
la tierra by viceregal officials sent to the rural areas to review and legalize land
titles. These visitas were not designed to check on the conditions or the efficiency
of rural administration, to alter the local balance of power, or to report on the situ
ation of the native population as much as to simply generate additional revenues
for the king, while responding to Spanish demands for secure tenure and native
cries for protection against usurpation. These visitas, however, often led to abuses
as landowners and officials colluded to benefit themselves.
A general review and legalization of landholdings occurred in the 1590s, the
first of several more in the decades of the 1640s, 1710s, and 1780s.111 Only the
first is of interest here. The excessive cost of Spain’s continental warfare with Eng
land, France, and Holland; the destruction in 1588 of the great Armada; the result
ing depletion of the royal treasury; and the reports of widespread illegal posses
sion of crown lands in America prompted King Philip II to order the first thorough
review of land titles, the visita de la tierra, in 1589.112 Imperial decrees and the
accompanying instructions for the visitas were designed to generate income for
los yndios a ellos sujetos son danyficados […] y viniendo los y[ndi]os en avmento avra falta
dellas [tierras], se hordena y manda que ningun caçique ny prinçipal pueda bender tierras
del rrepartimy[ent]o a españoles ny a otra persona, sino fuere con Urgente nesçesidad de la
comunydad o en Evidente utilidad della [….].
109 ART/Mata 1586; 24X1563; 1565; 30IX1562; CoAG 30IX1567; ACT, 2:16–17; AGI/
P108 r. 7, 1562, 48v; AL 28B; J460, 429v; Guevara Gil, Propiedad agraria, 130; and Angulo,
“Cartulario,” 296.
110 On usurpation, see, for example, Guevara Gil, Propiedad agraria, 13, 19, 23, 126;
Honores, “La asistencia jurí�dica privada,” 6; Honores, “Colonial Legal Polyphony,” 11,
especially on the visita and composición.
111 I am not counting the occasional inspections by special agents sent to remedy the
abuses of one of these reviews, like the one conducted in the mid1650s by a priest Maestro
Fray Francisco de Huerta, who came to restore inappropriately expropriated native lands
and soothe feelings, and so to restore the legitimacy of the king as father and protector to
the native population.
112 Ots Capdequi, España en América, 40; Guevara Gil, Propiedad agraria, 28, 169, 174;
Abercrombie, Pathways of Memory, 284–85.
land and TenUre in early cOlOnial PerU
the king’s treasury and bring order to the land tenure panorama. Philip II gave
the viceroy, in consultation with the Audiencia, the responsibility for appointing
visitors to tour the kingdom to conduct the review.113 The law required all per
sons, except natives, to exhibit to the visitor for confirmation the titles to the land
they occupied. If the titles proved defective114 or illegal,115 or if a landholder had no
titles, the law provided that proprietary rights to the land in question either revert
to the crown or be legalized (or compuestos, literally “repaired”) by a payment of a
“just” and “moderate” sum to the royal treasury. Thus, some had to pay if the visi
tor found more land than that in the original merced. Persons without titles had to
pay a fee to legalize possession to all the lands they occupied.
The instructions further stipulated that vacant land—including land which had
been assigned to the reducciones that was now in excess of that actually needed
and used—belonged to the Crown, that is, it was baldía (waste, untilled, unculti
vated) and realenga (royal patrimony: though in practice it appeared ownerless,
idle, or unattached). To raise additional funds, Philip II empowered and encour
aged the visitor to sell as much of the vacant land as possible, taking care only to
reserve the necessary area for the future urban expansion of Spanish towns and
cities and for the agricultural needs of the native peoples. The only condition for
purchase was that buyers have the means and intent to cultivate it. The law clearly
outlined the procedure for such sales. Prospective buyers submitted bids to the
visitor for possession of the vacant land of their choosing. After verifying that the
land was indeed idle and waste the visitor notified the owners of adjacent prop
erty to discover any objections to the sale. The town crier then announced the sale
publicly on thirty separate occasions. On the day of the last such advertisement,
a candle was lighted and additional bids were accepted as long as it burned. The
highest bidder received the right to acquire title to the land. This elaborate pro
cedure was not always followed in practice. There are a few cases when the town
crier made fewer announcements than the mandated thirty. But regularly, these
were made in Spanish, thus denying news of the sale to nonSpanishspeakers (i.e.,
the vast majority of the natives).116
113 A royal decree of 1593 empowered Garcia Hurtado de Mendoza (the first Marqués de
Cañete) to review land titles. His commissioners took over and finished the reviews that
in some districts had been started on an informal basis by the corregidores. See Bronner,
“Tramitación legislativa bajo Olivares,” 418–22.
114 For example, they were granted by a town council that did not have the authority to do
so or were for less land than the amount presently held.
115 For example, they were bills of sale from natives.
116 BAH/ML t. 97, 1589, 660; BAH/ML 1591, 66; BAH/ML 1592, 49–52; BAH/ML 1598,
768; and BAH/ML 1679–86; AGI/AL 132, [1593–95]; Valdez de la Torre, Evolución, 88;
59
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sUsan eliZaBeTh raMi�reZ
News of these decrees and the impending visita unnerved landholders. Many
realized that according to the law, the only sufficient titles to land were títulos
originarios, or titles for concessions, which emanated directly from the king or
some person or institution with his explicit authority; for example, the governor, a
viceroy, and certain town councils at particular times. Landlords with grants from
the town councils worried that their titles might be considered illegal, because
the grants had been made without official sanction. Spaniards whose only titles
were bills of sale or donations from the natives realized that these titles could be
declared defective, since Spanish law regarded the natives as minors. The king had
never granted them direct dominion or absolute ownership of the land; natives
had purely usufructuary rights (dominio útil). Curacas had been allowed to sell
property, but this practice had been prohibited after the widespread and unau
thorized sale of communal lands earlier in the sixteenth century. Consequently,
only mercedes and bills of sale or donations, dated during the 1560s and accom
panied by the sworn statements of the corregidor and various informants that the
lands were not needed by the natives, would not be challenged as illegal. Finally,
cattle raisers worried about their status and continued access to pastures and for
ests, because by royal decree grazing lands were communal and open to all. Many
stockmen had no titles whatsoever, and hence only squatters’ rights to the land on
which they had built stock pens and huts.117
The settlers’ fears were intensified by the circulation of exaggerated, near hys
terical rumors that the visita was a scheme to return all the land to the lineages
and that the land of many Spaniards would be confiscated; in fact, however, the
king was willing to sell off large areas of the royal domain to raise cash. Viceroy
Cañete’s reaction to the order for the visita reflects the landholders’ anxieties. He
wrote Philip II a strongly worded letter, dated 27 May 1592, outlining the possible
disruptive effects of his decrees and suggesting their slow and cautious implemen
tation:
The landowners are the richest and earliest discoverers and conquerors
of the Kingdom, their children and descendants, and other persons to
whom they have sold property. All these persons have plowed, cultivated,
planted and improved the lands with buildings […] at first everyone
received land without contradiction; the viceroys and governors encour
aged and aided those who dedicated themselves to exploiting and plant
Guevara Gil, Propiedad agraria, 90–93, 132.
117 AGI/AL 32, 25IV1588. In 1592, a royal decree provided that titles issued by cabildos
were valid, until the council was specifically prohibited from making land grants. See BAH/
ML t. 97, 49.
land and TenUre in early cOlOnial PerU
ing them [….] Now nothing could cause more scandal and uneasiness in
all the Kingdom among the most prestigious, valuable and able citizens
[…] than to try to take the land away from them which they possess in
perpetuity.118
The only lands that should be affected, he argued, were those no longer needed
and used by Indian peoples.119
The landholders’ anxiety was unfounded: none of the visita’s predicted dire
consequences came to pass. In one case, the visitor, Don Rodrigo de Ampuero,
while outwardly maintaining a solemn and disinterested air, probably overstated
the consequences of not regularizing land titles to encourage anxious landhold
ers to come forward and thus accomplish his true and overriding purpose of
raising as much money as possible for the royal treasury. Ampuero confirmed as
legitimate and sufficient titles the original grants made at the time Spanish cit
ies were founded and their subsequent sale and donations. For a fee, Ampuero
issued titles to excess lands and corrected and legalized defective titles. A modest
sum also made landholders without titles legal landowners. A few Spaniards took
advantage of the opportunity to purchase vacant land at auction. Juan Fragoso, for
example, paid 45 pesos for three fanegadas of lands and the legalization of the bill
of sale for nine others he had previously purchased from the curaca of Chuspo
Callanca.120
Judging from the visita’s extant records, livestock raisers were the group of
Spaniards most affected. Ampuero issued clear title to estancias and corrals in one
area for sums ranging from 42 to190 pesos per fanegada. These titles gave the
ranchers ownership of enough land for their center of operations and stock pens,
but they excluded exclusive rights to pastures and woodlands. Titles contained
the clause that pastures and forests were to remain common. The titles of one
estancia, for instance, included land for an administrative center and sites for cor
rals oneandonehalf to two leagues away. The need to move animals periodically
118 AGI/AL 32, 27V1592: “ Los que poseen estas tierras son los mas ricos y antiguos
descubridores y conquistadores del Reyno y sus hijos y descendientes y otras personas aque
en estos las han vendido y todas las tienen rompidas, labradas plantadas y mejoradas con
edificios … a principio entraron todos en ellas sin ninguna contradicion dando los virreyes
y gouernadores muchas gracias y ayuda a los que se aplicauan a benefiçiarlas y sembrarlas
y tratar ora de quitarse las siendo todo su caudal ninguna cosa se podrá ofreçer de tanto
escandalo y desasosiego en todo el Reino entre los mas principales y que algo valen y pueden
[…] como lo harian quitando les todas las tierras que gozan y tienen por cosa fija y perpetua.”
119 AGI/AL 32, 27V1592; Mellafe, “Frontera agraria,” 39; BAH/ML t. 97, 1589, 654; and
1591, 66.
120 AGNP/TP l. 23, c. 613, 1787, 94.
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to fresh pastures made corrals at these sites necessary to minimize the distance
the herds had to travel each evening for protection from the prowling mountain
lions that populated the rural areas. Subsequent legislation prohibited the estab
lishment of the center of a new sheep and goat operation within one league or
that of a new swine enterprise half that distance from an existing center of opera
tions. Because of the recognized distinction between pastures (vegetation) and
the lands (soil) on which the plants grew, this regulation did not affect the tenure
of the farmers with fields between corrals. But, grazing stock did not differentiate
between weeds and stubble and crops, resulting in continuing disputes on this
account. Eventually laws were issued specifying that no new estancias could be
established within a league of cultivated land and that fields be fenced.121
The records show that for, the Spanish, the visita merely legalized a de facto
situation and did not change the pattern of landholding significantly. It made land
owners of landholders. For the natives, the visita meant yet another lesson in the
idea of exclusive property and a loss of “unused” land. The visitor, following his
instructions, left the native lineages with enough ground for their current needs,
but without sufficient reserves for future population growth. All excess land was
publicly declared the domain of the king.122 The only evidence of change in cus
toms within the communal areas of the reducciones comes from the remains of a
notarial register, where short entries record oral testimonies of who had occupied
a given parcel of land back as far as ten cultivators.123 In other words, oral testi
monies of usage rights were now being supplemented by writing them down. Or,
as Guevara Gil has written, “The papers started to talk and, in general, the written
word proved superior in truth and authenticity to the spoken word,” at least in the
minds of the Spanish.124
Thus, despite initial misgivings and apprehension, such mandated reviews
encouraged investment by regularizing titles and holdings. Landowners borrowed
church funds accumulated from charitable works by religious brotherhoods
(cofradias), monasteries, and convents to intensify production on the cattlerais
121 ART/Mata 1596; ANCR/[1645]; ASFL/Reg. 9, No. 2, Ms. 26, 1647; AGNP/TH l. 21, c.
131, 1805, 501; Valdez de la Torre, Evolución, 86–87; Chevalier, Land and Society, 88–90.
See Guevara Gil (Propiedad agraria, 28, 169) for a discussion of the visita to the Cuzco area.
122 AGI/AL 132, [1593–95].
123 ANCR[1586–1611].
124 “Los papeles comenzaron a hablar y, en general, la palabra escrita sobrepasó en
veracidad y autenticidad a la palabra oral.” Guevara Gil also noted that, in Spanish law, a
written instrument held more proof value than two oral testimonies: Propiedad agraria, xxiv.
land and TenUre in early cOlOnial PerU
ing estancias and the cropproducing haciendas. Of special interest was the invest
ment by some in sugar cane and the wheat mills needed to make sugar and flour.
Land, Custom, and Law in the Andes
The history of Spanish colonialism as it affected land and tenure in the “New
World” displays strong parallels with the institutions of the Reconquista and ear
lier eras of medieval Iberian history. The carving out of royal domain as patrimony
of the Crown, with rights to alienate parts of it; the granting of communal proper
ties to some municipalities; the drive toward private ownership of land; and the
guarantee (at least in theory) of freedom to peasants were all elements brought to
the Americas.125 Over time, migrant settlers gradually gained possession and, later,
ownership of parts of the royal patrimony. Meanwhile, grasslands remained com
mon and open to all until the eighteenth century. These institutions accompanied
the arrival and gradual settlement of the Spanish in such farflung locations as
Piura, Trujillo, Lima, Cuzco, and Sucre. With them came exotic animals that some
times feasted in native fields and damaged the agricultural infrastructure. Protests
against usurpation mounted as natives complained to Spanish priests and local
officials, or traveled to the capital to present petitions before royal authorities.
But the Spanish predilection for wine, wheat bread, sugar, and olives made agri
cultural land very valuable, and the crown delegated powers to town councils
and royal officials to award land to private individuals. Such grants began as few,
relatively small, and sporadic; but the pace of alienation accelerated in the 1560s
and at the end of the sixteenth century. Continued loss of traditional lands and
conflicts over their use with Spaniards and their descendants further entrenched
medieval European notions of property. Indeed, Andean demands for redress of
grievances provide evidence that these peoples had grasped the European con
cepts of usurpation, property, and rent. Though their agency served to negotiate
the terms of their colonial existence in the short run, a constant demand for cheap
labor further increased the numbers of usurpations and sales, abetted by legal
chicanery. Once unable to farm, indigenous peoples survived by joining the labor
force, sometimes working lands for a new owner: lands that had formerly been
“common to all.”
125 Weeks, “European Antecedents,” 62.
63
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sUsan eliZaBeTh raMi�reZ
Archival Sources and Abbreviations
ACT
AAT
Actas del cabildo de Trujillo. Transcribed by Jorge Zevallos Quiñones.
3 vols. Lima: Concejo Provincial, 1969–70.
Archivo Arzobispal de Trujillo
Causas
AGI
Archivo General de las Indias (Sevilla, Spain)
Audiencia de Lima (AL)
Escribaní�a (E)
Indiferente General (IG)
AGNP
Justicia (J)
Patronato (P)
Archivo General de la Nación (Lima, Perú)
Donaciones
ANCR
ART
Residencia (R)
Archivo Notarial de Carlos Rivadeneira, Lambayeque
Archivo Regional de Trujillo
(now Archivo Regional de La Libertad, Trujillo, Perú)
Corregimiento, Asuntos de Gobierno (CoAG)
Corregimiento, Ordinario (CoO)
Corregimiento, Pedimento (CoPedimento)
Corregimiento, Residencia (CoR)
López de Córdova (LC)
Mata
Muñoz Ternero (MT)
Obregón (O)
Rí�os
Vega
ASFL
BAH
BNP
RLI
Archivo de San Francisco (Lima, Perú)
Biblioteca de la Academia de Historia, Madrid
Mata Linares (ML)
Biblioteca Nacional del Perú (Lima)
Spain, Consejo de indias. Recopilación de las leyes de los Reynos de las
Indias. 4 vols. Madrid, 1681
Legajo (l.), expediente (exp.), manuscrito (ms.), número (no.), folio(s) (f(f).)
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land and TenUre in early cOlOnial PerU
Susan Elizabeth Ramírez (s.ramirez@tcu.edu) holds the Neville G. Penrose
Endowed Chair in History and Latin American Studies at Texas Christian Univer
sity in Fort Worth, Texas. Besides dozens of articles and chapters published in the
United States, Spain, Peru, England, Italy, Japan, and Australia, she has written sev
eral books. Among the most important are Provincial Patriarchs: Land Tenure and
the Economy of Power in Colonial Peru (1986 and 1991); The World Upside Down:
Cross Cultural Contact and Conflict in Sixteenth-Century Peru (1996 and 2002);
To Feed and Be Fed: The Cosmological Bases of Authority and Identity in the Andes
(2005); and Al servicio de Dios y de Su Majestad: Los orígnes de las escuelas públicas
para niños indígenas en el norte del Perú en el siglo XVIII (2014).
Abstract This article compares and contrasts preColumbian indigenous cus
tomary law regarding land possession and use with the legal norms and con
cepts gradually imposed and implemented by the Spanish colonial state in the
Viceroyalty of Peru in the sixteenth and early seventeenth centuries. Natives
accepted oral histories of possession going back as many as ten generations as
proof of a claim to land. Indigenous custom also provided that a family could claim
as much land as it could use for as long as it could use it: labor established rights of
possession and use. The Spanish introduced the concept of private property with
the founding of the first colonial city in 1532, but agricultural land did not become
immediately important because Europeans were supplied with foodstuffs from
the tribute of native communities, produced on native communally worked land.
After midcentury, however, royal officials began to grant land to Spanish settlers,
and there was also an increase in the usurpation of native lands. Once unable to
farm, indigenous peoples were forced into the labor market, sometimes working
lands that had formerly been theirs.
Keywords land, tenure, usufruct, usurpation, custom, law, Peru, Andean, native,
Spanish, titles, colonialism.
71
THE EDICT OF KING GäLAwDéwOS
AGAINST THE ILLEGAL SLAVE TRADE
IN CHRISTIANS: ETHIOPIA, 1548
HABTAMU MENGISTIE TEGEGNE
On 12 FeBrUary 1548, King Gälawdéwos of Ethiopia (r. 1540–59) issued
a royal edict banning the trafficking of Christians and their sale to Arab owners
under the penalty of death. The edict sought simultaneously to regulate and cen
tralize the slave trade, protect freeborn Christians from enslavement, and ban
the sale of already enslaved Christians to nonChristians. The edict did not, it is
important to underline, challenge slavery itself. While the edict banned any trade
in Ethiopian Christian slaves outside Ethiopian territory and their transfer to non
Christian masters within the country, it continued to permit the enslavement of
adult converts to Christianity and those baptized as infants in slavery. In a piv
otal passage, the king declared that the edict was to be the “established law of
Ethiopia” and required universal obedience to it.
Currently held in the church of Tädbabä Maryam in northern Ethiopia, this
edict has hitherto been unknown to scholars and has never before been pub
lished.1 Furthermore, it is a remarkable text, of a type uncommon in the Ethio
pian documentary tradition. Analysis of the edict’s content and context sheds light
on a broad set of issues concerning slavery, the encounter between medieval legal
worlds, and the discrepancy or congruence between actual behavior and docu
mentary norms in late medieval Ethiopia. It also reflects the religious, legal, and
ethical precepts already laid down in the law book Fetha Nägäst (Law of Kings),
Some of the material used to write this essay was gathered on a research grant from the
French Center for Ethiopian Studies, which I gratefully acknowledge here. An earlier version
of this paper was read before the Seminar on Slavery in Ethiopia at Addis Ababa University
on June 5, 2014, and I particularly thank Anaí�s Wion and Giulia Bonacci for inviting me to
present it and for facilitating my travel to Ethiopia. I would also like to thank the paper’s
anonymous reviewers, whose constructive comments and suggestions have been very
helpful, as well as my former colleagues Nicola Foote, Frances Davey, and Scott Rohr for their
comments on earlier drafts. I also owe a debt of gratitude to Mitiku Demele, who helped
me with the translation of the Ge’ez text of the edict. Special thanks go to Carol Symes and
Elizabeth Lambourn for their insightful comments on several drafts of this essay. The views
expressed here, and any remaining errors, are my sole responsibility.
1 Tädbabä Maryam, MS Wängél, image no. 6650. Here, I reference my own digital photo
graph of the edict, preserved in this Wängél, or Gospel manuscript: see Plate 1.
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haBTaMU MengisTie Tegegne
Plate 1. The Edict of Gälawdéwos in its Manuscript Context: Tädbabä Maryam,
MS Wängél. This manuscript page displays seven different texts. The edict begins at the
top of the lefthand column and ends on line 13 of the righthand column. Its scribe has
distinguished it from the following charter (also issued by Gälawdéwos, appointing a
Muslim governor for the province of Ifat) with a decorative row of alternating black and red
dots. Another charter of Gälawdéwos, just below, is a donation to the church of Tädbabä
Maryam, where the edict was recorded. However, this document has been partially
erased and a later scribe has added a brief charter issued by King Iyasu I (1682–1706),
recording his donation of land to one Fitawrari Mahdärä Mäläkot. Below it, following the
final lines of the deleted charter, is an anathema clause warning the reader not to delete
a charter made out in favor of one Ras Yämanä Krestos; the clause may refer to the last
text in this column, a donation of land to that same man by the clergy of the church. The
final text, inscribed in the lower margin of the page, records a donation by King Särṣä
Dengel (1563–1596) to soldiers assigned to guard the church of Tädbabä Maryam.
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
which was transplanted to Ethiopia from Egypt sometime in the late fifteenth or
early sixteenth century: a complex blending of elements derived from thirteenth
century Coptic Christian and Islamic laws, as well as from postclassical Roman
Byzantine legal systems.2 The intricate and hybrid Ethiopian legal system exempli
fies the interconnections and translation processes involved in the production of
normative texts in many areas of the medieval globe, the result of crossborder
communication processes and a special fruit of enduring CopticEthiopian reli
gious ties and interactions. My discovery of the edict now prompts a reconsidera
tion of Ethiopia’s slave law as embodied in the Fetha Nägäst and also a reevalua
tion of that text’s manuscript history and practical applications.
In this study, I therefore reconsider the whole process of legal encounter in
medieval Ethiopia in light of the edict of 1548, focusing the discussion on four
areas. First, I explore the legal theory of slavery expressed in the edict and its link
to the Fetha Nägäst, reexamining the entanglement of RomanByzantine, Coptic
Islamic, and Ethiopian legal systems. Second, I consider the circumstances sur
rounding the edict’s making and Gälawdéwos’s intentions in publishing it in this
textual format. I then provide a Ge’ez edition and English translation, in order to
facilitate further research on this important document and its wider implications.
Third, I offer a brief analysis of the immediate political context that prompted
the promulgation of the edict, arguing that it was the outcome of sustained and
violent regional conflicts between the kingdom of Ethiopia and the sultanate of
Adal during the fifteenth and sixteenthcenturies, which produced a constant sup
ply of Christian Ethiopian slaves for sale to Egypt, South Arabia, and South Asia.
Since Arabs were its particular target, the edict reveals the disjuncture between
the Islamic legal theory that exempted Ethiopia from jihad and enslavement, and
the actual relations between Ethiopians and Arabs within the Muslim world more
generally. Finally, I turn to issues of enforcement and to identifying the role that
the Fetha Nägäst and the edict played in impacting legal decisions, as well as legal
and social relations. Ethiopian law is generally assumed by scholars to have been
widely violated and ignored. The inaccessibility of the language in which the Fetha
Nägäst is written and the tenuous records of its practical use are often read as
an indication of its limited social relevance. Instead, I suggest that the legal doc
trine and principles of the Fetha Nägäst concerning slavery, later strengthened
by Gälawdéwos’s edict, can be shown to have been widely known and to have
exercised a measurable influence among a broad spectrum of people in sixteenth
century Ethiopia.
2 It has been translated into English by Abba Paulos Tzadua from the edition of Peter
Strauss; cited hereafter as Fetha Nägäst.
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haBTaMU MengisTie Tegegne
Medieval Ethiopia as defined here covers the period roughly from 1000 to
1550 CE. Many elements of the civilization of this era were rooted in the Aksumite
kingdom (1–800 CE). Named after its capital at Aksum, it developed in the north
ern highlands of Ethiopia and in the southcentral region of what is now Eritrea,
where it left a deep social and cultural imprint and a number of wellknown insti
tutional practices. Aksum bequeathed to its medieval heirs a script and a language
of liturgy and learning, Ge’ez, a Semitic language which worked (and continues to
work) in Ethiopia as Latin did in Europe for many centuries, after people stopped
speaking it around 1000 CE. It also gave birth to a national church, the Ethiopian
Orthodox Church, which is still deeply embedded in the popular culture of the
northern and central highlands. Since its emergence in the midfourth century CE
until 1959, when it became fully autocephalous, the Ethiopian Orthodox Church
was headed by an Egyptian Coptic bishop, consecrated by the patriarch of Alex
andria. More essentially, Aksum left an enduring churchstate institutional rela
tionship. With the rise of Islamic powers in eighthcentury Arabia, Aksum aban
doned the Red Sea coasts and, over the next seven centuries (a shadowy period
of Ethiopian history), the political and cultural center of Ethiopia steadily shifted
southwards from Aksum, first to Lalibela and then to the regions of Amhara and
Shawa (see Map 2). The southward expansion of the state accelerated with the
dramatic advent of the new “Solomonic” dynasty in 1270 CE, when Yekuno Amlak
(r. 1270–85), who claimed direct descent from Aksumite kings, became emperor
of Ethiopia.3
Historians such as MarieLaure Derat, Stephen Kaplan, and Taddesse Tamrat
have provided absorbing accounts of the unprecedented political, religious, and
literary renaissance experienced during the early Solomonic era (1270–1527).
The kings of the new dynasty, which lasted until 1974, revived the Aksumite tradi
tion of charismatic and centralized monarchical rule and made remarkable ter
ritorial conquests. In religion, the period witnessed the rapid growth and expan
sion of the Ethiopian Orthodox Church and the establishment of a new model of
churchstate relations in which the state dominated. This process eventually made
Christianity integral to Ethiopian national identity.4 Moreover, although medieval
Ethiopia remained essentially an oral society, the growth of the Ethiopian Church
and royal patronage of art and literature stimulated a rare outburst of literary
activity during this period. In particular, King Zärä Yaqob (r. 1434–68) personally
3 Phillipson, Foundations of an African Civilization, 51–54, 79–106, 227–43; and Isaac,
The Ethiopian Orthodox Täwahido Church, 17–26, 109–14, 131–88.
4 Derat, Le Domaine des rois éthiopiens; Kaplan, The Monastic Holy Man; and Tamrat,
Church and State in Ethiopia.
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
Map 2. Provinces of Ethiopia, Muslim Territories,
and Major Trade Routes in the Horn of Africa.
© Habtamu Mengistie Tegegne 2015.
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haBTaMU MengisTie Tegegne
took part in this literary regeneration through writing, promoting, and dissemi
nating juridical and religious books concerned with the regulation of religious life
and political rituals.5
Despite the expansion of the Ethiopian state and church in the Horn of Africa,
it has recently become increasingly clear that medieval Ethiopia remained cultur
ally and religiously diverse. Based on information gleaned from newly discovered
Arabic funerary inscriptions and more familiar documentary evidence, François
Xavier FauvelleAymar and Bertrand Hirsch have shown that Islam was an integral
part of the cultural landscape, not only of the broad coastal lowlands of the west
ern Red Sea and Gulf of Aden but also in the eastern escapements of the northern
and central highlands. Islamic cultural influence on Ethiopia came originally from
the Dahlak islands in the Red Sea, where a thriving mercantile Muslim commu
nity had developed by the tenth century. The Dahlak and Massawa served as key
transit points in a northsouth axis of trade route linking Ethiopia to South Arabia
and Egypt during the tenth through to thirteenth centuries. Islamic development
accelerated in the Horn of Africa with the rapid development of the port of Zeila
in the Gulf of Aden and the vibrant eastwest axis trade route connecting the high
lands of Ethiopia with the lowlands of the western Red Sea area in thirteenth cen
tury. Around the same time, the sultanate of Ifat was founded and grew rich from
trade and control over Zeila.6
In 1332, Ifat and other Muslim polities were absorbed into the expanding Ethi
opian state. With the advent of the Solomonids, then, Ethiopia appears to have lost
its traditional rapport with Muslims in the Horn of Africa.7 By the fifteenth cen
tury, open rivalry and hostility had largely replaced the peaceful coexistence and
economic cooperation between Ethiopia and Muslim powers in the Horn of Africa.
In the period 1529–43, Ethiopia was occupied by a jihadist army raised from the
sultanate of Adal, which grew from the remnants of Ifat in the late fourteenth cen
tury. The jihad resulted in the looting and destruction of churches and the enslave
ment of many Christian captives. In 1543, the jihad collapsed, its leader was killed,
and Ethiopian hegemony in the Horn of Africa was reestablished.8 As a whole, the
rise of the Solomonids animated Ethiopian Christian identity through its conflict
against Islam and pagan peoples. This is the backdrop against which the 1548
edict of Gälawdéwos and the issue of legal encounter must be understood.
5 Il libro della luce del negus Zar’a Yaqob; The Epistle of Humanity of Emperor Zär’a Ya’eqob.
6 FauvelleAymar and Hirsch, “Muslim Historical Spaces in Ethiopia”; idem, “E� tablissements
et formations politiques musulmans”; and idem, “En guise d’introduction.”
7 Tamrat, Church and State in Ethiopia, 231.
8 Uṯmān, Futūḥ al-Ḥabaša.
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
Juridic Precedent and Legal Theory:
The Law of Slavery in the Fetha Nägäst
The Ethiopian legal system was constituted through complex processes of appro
priation, reformulation, and crossborder diffusion of legal institutions and norms:
a process which scholars of comparative law call “legal transplant,” “legal transfer,”
or the “translation” of normativity.9 Initially, postclassical RomanByzantine laws
were borrowed and subjected to qualifications, then mixed with CopticIslamic
laws and Ethiopian customs. Ethiopian translators and interpreters used local
usage for reformulating the imported laws and norms, resulting in the production
of a novel legal system, a mixture of the foreign template and many local elabo
rations and reconceptualizations. Though a hybrid, the Ethiopian legal system
thus remained Ethiopian in its understanding and application. With respect to
the legal theory of slavery and the juridical context of the 1548 edict, it is useful,
therefore, to ask: How did the precepts of Ethiopian customary law penetrate into
Ethiopia’s foreignderived legal system? How was slavery conceptualized in indig
enous Ethiopian law? What influences, if any, did the preexisting laws have on the
edict of Gälawdéwos?
Gälawdéwos’s edict did not develop in a legal vacuum. Its content was shaped
by the juristic precedent of the Fetha Nägäst and the political milieu of fifteenth
and sixteenthcentury Ethiopia. And while the Fetha Nägäst bears the strong
mark of Ethiopian legal culture and way of life, much of it is derived from Roman
laws that found their way into Ethiopia indirectly, by means of truncated Byzan
tine handbooks written in Greek, which in turn had been translated into Arabic
and redacted by Melchite Christians in Egypt in the twelfth and thirteenth centu
ries. These handbooks were later revised and rewritten, elaborated, and merged
in Coptic Church legislation commonly known as the Nomocanon (Collections
of Canons). Unsurprisingly, perhaps, underlying the Nomocanon are also many
elements of Islamic law.10 It was compiled by AbulFada’il Ibn alAssal, a Coptic
Christian jurist who lived in thirteenthcentury Egypt. Prepared to serve as a prac
tical guide for Coptic Christians who lived amidst Muslims, the Nomocanon was
officially promulgated in 1238 by Patriarch Cyril III ibn Laqlaq of Alexandria (r.
1235–43). It was then transplanted to Ethiopia and translated into Ge’ez from Ara
bic and renamed the Fetha Nägäst.11 The accepted reasoning behind this change
9 The phrase was originally invented by Watson, Legal Transplants. In Watson’s words,
“legal transplants” mean “the moving of a rule or a system of law from one country to
another, or from one people to another” (21).
10 Sand, “Roman Origins of the Ethiopian Law,” xlii–xlix.
11 Tzadua, foreword to Fetha Nagast, xvixvii.
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of name, as given by its nineteenthcentury translator Ignazio Guidi, is that the
ecclesiastical portions (chapters 1–22) already existed in Ethiopia in the book
titled Sinodos, long before the coming of the Nomocanon. The Sinodos is a canoni
cal work of Egyptian Melchite Christian origin with great prestige and authority in
the Ethiopian Orthodox Church to this day. What was new to Ethiopians was the
secular law sections or the “Canons (or Laws) of the Kings,” chapters 23–51, from
which the code derived its Ethiopian name.12
Much remains uncertain about the date, the motives, and the circumstances in
which the Fetha Nägäst came to Ethiopia. There is no evidence of its formal prom
ulgation. Some scholars have speculated that the Egyptian archbishop of the Ethi
opian church, Abunä Sälama (1350–90), was responsible for its translation,13 but
this interpretation has lately fallen from favor. Ignazio Guidi has dated the trans
lation to the sixteenth century, based on information gleaned from philological
evidence,14 and records of Fetha Nägäst’s practical use in courts during the reign
of King Särṣä Dengel (r. 1563–94) conforms to this later dating. But it is unlikely
that the principles, institutions, and norms of a complex legal system have been
translated, received, studied, and applied in court all at once during such a short
period of time, a period marked by profound political upheavals and disruption
of social and religious life. The training of jurists in its legal principles and their
effective application in courts must have required a long gestation period. This
can be illustrated with reference to the better known history of the Sinodos, whose
Ethiopian reception was not immediately followed by its effective application. It
was King Zärä Yaqob (r. 1434–68) in the fifteenth century who resolutely started
the practical use of the Sinodos. Guidi, again, has used the evidence of its practical
application to date the Sinodos’s introduction to the early fifteenth century. But
there is conclusive evidence of its existence in the fourteenth century, offered by
the royal chronicle of King Amdä Ṣeyon (1314–44).15 In both cases, we can con
clude that the long process of translation and reception began much earlier.
According to Ethiopian tradition, the Fetha Nägäst was introduced into the
juridical system of the country in the fifteenth century at the initiative of King Zärä
Yaqob, the very promulgator of the Sinodos.16 The larger historical developments
of this period would seem to fit this scenario: Ethiopia appears to have stood at
12 Il Fetha Nagast o “Legislazione dei Re,” 37–38.
13 Brietzke, Law, Development, and the Ethiopian Revolution, 32.
14 Guidi, “Der æthiopische Senodos.”
15 Bausi, “Heritage and Originality in the Ethiopic Sinodos,” 16 and 21–23.
16 Tzadua, foreword to Fetha Nagast, xvii; and Sand, “Roman Origins of the Ethiopian
Law,” xlii.
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
the threshold of a legislative development under Zärä Yaqob. It is known that the
king was the author a number of Ethiopian religiousjuridical traditions, and his
reign placed unprecedented emphasis on reform in religious practice, centralized
authority, and legislative uniformity. His aspirations, and the widely felt inad
equacy of the reliance on customary law to administer a diverse empire, influ
enced the king to seek the codification of a new law for the use of his subjects.
Church scholars were called upon, and yet the ecclesiastical code they produced,
Fäwsä Mänfäsawi (Spiritual Remedy), was not comprehensive and fell into disuse.
According to tradition, it was the absence of a satisfactory indigenous law code
that motivated Zära Yaqob to borrow a more sophisticated foreign legal system,
the CopticIslamic Arabic language Nomocanon, to best serve the demands of his
centralizing state.17 In Ethiopian tradition, the translator of the Fetha Nägäst, who
gives his name in the colophon as “Peṭros son of Abdä Säyd,” was the same per
son who brought the text from Egypt at the expense and order of Zära Yaqob.18
Although this cannot be confirmed by any independent source, this tradition can
not be dismissed lightly.
Ibn alAssal divided the Fetha Nägäst into two broad parts arranged by subject
and divided into chapters treating, on the one hand, ecclesiastical law and ritual;
on the other, secular law. I am concerned here with the secular law sections, which
cover a broad range of human affairs, including slavery, property law, succession,
criminal law, commercial law, family law, sumptuary and dietary law, and so on.
Beside chapter 30, which deals exclusively with matters of slavery and freedom,
references to slaves are found scattered across several other chapters.19 Thanks
to the exacting investigations of legal historians, the main sources of the Fetha
Nägäst have now been identified. For the provisions regarding slavery and manu
mission, Ibn alAssal drew directly upon the two handbooks of RomanByzantine
law known as the Syro-Roman Law Book and the Procheiros Nomos. The former
was originally written in Greek in 480 CE and later translated into Syriac in about
750. Although assumed to have a Syriac contribution, it was essentially a work of
Roman jurisprudence. The Procheiros Nomos was enacted in 878 by the Byzantine
emperor Basilios I the Macedonian (r. 867–86). Ibn alAssal was able to access
both handbooks via the Arabic translations of various Egyptian Melchite Chris
tians made around 1100. The Syro-Roman Law Book, which is cited eightynine
times in the Fetha Nägäst, formed the basis for many of the enactments relating
17 Jembere, Introduction to the Legal History of Ethiopia, 187–89.
18 Fetha Nagast, 319; Jembere, Introduction to the Legal History of Ethiopia, 188.
19 Fetha Nagast, 175–78. References to slaves are too many to list here, but the most impor
tant ones are on 54, 186–90, 196–98, 204, 216, 224, 225, 227, 231, 232, 245, 258, and 317.
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to slavery, such as the provisions against the traffic in Christians. By contrast, Ibn
alAssal’s debt to the Procheiros Nomos was negligible, and it is cited infrequently.
However, it is the source for his statements regarding natural law and justice, the
origins of slavery, and the provisions about the methods and justification for man
umission.20
The third and the oldest source of RomanoByzantine law available to Ibn al
Assal was the Ecloga (Selection). This handbook was written in Constantinople
in 726 and is specifically ascribed to Emperor Leo III Isauricos (r. 717–41) and
his son and successor Constantine V Copronimos (r. 741–75). The citations of the
Ecloga in the Fetha Nägäst are, according to P. H. Sand, “based on an excerpt made
by Melchites in the thirteenth century from a previous Arabic translation of the
Ecloga, into which the Nicaean canons were incorporated.”21 The Ecloga provided
the direct basis for the Fetha Nägäst’s statement about the methods of manumis
sion and return to slavery, offences by and punishments against slaves.22
These three handbooks, which contain bits and pieces of the sixthcentury Jus
tinianic Code, were ultimately redacted into the Nomocanon, which in its transfer
from Egypt to Ethiopia and translation into Ge’ez became the Fetha Nägäst. This
was the primary means through which Roman legal thought entered Ethiopia. But
the Fetha Nägäst was not entirely Roman in its essence. Although Ibn alAssal does
not directly credit other sources, he clearly had a knowledge of, and borrowed
freely from, Islamic law. Thus, there are many examples in the Fetha Nägäst, of
terminologies, punishments, jurisprudential concepts, legal formulae, and com
mentary that present striking similarities with the Islamic law of slavery and
manumission. This becomes apparent by comparing, for example, Fetha Nägäst’s
provisions relating to the method of manumission of a jointly owned slave with
a comment attributed to the Prophet Muhammad. The hadith records that “[w]
hoever frees [his share of] a slave owned by two persons shall be charged [for
the other half] if he is well off; then [the slave] shall be [completely] freed.”23 The
Fetha Nägäst states that “[i]f a man is part owner of a slave, so that there is another
who shares ownership, if one of them is a rich man, he must buy him entirely and
20 Sand, “Roman Origins of the Ethiopian Law,” xlv–xlvi; Fetha Nägäst, 175–77, 224,
231–32, and 245; and Manual of Eastern Roman Law, ed. Freshfield, 90–91, 137–41. Ibn
alAssal cited the Procheiros Nomos and Syro-Roman Law Book (in that order) using the
abbreviations TS and MAK, citations repeated in the Ge’ez version.
21 Sand, “Roman Origins of the Ethiopian Law,” xlvii.
22 Fetha Nagast, 176–77, 302, and 303; and Manual of Roman Law, ed. Freshfield, 88–90.
The Ecloga appears in the Fetha Nägäst as MAG, citation repeated in the Ge’ez version.
23 Quoted in Hunwick and Powell, The African Diaspora, 6 (citing the recension by
Muhammad alBukhari, al-Jami al-sahih).
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
set him entirely free.”24 I would contend that a considerable part of the provisions
about manumission and slavery in the Fetha Nägäst reflect Islamic law even more
than RomanByzantine practices. The source of the theory of natural liberty in the
Fetha Nägäst, together with the presumption that slavery derives from warfare,
were not of Ethiopian and RomanByzantine origin alone. In Muslim legal theory,
too, it is also believed “that the innate condition of people is freedom” and slav
ery originated in war.25 Evidence suggests that the Fetha Nägäst also exhibits ele
ments of Malikite Islamic jurisprudence (which was very popular in Egypt during
the author’s time) in its form, literary and legislative style, and arrangement of
materials.26 Such Islamic touches are to be expected in a text compiled for Coptic
Christians who had been living within Islamic lands since 642 AD.
It has been argued that the Fetha Nägäst contains many judicial precepts and
terminologies which were largely unfamiliar and irrelevant to the Ethiopian expe
rience. A more accurate assessment is that of Abba Paulos Tzadua, the most highly
regarded authority on the subject, who sees a great “influence of the Ethiopian
way of life on the Fetha Nägäst.”27 As noted above, the Ethiopian reception of
RomanByzantine and CopticIslamic legal systems was neither unqualified nor
wholesale. Even if the Fetha Nägäst reflects what might be seen as alien, its inter
pretation and application were thoroughly Ethiopian. For example, as noted by
Tzadua, the understanding of the notions of mandate in the Ge’ez version is diver
gent from the Arabic version. He finds that the chapter on mandate was “relegis
lated” and reconceptualized to refer to “stewardship in the house of the Emperor
or some member of the nobility.”28 In this and countless other instances, Ethio
pian customs and legal principles were blended and reconciled with the foreign
body of law, thereby facilitating its reception.
To take one salient example, “the [state of] liberty” is understood in the text
of the Fetha Nägäst to be “in accord with the law of reason, for all men share lib
erty on the basis of natural law.”29 It follows that liberty is a universal and natu
ral right. This conception of natural law is founded partly on the local customary
law and usages of Ethiopia, existing since at least the introduction of Christian
ity in the fourth century CE, and partly on Roman law and Greek philosophical
precepts. The customary law commonly held in learned ecclesiastical circles, in
24 Fetha Nagast, 177.
25 Hunwick, “Islamic Law and Polemic,” 44.
26 Sand, “Roman Origins of the Ethiopian Law,” xlvii–xlix.
27 Tzadua, foreword to Fetha Nagast, xxi.
28 Ibid.
29 Fetha Nagast, 175.
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particular, was natural law, with “natural justice” recognized by the technical term
fethe feṭerätawi. Aberra Jembere, the author of an important book on the legal his
tory of Ethiopia, maintains that “a conception of natural law—as the law of reason
‘inborn by nature’ and as such perceived in Ethiopia—was considered to be the
source of many of the old laws of the country that was elaborated and solidified
later on the basis of Christian beliefs and values.”30 Jembere adds that “Ethiopian
legal culture is consistent with” the view that “human rights […] are an endow
ment from a ‘natural fact’ to any person, as the result of he/her being created as a
human being.”31
While the Ethiopian notion of natural law and human rights therefore has a
long history, its elaboration and articulation in writing came only later in the sev
enteenth century as a critique of slavery and the slave trade. The notion of equality,
justice, and belief in the shared humanity of all God’s children, profoundly rooted
in the teaching of the Ethiopian Orthodox Church, was then expounded by Wäldä
Heywät in a treatise entitled Hatäta Zärä Yaqob (The Treatise of Zera Yacob):32
Moreover, God created all men equal just like brothers, sons of one father;
our creator himself is the father of all. Therefore, we should love one
another and observe this eternal precept which God engraved upon the
Tables of our heart and which says: “Love your fellow men as yourself,
and do to them what you wish others to do to you; do not do to them that
which you do not want to be done to you”; observation of this primary
precept is the perfection of all other deeds and of all justice. Do not think
that the doctrine of fools who say the following is good: “the word ‘fellow
men’ is confined only to relatives, or our neighbors, or our friends, or
members of the same faith.” Do not say the same as they do; for all men
are our fellow men whether they are good, or evil, Christians, Moham
medans, Jews, pagans: all are equal to us and our brothers, because we
are all the sons of one father and the creatures of one creator. Therefore
we ought to love one another, and to behave well with all as much as we
can and not to inflict evil on anyone.33
30 Jembere, Introduction to the Legal History of Ethiopia, 31.
31 Ibid.
32 Quoted in Sumner, Ethiopian Philosophy, 225.
33 Lacking any literary precedent or classic model, the Hätata’s originality has resisted
any classification, and for this reason its authorship was questioned by Conti Rossini, “Lo
Hatata Zaraa Ya’qob.” He attributes the work to a nineteenthcentury Catholic missionary
to Ethiopia, Giusto da Urbino. This view has never been adequately elucidated, much less
universally accepted.
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
Since they sprung from a common origin, Wäldä Heywät teaches that all men are
natural kinsmen and members of a great family. Therefore, there is no inherent
distinction between human beings and every man by nature is a born free and
equal to other men. From this argument of universal fraternity, it follows that
“there can be no chosen people, no more than there is the right of the stronger
over the weaker, and the priority of man over woman!” 34 Since no one is cre
ated slave or master by nature, the slave trade was accordingly an affront to the
fundamental rights and liberties of individuals. Although this treatise was writ
ten centuries after the Fetha Nägäst, it echoes ideas that had already penetrated
into the Fetha Nägäst, which considers slavery to be unnatural and without any
ethical foundation. Not only is slavery unnatural but also it is unwarranted, for the
inequality inherent in the system extinguishes justice.
If slavery was dishonorable and incompatible with human nature, the inevi
table question is: Why was it accepted as a legitimate institution in Ethiopia in the
first place? The Fetha Nägäst gives an explanation for this: slavery was the func
tion of war and violence, because the strongest and the victorious used violence
and coercion to make the weakest and vanquished accept it: “[b]ut war and the
strength of horses bring some to the service of others, because the law of war and
victory makes the vanquished slaves of the victors.”35 This closely corresponds to
the explanation of the origin of slavery given in the Procheiros Nomo, where it is
stated that “[s]lavery is consequent upon the jus gentium [law of nations] whereby
one man is made subject to another man. By nature all men were made free; by
war men were made slaves. For the law of war prescribes that the conquered
shall be the property of the conquerors.”36 By the manmade law of war, those
defeated in war are held to belong to the victor; slavery was therefore justified
on moral grounds: that is, it accorded with human mores. The Fetha Nägäst there
fore joined other legal traditions in conceding the morality of the institution of
slavery. Indeed, in one of several similar provisions it treats slaves with cool indif
ference, as objects: “The price of a slave is like that of an object at any given time.
It may increase or decrease.”37 The Bible is also cited as an authority on the reli
gious and political conditions that justified slavery. The proof text quoted in the
Fetha Nägäst is Leviticus 25:44 and following: “[t]hose whom you take from the
34 Sumner, Ethiopian Philosophy, 232. The legal and ethical precepts on liberty and
universal right were based on the JudeoChristian belief in that man was made in the image
and likeness of God.
35 Fetha Nagast, 175.
36 Manual of Eastern Roman Law, ed. Freshfield, 138.
37 Fetha Nagast, 177.
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people who dwell around you and the aliens who dwell among you, let them, men
and women, be your slaves. You shall buy [slaves] from among them, and from
their offspring born in your land, and they shall be for you and your children after
you, as an inheritance.”38 Religion determined who fell within the boundaries of
those protected from enslavement and those who could legitimately be enslaved.
Based on this, freeborn Christians were a priori of free status and offlimits, while
nonChristians captured in war could be enslaved. Slavery was therefore caused
by unbelief, and yet the conversion of pagan slaves to Christianity subsequent to
the establishment of the right of ownership by masters did not extinguish slavery.
In this way, the code provided the ground for a religiously justified exclusion and
enslavement of nonChristians and Christians whose slavery was caused by previ
ous unbelief.39
While granting legitimacy to the institution, the Fetha Nägäst insists that slav
ery should be confined within the boundaries of Christian conduct and civilized
values. First, it imposes a ban on the sale of “a [Christian] slave accustomed to
the usages of a country to a foreigner; unless the slave gives his consent.”40 The
Amharic gloss is more specific and goes further, stating that Christian slaves were
not to be sold to aliens, “especially if the buyer belongs to another faith and speaks
another language.”41 Second, it discusses the many circumstances under which
slaves might be given freedom. It encourages individuals to buy Christian slaves
from the ahzab or infidels and praises manumitting slaves as an act of charity and
compassion “that must be done for it is an excellent form of alms.”42 Entailing as it
does “the granting to a man of the right to become master of himself, according to
the original law of his natural liberty,” releasing a slave from bondage is deemed “a
deed of perfection.”43 Freedom from transfer to nonChristians was acquired from
the moment of baptism, so while it was acceptable to make a pagan slave a Chris
tian, it was flatly forbidden to sell a Christian slave to infidels.44 The Fetha Nägäst
also imposed capital punishment against those who stole children, be they free
or slave. The trade in Christian slaves (whose servitude was caused by a previous
38 Ibid., 175.
39 Ibid.
40 Ibid., 190.
41 Ibid., 190, n. 61.
42 Ibid, 175. The Fetha Nägäst also states that “A buyer may not return to the seller, invoking
their defects, a slave who was bought from an infidel and then baptized or a Christian female
slave whom he married or give away in marriage” (187).
43 Fetha Nagast, 175.
44 Ibid., 188.
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
unbelief) to infidels such as Muslims was offensive because these Christian slaves
could thereby be converted to a despised religion, and their souls could not be
saved. In the end, it was only the slavery of freeborn Christians that was consid
ered inconsistent with humanity and natural law.
The newly discovered edict of Gälawdéwos was structured around the same
legal and religious principles found in the Fetha Nägäst. As will be discussed
below, the king considered slavery exclusive to nonChristians and thereby recog
nized a link between religion, slavery, and freedom. But before discussing Gälaw
déwos’s intention in publishing the edict, the impetus for its promulgation, and
the manner of its preservation and transmission, the text deserves to be published
in its entirety.
The Edict: Text and Analysis
So far as I am aware, this is the only written edict by an Ethiopian king prior to the
twentieth century. Indeed, African scholarship has not brought to light anything
like the edict of Gälawdéwos, which also constitutes the first documented articula
tion of something analogous to antislavery sentiment generated in reaction to the
slave trade. It also has implications for the study of ArabEthiopian/African rela
tions and the history of law.
King Gälawdéwos’s edict is preserved in a sixteenthcentury parchment Wän
gél, or Gospel manuscript, held by the Tädbabä Maryam church in Amhara, a
major foundation of Gälawdéwos.45 The manuscript is undated, but the main text
is datable to the sixteenth century date and thus roughly contemporary with the
edict. Remarkably, it also contains a rich variety of texts written on its front and
back flyleaves, dating from the sixteenth through to the late eighteenth centuries
and covering a broad range of issues, though mainly concerned with land and its
control.46 I recently had direct access to this manuscript and was able to photo
graph the edict and other historical sources at the church. The edict is written in
Ge’ez, on parchment. It is only 340 words long in the original and is written as one
continuous text consisting of four basic parts: the proem; general provisions regu
lating the slave trade and prohibiting the traffic in Christians; the anathemas and
45 A contemporary chronicle details the circumstances leading to the founding of the
church. See Chronique de Galâwadêwos, 49–54, 58–59, and 123.
46 Tädbabä Maryam, MS Wängél, image nos 6597–6654 (the author’s own digital
photographs of documents in this Wängél).
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the date on which the edict was issued; and finally the provisions concerning the
regulation of the slave trade in Damot and Gamo provinces, specifically.47
በስመ ሥሉስ ቅዱስ ዘይሴባሕ ስሙ ወይትሌዐል ዝክሩ ወውእቱ ረዳእየ ወቦቱ እትዌክል ወበረድኤቱ
እስምከ ወበኃይሉ አትፌሣሕ ሎቱ ኃይል ወስብሓት ወሎቱ ክብር ወዕዘዝ በኲሉ ዓለማት ለዓለመ ዓለም
አሜን፡፡
አነ ንጉሥ ገላውዴዎስ ወልደ ንጉሥ ወናግ ሰገድ አዘዝኩ እምይእዜ ከመ ኢይረድ ነጋዲ ኢእስላም
ወኢክርስቲያን ኀበ ባሕረ ወኀበ አዳል አው ኀበ ኲሉ መካን ዘየሐውሩ ውስቴታ ነጋድያን ዘእንበለ
ይብፀሕ ኀበ ዴዴየ፡፡ ወያምጽእ ኲሎ አግብርት ዘውስቴቱ ተባዕተ ወአንስተ ኀቤየ፡፡ ወዘእንበለ
ይጽሐፍ ሎቱ ክታበ ኍልቆሙ ለአግብርቲሁ ከመ ያርኢ ለመኳንንት ወለመሳፍንት ወለስዩማን ሀገር
ዘውስተ ፍኖት፡፡ ወኲሉ ዘተረከበ ምስሌሁ ምንትኒ ዘይተርፍ እምኍልቍ ዘተጽሕፈ ይንሥኡ እምኔሁ፡
፡ ወኲሉ ዘተረክበ ምስሌሁ ገብር ክርስቲያናዊ ወእመ ኮነ ውእቱ እምደቂቀ ዓረብ ይንሥኡ ኲሎ
ንዋዮ ወይፈንው ኀቤየ፡፡ ወዘሤጦ ለገብር ክርስቲያናዊ በውስተ ምስያጥ ይቅትልዎ፡፡ ወእመሰ ኮነ ነጋዲ
ዘሤጦ ለክርስቲያናዊ እመሂ እስላም ወእመሂ ክርስቲያን እምሰብአ ሀገረ ኢትዮጵያ ይቀትል ዘሤጦ፡፡
ወለተሳየጦሂ እምደቂቀ ዐረብ እንዘ የአምር ከመ ውእቱ ክርስቲያናዊ ይንሥእዎ ኲሎ ንዋዮ፡፡
ወኲሉ አዛዥ አው ፈታሕት አው መኮንን አው ስዩመ ሀገረ ዘኢይፈትሕ በዘ አዘዝነ ቦቱ ይትቀተል
ዘእንበለ ምሕረት ወይትበርበር ኲሉ ንዋዩ ወይኩን ውጉዘ በአፈ አብ ወወልድ ወመንፈስ ቅዱስ ወበአፈ
ኲሎሙ አበው ዘተወክፈቶሙ ቤተ ክርስቲያን፡፡ወአነ ንጉሥ ገላውዴዎስ ፈታህኩ ፍትሐ ወአጽናዕኩ
ዘንተ ክታበ፡፡ ወትኩን ዛቲ ሕገ ወሥርዓት ጽንዕተ በምድረ ኢትዮጵያ እስከ ለዓለመ ዓለም፡፡ ወኲሉ
ዘተዐደዋ እምነገሥታት እምድኅሬየ አው እምፈታሕት ይኩን ታሕተ ግዘት ወኢይኩን ሎቱ ኅድገት
ኢበሞቱ ወኢበሕይወቱ፡፡ ወኲሉ ዘይደመስስ ዘንተ መጽሐፈ አው ዘያደርዖ እምድረ ኢትዮጵያ
እግዚአብሔር ይደምስስ ስሞ እመጽሐፈ ሕይወት ወይኩን መክፈልቱ ምስለ ሐና ወቀያፋ ወይሁዳ
አስቆሮታዊ ወሴሞን መሠሪ ወትፍታሕ ምድር አፈሃ ወትሐጦ በአምሳለ ዳታን ወአቤሮን፡፡ ወዝንቱ
ብርዐ እዴየ ትኩን ስምዐ ላዕሌየ። ወተጽሕፈት ዛቲ ከታብ በዓመተ ሰማዕታት ፲፻ወ፪፻፰ወ፬ወአመ
፲ወ፰ ለወርኃ የካቲት ቡሩክ በ፯ዓመት ወበ፯ ወርኅ እምአመ እንገሠኒ እግዚአብሔር። ስብሐት
ለእግዚአብሔር በሰማያት ወሰላም በምድር ሥምረቱ ለሰብእ ለዓለመ ዓለም አሜን፡፡
ወእመቦ ዘተሣየጠ ገብረ እምዳሞት አው እምገሞ ይጽሐፍ ስመ ብእሲ ዘሤጠ ሎቱ ። ወይጽሐፍ ካዕበ
ኍልቆሙ ለአግብርቲሁ ወኆልቈ ንዋይ ዘወሀበ ወያርኢ ለመኳንንት ወለመሳፍንት ወለሥዩማነ ሀገር
ዘውስተ ፍኖት። ወለእመ ኮነ ነገሩ እሙነ ሐቲቶሙ ይፈንውዎ፡፡ ወእመሰ ሞተ ገብር ዘተሣየጦ ውእቱ
ብእሲ እምዳሞት ወገሞ ወአምጽአ ከልአ ገብረ ክርስትያናዌ ከመ ይምላእ ሎቱ በኍልቍ፡፡ ወእመ
ተአውቀ ወተጠየቀ ቦቱ ዝንቱ ነገር ይንሥእዎ ኲሎ ንዋዮ። ወኪያሁሰ አሢሮሙ ያምጽእዎ ኀቤየ።
ወሶበሰ ይጽሐፍ ይበል ከመዝ ኆላቋ አግብርት ዘተሣየጥኩ እምዳሞት የአከል ዘንተ ወዘተሣየጥኩ
እምገም የአክል ዘንተ፡፡ወይፍልጥ ኲሎ በበስመ ብሔሩ፡፡48
47 For the sake of convenience, I have divided the edict into paragraphs and have
disregarded the punctuation marks in the original text in favor of the current conventional
system used by the Journal of Ethiopian Studies.
48 Tädbabä Maryam, MS Wängél, image no. 6650.
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
Praise be, Blessed Trinity, to Your name and exalted be Your memory. He
is my Helper and I trust in Him. I delight in His power and shelter in His
grace. Praise and power be to Him. Glory and rule over all worlds be to
Him. Forever and ever. Amen.
I, King Gälawdéwos, son of Wänag Sägäd,49 have ordered that from now
onwards any merchant [traveling with slaves], whether he be Muslim
or Christian, shall not proceed to the sea, to Adal, and to other market
places visited by merchants, without coming to my gate [for inspection].
Let him bring both female and male slaves before me. Let him write
down the number of slaves [he is traveling with] and report them to the
mäkwanent,50 mäsafent,51 and seyuman52 of the district along the route
they pass through. When any captive who is not in the list reported to the
[mäkwannent, mäsafent, and seyuman] is discovered, let them take him
into custody. If the captive turns out to be Christian and the one [who
knowingly bought him] is an Arab, let them deprive him of all his mer
chandise and send him to me. Let them kill the seller who [knowingly]
puts up for market and sale [to the Arab merchant] the Christian slave.
If the seller who [knowingly] sold a Christian is a merchant, whether he
be Muslim or a Christian Ethiopian compatriot, let them kill him. If an
Arab [merchant] knowingly purchases a Christian, let them confiscate all
his property. Any azaj,53 whether he be fätahit (judge), or mäkonnen, or
seyum of the district, who [slacks on his obligation] and does not follow
our commands, deserves to be killed without mercy and his house ran
sacked; and let him be damned by the mouth of the Father, the Son, and
the Holy Ghost, and by the mouth of all Church Fathers.
49 Wänag Sägäd is the regnal name of King Lebnä Dengel (r. 1508–40), Gälawdéwos’s
father.
50 Mäkwannent is generic term, which historical sources from the thirteenth to the
twentieth centuries use to refer to the higher nobility collectively. Modern Amharic
dictionaries conform to usage of the historical sources. See, for instance, Kane, AmharicEnglish Dictionary, 1443; Wolf Leslau, Comparative Dictionary of Ge’ez, 287; and Baetman,
Dictionnaire Amarigna-Français, 734.
51 Seyuman (sing. seyum) is a general term for officials appointed by the monarch. It
is derived from the root word säyyämä “to designate (appoint), give the title of” (Kane,
Amharic-English Dictionary, 571).
52 This word is generally used to refer to the hereditary nobility or princes. Kane renders
its singular form mäsfen as “prince” (Ibid., 599).
53 Kane (Ibid., 1281) defines azaj as “commander, chief, intendant, majordomo.”
Baeteman’s dictionary shows that the word has a connotation of legal authority (Dictionnaire
Amarigna-Français, 614). He renders the word as “juge de tribunal supreme” or “supreme
court judge.”
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I, King Gälawdéwos, legislated this law and sanctioned this writing. Let it
be the established law and regulation of the land of Ethiopia forever and
ever. Anyone who violates my decree, whether they be future kings, or
judges, is under perpetual anathema both in his life and after his death.
Whosoever destroys this book, or takes it away from Ethiopia, may God
delete his name from the Book of Life; may his lot be with Caiaphas and
Annas, Judah of Iscariot and Simon the Magician; may the earth open her
mouth, and swallows him up like Dathan and Abiram. My handwriting
shall be my testimony. This was written down in the year of the mar
tyrs 1264; on the 18th day of the blessed month of Yäkatit, 7 years and 7
months after God made me king [February 12, 1548].54 “Glory to God in
the highest heavens, and peace on the earth, [and] His good will to men”
[Luke 2: 14]. Forever and ever. Amen.
If one buys a slave, whether be it from Damot, or Gamo, [first], let him
write down the name of the seller; second, let him write down the num
ber of slaves and the price of purchase and report it to the mäkwannent,
mäsafent, and seyumanä hagär along the routes the [caravan] is passing
through. If, upon examination, the matter is found to be true, they shall
let him [the merchant] go. When a slave bought from Damot and Gamo
dies, and the owner subsequently buys a Christian slave as replacement,
let them deprive such a person so offending and duly convict all his prop
erty; let them handcuff and bring him to me. When he [the slave mer
chant] writes down his merchandise, let him [use this formula “I hereby
specify that] the slaves I purchased from Damot numbered this many;
the slaves I purchased from Gamo numbered this many.” Let him classify
them by regional origin in this way.
It is difficult to determine precisely where and how this edict was promulgated.
My conviction is that it was passed in the presence of many higher officers at the
royal court whose principal residence in 1548 was at a place named Agraroha.
By far the strongest evidence comes from the Tädbabä Maryam Gospel itself. Our
54 Two methods of dating are used here. First, the document is dated by the era of martyrs,
named for Christians killed by the order of the Roman emperor Diocletian, the beginning
of whose reign is the first day of the year of martyrs: a convention used by the Coptic and
Ethiopian Churches. The second is the regnal year of Gälawdéwos, who came to the throne
after the death of his father on September 3, 1540 (the source for this is Perruchon, “Notes
pour l’histoire d’E� thiopie,” 278 and 280). There seems to be an error in calculating the
number of years and months since the first day of the king’s reign and the date of the decree.
The edict could not have been issued seven years and seven months after he came to power
unless Gälawdéwos had started to exercise power at least one month before the demise of
his father.
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
edict is inscribed just before another copy of a royal document, in this case a char
ter recording Gälawdéwos’s appointment of a local Muslim governor over the
province of Ifat. Recorded in the Gospel is also Gälawdéwos’s land charter issued
sometime after the foundation of Tädbabä Maryam in 1552, for the support of the
memorial services of a deceased royal servant named Besratä Mikael.55 Although
the handwriting is identical to the other two documents, the land charter is not
helpful in determining the manner in which the edict was promulgated. However,
the edict and the charter of appointment were not only written by the same scribe
but at the same time, because both the handwriting and the ink are identical; the
charter of appointment appears in the middle left column next to the edict and is
stated to have been issued while the king was staying in Agraroha.
Since the charter of appointment appears at the end of the edict, the edict was
the first to be written. What is more, both documents were issued on the same
day and in the same month and, although the year is not given in the charter of
appointment, it is highly probable that the two royal decrees were issued together
at Agraroha.56 A contemporary chronicle confirms that at this period the king’s
court was based here, in the province of Däwaro, although the exact location of
this capital has yet to be identified.57 The Tädbabä Maryam church was not estab
lished until 1552, and it seems clear that the manuscript through which the edict
comes down to us must antedate the foundation of the Tädbabä Maryam church
by at least five years. The manuscript thus had a special association with Gälawdé
wos’s court and originally belonged, it appears, to the king before its subsequent
transfer to Tädbabä Maryam’s collection at a later date.
This conclusion would fit what we know from the fourteenthcentury Seratä
Mängest (Law of the State) about the appointments and coronations of officials
and governors. This source attests that the appointment of dignitaries was made
in the royal court and with a lot of pageantry.58 The king therefore deliberately
chose the auspicious occasion of the appointment of a governor of a key province
to advertise and strengthen the authority of this new law. Ifat was the Ethiopian
province with the longest history of Islamic presence, and it was the birthplace of
militant leaders of Islam in the Horn of Africa. Gälawdéwos’s issuance of this edict
at this particular time and place was therefore a politically astute move.
The structure of the edict reflects many elements of analogous legal docu
ments found in Ethiopian manuscripts of the thirteenth through sixteenth cen
55 Ibid., image no. 6626.
56 Ibid., image no. 6650.
57 Chronique de Galâwadêwos, 33.
58 Serata Mangest: An Early Ethiopian Constitution, 35–36, 38, and 40.
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turies.59 The document is formulaic in its assumption of the first person. The king
assumed the first person in the land charters he issued for three monasteries and
two individual beneficiaries.60 In the case of the antislavery edict, Gälawdéwos
went further and underlined his intimate involvement in the production of the
text by noting that it was in “my handwriting.” Conventionally, though, kings dic
tated to professional scribes, and so Gälawdéwos’s statement that he is the author
of his edict is metaphorical and intended only to strengthen its authority. The lan
guage of the proem and the anathema clauses are unusually flowery and lengthy,
but by no means unique.61 The method of dating is also conventional, but its preci
sion and the two styles of dating is uncommon
In terms of its substance, legal diction, the procedures set in place for the
enforcement of the law, and the death penalty imposed against violators regard
less of social rank, the edict fundamentally departs from many legal documents
issued in late medieval Ethiopia. It is, moreover, singular in taking up issues related
to gäber, a generic word for “slave,” to illegal traffic in Christians, and to the regula
tion of the slave trade more generally. This is not to say that a demographically sig
nificant number of slaves did not exist in medieval Ethiopia: although slaves were
not ubiquitous, trade in slaves and slavery was an old Ethiopian institution.62 Nor
was the idea of a Christian slave a paradox. Yet slaves rarely make it into written
sources of any genre. In a key passage where the king sums up his new regulation
of the slave trade, the crucial words fetha and hegg appear: “I, king Gälawdéwos,
legislated this law (fetha) and sanctioned this writing. Let it be the established law
(hegg) and regulation of the land of Ethiopia forever and ever.”63 The literal mean
ing of both words is “law.” The word fetha also perfectly matches with the notion
of justice.64 Use of such words in the document is revelatory of the legislative char
acter of Gälawdéwos’s deed. There is no doubt that the document was intended to
have the force of law. We are dealing with what was meant to be a new slave code,
but my rendering of “edict” best characterizes the substance of the document and
59 For analysis of the structure of legal documents from the thirteenth to the seventeenth
century, see Huntingford, Land Charters of Northern Ethiopia.
60 Ibid., 54–55; and Tädbabä Maryam, MS Wängél, image no. 6626.
61 Ibid., 6–7 and 20–21.
62 For the traffic in Ethiopian slaves, see Medard et al., Traites et esclavages en Afrique
orientale; Jayasuriya, African Identity in Asia, 3–7 and 19–32; Erlich, Ethiopia and the Middle
East, 11–14; Pankhurst, Ethiopian Borderlands, 18, 28, 122–23, 167–69; idem, Introduction
to the Economic History of Ethiopia, 3–44, 54–57.
63 Tädbabä Maryam, MS Wängél, image no. 6650.
64 Kane, Amharic-English Dictionary, 33 and 2308.
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
avoids the anachronism implied in the notion of a fully fledged slave code. Before
discussing its political contexts and social effect, it is worth examining the thrust
of its terms and provisions.
Objectives of the Edict
The primary intentions of Gälawdéwos’s edict were twofold. First, the edict aimed
at protecting freeborn Christians from enslavement and preventing the export of
Christian slaves from the country. Gälawdéwos’s edict does not make a distinction
between freeborn Christians and Christian slaves who were born into slavery or
who became Christian while subject to the ownership of their master. It appears
that he was strongly opposed to the commercial traffic in freeborn Christians and
the transfer of any Christian slaves to nonChristians. The king found both crimes
so offensive that he condemned any transgressor to death. Buying a captive while
being aware of his true Christian religious identity fell under the penalty of the
law. A merchant was under the obligation to avoid buying a Christian. A captive
could not be deported unless he or she was proven to be nonChristian. Although
the word is not used in the edict, ahzab was the generic term for pagans found in
contemporary documents, including Gälawdéwos’s regnal chronicle;65 in our edict
instead it is simply gäber or “slave” that is used without additional religious marker.
The decree also imposed heavy burdens of proof on merchants. How could
merchants and captors establish the religious identity of a person and prove that
their captives were nonChristians? The sumptuary regulations and religious
rules to which Christian Ethiopians were subjected produced recognizable physi
cal markers of religious identity which merchants could use to distinguish Chris
tians from nonChristians. Circumcision was a requirement of religious law in the
Ethiopian Orthodox Church. As part of his religious reform, King Zärä Yaqob had
also required every Christian to “bear the names of ‘the Father, the Son, and the
Holy Ghost’ branded on his forehead” as well to fasten the emblem of the cross “on
all the belongings of the Christians—on their dress, their instruments of war, and
even on their ploughs.”66 As a norm, Christian Ethiopians wore a cross necklace,
or matäb (neck chord) given at the rite of baptism to distinguish themselves from
nonChristians. Furthermore, Christians in the highland areas of rural northern
and northwestern Ethiopia used to get a crossshaped tattoo permanently etched
on their faces as a marker of their religious identity. These and similar religious
attributes could help merchants to identify a Christian from a nonChristian. The
65 Chronique de Galâwadêwos, 51 and 54–56.
66 Tamrat, Church and State in Ethiopia, 239.
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penalties on Ethiopian merchants, Muslim and Christian alike, convicted of ille
gally trading in Christians was confiscation of property and death. Moreover, if a
nonEthiopian Arab merchant knowingly purchased a Christian captive, and that
fact was concealed, the king instructed government officials to “deprive him of all
his merchandise and send him to me.”
The edict neither advocates nor condemns slavery itself, but takes it for
granted. It should be firmly born in mind that Gälawdéwos was not opposed to
the traditional idea that one Christian could hold another Christian in a state of
bondage. He certainly owned slaves without qualms, and his chronicler tells us
that the king occasionally raided ahzab, or pagans, for captives, some of whom
he distributed among his kinsmen.67 Since the Fetha Nägäst required masters
to convert their nonbelieving slaves to Christianity, the majority of slaves in the
country were thus very likely Christians.68 The conversion to Christianity there
fore did not eliminate slave status. Nor did conversion exempt slaves from being
purchased and sold, as long as the transacting parties were Christians. The inten
tion of Gälawdéwos was not to end trade in Christian slaves completely, it was
their trade to local non-Christian owners and their export abroad which the king
regarded as outrageous.
The second objective of Gälawdéwos’s edict was to regulate and control the
slave trade. Any merchant traveling with slaves must register and make a report
of their names and numbers to government officials before proceeding to the
coast, to Adal and other markets. Merchants operating in the only partially Chris
tian provinces of Damot and Gamo (the former long the most important source of
slaves)69 were specifically required to record the name of the seller, the price of
purchase, and the origins of the slaves. The slaves that had gone through customs
and official inspection in this way could be exported to South Arabia and Egypt.
Here, as well as in other sections of the edict, Arab and local Muslim merchants
appear to have been its particular targets. This is not surprising because Arabs and
Muslim merchants had almost singlehandedly run the trade in slaves for a con
siderable period. Arabs and Africans, in this case Muslims and Christians in Ethio
pia and the Horn, alike participated in the enslavement of enemies and the com
mercial trade of slaves for centuries.70 Ethiopian slaves show up in South Arabian
records as early as the midseventh century. As will be discussed later, the number
of slaves being exported from Ethiopia increased particularly in the late fifteenth
67 Chronique de Galâwadêwos, 33 and 40–41
68 Gardiner, “Law of Slavery in Abyssinia,” 183.
69 Bouanga, “Le Damot dans l’histoire de l’Ethiopie,” 78, 82–86.
70 Pankhurst, “The Ethiopian Diaspora to India.”
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
and first half of the sixteenth centuries, when local Muslim merchants and slave
raiders captured and sold them or send them as gift to Arabs in South Arabia. Trad
ing in Ethiopian slaves also increased after the Dahlak islands, Massawa, and the
ports of the southern Red Sea and Somali coast became accessible to Arab mer
chants beginning in the tenth century. In the fifteenth and sixteenth centuries, the
port of Zeila on the Somali coast (modern Somaliland) was the largest market for
slaves in the Horn of Africa, where merchants from Arabia acquired slaves.71
Even though Christian Ethiopians perhaps did not engage in slave trading as
actively as Muslims and Arab merchants did, MarieLaure Derat has shown that
Christian Ethiopians were involved in capturing, transporting, and selling human
cargo from the Ethiopian region, for which they are duly targeted by the edict. In
fact, without the active participation of Christians in the kidnapping and selling of
slaves, there could not have been Arab and Muslim slave trade in the first place.
According to Derat, the Christian kingdom did in fact try to “take a more direct
role in longdistance trade and therefore in the slave trade in the fifteenth and
sixteenth centuries.”72 The edict provides concrete evidence of this.
The edict further explicates the obligations of government officials and states
that it was incumbent upon them to prevent the enslavement of freeborn Chris
tians. Authorities seen as negligent and complacent towards merchants who
enslaved and sold freeborn Christians and trafficked Christian slaves to non
Christian masters were considered as culpable as the merchants who operated
illegally. The edict thus provided for measures by which state officials would
monitor the activities of merchants and protect the rights of Christians, be they
freeborn or servile. Noblemen, princes, judges, and local officials are instructed
to inspect merchants traveling with slaves, and if anything was found amiss, they
were to take necessary measures. If merchants were found transporting enslaved
freeborn Christians, Gälawdéwos instructed officials to confiscate their caravan’s
merchandise and to send them in chains to the king himself for investigation. State
officials were to enforce the free release of Christians wrongly taken captive. The
king asked his officials to obey the new law, mixing threats with pleas. If officials
neglected their duties and failed to take action against illegal enslavement, they
would be regarded as committing a culpable offence. The edict required them to
be put to “death without mercy and [their] house ransacked.”73
71 FrancoisXavier and Hirsch, “Muslim Historical Spaces in Ethiopia,” 39–42; Tamrat,
“Ethiopia, the Red Sea and the Horn”; FauvelleAymar et al., “Le Porte de Zeyla et son arrière
pays au Moyen A� ge.”
72 Derat, “Chrétiens et musulmans d’E� thiopie,” 124.
73 Tädbabä Maryam, MS Wängél, image no. 6650.
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Gälawdéwos stops far short of calling for the abolition of the slave trade alto
gether. As long as merchants did not illegally capture Christians and followed
the rules, they could trade in nonChristian slaves. So the edict does not signify a
change in political and public feeling towards slavery. However, the very fact that
such an edict was drafted at all commands our attention. Clearly, the Fetha Nägäst
provided the basis for Gälawdéwos’s idea of the freedom of freeborn Christians
from slavery and the ban on the sale of Christian slaves to nonChristians. But
despite the conceptual link between them, the tone of Gälawdéwos’s edict is very
different from that of the Fetha Nägäst. Gälawdéwos toughened the restrictions on
slave dealers and went much further than the Fetha Nägäst by criminalizing not
only the enslavement of freeborn Christians and the trade in Christian slaves to
nonChristians but also acts of negligence by government officials. The following
pages attempt to understand the contextual pressures that inspired Gälawdéwos’s
edict.
Political Context: Jihad and Enslavement
Gälawdéwos’s edict of 1548 suggests the new legal strategies adopted by Ethiopian
rulers to address the perennial problem of an illegal slave trade. This was not
a sign of any humanitarian sensibility, which arguably did not emerge among
Ethiopian elites until the twentieth century.74 But if slavery and the slave trade had
been established systems for so long a period, and there was public indifference
to them, then Gälawdéwos’s edict begs several urgent questions. What was it that
inspired legislative action? Why did the protection of freeborn Christians and the
sale of Christian slaves to nonChristians become a major policy concern? If there
was a preexisting law regulating slavery, the Fetha Nägäst, why then did the king
issue the edict? This section attempts to answer these questions. In doing so it
will investigate the political, economic, religious factors that propelled the illegal
slave trade in Ethiopia and how the slave trade, in turn, affected those factors.
Furthermore, since Arabs are specifically targeted in the edict, the dynamics of
the ArabEthiopian encounter in this era require assessment. Any understanding
of the making of the 1548 edict needs to take into account the Adal’s jihad war of
the sixteenth century.
The simplest reason behind the edict’s promulgation might be the king’s sense
of justice and a personal abhorrence of the enslavement of freeborn Christians
and the sale of Christian slaves to nonbelievers. Gälawdéwos is depicted by con
74 Gardiner, “Law of Slavery in Abyssinia”; Whyte, “‘Everyone Knows’”; and Coleman,
“Gradual Abolition or Immediate Abolition?”
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
temporary sources as a just, clement, and intelligent young monarch. The king is
deemed by Merid WoldeAregay, a specialist on the period, as the most “remark
able” and one of the few “humane persons to ascend the throne.”75 Yet personal
outrage alone cannot in itself explain why he acted decisively against the illegal
slave trade. Recent scholarship has shown that it was often the flagrant breach
of old laws that justified the enactment of new laws. The historian Jill Harries,
for instance, found that in the Roman Empire of late antiquity a flood of new laws
were issued by emperors primarily because of the need “either to clarify and/
or supplement existing legislation, or because an existing law was being broken
or got round, or in order to reclassify antisocial or inconvenient behavior as a
legal offence.” She added that “[i]n a sense, therefore, laws existed because they
were broken. What is not established by their existence is the scale on which they
were broken, not enforced, got round or ignored.” 76 This explanation applies to
the Ethiopian experience as well. The edict of Gälawdéwos was issued because the
law protecting freeborn Christians from enslavement and Christians slave from
being trafficked was being widely breached. So it is of the utmost importance to
understand the reasons for the violation of the law and the expansion of the traffic
in Christians.
Normally, as noted above, slaves were captured in war and slaving raids and
taken from the pagan inhabitants of Ethiopia’s weak neighboring states and bor
derland societies.77 The traffic in Christians prior to the reign of Gälawdéwos was
therefore probably so negligible that Ethiopian kings felt no urgent need to leg
islate specifically against it. Hence, something else happened during the reign of
Gälawdéwos, or shortly before, that led to a substantial expansion of the illegal
slave trade and spurred the promulgation of our edict. Between 1527 and 1543,
Ethiopia faced repeated attacks and then military occupation by the sultanate of
Adal to its east and northeast. These attacks, termed jihad by the sultanate, con
troverted traditional Islamic legal doctrine which had long exempted Ethiopia
from jihad. This war resulted in heavy material, human, and territorial losses and
the enslavement of large numbers of Christian Ethiopians.78 While the Sultanate
of Adal and its occupying army was defeated in 1543, I propose that this edict
was intended to reaffirm the law against illegal trade in Christians and reestablish
order following this long period of disturbance.
75 Wolde Aregay, “Southern Ethiopia and the Christian Kingdom,” 164–65.
76 Harries, Law and Empire in Late Antiquity, 80.
77 Bouanga, “Le Damot dans l’histoire de l’Ethiopie,” 78, 82–86; and Pankhurst, Ethiopian
Borderlands, 18, 28, 122–23, 167–69.
78 Uṯmān, Futūḥ al-Ḥabaša.
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The fifteenth and first half of the sixteenth centuries were marked by inces
sant conflict and competition between Ethiopia and the Islamic state of Adal over
the control of the trade routes of the lowlands and the resources of the highland
regions of Ethiopia. The Christian kingdom was in control of “the resources of the
highlands” while “Muslims were in charge of the routes.”79 These conflicts pro
duced a continuous stream of new slaves as both sides supported the raiding, seiz
ing, and sale of captives. The army of Adal had the upper hand in these conflicts
and most of those captured and sold into slavery were Christian and pagan Ethio
pians.80 But we must go back a few centuries in order to understand the broad
shifts in the balance of power between the Ethiopian state and the sultanate of
Adal, as well as Islamic doctrines concerning jihad and Ethiopia’s historical role
in them.
The term jihad has multiple and complex meanings, but one prominent sig
nificance of the term (from the point view of some Islamic jurists) was that jihad
signified a just war against nonMuslims who had refused the call to join Islam.
Islamic legal theory also recognized the legitimacy of enslaving captives in a legally
perpetrated jihad. In theory, therefore, jihad was waged against nonMuslims, and
slavery was the price for refusing to accept Islam. By definition, slaves were to be
exclusively nonMuslims or their descendants, since Muslims could not enslave
fellow Muslims. But according to Muslim tradition, the Prophet Muhammad had
exempted Ethiopians and Turks from jihad. One of the medieval legal opinions
concerning this immunity was given by Ibn Rushd (d. 1198), better known as
Averroes, a famous physician, judge, and philosopher from Córdoba in AlAndalus
(modern Spain). In 1167, he wrote an influential legal handbook which discusses
jihad and Ethiopia as follows. 81
Scholars agree that all polytheists should be fought. This is found on
[Qur’an 8:39]: “Fight them until there is no persecution and the religion is
God’s entirely.” However, it has been related by Malik that it would not
be allowed to attack the Ethiopians and the Turks on the strength of the
tradition of the Prophet: “Leave the Ethiopians in peace as long as they
leave you in peace” [Utruku al-habasha ma tarakukum]. Questioned as to
the authenticity of this tradition, Malik did not acknowledge it, but said:
“People still avoid attacking them.”
79 FauvelleAymar and Hirsch, “Muslim Historical Spaces in Ethiopia,” 42.
80 Pankhurst, “Ethiopian Diaspora to India.”
81 Quoted in Peters, Jihad in Classical and Modern Islam, 30.
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
According to tradition, the Prophet granted Ethiopia immunity from jihad and
legal tolerance out of gratitude for its ruler having given asylum to some of his
early followers. The crucial role played by Bilal ibn Rabbah during Islam’s forma
tive history further contributed to the positive image of Ethiopia among Muslims.
In Muslim tradition, Bilal was a slave of Ethiopian origin and belonged to the
fatherinlaw of the Prophet. Bilal was the first male convert to Islam and had the
dignity to become the first muezzin.82 Furthermore, the most famous leaders of
early Islam such as Caliph Umar and Amir Ibn alAs, conqueror of Egypt, and the
greatest Arab poetwarrior in preIslamic time, Antara, all had Ethiopian ancestry
and contributed to Ethiopia’s positive image among Muslims.83 In the words of
Haggai Erlich, who has studied this subject extensively, “Ethiopia was to become
the only ‘land of neutrality,’ a proclaimed state of political immunity positioned
midway between the concept of the ‘land of Islam’ and that of the infidels’ ‘land
of war.’”84
Malik ibn Anas (d. 795), founder of the Malikite school of Islamic law whose
opinions were referenced by Averroes, was responsible for collecting and spread
ing the Prophet’s instruction to leave Ethiopia in peace. Hence, Averroes believed
that Muslims “avoid[ed] attacking Ethiopians” because of Muhammad’s require
ment that they be left alone. It is true that this legal theory was not often translated
into practice, but the strength of this tradition is not to be taken lightly. It no doubt
influenced the action and policy of some stratum of Muslim legists and leaders in
dealing with Ethiopians, particularly during the era of Islam’s phenomenal expan
sion in the two centuries after its rise. However, in later centuries, the message of
tolerance was either forgotten, ignored, or circumvented. Arab owners purchased
Ethiopian slaves and received them as gifts from their Muslim counterparts in the
Horn of Africa without qualm. S� ihāb adDí�n Aḥmad bin Abd alQāder bin Sālem
bin Uṯmān, a Yemeni lawmaker who accompanied and chronicled a jihad war
against Ethiopia in the sixteenth century, never questioned its legitimacy and the
enslavement of thousands of Ethiopians. In fact, in the late fifteenth and sixteenth
centuries, jihad was a primary method of obtaining Ethiopian slaves.85
Muslim leaders and scholars in the Horn of Africa could justify the war and
enslavement of Ethiopians on the grounds of Ethiopian aggression against Mus
lims in the Horn of Africa. As we have seen earlier, in 1332, a resurgent Ethio
pian kingdom had subdued most of the Muslim principalities in the Horn of Africa.
82 Cerulli, “Ethiopia’s Relations with the Muslim World,” 575–76.
83 Lewis, Race and Slavery in the Middle East, 24–25.
84 Erlich, The Cross and the River, 25.
85 Uṯmān, Futūḥ al-Ḥabaša.
99
100
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Later in the fourteenth century, the most militant leaders of Islam in the Horn of
Africa moved further east and established the kingdom of Adal in the Harar pla
teau. For over two centuries after 1332, raiding and counterraiding marked the
relations between the rulers of Adal and the Ethiopian kingdom.86 As the fifteenth
century progressed, the Christian state declined. The death of King Bädä Maryam
(r. 1468–78), which left his sixyearold son Eskender (r. 1478–94) as heir, opened
up a troubled period in which the Ethiopian kingdom was plunged into internal
power struggles while constant Muslim raids of the frontier provinces continued
down to the 1520s. Morale in the Ethiopian army dropped sharply as the result of
the political disorganization and confusion in the kingdom.87
While Ethiopia was fragmenting and without its traditional military strength,
the kingdom of Adal was growing stronger and more united. In the late fifteenth
and early sixteenth centuries, in particular, the weakness of the Ethiopian army
encouraged Adali raiders to intensify their raiding campaigns. In the fourteenth
century, slaves had been primarily the consequences of war; during this new era,
booty in the form of captives and cattle was the primary motivation. A fifteenth
century sultan of Adal, Jamal adDin II (d. 1433), is said to have boasted that he
“flooded Middle Eastern markets, India, Greece, and Persia with Abyssinian
slaves.”88 Adali raiders under the leadership of a capable general, Mahfuz, con
ducted more successful and protracted slave raiding campaigns throughout the
late fifteenth and early sixteenth centuries. Most of the captives were probably
sold to merchants while some were sent as gifts to the ruler of Yemen. This can
be illustrated by the case of an important Ethiopian military commander, who
was captured by Adali forces sometime during the reign of King Eskender: this
unnamed commander and fifty other captives were sent as presents to Yemen,
where the former commander became the servant of Abu’l Fatḥ, who was born
to a Jewish mother and Arab father. In 1498, probably accompanied by his Ethio
pian slaves, Abu’l Fatḥ immigrated to Ethiopia as a merchant, where he converted
to Christianity and was renamed Embaqom (Habakkuk), subsequently becoming
abbot of a major monastery and authoring a polemical work against Islam.89 This
instance shows that Christian populations in frontier areas and in Muslimcon
trolled ports along the Red Sea coast increasingly found themselves vulnerable to
enslavement because of frequent raids. During the reign of King Lebnä Dengel (r.
1508–40), the balance of power between the Ethiopian kingdom and the sultanate
86 Tamrat, “Ethiopia, the Red Sea and the Horn.”
87 Tamrat, “Problems of Royal Succession in FifteenthCentury Ethiopia.”
88 Derat, “Chrétiens et musulmans d’E� thiopie,” 139.
89 Ibid., 135; and Anqaṣa Amin (La Porte de la Foi), 18–19.
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
of Adal tipped decisively in favor of the latter, and Ethiopia was overwhelmed by
the jihad.90
Ahmad ibn Ibrahim alGhazi, the Adali ruler and the soninlaw of Mahfuz,
escalated the raids, culminating in the battle of Shembra Kuré in 1529, in which
the Ethiopian army was trounced. Ahmad followed up his victory by launching
a jihad and occupying the highlands of Ethiopia for fifteen years. In the 1530s,
his army of Somali and Afar tribesmen, some seventy alMahra Arab tribesmen
from the Arabian Peninsula and two Indian mercenaries (who served as gunners)
swept into the highlands of Ethiopia. By 1540, Ahmad controlled all the regions
previously under Ethiopian rule. The Muslim seizure of Ethiopian provinces led
to a tremendous expansion in the slave trade within the region, and included the
enslavement and forced conversion of Christians. Before the jihad, Christians had
had special protected status within the Ethiopian kingdom. During the jihad and
immediately afterward, their legal protection against enslavement was lifted. The
jihad of Ahmad ultimately had as its object the conversion of Ethiopia to Islam.
S� ihāb adDí�n, Ahmad’s Yemeni follower and chronicler, constantly referred to
Ethiopians as “infidels”, “polytheists,” and “idolworshipers” who deserved to be
fought, converted, and enslaved. With the exception of those located in inacces
sible areas, all churches and monasteries were looted and razed to the ground and
an estimated nine out of every ten Christians converted to Islam.91
In his discussion of Adali’s jihad war, Vô Vân David underscores that medi
eval Islamic legal theory about jihad and slavery, especially the Shafite jurispru
dence, goes far to account for, and shed light on, the motivations of the jihadists
and their treatment of the Christian population. In Shafite law, a leader of jihad
had the options of enslaving and killing prisoners as well as pardoning and releas
ing them either on ransom or as nonMuslim subjects of the Islamic state in return
for paying tax.92 Ahmad used all these options. Sometime Ahmad showed finesse
in his treatment of Christian captives, releasing them on ransom. Frequently he
killed and enslaved captives while sparing and sending some of them as gifts to
his friends and allies in southwestern Arabia. S� ihāb adDí�n records that, in a single
minor raiding campaign in 1527, 484 Ethiopians were taken prisoners, some of
whom were killed and some others were “enslaved to the emir of Zabid,” a com
mercial town and political center of southwest Arabia.93 In another of several
instances, S� ihāb adDí�n describes that following a triumphant raiding campaign in
90 Tamrat, “Ethiopia, the Red Sea and the Horn,” 163–76.
91 Chronique de Galâwadêwos, 5; and Abd alQader, The Conquest of Abyssinia, 11–385.
92 David, “A� propos du G� ihâd dans le Futuh alHabasha, ” 137–38.
93 Uṯmān, Futūḥ al-Ḥabaša, 26.
101
102
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1528, Ahmad himself took a fifth of the booty which included, among other things,
“fivehundred heads of slaves” and distributed it “among the eight categories that
the Most High God described in his illustrious book [Qur’an].”94 It appears that this
raid had yielded in a total of 2500 captives.
Besides ordinary captives, several highranking noblemen and women were
also taken prisoner and sold as slaves or sent as gifts. Among these captives were
the future king Minas and his two cousins. In 1542, Ahmad presented them as gifts
to the ruler of Zabid. The experience of Minas and his cousins demonstrates that
practically everyone faced the possibility of enslavement after the Muslim con
quest. In 1543, when Gälawdéwos finally defeated the army of Adal and killed its
leader, with the help of a small contingent of Portuguese soldiers, Minas and two
other highranking captives were eventually ransomed in 1544.95 Not all of the
Christians taken as captive to the Arabian Peninsula and elsewhere could have
been ransomed and returned to their families, however. This is, then, the immedi
ate context in which the edict regulating the slave trade and banning the enslave
ment of freeborn Christians and the export of Christian slaves must be placed.
The victories of the Sultanate of Adal had shaken Ethiopian confidence in their
army, religion, and selfesteem. Gälawdéwos’s edict emerged as a legal force in
this atmosphere of trauma and profound political and spiritual crisis in Ethiopian
society. Regulating the slave trade and banning the enslavement of freeborn Chris
tians were therefore among the more prominent of royal concerns for Gälawdé
wos. The captivity of Minas and his cousins in particular touched a raw nerve and
drove the issue of Christian enslavement home. Furthermore, there was probably
public pressure on the king, especially from those who had lost family members
and relatives to slavery, to take up the cause of illegal enslavement and act deci
sively. In this way the pre-jihad complacency about the unregulated slave trade
and illegal enslavement gave way to the stern political and legislative action and
edict of 1548. It remains now to explore the question of how well the edict was
implemented.
The Enforcement of the Edict and of the Fetha Nägäst
How well the Fetha Nägäst and the edict were implemented is a good question.
This section deals with the complex relationship, or the huge gulf, between the
legal principles and norms expressed in the Fetha Nägäst and in our edict, and
actual practices. How enforceable was Ethiopian law concerning slavery? To what
94 Ibid, 41.
95 Chronique de Galâwadêwos, 34–35 and 123; and Historia de Minas, 22–23.
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
extent was the law known among the people at large? In anticipation of fuller
elaboration below, suffice here to say that there was a general reluctance to
enslave freeborn Christians among Ethiopian slave raiders, such as government
officials and soldiers who derived their wealth partly from the slave trade in the
sixteenth century. It is hardly surprising, therefore, that throughout the second
half of the sixteenth century, the various ahzab or pagan subjects of Ethiopia fer
vently implored authorities to convert them to Christianity. Equally unsurpris
ing is the fact that slave raiders were entirely averse to evangelization during the
same period. However, in the long run, the law could not be rigorously enforced—
in southern Ethiopia in particular. With the withdrawal of the Ethiopian state from
southern Ethiopia by the end of the century, the general insecurity of life and the
difficulty of reporting a captive’s religion and origins all played a part in the even
tual failure of the law to protect Christians from enslavement.
As I mentioned at the outset, scholars have generally assumed that Ethiopia’s
various laws have been widely violated and ignored throughout the country’s his
tory. Royal edicts are thought to be valid so long as “an emperor had the means to
enforce them physically” and many proclamations “have been lost or disregarded.”96
According to the historian Aṣmä Giyorgis: “In Ethiopia a law is legislated, but not
put into practice.”97 The practical use of the Fetha Nägäst in courts is believed to
have been limited in scope, an argument enhanced by the acute poverty of evi
dence on its application in the century after its introduction around 1450 and the
tenuous records of its actual use in the sixteenth century and thereafter. But this
verdict is too sweeping. Drastic differences between written law and real behavior
doubtless existed, but how far laws were enforced cannot be ascertained simply
by using the records of their practical use alone. A people’s knowledge of a par
ticular law is a better guide to its applicability and social effect. I propose here that
the law in question (that freeborn Christians could not be enslaved, and once bap
tized slaves could not be resold to nonChristians) was widely known and largely
observed in the sixteenth century.98 Even on the basis of the fragmentary evidence
96 Brietzke, Law, Development and the Ethiopian Revolution, 32–33.
97 Asma Giyorgis and His Work, 119.
98 The history of the actual role of the Fetha Nägäst in the legal life of Ethiopia is yet to be
written. Largely unknown to scholars are the records of private individuals, held in church
archives, which show the Fetha Nägäst’s relevance in the daily realities of people’s lives.
This evidence comes largely from recent centuries and consists chiefly of brief references
to the use of the Fetha Nägäst in administrative manuals, charters, land registers, and wills.
See Mengistie, Lord, Zega and Peasant, 113, 115–16. See also Märtulä Maryam, MS Däqiqä
Näbeyat (the Minor Prophets), fol. 219r; and Illinois/IES 89. II. 16, Däbrä Wärq Maryam,
Tarikäa Nägäst. This last reference is to a microfilm catalogued and on deposit at the Univer
103
104
haBTaMU MengisTie Tegegne
we possess, it is certain that the edict of Gälawdéwos and the Fetha Nägäst were of
great social and legal relevance in sixteenth century Ethiopia.
Knowledge of the Fetha Nägäst was kept alive through its study in church
schools up to the twentieth century. The administration of justice was placed in
the hands of higher government official as well as jurists, who were often eccle
siastics trained in the study of the Fetha Nägäst via schools attached to churches
and monasteries. These legists of the Ethiopian church were distinguished from
other clergy by the bestowal of an honorific title: liqé or liqä ma’emran, “one who
excelled others, one who is versed in the studies of law.”99 The Fetha Nägäst was
studied as part of the “study of the [works of Saintly] Doctors [and the Fathers of
the Church],” a curriculum which included theology, the highest rank of learning
in Ethiopian church schools.100 It was also studied as a field of specialization in its
own right. Church scholars wrote commentaries on the Fetha Nägäst and its prac
tice and developed a complex system of teaching and exposition called andemta—
the first of its kind in Ethiopian history. Individuals trained in the Fetha Nägäst
were professional jurists in the accepted sense of the term. In the lands beyond
the reach of Church administration, most appear to have served only occasionally
as itinerant judges when they were summoned to the courts of the emperors and
higher officials to administer justice in important decisions.101
Gradually, then, knowledge of the Fetha Nägäst spread among the nobility and
ordinary people. Chronicle sources demonstrate that some strata of the nobil
ity were acquainted with the Fetha Nägäst as early as the sixteenth century. The
earliest certain point for the practical application of the Fetha Nägäst recorded
in chronicle sources comes during the reign of Särsä Dengel (r. 1563–97), when
criminals were condemned to death by “the great men of the kingdom and the
chief of the people” by referring to the Fetha Nägäst.102 In the second oldest writ
ten instance, recorded in the chronicle of Susenyos (1607–32), higher govern
sity of Illinois, UrbanaChampaign, and at the Institute of Ethiopian Studies in Addis Ababa
University. It was made by the late Donald Crummey; however, it should be noted that the
Däbrä Wärq material catalogued by Crummey is actually an administrative manual rather
than a copy of the Tarika Nägäst.
99 Tzadua, foreword to The Fetha Nagast, xx; and Jembere, Introduction to the Legal History
of Ethiopia, 37–38. In the manual of the Däbrä Wärq monastery, they bore the title of liqä
ma’emran: Illinois/IES, 89. II. 16, Däbrä Wärq Maryam, Tarikäa Nägäst.
100 Tzadua, foreword to The Fetha Nagast, xx.
101 Jembere, Introduction to the Legal History of Ethiopia, 37–38.
102 Quoted in Tzadua, foreword to The Fetha Nagast, xxi. The reference is to Historia regis
Sarsa Denegel, 87.
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
ment officials along with “the learned men of the Church who were versed in
the Fetha Nägäst” were summoned to a royal assembly and there condemned a
rebel to death.103 Some of the royal justices referred to as “the great men of the
kingdom” could presumably be laymen unfamiliar with the legal principles of the
Fetha Nägäst, but others may have been familiar with it. And more would become
so, as custom that had the force of law and was applied side by side with the
Fetha Nägäst. Gradually, the legal principles and the doctrines of the Fetha Nägäst
became fossilized into custom in their own right.104
There is evidence, direct and indirect, that shows the observance of the ban on
the traffic in freeborn Christians. Two of the clearest indications of the law’s influ
ence come from the reign of Särṣä Dengel in the second half of the sixteenth cen
tury. The first indication may be found in the oppositions put up by soldiers and
noblemen of Särṣa Dengel against evangelization, since pagan slaves constituted
one element of the wealth of the military class at that time; the regnal chronicler
records how these court officials and soldiers rejected conversion of the pagan
subjects of Ethiopia by explaining that they feared that Christianity would allow
the pagans to become too similar to them. Once they became Christians, sol
diers and noblemen argued, by law the pagans could not be made to serve them.105
Clearly, these arguments remind us of the provisions in the Fetha Nägäst and of
Gälawdéwos’s edict. This opposition to conversion by soldiers can therefore be
attributed to knowledge of the law.
The second piece of evidence that points to the observance of the edict is the
frequent requests for conversion to Christianity from the pagan subjects of Ethio
pia attested throughout the second half of the sixteenth century. This indicates a
popular knowledge of the edict especially in the region where captives were most
often taken, including Damot, which the chronicler of King Särṣä Dengel described
as “the land of slaves.”106 Among those who requested conversion were the Gafat
people in the former district of Shat in Damot; Särṣä Dengel granted their request
in 1581. Similarly, the people of Ennarya in southwest Ethiopia turned to Christi
anity to avoid enslavement. But tellingly, the conversion of Ennarya was preceded
by strong argument and resistance from soldiers and noblemen at the king’s
court, as discussed above. After several years of procrastination, Särṣä Dengel
103 Quoted and translated in Tzadua, foreword to The Fetha Nagast, xxi. The reference to
this court ruling is found in Pereira, Chronica de Susenyos, 298.
104 Gardiner, “Law of Slavery in Abyssinia,” 181–82.
105 Historia Regis Sarsa Dengel, 136–44.
106 Ibid., 35; and Wolde Aregay, “Southern Ethiopia,” 278–79.
105
106
haBTaMU MengisTie Tegegne
finally allowed the people of Ennarya to convert to Christianity which they did en
masse in 1587.107
The chronicler of Särṣä Dengel was neither the first nor the last to report the
fervent requests for conversion by pagans. For instance, a letter which the Jesuit
missionary Gonçalo Rodrigues wrote from Ethiopia to Rome in 1556 corrobo
rates the details provided by the chronicler.108 Similarly, in 1564, the head of the
Jesuit missionaries in Ethiopia, Bishop Andre de Oviedo, wrote that the Shinasha
people in Bizamo, in western Ethiopia, implored members of the royal family to
convert them to Christianity in order to avoid enslavement.109 What is important
for us here is that the soldiers and court officials, as well as the pagans of Ethiopia,
knew that the law of the land protected freeborn Christians from enslavement and
equated Christianity with the condition of liberty. The opposition of slave raiders
to evangelization and the request for conversion can therefore be regarded as an
indication of the enforcement of the edict.
All this is not to say that Ethiopian laws were always effective. The observance
of the law banning the traffic in freeborn Christians was not entirely successful.
The slave trade left virtually no further documentation in Ethiopia, but there can
be no doubt that Christians continued to be swept into slavery through the breach
of the law. The Jesuit missionary Lusi de Azevedo, for instance, reports the follow
ing incident which illustrates the breach of the law during the reign of Susenyos
(r. 1607–32):
A rich Muslim trader was subsequently accused of exporting slaves from
Ennarya, and on being found guilty was executed, his head being stuck
on a pole in the marketplace as a warning against future lawbreakers.
The emperor reiterated his opposition to the trade, declaring that anyone
caught trading in slaves with either Moor or Turk would be sentenced to
death and have all his property confiscated. At the same time, he sum
moned all his governors, the ministers of the court, and instructed them,
on pain of severe penalty, to enforce the law, as God wished to protect the
unfortunate Ethiopians, who, we are told, were then being transported in
large numbers to Arabia, India, Cairo and Constantinople.110
107 Historia Regis Sarsa Dengel, 136–44; and Wolde Aregay, “Southern Ethiopia,” 299–302.
108 Wolde Aregay, “Southern Ethiopia,” 104.
109 Ibid., 298–99.
110 Rerum Aethiopicarum Scriptores Occidentales, 421. The text is quoted and translated by
Pankhurst, Introduction to the Economic History of Ethiopia, 378.
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
The punishment, as recorded by Azevedo, against an illegal trader was meant to
deter potential violators and demonstrate the consequences of disregarding the
law. Yet the deterrent effect of such public punishment is uncertain. Slaves from
the Ethiopian region continued to be distributed in Middle Eastern markets down
to the twentieth century. The legal system regulating slavery in sixteenthcentury
Ethiopia was deeply destabilizing and hypocritical, intending to prevent illegal
enslavement of Christians while encouraging the expansion of slave raiding activi
ties by wholly legitimizing and supporting the trade in nonChristians. Some of
the elaborate provisions of the edict were almost certainly wildly ambitious and
unenforceable. It should be recalled that the edict required slave traders to avoid
buying a Christian slave and called for reporting the names of slaves, their pur
chase price, origins, and vendor to government officials—in writing. This provi
sion presupposes the use of documents and the existence of literate merchants
and government officials; but in actual fact, such widespread literacy cannot be
assumed to have existed in sixteenthcentury Ethiopia.
Reporting the origins and religious affiliation of slaves was also a difficult mat
ter. We have already seen how the sumptuary regulations and laws instituted by
King Zärä Yaqob, which required Christians to put religious symbols on their dress
and body, could have been used by merchants to differentiate Christians from non
Christians. But it is not clear at all if these religious requirements were effectively
met by Christians. Some experienced local traders might have easily distinguished
between slaves of differing origins by language and other identifying features. But
although we may expect some merchants to have been well informed about the
identity of their human merchandise, this was an impossible demand for many
of them, especially those of foreign origin, because of the stunning linguistic and
ethnic diversity of the country. In most cases, they had to rely on what their local
suppliers told them about the identity of their captives. Slave raiders could thus
deliberately falsify the true identity and origins of their captives and the mer
chants would have had no way of knowing it.
For much of this period, in sum, the compliant governors and noblemen, the
political stability, and wellregulated administration taken for granted in the
edict never existed. Gälawdéwos began the long process of picking up the pieces
of Ethiopia’s shattered defense system and royal administration after the end of
the wars with the sultanate of Adal. He died prematurely in 1559, while repulsing
another slaving raid from the sultanate. The Christian court was then in the midst
of upheaval throughout the reigns of Gälawdéwos’s brother Minas (1559–63) and
his nephew Särsä Dengel (1563–97).111 It was thus relatively easy to evade the
111 Wolde Aregay, “Southern Ethiopia,” 174–94, 204–30.
107
108
haBTaMU MengisTie Tegegne
regulations of the slave trade set down in the edict of 1548 because of the chronic
insecurity and political instability of the period. In this situation, only their sense
of morality—rather than the fear of punishment—could prevent individuals from
buying and selling Christians.
By the turn of the seventeenth century, southern Ethiopia was largely out
of the political control of Ethiopian rulers. With the withdrawal of the Ethiopian
state from these areas, whatever protection this edict could have provided to the
Christians of the region was lifted. Most Christians, left to fend themselves, did not
survive the new Oromo invasions and the attendant slave traders.112 The enslave
ment of the region’s inhabitants persisted into the nineteenth century, by which
time the Gamo, Damot, and Ennarya Christians had disappeared entirely.
Conclusion
Gälawdéwos’s edict of 1548 shows that the sixteenth century witnessed a seri
ous, if ultimately unproductive, effort to protect Christian Ethiopians from illegal
enslavement. And it is arguably the first Ethiopian document to take up the issue
of illegal enslavement prior to the twentieth century. The edict gives us an idea of
the scale and strength of the illegal slave traffic and the legislative act it elicited.
The king sought to prevent the enslavement of freeborn Christians while simul
taneously allowing for the longdistance slave trade in nonChristians to go on.
Economic necessities prevented the king from a wholesale ban on all forms of
slave trade, including the trade in nonChristian slaves. In the areas under the
firm control of the state, the ban on the traffic in freeborn Christians was generally
respected. Nevertheless, in the long run, the political and legal environment which
recognized the raiding and enslaving of pagans rendered Gälawdéwos’s legal pro
nouncements ineffectual. Some aspects of the edict were also unenforceable or
out of touch with the political and administrative realities of sixteenthcentury
Ethiopia. In the southern part of the kingdom, especially, the state was not in a
position to enforce the law after the end of the sixteenth century. Despite their
theoretically protected status, Christians in this region appear to have been taken
captive along with nonChristians through politically sanctioned raids, warfare,
and illegal slave raiding.
Nevertheless, the edict of 1548 was effective and also a reaffirmation of the
older Fetha Nägäst. It therefore holds significant value for the study of compar
ative slavery while providing a new perspective on the struggle for domination
between the sultanate of Adal and the kingdom of Ethiopia, and the larger encoun
112 Some Records of Ethiopia, 111–33.
The edicT OF King gälawdéwOs againsT The illegal slave Trade in chrisTians
ter between Arabs and Africans in the region. My recent discovery of Gälawdé
wos’s edict also has important methodological implications for the study of Ethio
pian history. The edict and the establishment of the church of Tädbabä Maryam
were key events in Gälawdéwos’s reign. The contemporary royal chronicle dis
cusses the circumstances of Tädbabä Maryam’s establishment at unusually great
length, but the edict is not mentioned in the chronicle itself.113 And accordingly,
Ethiopian historians have often looked at narrative sources such as this chronicle
for evidence of the origins and impact of legislation; and they have drawn conclu
sions based on that. Gälawdéwos’s edict indicates that anything can be left out
from such chronicles, and that nothing conclusive can be said about legal develop
ments in medieval Ethiopia without further archival research.
113 Chronique de Galâwadêwos, 49–54, 58–59, and 123.
109
110
haBTaMU MengisTie Tegegne
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Habtamu Mengistie Tegegne (ht254@rutgers.edu) holds a doctoral degree in
history from the University of Illinois at UrbanaChampaign (2011). He is cur
rently Assistant Professor of History at Rutgers University at Newark and is the
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this article was based on an essay that won the 2007 Graduate Student Paper
Prize of the African Studies Association.
Abstract This study explores the relationship between documentarylegal pre
scriptions of slavery and actual practice in late medieval Ethiopia. It does so in
light of a newly discovered edict against the enslavement of freeborn Christians
and the commercial sale of Christians to nonChristian owners, issued in 1548
by King Gälawdéwos. It demonstrates that this edict emerged from a dramatic
and violent encounter between the neighboring Sultanate of Adal, which was sup
ported by Muslim powers, and the Christian kingdom of Ethiopia, which had the
support of expanding European powers in the region. The edict was therefore
issued to reaffirm and clarify the principles and doctrines of preexisting legisla
tion codified in the Fetha Nägäst (Law of Kings). The study includes a full tran
script and translation of the edict and also analyzes its place within the broader
framework of Ethiopia’s encounter with other legal traditions, including older
RomanoByzantine and CopticIslamic systems. This study further argues that the
legal principles enshrined in the Fetha Nägäst were strengthened by the edict
and were more widely known than previous scholarship has been able to estab
lish, and that the edict did inspire actual legal practices that affected daily life in
sixteenthcentury Ethiopia.
Keywords Ethiopia, slavery, Fetha Nägäst, Gälawdéwos, Christianity, Islam, law,
jihad
MUTILATION AND THE LAw
IN EARLy MEDIEVAL EUROPE AND INDIA:
A COMPARATIVE STUDy
PATRICIA SKINNER
in her sUrvey Crime and Punishment in Ancient India, Sukla Das highlights
the occurrence—in religious texts, literary material, and legal digests—of the use
of branding and mutilation of the face and body to punish specific misdemean
ors, including theft, the sexual violation of women, female adultery, defamation,
and assault. Moreover, mutilation (including blinding of the eyes) might also be
prescribed instead of the death penalty for acts of treason, and was considered a
lenient alternative to death.1 Such penalties, the rhetoric surrounding their use,
and the circumstances in which they were prescribed sound very familiar to a his
torian of early medieval Europe, where the language and targets of such precepts
were similar to those set out in the Indian material.2 Yet drawing a comparison
between the two regions, or even suggesting that their similarities constitute a
“legal encounter,” is fraught with methodological problems. First, there is a clear
chronological mismatch between the development of the prevailing legal norms
of India and Europe; second, neither region can be treated as an undifferentiated
whole; third, there is an important qualitative difference between “legal” texts in
Europe and India; and finally, even if points of similarity and difference are identi
fied in the texts, these represent not so much a dialogue as a shared recognition
that the human body has always been an effective target for coercive and correc
tive practices.3 All of this leads to an inevitable conclusion that the correspond
ing passages in Hindu and Western European texts should not surprise us at all.
Yet the apparent incommensurability of the two regions in the period before
1200 CE has not deterred historians from demanding and attempting compara
tive work. Susan Reynolds, for example, recently has called specifically for more
comparative research on the laws of medieval Europe and India, and set out some
I should like to thank the editors for their invitation to write for TMG, the anonymous
readers for their constructive criticism, and the Wellcome Trust for the grant (no. 097469)
that supported research for this paper and my wider project on medieval disfigurement.
1 On blinding, see BührerThierry, “‘Just Anger’”; and Wheatley, Stumbling Blocks.
2 Skinner, Living with Disfigurement, explores the evidence for Western Europe in detail.
3 Miller (Eye for an Eye) and Geltner (Flogging Others) articulate this point from legal and
historical perspectives.
116
PaTricia sKinner
questions surrounding the relationships between the royal authority and the law,
the role of legal professionals, and the process of justice.4 This essay, whilst not
addressing all of those broader issues directly, will first highlight the problems of
comparison across time and place, before examining in detail a specific element
of the legal culture of both regions, the use of corporal punishment. It will ask
whether the representations of facial and bodily mutilation, in particular, suggest
similar ideas in each region about royal authority, honor (and, if so, whose), and
gender relations, and how these might have developed and changed between the
third and twelfth centuries CE.
Problems of Comparison, Slippages in Time,
Fragmentation of Space
The “comparative turn” in medieval history is no longer affecting only European
regions, and its expansion has been marked—and fueled—in the past two dec
ades by the appearance of serials such as The Medieval History Journal, edited
and published out of India, and thus complicating the category “medieval,” and
now by The Medieval Globe.5 To take just one example, the model of medieval
“feudalism,” which Marc Bloch envisioned might be tested on Japanese as well
as European society,6 is still being used to think through extra as well as intra
European political frameworks in a way that stretches its validity (itself con
tentious) as a tool of analysis.7 As Reynolds and other historians of medieval
Europe have commented, however, comparison is hard work, and particularly so
when one is exploring a new area (for the present author, India) in which one
has relatively little previous research experience.8 Lack of linguistic training, in
particular, limits the survey of Indian texts used in this survey to those accessi
ble in English translation, which significantly compromises the study of technical
or descriptive words and phrases. (The English word “disfigurement,” for exam
ple, is regularly used as a catchall term to translate a range of injuries to the face
reported in Latin and Greek source texts in the medieval West, highlighting the
potential pitfalls of relying on translated texts alone.) Bloch himself, however, was
4 Reynolds, “Early Medieval Law.”
5 Reuter, “Medieval: Another Tyrannous Construct?”; Mukhia, “‘Medieval India.’”
6 Bloch, La société féodale, 610–12.
7 Bagge, Feudalism: New Landscapes of Debate; Hendricz, “Is There Evidence?”; Heirbaut,
“Not European Feudalism”; Sharma, Early Medieval Indian Society; Chattopadhyaya, Making
of Early Medieval India, 212–14.
8 Reynolds, “Early Medieval Law.” See also Wickham, “Problems in Doing Comparative
History” and “Historical Transitions.”
MUTilaTiOn and The law in early Medieval eUrOPe and india
an advocate of comparison as a means of better understanding one’s own area of
expertise, and exposing assumptions that a model developed in one part of the
world was applicable, uncritically, elsewhere.9 (The subtlety of La société féodale
in this respect has often been overlooked by subsequent commentators and gen
erations of undergraduate students.) This caution is particularly applicable to the
present study: as J. Duncan Derrett pointed out long ago, one of the difficulties
for British colonial rulers in India was their assumption that Hindu dharmaśāstra
(the teaching or science of righteousness) could be equated with Western canon
law and separated from the secular concerns of the state. 10 This assumption, in
turn, affected the early Anglophone historiography of India. We shall return to the
nature of “law” below.
The first problem of comparison for the present study is the time frame
expressed by the term “early medieval.” In Europe, it has traditionally been seen as
the period from ca. 500 to ca. 1100, although the starting date is contested by those
who champion “late antiquity” as a specific period of transition, and the eleventh
century often appears in surveys of the “central” Middle Ages. Such mutability is
also visible in the historiography of early India. Brajadulal Chattopadhyaya situ
ates the “early medieval” from the seventh to thirteenth centuries CE,11 and this
estimation is echoed by Upinder Singh, who relates the start and end dates to the
fall of the Gupta Empire (ca. 550 CE) and the establishment of the Muslim Delhi
sultanate (1206), respectively.12 This periodization incorporates the Ghaznavid
conquest of parts of northwestern India under Mahmud (998–1030). But, as Singh
points out, alternative “early Middle Ages” have existed in Indian scholarship:
eschewing political frameworks, R. S. Sharma’s model of Indian feudalism places
the period as 400–1200 CE.13 The period of the Delhi Sultanate (1206–1526 CE)
has also been termed “early medieval” or “medieval” to distinguish it from the
“later medieval” Mughal state that lasted into the nineteenth century. (It is pos
sible to posit a “medieval” period extending this late in Jewish history as well, as
I have argued.14) But as Kesavan Veluthat points out, these are all chronologies
largely driven by northern Indian political developments, and largely ignore the
existence of the polities of the Rashtrakutas (ca. 750–1000 CE) and the Cholas (ca.
850–1280 CE, at its height till 1044 CE), whose hostilities in the early tenth cen
9 Bloch, Apologie pour l’histoire, 107.
10 Derrett, Dharmaśāstra and Juridical Literature, 2–4.
11 Chattopadhyaya, Making of Early Medieval India, 1–37.
12 Singh, Rethinking Early Medieval India, 1.
13 Sharma, Early Medieval Indian Society.
14 Skinner, “Viewpoint. Confronting the ‘Medieval.’”
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tury impacted kingdoms such as the Cheras in Kerala, which is documented as
a kingdom by the early ninth century.15 With these caveats in mind, the discus
sion that follows will focus on the period from the fifth to the eleventh centuries,
and compare Christian and Hindu precepts. It will exclude discussion of imported
Muslim norms but may utilize examples falling outside those beginning and end
ing dates.
Veluthat’s work exposes the second problem of comparing Europe and India in
this period: the shifting and heterogeneous political map of the latter. This, how
ever, should not cause undue concern. Just as temporal boundaries were being
challenged in the late 1990s as a hegemonic and Eurocentric historiographical
construct, so Martin Lewis and Kären Wigen challenge the spatial organization
of historical enquiry, the valueloaded terms “West” and “East,” and the assump
tion of coherence in organizing the world into seven “continents.”16 Drawing on
this work for their own study of medieval India, Catherine Asher and Cynthia Tal
bot comment that “we can view the presence of numerous kingdoms [in India] in
1000 CE as a normal course of affairs,” and suggest that, “like Europe, South Asia
had a common elite ‘civilization’ that served to unify it culturally in a general sense
prior to 1200, although there were many different local practices and beliefs.”17
One element of such elite “civilization” was religious culture as expressed in
the Hindu dharmaśāstra, the teaching of righteousness, which Derrett terms an
overarching, systematic presentation of precepts suited to the diversity of Indian
society. This framework, underpinning Indian jurisprudence in the medieval
period, was already centuries old, dating back to well before the Common Era, and
some have cautioned against treating it as “law” in the English sense of the word.18
Moreover, it was not unified or consistent.19 Surviving texts and commentaries
(smṛti) range in date from ca. 600 BCE onwards, though precise dating, attribu
tion, and place of composition remain vexed problems. Early Hindu law (even
the term “Hindu” is problematic) encompassed not only the impetus to punish a
criminal act, often with corporal punishment, and so to restore social order, but
also a desire to encourage the individual to perform penitential acts that would
rectify her/his offence against the moral order.20 As Patrick Olivelle comments,
the correlation between the two is often indistinct, but both were tied up in a reli
15 Veluthat, Early Medieval in South India, 1–3, 185, 196.
16 Lewis and Wigen, Myth of Continents.
17 Asher and Talbot, India before Europe, 9.
18 Lubin, Davis, and Krishnan, Hinduism and Law: An Introduction.
19 Dharmasūtras, xxv–xxxiv; Olivelle, “Dharmaśāstra: A Textual History.”
20 Lubin, Davis, and Krishnan, Hinduism and Law: An Introduction, 1–4.
MUTilaTiOn and The law in early Medieval eUrOPe and india
gious ideology that envisioned creating a virtuous human being and ensuring a
positive rebirth, since the fate of the transgressor who failed to perform penance
for her or his deeds would be to lose status between this life and the next.21 This
religious dimension, it seems to me, opens up a point of comparison straightaway.
Early law from the Visigothic, Lombard, and AngloSaxon kingdoms, and from the
Byzantine Empire (included as a further comparator) certainly prescribe corporal
punishments alongside monetary compensation, but they do not explicitly look to
encourage the transgressor to repent. This, in large part, was the responsibility
(at least after the conversion period in the fifth and sixth centuries) of the Church,
not the king or state, and Western Europe provides numerous examples of early
penitentials underpinning that duty.22 Yet, as numerous scholars have pointed
out, this apparent separation between punishment/law and penance/religion
in Western society is anything but: as Christianity became more institutionally
embedded within Western European kingdoms, laws were drafted by, and/or with
the assistance of, members of the clergy, and they incorporate, in a more or less
explicit fashion, biblical concepts of right and wrong.23 Whilst the replacement
of titfortat violence with monetary payments might speak to Christian ideals,
the ruler’s right to inflict a corporal punishment—whether beating, branding, or
mutilation—draws upon not only Old Testament ideas of reciprocal injury but
also expresses an explicit reservation to the ruler of the right to punish physically
in order to enforce authority and make an example of the offender. The replace
ment of capital penalties with corporal ones, however, also signals that concern for
an offender’s soul demanded that he or she be given the opportunity to repent.24
Looking forward to the next life, therefore, was a core consideration in the judicial
cultures of both regions.
Ashutosh Dayal Mathur has argued for what he terms the secularization
of Hindu law between the eighth and seventeenth centuries, as commentators
sought to move away from law as dharma (righteousness)—the model described
by Olivelle for earlier centuries—and towards an understanding of law as a state
matter (vyavahāra), rather than a question of personal religious or moral conduct.
25
The pace of such change varied according to region, however, and vyavahāra is
in fact visible in much earlier material.26 But whereas earlier dharmaśāstras had
21 Olivelle, “Penance and Punishment”; see also Davis, “Before Virtue.”
22 Meens, Penitentials; McNeill and Gamer, Medieval Handbooks of Penance.
23 Wormald, Legal Culture; Evans, Law and Theology.
24 Gates and Marafioti, Capital and Corporal Punishment.
25 Mathur, Medieval Hindu Law.
26 Derrett, Dharmaśāastra and Juridical Literature, 31 and 36.
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made little distinction between civil or criminal disputes, later digests and com
mentaries paid more attention to offences that disturbed the order of the state
and/or might be brought to the king’s attention. The process that Mathur outlines,
therefore, is roughly contemporary with the period in European history when the
Germanic successorstates to the Roman Empire were beginning to produce codi
fied books of law. Written law mattered in both geographical spheres, it seems,
and functioned as a symbol of rulers’ authority. The plurality of early medieval
kingdoms and their law codes in Europe did not prevent similarities in their writ
ten forms, and this is also a useful way to think about the multiple commentar
ies existing across different Indian polities. The key difference lies in the fact that
whilst the texts of most early medieval law codes in Europe are datable to within
about a century (and some in fact carry dating clauses emphasizing when, in the
ruler’s reign, the codes were compiled), the complete and fragmented works of
law surviving from early India are hard to date because their purpose was entirely
different. Early Hindu texts, such as Kautilya’s Arthaśāstra (recently redated to the
fourth century CE, rather later than previously thought) had of course explicitly
set up some of the qualities and duties expected of the king, still framed in reli
gious terms; but medieval European laws varied in how much attention they paid
specifically to him, since the very existence of the codes themselves marked out
the king’s concern with the limitation of violence.
It is unlikely that the two historical developments—a more “statelike” king in
India, a focus on the king’s responsibility to keep peace in Europe—were linked.27
It is also debatable whether the transition outlined by Mathur for India led to
anything like a fully secularized law code replacing older customs and practices.
Chattopadhyaya comments that part of the process of change was the need for
“constant validation of power,” against the background of political fragmentation
among multiple kingdoms.28 The temporal and the sacred domain were too inter
dependent to permit a clear split, however. Thus the priestly validation of tem
poral power continued beyond the period of the socalled Hindu dynasties. The
full secularization of Indian law is, some commentators argue, not something that
even the modern Indian state has achieved.29 But it is clear that the Hindu laws
retained far more than they discarded, whilst the various law codes in Western
Europe are often distinguished by how much, or little, of preceding Roman (or
Germanic) law is visible in their provisions.
27 Kershaw, Peaceful Kings.
28 Chattopadhyaya, Making of Early Medieval India, 196–97.
29 Menski, Hindu Law, 24–25.
MUTilaTiOn and The law in early Medieval eUrOPe and india
For our purposes, the main issue to keep in mind is the rather obvious point
that no law is static: the written codifications and commentaries that historians
now use were more a starting point in a negotiation, rather than the end game,
and it is clear that legal precepts in India—and corresponding prescriptive texts in
Western European kingdoms and the Byzantine Empire—set up ideals of behav
ior that were, often, unenforceable. In both regions, however, the process of revis
ing and updating opinions allowed for flexibility as new situations arose. Reynolds
highlights the wealth of legal commentaries in India that medieval Europe does
not have (at least, until the twelfth century onwards), each shaping and offering
possibilities for new interpretations of older texts.30 In this sense, India seems
more akin to the medieval Islamic world.31 But in Europe, codes of law were sup
plemented and updated when regimes changed, and some of this material shows
signs of having responded to real situations. Overall, however, the picture pre
sented by these texts is explored here without any assumption (or “naí�ve accep
tance,” as Don Davis puts it)32 that it represents the social reality on the ground.
(As Davis notes, different texts served different purposes.) Some older, national
ist historians of India have emphasized the durable nature of the Hindu achieve
ment, focusing particularly on the areas of India that were not subject to Mus
lim conquest. For example, Ishwari Prasad stresses that the medieval period saw
“some of our best [legal] commentaries” emerge in south India.33 Yet even in areas
that did come to be under Muslim rule, Hindu culture seems to have been valued
rather than suppressed, and links were forged between the Mediterranean Sea
and Indian Ocean that permitted the transmission not only of goods but of ideas.34
Approaching Disfigurement as Injury: Honor and Shame
One way, perhaps, of drawing meaningful comparisons is to focus in on a very
specific manifestation of the law and/or social custom and/or moral compass in
each region, and to explore whether it occurs in similar circumstances as reported
by the texts, as was done for instance by Richard Larivière for ordeals.35 This
essay is interested in the phenomenon of facial appearance and disfigurement,
which appears most often in the context of legal codes and narrative sources. Both
30 Reynolds, “Early Medieval Law.”
31 See Reid, Law and Piety.
32 See Davis, “Toward a History of Documents,” in this issue.
33 Prasad, History of Medieval India, 549.
34 Wink, Al-Hind, 10.
35 Larivière, “Ordeals in Europe and India.”
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European and Indian cultures appear to have placed great importance on facial
appearance, including the presence, absence, or removal of facial hair. Barry Flood
comments that “the differentiation of ethnic and religious groups through the pre
scription of appropriate hairstyles or modes of facial hair was common to both
Indic and Islamic cultures,” and European historians, too, have noted its charged
qualities as a signifier of status.36 They might have added that facial perfection or
impairment was similarly loaded with meaning. As a comparative topic, therefore,
it seems a worthwhile seam to mine, and what follows is largely drawn from the
ostensibly “legal” texts, although set alongside narrative sources.
The historic mutilation of the face and body in Indian and European cultures
has already attracted the attention of some scholars. F. Barry Flood, for instance,
explores the meeting of Indian and Islamic cultures in records of the Indian prac
tice of cutting off little fingers or fingertips as a sign of submission to one’s lord.37
The removal of digits also features in some European texts, but there it is either
as a highly visible personal injury38 or as an extreme sign of tyrannical or even
diabolical behavior, as when the monastic chronicler Amatus of Montecassino
says that Gisulf II (1052–76/77), prince of Salerno, cut off the fingers and toes
of his wealthy hostage, Maurus of Amalfi, and made him eat them.39 (This was
after Gisulf had had Maurus’s eye gouged out.) Writing to please Gisulf’s eventual
conquerors and the patrons of his own abbey, the Norman lord Robert Guiscard
and his wife Sichelgaita, Amatus was implacably opposed to Prince Gisulf, which
clearly colors his narrative. And yet a report of fingercutting in India is no less
problematic. Although its former attribution to the Persian seacaptain Buzurg
ibn Shahriyar (in a work commonly known as The Wonders of India) has now been
discarded, the account’s real author, a Cairene scholar named Abū ‘Imrān Mūsā
ibn Rabāh alAwsí� alSí�rāfí�, was still writing with the perspective of an outsider.40
Is either report therefore to be trusted? This is a problem that dogs the evidence
surrounding mutilation, since its very prospect tended to induce fascination or
horror in those recording it. The same fascination, arguably, has shaped later his
torians looking for evidence of the “barbarity” of the medieval period, drawing
36 Flood, Objects of Translation, 63. See also Leyser, “LongHaired Kings”; Bartlett, “The
Symbolic Meanings of Hair”; Dutton, Charlemagne’s Mustache.
37 Flood, Objects of Translation, 85.
38 As in the laws of King Æthelberht of Kent (Æthelberht’s code (Abt), § 53–58). See also
Oliver, Beginnings of English Law, 72–73.
39 Amatus of Montecassino, History of the Normans, 189–90.
40 Ducène, “Review.”
MUTilaTiOn and The law in early Medieval eUrOPe and india
upon not only reports such as these, but also folkloric and religious tales that are
hardly reliable indicators of social “norms” (see below).
Injuries in Indian law were classified as verbal (vākpāruṣya) or physical
(daṇḍapāruṣya). A similar categorization is found in European codes: the Salic law
from Francia lists penalties for both physical injuries (De debilitatibus) and insults
(De convitiis).41 The latter, mainly consisting of calling a person by the name of
an animal, was undoubtedly insulting to honor. Calling a man a coward, informer,
or liar threatened rather more damage to the reputation, requiring substantial
monetary compensation (as in the law of the Kentish kings Hlothere and Eadric on
calling someone a perjuror or “shamefully accosting him using mocking words”).42
Such transgressions, however, were largely limited to the social class in which the
offender and victim belonged: the balance of honor needed to be restored, but
vertical social ties do not appear to have figured in such offences. Other West
ern European cultures, however, posited insults as a serious challenge to vertical
authority: in Ireland, in particular, close attention was paid to the respective rank
of perpetrator and victim, and the high visibility of the poet in Irish society led to
multiple tales of physical facial blemishes spontaneously appearing on kings and
other social superiors by the effects of satirical verse.43 Even publicizing a physi
cal blemish by talking about it was regarded as an injurious act.44
In the Indian context, however, the effects of all verbal and physical injuries
were complicated by varna or caste. Transgression often meant loss of caste or
even rebirth as a nonhuman, and this may explain why punishments handed out
to the lowest group, the S� ūdra, were, and remain over time, so severe. Already at
the bottom of the pile, they were threatened with the most gruesome of punish
ments, often leading to death. For example, Gautama’s code orders that if a S� ūdra
uses violent language or violence against any member of the three upper classes,
the body part that committed the crime should be cut off. If a S� ūdra listens to a
Vedic recitation, his ears should be filled with molten metal; and if he repeats the
recitation, his tongue should be cut off.45 This treatment was in contrast to that
of other castes, who were more frequently fined for their transgressions. Yet the
difficulty rests in knowing whether this very ancient law retained its purchase in
later recapitulations. It would be tempting to see a parallel here with the frequent
distinctions in European law codes between those of different status—the free
41 Pactus legis Salicae, 112–20 (§ 29–30).
42 Translated in Oliver, Beginnings of English Law, 131.
43 Kelly, Guide to Early Irish Law, 43–44.
44 Ibid., 137.
45 Dharmaśūstras, 98 (Gautama 12).
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and the unfree, those with official titles and those without.46 Certainly slaves who
committed offences were punished more severely than the semifree or free. Thus
in an addition to the Salic law of the Franks, a slave who struck a free woman
or untied her hair would lose his hand; but—and this is the crucial difference—
slaves were owned by someone else, and that person could, if they wished, miti
gate the threatened damage to their property by paying a fine.47 The Salic law also
permitted the master of a slave who was about to be castrated or tortured to with
hold the slave’s punishment by paying the penalty plus the slave’s value, though it
is debatable how often such a substitution might happen in practice.48
Turning to physical injuries, the classifications found in the later medieval
Indian commentary Vivāda Ratnākara (ca. 1300) have strong resonance with sim
ilar lists of injuries found in earlier European texts. In ascending order of serious
ness, physical offences in Vivāda Ratnākara included: defiling with touch; raising
a hand or weapon with intent; hurting without drawing blood; bloodshedding
injuries that were skindeep, muscledeep, or bonedeep; breaking of bones; and
severing or mutilation of organs.49 Defilement with touch was an injury particular
to Brahmin status, where impurity lurked in inanimate objects and everyday ges
tures and actions as well as in physical contact between persons. Such religious
defilement is not visible in the legal texts of medieval Europe, but it is notable that
some early codes did classify touching women in certain ways as injuries to be
compensated. A rather closer comparison can be drawn in the distinction between
bloodless and bloody injury, and the grading of the latter. This has strong paral
lels in early medieval European laws such as the Visigothic code of the seventh
century, which categorized wounds as slight, drawing blood, or down to the bone;50
or the probably contemporary Ripuarian and the slightly later Alamannic codes,
which retained the distinction between bloodless and bloody wounds (both add
ing the detail “if the blood touches the ground”) and, in the case of the Alemannic
code, added further distinctions of seriousness for head injury.51 Later still, in
medieval Welsh law, the three “dangerous wounds”—a blow to the head exposing
the brain, a blow to the body exposing the bowels, or the breaking of a limb—are
again distinguished from other types of injury.52 In both Indian and European cul
46 Geltner highlights this issue for ancient societies: Flogging Others, 37 and 44.
47 Pactus Legis Salicae, 260 (Capit. Addita 104.3).
48 Pactus Legis Salicae 58 (§ 12).
49 Mathur, Medieval Hindu Law, 177.
50 Leges Visigothorum, 262–63 (VI.4.1).
51 Lex Ribvaria, 73 (II); Pactus Legis Alamannorum, 116–17 (LVII [LIX]).
52 Laws of Hywel Dda, 24–26 (book I.3).
MUTilaTiOn and The law in early Medieval eUrOPe and india
tures, the visible wound or scar clearly threatened status:53 Baudhāyana asks, “If
a Brahmin has an open wound filled with pus and bloody discharge and a worm
appears in it, what penance should he observe?”54 Here, though, the problem
might well be the “worm”—a sign of decay and thus of degradation?—rather than
the original wound. Infection of wounds was, of course, also a sign of guilt associ
ated with medieval ordeals involving hot metal or water, so there may be a com
mon understanding of bodily corruption indicating corruption of the soul in these
parallel examples.
Disfigurement as Punishment
Facial mutilation as a punishment, however, was not as ubiquitous in Indian law
as Das seems to suggest (and in fact is something of a rarity as a punishment in
European texts as well). Certainly some very serious capital offences, such as
someone from the lowest caste speaking rudely to a Brahmin, could be commuted
to mutilation (in this case, the removal of the offending tongue).55 But early laws
forbid the capital or severe corporal punishment of Brahmins, limiting penalties
to the placing of permanent marks on their foreheads indicating their crimes56 in
a process explicitly described as branding.57 Similar markings in Western Europe
were prescribed, for example, in the case of a recidivist thief: the Lombard laws
say that one “should put a mark” (ponat ei signum) on his forehead and face, prob
ably by branding.58 In Byzantium (according to hagiographic sources, and thus
not specifically “legal” ones) tattooing was used in specific cases, such as that of
the martyred saints Theodore and Theophanes, known as the Graptoi (“those
written upon”).59 The Brahmins’ privilege, however, was withdrawn in later medi
eval commentaries, and it is by no means clear that all corporal punishment of
this class was banned earlier on. The ancient code of A� pastamba, for example,
states that a Brahmin guilty of theft should not be executed but “he should be
blindfolded”60 Olivelle does not believe this should be translated as “blinded”
53 Skinner, “Visible Prowess?”
54 Dharmasūtras, 152 (Baudhāyana 1.11.37).
55 Dharmasūtras, 71 (A� pastamba 2.27.14); Mathur, Medieval Hindu Law, 178.
56 Dharmasūtras, 53 (A� pastamba 2.10.16); Das, Crime and Punishment, 75.
57 Dharmasūtras, 160 (Baudhāyana 1.88.17).
58 Leges Langobardorum, 140 (Liutprand, LXXX [11]).
59 Byzantine Defenders of Images, 204.
60 Dharmasūtras, 71 (A� pastamba 2.27.17).
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because this would be inconsistent with the ban on corporal punishment.61 Yet
surely being convicted of theft when one occupied the highest caste was a matter
of extreme disgrace, and the alternative punishment that the translator suggests is
not really credible—unless the blindfold was to symbolize the thief’s moral blind
ness? Such an idea would not be implausible: with the A� pastamba, we are still in
an age when the religious and the secular were intertwined, and a similar rhetoric
of metaphorical blindness suffuses the writings of Christian commentators, too.62
In any case, law codes and religious precepts work on the basis of the threat of
mutilation, and its attendant social exclusion, and this was far more common than
its actual execution.
Medical care was sometimes prescribed in the codes for the victim of an ille
gal, disfiguring assault. Such care, however, only amounted to staunching a bleed
ing or continuously running wound (in Salic law)63 and/or removing bone splin
ters from injuries to the head and body in a number of other codes.64 Although
the legal precepts of early medieval Europe seem to have been very focused on the
appearance of the victim of an attack, the medical assistance that is described does
not seem to have extended to any form of cosmetic intervention. In contrast, it has
been claimed that the sheer prevalence of actual cases of judicial and vendetta
fuelled mutilation in India gave rise to precocious and sophisticated practices of
surgical reconstruction of the face, centuries before such procedures were “dis
covered” in Europe in the early modern era.65 This is a highly problematic conten
tion, however. Although early Sanskrit texts, such as that of Suśruta (ca. 600 BCE),
do suggest that ancient Indian surgical techniques were highly sophisticated—at
least in theory—and Indian barbers of the early Middle Ages have been character
ized as “celebrity surgeons,”66 linking the development of surgical competence to
a perceived need arising from judicial mutilation ignores the social disgrace inher
ent in being convicted, and the challenge to authority that such restorative surgery
might represent. Even if the written record of Indian surgical practice does indeed
point to a precocious art (or knowledge) of techniques of facial reconstruction,
this does not, I would argue, derive from the prevalence of queues of mutilated
patients. Ancient expertise in surgical techniques was already wellestablished
61 Dharmasūtras, 373.
62 Wheatley, Stumbling Blocks, 18–19, 65–72.
63 Pactus Legis Salicae 78 (XVII.7).
64 Pactus Legis Salicae. 77 (XVII.5); Pactus Legis Alamannorum, 21 (I.4); Lex Baiwariorum,
(IV.5, V.4, VI); Leges Frisionum, 71–74 (XXII).
65 Gilman, Making the Body Beautiful, 76.
66 Narayana and Subhose “Evolution of Surgery.”
MUTilaTiOn and The law in early Medieval eUrOPe and india
in Egypt long before the Sanskrit texts of Suśruta and others, as the Edwin Smith
papyrus (ca. 3000 BCE) illustrates.67 That said, recourse to a surgeon might in fact
represent resistance to authority on the part of elite victims. The challenge to legal
authority inherent in undertaking to fix a criminal’s face, moreover, is plausible
when we look at the occurrence of doctors in ancient Indian legal codes. Offer
ing medical assistance, indeed being a doctor at all, does not appear to have been
a particularly honorable role, in notable contrast to the apparent high status of
the early medieval doctor or medicus in Western European texts.68 Practicing
medicine was “a secondary sin causing loss of caste,”69 and selling medicines was
forbidden to the householder.70 If the medic was indeed something of a marginal
figure, perhaps the idea of reconstructing the mutilated faces of criminals is not
so farfetched.
As in Western Europe, the contexts within which we find evidence of corpo
real and/or facial mutilation in India indicate it to have been a punishment inter
changeable with the death penalty. Das, drawing upon the seventhcentury Tale of
Ten Princes/Young Men (Daśakumāracarita), highlights the gouging out of eyes as
a substitute for the death penalty in a case of treason.71 Mathur cites a surviving
twelfthcentury inscription from the village of Lāhadpura, in the Gahadwal king
dom, threatening robbers with blinding or death.72 These crimes by definition dis
turbed the peace of the kingdom. There is one area, however, that does not seem
quite to fit this pattern, and that is the inflicting of facial mutilation on women.
Gender and Disfigurement
Early medieval European laws concerning women have been extensively studied
and are best characterized as heterogeneous when it comes to women’s agency
and freedom of action. At one end of the spectrum were those women “living
according to Roman law,” enjoying legal identity and a certain degree of auton
omy in the ownership and disposal of property. At the other end were women in
Lombard society (in northern Italy) who seem to have enjoyed no separate legal
personality at all, at least according to the law of King Rothari:73
67 Demaitre, Medieval Medicine, 2.
68 Pilsworth, “Could You Just Sign This?”
69 Dharmasūtras, 169 (Baudhāyana 2.13).
70 Ibid., 89 (Gautama 7.12).
71 Das, Crime and Punishment, 71.
72 Mathur, Medieval Hindu Law, 33.
73 Leges Langobardorum, 50 (Edictus CCIV).
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No woman living in our kingdom according to Lombard law may live
under her own control, that is selpmundia, but should always be under
the power of some man or the king; nor does she have the right to give
away or alienate any movable or immovable property, except with the
permission of him in whose guardianship (mundium) she is.74
This is extraordinarily similar in language to chapter 9 verse 3 of Manu’s
Authoritative Teaching of the Laws, which says:
When she is a girl, her father guards her; when she is a young woman,
her husband guards her; when she is an old woman her sons guard her.
A woman should never be on her own.75
Manu’s text, although very early (dating to ca. 200 CE), certainly has resonances
with Western European laws that establish guardianship over women (effectively,
power over their property and bodies) as a central aspect of male legal compe
tence. Stephanie Jamison has commented that Manu’s position—or at least the
language in which he articulated the law (he describes women as “whores”)—was
by far the most extreme statement of women’s legal incapacity in Indian jurispru
dence.76 It is tempting to deduce that the close guardianship is in fact an admis
sion of women’s relative agency. Jamison links Manu’s position, for instance, to the
rise of ascetic women in India who answered to no guardians.
At the heart of this apparently stringent supervision of women was anxiety
about female sexuality, and in particular of inappropriate liaisons outside of mar
riage. These are expressed in the laws in two forms—punishments for sexual liai
sons across caste boundaries, and for adulterous relationships. The former are
articulated in many early recensions of Indian law, including the Arthaśāstra,
where a lowstatus man (śvapāka) having relations with an Ārya woman was
killed, while she had her nose and ears cut off.77 Yet other early codes omit
explicit mention of the mutilation of the woman: A� pastamba simply states that
such a union makes her “sordid” and returns to the subject to prescribe death for
the man and “emaciation” for her.78 Whether this meant starving her to death or
inflicting a fasting penance (of which there were many versions in Indian law)
is unclear. In either case, however—mutilation or emaciation—the idea appears
74 Translation adapted from Lombard Laws, 92.
75 Quoted in Mahābhārata, 11.
76 Jamison, “Women ‘between the Empires.’” Others are included the law code of
Baudhāyana, 2.3.45: see Dharmasūtras, 175.
77 Cited by ParasherSen, “Naming and Social Exclusion,” 421.
78 Dharmasūtras, 32 and 70 (A� pastamba 1.21.1 and 2.27.8–9).
MUTilaTiOn and The law in early Medieval eUrOPe and india
to be to deprive the woman of her beauty, as punishment for her inappropriate
liaison.
We can compare this to the censure of free women who had sex with male
slaves in European laws. The earlier laws of the Lombard king Rothari condemned
both partners to death, although the woman could also be sold outside the king
dom by her family, or become the property of the palace.79 King Liutprand later
modified this by removing the death penalty, and allowed for the woman’s rela
tives to deal with her before the penalty of enslavement was imposed.80 Such
unequal unions, however, could and did occur in medieval Western Europe:
Suzanne Wemple has pointed out that free Frankish women who married below
their station, whilst similarly condemned by the laws of that region, may have
stood to gain economically from such choices (living as a bound peasant might
have been more secure than living as a poor freewoman, for instance), particularly
since their lords usually guaranteed the free status of any children born of the
union.81 It is notable, of course, that unequal relationships the other way (lower
status woman, higherstatus man) attracted far less attention in European than
in Indian legislation, the latter being concerned with questions of the caste of the
potential offspring.82
Turning to adultery, the mutilation of women’s faces certainly seems to feature
as one extreme measure in a spectrum of punishments. Das gathers some tenth
century evidence for punishment of this type having been carried out.83 But the
inscription she cites from Kogali, in the western Chalukya kingdom (dated 992),
only prescribes that “the nose of the woman guilty of adultery is to be cut off and
the adulterer put to death.”84 There is no evidence that this was actually done. And
Das’s other piece of evidence, like that used by Flood for the fingercutting cited
above, comes from an external observer. Moreover, the practice does not appear
in all of the ancient law codes, suggesting that—like the punishment for sexual
relations across caste—this type of punishment divided opinion. If anything,
the developing legal framework discouraged such acts: the late twelfthcentury
jurist Devaṇṇabhaṭṭa (fl. ca. 1150–1225) opposed the practice of husbands cut
79 Leges Langobardorum, 53–54 (Edictus CCXXI).
80 Leges Langobardorum, 118 (Liutprand XXIV [6]).
81 Wemple, Women in Frankish Society, 71–72.
82 For example, Gautama 4.16–28, which sets out the various combinations of parentage
and condemns children of “reverse” unions to illegitimacy: Dharmasūtras, 85.
83 Das, Crime and Punishment, 65–67.
84 Kannada Inscriptions from the Madras Presidency, no. 77.
129
130
PaTricia sKinner
ting off their adulterous wives’ noses and ears.85 This suggests that such punish
ments were, if not “private,” then certainly not a measure condoned in the legal
world. Indeed, thinking back to women’s legal incapacity, it seems that adulterous
women were considered to have been more acted upon than the male actors in
Indian law (the Kogali inscription’s more severe punishment for the male part
ner seems to underline this); and so we find penance, rather than punishment,
prescribed in early codes such as Baudhāyana.86 The punishment of adulterous
wives in Western Europe was certainly, in some early laws, seen as the husband’s
prerogative, extending to permission to kill both the woman and her lover with
out penalty.87 A number of later codes, however, did threaten facial mutilation
as the appropriate punishment for sexual transgression: Byzantine laws of the
eighth century, Cnut’s English law of the eleventh, and southern Italian laws of the
twelfth century (as codified by Frederick II in the midthirteenth) all include such
punishments.88 But I have suggested that these references ultimately derive from
Old Testament precedents, specifically the story of the prostitute sisters Oholah
and Oholibah in Ezekiel 23, and do not reflect contemporary practices, particu
larly since these penalties are not actually recorded as having been carried out
in those regions.89 We could equally well posit three very specific contemporary
contexts for these metaphorical laws. Byzantium was suffering the pain of the
iconoclast controversy, and the faces of icons were being erased just as the threat
to erase facial features was issued; meanwhile, many saints of this era are said to
have been mutilated and marked for defending icons, as in the cases of Theodore
and Theophanes mentioned above. The law of King Cnut (990–1035) might have
been inspired by the biblical knowledge of his bishop, Wulfstan, but it could also
have derived from Viking traditions in his Danish homeland, where mutilation
was often preferred to the killing of kin.90 And the mutilation of women in twelfth
century southern Italian law could have taken its cue either from the preexisting
Byzantine model (though the applicability of Byzantine law in this region was by
then rather diluted) or from the same biblical model. Southern Italy and Sicily,
of course, also had histories of Muslim rule and influence, though again the “evi
85 Cited by Mathur, Medieval Hindu Law, 187.
86 Dharmasūtras, 175 (2.3.48–50).
87 For example, Leges Visigothorum, 149 (III.4); Leges Langobardorum, 51–52 (Edictus
CCXII).
88 Manual of Roman Law, ed. Freshfield; English Historical Documents, 458–59; Die
Konstitutionen Friedrichs II.
89 Skinner, “Gendered Nose.”
90 Van Eickels, “Gendered Violence,” 593.
MUTilaTiOn and The law in early Medieval eUrOPe and india
dence” for the treatment of adulteresses in Islamic culture may have derived from
literary, rather than legal, sources.
Imagining Disfigurement?
These evidentiary uncertainties suggest that laws themselves can only take us so
far. However, it is significant that the facial mutilation of women seems to have
been a popular theme in medieval storytelling traditions throughout Eurasia.91
Famously, it features as an episode in the ancient story of Rama in the epic
Mahabharata, surviving in numerous versions and strands of early Indian liter
ature, and owing its continued popularity to the transformation of Rama from
human to supernatural figure early in the story’s development.92 Whilst in exile,
Rama persuades his halfbrother Laksmana to disfigure the malignant demon
rākṣasī (fem.) Ravana’s sister Surpanakha. In revenge, Ravan� a captures and takes
away Rama’s wife Sita, who is only rescued with the aid of an army composed of
monkeys and bears. But what had Surpanakha done to merit such a violent act as
the removal of her nose and lips? Scharf explains that she is blamed for hostility
between Rama and Ravan� a’s brother Khara, whom Rama in fact kills. One ver
sion of Rama’s story goes further, suggesting that Rama and Laksmana engage in
a game of teasing Surpan� akha when she proposes marriage to one or the other;
and then, when she rushes towards Sita, threatening to eat her, Laksman� a muti
lates her with Rama’s encouragement.93 As Peter Scharf comments, “the ethical
propriety of some of Rama’s actions is less than ideal.”94 Kathleen Erndl, too, has
reflected upon the incident involving Surpanakha, commenting that she had “got
ten a raw deal in a world where the rules were made by men.”95
The Mahabharata even contains a specific word for “one whose nose and lips
have been cut,” nikṛttanāsauṣṭhī.96 Given the popularity of the tale from its ancient
origins throughout the medieval period in India, would such a figure have been
familiar in real life, or was it just the most fantastical horror that could be imag
ined? I would suggest the latter, given the limited evidence in the legal codes as
attesting to this as a practice. Storytelling was a much better way to communicate
the boundaries of the acceptable to an audience, and it was perhaps useful to imag
91 GirónNegrón, “How the GoBetween Cut Her Nose”; Skinner, “Gendered Nose.”
92 Rāmopākhyāna, 2.
93 Ibid., 9.
94 Ibid., 8.
95 Erndl, “Mutilation of S� ūrpaṇakhā,” 68.
96 Rāmopākhyāna, 227.
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132
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ine Surpanakha as a woman behaving badly. Did her inappropriate approaches
to men, and threat to Sita, justify her cruel punishment? Or does the disfiguring
of Surpanakha function as a means of deflecting attention away from Sita’s own
reputation, compromised as it now was by Ravana’s capture of her, and requiring a
drastic ordeal (walking on fire) to rehabilitate her in her husband’s eyes?
Storytelling may in fact represent the one concrete link between South Asia
and medieval Europe, via the Middle East. Singh has highlighted that the expan
sion of the Arab world gave rise to a sharp increase in the collection and transla
tion of Sanskrit (and other) texts, an initiative focused on the court of the Abbasid
caliph AlMa’mum (r. 813–33) at Baghdad. As a result, many stories which circu
lated in the medieval Arab and European worlds ultimately derived much of their
material from Indian fables, in particular the KhalilawaDimna collection, which
includes similar episodes of disfigurement.97 Violent or assertive women were
often characterized as stepping outside an acceptable norm of behavior and pun
ished violently in turn. We might think here of legal examples of females (though
not demons) whose engagement in violent or transgressive acts open them up
not only to corporal punishment but also to being disbarred from seeking com
pensation for injuries suffered. In Europe, Lombard law treated women involved
in sinful or unseemly violence (scandalum) harshly,98 whilst Irish law dismissed
injuries inflicted in a fight between women as inactionable.99
Conclusion
Was facial mutilation an “oriental” punishment that travelled West, or is it yet
another example of that nebulous category of “IndoEuropean” cultural practices
whose origins are lost to us but go back well before the Common Era? To take
another example, there are the parallels between stoning and burning as pun
ishments for adultery in Aztec law100 and in the Bible (Leviticus 21:9; John 8:7).
But Reynolds cautions against accepting apparent similarities at face value and
suggests that differences are the more thoughtprovoking elements in the sub
stance and processes of law, since “human beings find different solutions to simi
lar problems.”101 Perhaps it is best to think about the question another way: if the
death of a perpetrator was, for whatever reason, not an option, damage to the face
97 GirónNegrón, “How the GoBetween Cut Her Nose.”
98 Balzaretti, “‘These Are Things That Men Do, Not Women.’”
99 Kelly, Guide to Early Irish Law, 79.
100 Offner, “Future of Aztec Law,” in this issue.
101 Reynolds, “Early Medieval Law,” 11.
MUTilaTiOn and The law in early Medieval eUrOPe and india
was the most visible way of indicating religious defilement, inflicting shame, or
signaling loss of status. The inspiration for European law codes that include this
practice might ultimately derive from a common, Old Testament model, or might
in fact be the coincidental product of different contexts. As Reynolds has pointed
out, it was probably local pressure that decided whether and how a miscreant
should be punished, and this may explain the apparent slippage between law and
practice regarding adulterous women.102 (Eventually, the paths followed by Indian
and European laws diverged in the former culture’s continued inclusion of pen
ance within punishment.) The linking of the two regions by trade connections
opens up the possibility that ideas about how to disfigure traveled with material
goods. Certainly, there is no doubt that Muslim geographers, whose “journeys”
were sometimes entirely virtual and whose texts often adhered to quite rigid
generic frameworks, may have inadvertently spread knowledge of exotic “won
ders” that were already centuries out of date.
The assumption that mutilation was ubiquitous in Indian culture, then, is
at best an overreading of the often unreliable evidence, perhaps shaped by the
fact that the bestknown product of Indian culture, the epic of the Mahabharata,
prominently features an episode of facial cutting. In both India and Europe, the
threat or the idea of facial disfigurement occurs far more frequently in the sur
viving evidence than actual examples of the practice being carried out. In both
regions, mutilation attracted the attention of lawmakers who wanted to express
the extremity and “otherness” of the practice, but few actually wanted to see it in
the flesh.
102 Ibid.
133
134
PaTricia sKinner
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MUTilaTiOn and The law in early Medieval eUrOPe and india
Patricia Skinner (p.e.skinner@swansea.ac.uk) is Research Professor in Arts and
Humanities at Swansea University. She is currently engaged on a longterm project
tracing the history of medical and social responses to facial difference. Her book
Living with Disfigurement in Early Medieval Europe will be published by Palgrave
Macmillan in 2016.
Keywords medieval Europe, India, mutilation, adultery, jurisprudence, Chris
tianity, Hinduism, Islam, face, law and religion, gender.
Abstract This essay examines the similarities and differences between legal and
other precepts outlining corporal punishment in ancient and medieval Indian
and early medieval European laws. Responding to Susan Reynolds’s call for such
comparisons, it begins by outlining the challenges in doing so. Primarily, the frag
mented political landscape of both regions, where multiple rulers and spheres of
authority existed sidebyside, make a direct comparison complex. Moreover, the
time slippage between what scholarship understands to be the “early medieval”
period in each region needs to be taken into account, particularly given the per
sistence of some provisions and the adapatation or abandonment of others. The
paper goes on to consider how the body and face are presented as sites of injury
and punishment, and asks whether the prescriptive measures actually played out
in practice. Despite tangible links between the Indian subcontinent and Europe
during the period under review, it is concluded that direct influence of one set of
laws upon the other is unlikely.
139
COMMON THREADS: A REAPPRAISAL OF
MEDIEVAL EUROPEAN SUMPTUARy LAw
LAUREL ANN WILSON
in ThirTeenThcenTUry sPain, no one other than the king was legally
permitted to wear a scarlet rain cape; in 1356, the city of Florence proclaimed it
illegal for women to have buttons on their clothing without corresponding button
holes; while in England in 1363, Parliament decreed that only knights and clerics
with incomes above a certain amount were permitted to wear linen in the sum
mer.1 As puzzling as these restrictions may seem to the modern mind, they were
profoundly meaningful to contemporaries, since sumptuary laws such as these
were enacted in great numbers throughout Western Europe from the midthir
teenth century on; there are more than three hundred examples from the Italian
citystates alone.2
Although scholarly interest in sumptuary law has increased in recent decades,
the laws hold far more potential as a historical resource than has yet been real
ized. To date, moreover, the various bodies of sumptuary law have been studied
in geographic and temporal isolation from one another, rather than as a whole,
as a large corpus with local variations. It is time to approach sumptuary law on
a comparative basis, to allow internal similarities and differences to suggest new
meanings and new avenues of research.3
1 Spain: Cortes de Valladolid, 1258: “que ninguno non traya capa aguadera descarlata
sinon el Rey” in Cortes de los antiguos reinos, XIV (14), 57. Florence: “Pragmatica of 1356,” 2
(“De abottonaturis,”), cited in Rainey, “Sumptuary Legislation in Renaissance Florence,” 669.
England: Parliament of 1363 (30); cited by Ormrod, “Edward III: October, 1363.” It should
be noted that, with the possible exception of “England,” geographical terms such as “Spain”
are anachronistic; here, they allowed to stand as shorthand because they have been the
categories that have framed most research on sumptuary law—which is, of course, part of
the problem.
2 Killerby, Sumptuary Law in Italy, 28–29 (Table 1). Neithard Bulst and his researchers
(“Les ordonnances somptuaires,” 771) have amassed more than 3,500 sumptuary laws from
Germanspeaking areas.
3 MariaGiuseppina Muzzarelli has published a plea for less circumscribed study of
sumptuary law: “Reconciling the Privilege of a Few”; and Bulst has repeatedly urged the
importance of comparative study, for example, in “La legislazione suntuaria.” Catherine
Kovesi Killerby’s Sumptuary Law in Italy compares laws among the various citystates.
The only attempt to examine sumptuary law comparatively in all eras and cultures is Hunt,
Governance of the Consuming Passions. Hunt is a legal sociologist rather than a historian, but
142
laUrel ann wilsOn
What Is Sumptuary Law?
Sumptuary law is often defined rather vaguely, as laws intended to regulate any
kind of consumption of any kind of commodity. Some recent legal scholarship even
classifies intellectual property law as sumptuary law, for instance, or describes the
1979 Archaeological Resources Protection Act in the United States as a form of
sumptuary law.4 Even the word “sumptuary,” which strictly speaking should be
applied only to sumptuary laws, is now often used to describe goods of widely
differing types.5 In actuality, sumptuary law was always narrowly focused on
personal consumption and almost always aimed at its public display. It might be
directed at the construction of lavish houses, as in medieval Japan or precolonial
Burma, or, as in many cultures, it might regulate public or semipublic events such
as banquets, weddings, and funerals.6 Laws governing dress appear to be univer
sal to all sumptuary laws.
Not all sartorial law is sumptuary law, however. One must be careful to distin
guish between sumptuary laws and dress codes, as there are substantive differ
ences between the two. Sumptuary law is prohibitive: that is, it claims to prohibit
certain groups of people from acquiring and/or displaying certain commodities.
Dress codes, however, are prescriptive, that is, they require a certain group, usually
a group defined as outsiders, to wear specific clothing (thus, by implication, pro
scribing other garments): all Jews must wear a particular kind of hat, for example,
or all prostitutes must wear yellow; a member of the clergy must wear the dress
prescribed for his rank; and so on.7 Most important, prohibitive sumptuary law
differs sharply from prescriptive dress codes in terms of its enforcement: sumptu
ary law, which is a society’s attempt to discipline itself, is enforced only ambiva
lently, if at all; while prescriptive dress codes, which generally apply to outsiders
and the nonelite, or operate within strictly hierarchical institutions such as the
clergy or the military, are relatively easily to enforce and generally are enforced.
Thus, although both sartorial codes combine symbolic and instrumental func
his comparative approach is productive; he is particularly insightful in defining sumptuary
law as symbolic rather than instrumental.
4 Beebe, “Intellectual Property Law”; Goddard, “Anticipated Impact.”
5 The meaning of “sumptuary goods” ranges from a synonym for luxury goods to “sinful”
goods (Moeti and Khalo, Public Finance Fundamentals, 36) to “items of wide distribution not
used in daily sustenance” (Miller, Chieftains of the Highland Clans, 10).
6 Shively, “Sumptuary Regulation and Status”; Ware, “Origins of Buddhist Nationalism.”
7 In speaking of Islamic laws which make Muslims distinguishable from nonMuslims
by their dress, one scholar calls these “laws of differentiation”: Schick, “Some Islamic
Determinants of Dress,” 25.
cOMMOn Threads: a reaPPraisal OF Medieval eUrOPean sUMPTUary law
tions, sumptuary law is primarily symbolic, while dress codes have a stronger
instrumental component.8
Sumptuary Law as a Historical Resource
Sumptuary law provides us with remarkable primary source material. In addi
tion to furnishing details of material goods, it illustrates lawmakers’ conceptions
of an ideal society. The material details provide insight into patterns of produc
tion, consumption, and trade, while the tensions between the actual and the ideal
enable us to trace the dynamics of changing class distinctions. The laws make
visible changes in the meaning of clothing and other material signifiers, while
also providing profound insights into gender and social relations. Relationships
between the governing and the governed, strategies of contestation, the connec
tion between law as normative statement and law as practice, along with glimpses
of the workings of law courts: all can be investigated via sumptuary law.
Appreciation of sumptuary law as a valid historical source is a relatively recent
phenomenon, however. Until the final decades of the twentieth century, many ref
erences to sumptuary law treated it as little more than an illustration of the quaint
habits of earlier times.9 More recently, as interest in the meanings of material
culture has grown, sumptuary law has received an increasing amount of attention
from medievalists, including literary scholars and art historians as well as eco
nomic and social historians.10 In addition, feminist historians have been particu
8 On the distinction between sumptuary laws and dress codes, see Wilson, “Status.” Like
sumptuary laws, dress codes would repay comparative study, particularly given that certain
of them, such as dress codes imposed on religious outsiders, have a wide geographical and
chronological range.
9 Susan Vincent, in Dressing the Elite (117), describes the historiography of sumptuary
law as “slight, and on occasion slighting.” The primary exceptions, other than among
historians of dress, are Italian historians who published many medieval sumptuary laws
during the nineteenth century, those French historians who included sumptuary laws in
their studies of luxury (such as Henri Baudrillart’s Histoire du luxe), and a small school of
American historians at Johns Hopkins who saw sumptuary laws as akin to Prohibition:
Baldwin, Sumptuary Legislation and Personal Regulation; Greenfield, Sumptuary Law in
Nürnberg; Vincent, Costume and Conduct.
10 Although this essay is limited to thirteenth and fourteenthcentury sumptuary laws,
historians studying later centuries have made considerable use of sumptuary law as a
resource. To cite just a few examples: Hayward (Rich Apparel) has used Tudor sumptuary
laws to examine changing social structures and the uses of display in reinforcing royal
power; Bulst, as mentioned earlier, has examined sumptuary laws as part of the process of
state formation (e.g., “Zum Problem städtischer und territorialer”), while Anderssen’s recent
study of sumptuary laws in seventeenthcentury Sweden (“Foreign Seductions”) positions
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larly prominent in the more recent studies of sumptuary law, inspired, at least in
part, by the almost exclusive focus on women in the laws of the Italian citystates.
The earliest work of this kind was done by Diane Owen Hughes, and it continues
to be influential.11
In addition to exploring gender through the medium of sumptuary laws,
Hughes was the first to ask some of the obvious questions: Why were these laws,
which their legislators described as ineffective, still passed over and over again?
And why in some places and not others? Hughes suggested that urban govern
ments in medieval Italy, and perhaps in southern France as well, enacted sumptu
ary laws as a way of containing aristocratic display, but that royal governments
had different motives. 12 This suggestion has been followed up to some degree by
other scholars, including Neithard Bulst and SarahGrace Heller. But there is much
more work to be done, since local sumptuary laws from regions that had both
municipal and royal or imperial governments (such as southern France, south
ern Italy, and imperial Germany) are not yet widely available.13 Hughes was also
the first to voice the crucial idea that it might be the process of legislating rather
than the function of the legislation which is significant, that is, that sumptuary law
should be considered as symbolic rather than instrumental, an insight which calls
for far more attention than it has received to date.14
Subsequent to Hughes’s work, many Anglophone historians have concentrated
on the sumptuary laws of the Italian citystates, notably Catherine Kovesi Killer
by.15 Carole Collier Frick’s work on fifteenthcentury Florence has used fashion
and dress as historical categories of analysis and thus has touched on sumptu
ary law as well.16 Applying Hughes’s feminist approach, Susan Mosher Stuard has
them as a tool for strengthening national identity. Riello has also written extensively
on European sumptuary law, primarily from the fifteenth century on (e.g. Riello and
Parthasarathi, Spinning World, and Lemire and Riello, “East and West”). See also the essays in
Muzzarelli and Campanini, Disciplinare il lusso, which cover European sumptuary laws from
the thirteenth century on.
11 Hughes, “Sumptuary Law and Social Relations,” “Distinguishing Signs,” and “Regulating
Women’s Fashion.”
12 Hughes, “Sumptuary Law and Social Relations,” 99.
13 Bulst, “La legislazione suntuaria”; Heller, “Limiting Yardage”; Killerby, Sumptuary Law
in Italy, 25.
14 Hughes, “Sumptuary Law and Social Relations,” 99. The distinction between symbolic
and instrumental legislation is summarized in Gusfield, “On Legislating Morals,” 56–59.
15 Killerby, Sumptuary Law in Italy, “Practical Problems in the Enforcement of Italian
Sumptuary Law,” and “Heralds of a WellInstructed Mind.”
16 Frick, Dressing Renaissance Florence.
cOMMOn Threads: a reaPPraisal OF Medieval eUrOPean sUMPTUary law
looked at fashion and the marketplace in fourteenthcentury Italy, in addition to
studying consumption through the lens of sumptuary law.17 Carol Lansing’s work
uses the funeral laws of medieval Orvieto as a means of exploring both gender
and political relationships, suggesting that the men who governed the city were
attempting to establish new, regulated patterns of behavior for themselves, but
were, in Claude LéviStrauss’s phrase, “using women to think with.”18 Another
genderbased approach comes from Kim Phillips, who has used English sumptu
ary laws, directed primarily at men, as a means of studying gender relations and
the construction of masculinity.19 A sign of the new interest being aroused by this
topic was the republication of Stella Mary Newton’s Fashion in the Age of the Black
Prince, in which Newton (an English costume historian) gathered together Euro
pean sumptuary laws from the 1340s to the 1360s and used them in conjunction
with literary, pictorial, and documentary sources to argue for the revolutionary
nature of the fashion changes in this era.20 (At the time of its initial release, in
1980, it failed to attract attention beyond a very specialized circle of experts.)
Given sumptuary law’s symbolic importance, it is not surprising that liter
ary scholars such as Clare Sponsler, Susan Crane, and Andrea DennyBrown have
also been attracted to the subject of English sumptuary law, introducing theoreti
cal techniques and concepts that have broadened the ways in which sumptuary
law has been approached.21 SarahGrace Heller, a literary scholar specializing in
medieval France, has also been extremely influential.22 French historians inter
ested in social history and material culture have also been drawn to sumptuary
law, for example, Françoise Piponnier, Agnès Page, and, for a later period, Daniel
Roche.23 Many recent scholars of sumptuary law elsewhere in Europe elide the
17 Stuard, Gilding the Market.
18 Lansing, Passion and Order.
19 Phillips, “Masculinities and the Medieval English Sumptuary Laws.” Compare Lansing,
Passion and Order.
20 Newton, Fashion in the Age of the Black Prince.
21 Sponsler, “Narrating the Social Order”; Crane, Performance of Self; DennyBrown,
Fashioning Change.
22 Heller, “Limiting Yardage,” “Anxiety, Hierarchy, and Appearance,” and Fashion in Medieval
France. Aside from Heller, there has been little Anglophone study of French sumptuary law,
with the exception of an American doctoral dissertation on the subject in 1996, of which
Bulst justly says that it produced “rather modest results”; Bulst, “La legislazione suntuaria,”
121. See also n. 24 below.
23 Piponnier, Costume et vie sociale; Page, Vêtir le prince; Roche, La culture des apparences.
Curiously, Michel Pastoureau, although he devotes considerable attention to the ordering of
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medieval and the early modern in their investigations,24 including Neithard Bulst
and Gerhard Jaritz, who have examined sumptuary laws of both French and Ger
manspeaking areas as a means of investigating state formation.25
There is, in other words, a valuable body of research on medieval European
sumptuary laws. But the work done to date has concentrated on discrete geo
graphical areas and chronological periods, almost without exception.26 The vir
tue of this approach is to enable study of local laws in depth, and much of the
published source material which is now available has also resulted from state or
citystatebased studies of sumptuary laws.
Nonetheless, the circumscribed focus of these studies is problematic. Like the
parable of the blind men and the elephant (where one man feels the trunk and
says the creature is a tree, while another feels the tail and says it is a rope), the lim
ited scope of these individual studies has led to contradictory conclusions. Sump
tuary laws are directed primarily at men; sumptuary laws are directed primarily
at women. They represent the efforts of the nobility to control the bourgeoisie;
they represent the efforts of the bourgeoisie to restrain the nobility; they emanate
from the king in an attempt to control the bourgeoisie, the nobility, or both. Sump
tuary laws are rarely/never/always enforced. Their primary motive is antiluxury,
economic, mercantilist, paternalistic, moralistic, religious, and so on. And indeed,
all of these conclusions are accurate for one or another time or place—but none
of them are universally true. The only way to discover the universals is to examine
sumptuary law on a macro level, to treat it as an integrated whole with regional
and chronological variations.
Comparative Views
Sumptuary law is an ideal subject for comparative study on a global basis, since it
is a widespread phenomenon, both geographically and chronologically: there have
been attempts to regulate the display of consumption in many societies, includ
ing ancient Greece and Rome, Imperial China, Tokugawa Japan, the Islamic world,
Aztec Mexico, and Colonial America. I have limited this article to the earliest post
medieval dress in terms of color, fabric, mottos, heraldry, and so on, has paid surprisingly
little attention to sumptuary law.
24 See the articles in Muzzarelli and Campanini, Disciplinare il lusso, for summaries of
scholarship on sumptuary law as of 2003.
25 Examples include Bulst, “Zum Problem städtischer und territorialer”; Jaritz, “Kleidung
und PrestigeKonkurrenz.”
26 See notes 1 and 3 above.
cOMMOn Threads: a reaPPraisal OF Medieval eUrOPean sUMPTUary law
classical sumptuary laws of Western Europe, specifically the laws which appeared
in the territories of Spain, Italy, France, and England in the thirteenth and four
teenth centuries.27 This was the formative period for the templates of European
sumptuary law on which most later laws were based; by the fifteenth century, the
meaning and uses of these legal templates had changed considerably, and would
do so even more in later centuries. I have further limited myself to clothingrelated
laws, in part because they are the most common, but also because they offer a way
of investigating the drastic changes in the meanings of dress and its materials in
this period.28 I have also chosen to study the form and content of the laws them
selves, and not the preambles attached to them, which require a different sort of
analysis because they are filled with rhetorical tropes, many of which are common
to sumptuary laws in general, and they often reflect contemporary “moral pan
ics” that have little to do with the subject of the laws. In short, the preambles to
sumptuary laws deserve a comparative study of their own, which space does not
permit here.
Crossregional comparisons of medieval sumptuary laws raise many questions
that have not yet been explored. Why was there more legislation of sumptuary
law in one area than in another: hundreds of laws in the Italian citystates versus
singledigit numbers in England and in northern France, for example? Why was
there no sumptuary law in Flanders until 1497, despite the fact that Flanders was
a center of commerce and industry, boasting many powerful and rich members
of the urban elite? Judging from the visual evidence, Flanders was also a center
of elaborate fashion and rapid fashion change, making the absence of sumptuary
law even more intriguing.29 Comparative investigation also raises many questions
related to gender. The Italian citystates targeted women almost exclusively in
their sumptuary laws, and the laws in Germany and southern France were often
27 On the inevitable anachronism of these geopolitical categories, see note 1. In this
article, “medieval” sumptuary laws refer specifically to the laws which fall within these
chronological limitations, for the reasons noted above. There is one known twelfthcentury
law restricting the wearing of fur, enacted in Genoa in 1157: Killerby, Sumptuary Law in
Italy, 24; Stuard, Gilding the Market, 4. There was also thought to have been a sumptuary law
enacted in France by Louis VIII in 1229, but Heller has proven that it did not exist: “Anxiety,
Hierarchy, and Appearance,” 317, n. 23.
28 See below on the relation of sumptuary laws to the development of the socalled
“Western fashion system” during this period.
29 On the chronology of Flemish sumptuary law, see Buylaert, DeClerq, and Dumolyn,
“Sumptuary Legislation.” For visual evidence of the fashionableness of Flemish dress,
see, for example, the Magic Carole in Lancelot du Lac, illustrated in Hainaut, 1344 (Paris,
Bibliothèque nationale de France, MS fr. 122, fol. 137v), or almost any illustration in the
Roman d’Alexandre illustrated in Flanders ca. 1340 (Oxford: Bodleian Library, Ms. Bodl. 264).
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aimed at women, too—so far as can be known from the sparsely published evi
dence—while in other places the laws were directed primarily, although not exclu
sively, at men. Is there a connection between the power of municipal governments
and sumptuary laws which focus on women?30 More generally, is it possible to
relate the ways in which gender is targeted to a specific system of government?31
The first step towards answers to these questions is to compare the structure and
content of the laws.
Patterns of Difference
The earliest European sumptuary laws can be roughly divided into two groups
according to their structure, content, and chronology (see Table 2). One group,
the French and English laws, show striking similarities in chronology, with gaps
in both cases of a century or more between the first sumptuary laws and sub
sequent ones. Two extensive sumptuary laws were enacted in France, in 1279
and 1294 respectively; the next substantive law was passed in 1485. In England
there was a limited sumptuary law in 1337 and an extensively detailed one in
1363; the law of 1363 was repealed in the next Parliament, and the next sumptu
ary law was not enacted until 1463, although unsuccessful attempts were made to
pass similar laws in the intervening years. The structural similarities are equally
striking. In both the French and English laws, the actual objects being regulated,
though they may be specified, are secondary to a detailed focus on permissions
and prohibitions expressed in terms of status categories, which are defined in
both cases by a combination of social status and income.32 The English law men
tions approximately thirty socioeconomic categories, from knights with a certain
income on down to oxherds; it ignores the upper nobility entirely. At the top are
two categories of knight, divided by wealth, followed by two categories of esquire,
30 See Lansing, Passion and Order. Lansing suggests that the communes were in the process
of creating their own ideal democratic societies, and were thus very concerned with sources
of disorder, including their own violent emotions, which they then projected onto women.
31 This is a suggestion originally made by Hughes (“Sumptuary Law and Social Relations,”
73–74), but no conclusive answer has been reached.
32 The similarity between these two groups of laws is perhaps not accidental, as suggested
by an undated memorandum addressed to Edward I at the end of the thirteenth century. The
anonymous writer suggests that a law similar to the recent French sumptuary laws would
be an effective way of raising money for the war, and supplies possible details based on the
French laws. There is no evidence that this memorandum ever reached Edward, and it is
clearly meant as a project for taxation, but it does suggest that the French laws were known
in England. See Langlois, “Project for Taxation.”
cOMMOn Threads: a reaPPraisal OF Medieval eUrOPean sUMPTUary law
Table 2. A Comparative Survey of Western European Sumptuary Laws,
Thirteenth and Fourteenth Centuries*
Gender:
directed at
Material
details
Number
of status
categories
Income level
included for
categorization
Classes
affected
Enacted by
Enforced
by/via
Knightly
classes
SPAIN
ITALY
FRANCE
ENGLAND
primarily
men
women
primarily
men
primarily
men
cloth and
cost
cloth and
cost, some
ornament
ornamentation ornamentation
and color
and cut
variable
n/a
30+
±25
no
no
yes
yes
variable;
primarily
nobility and
knights, some
bourgeoisie
knights,
doctors,
lawyers
king
towns
unknown;
fines specified
mentioned
most often
fines and an
enforcement
apparatus
specifically
excluded
aristocrats,
knights
knights, upper down through
bourgeoisie; no
peasants;
lower classes
no nobility
king
unknown;
fines specified
described
in detail
Parliament
no
described
in detail
* This table is illustrative, not exhaustive, and it excludes many regions of Europe that regu
larly enacted sumptuary laws, such as Germanspeaking lands. Information on sumptuary
laws repeatedly enacted in the territories of Spain and Italy has been derived and synthe
sized from Gonzalez Arce, Apariencia; Sempere y Guariños, Historia del Luxo; Rainey, “Sump
tuary Legislation”; Killerby, Sumptuary Law in Italy. In France and England, where the laws
were not repeatedly enacted during this period, data is limited to the French law of 1294
(Heller, “Anxiety, Hierarchy, and Appearance”) and the English law of 1363 (see the introduc
tion to Edward III, 1351–1377, ed. Ormrod).
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two categories of clergy, and two categories of urban dwellers, all divided simi
larly.33 There are also three lower ranks, of which the lowest specifically includes
carters, plowmen, wagoners, oxherds, cowherds, shepherds, pigherds, threshers,
and so on. Careful and specific equivalencies have been set up between groups.
Urban bourgeoisie on the one hand, and the “esquires and gentils gens” on the
other, are allowed the same clothing and ornaments if the income of the bour
geois is five times that of the esquire; meanwhile, upper clergy are equivalent to
the lower rank of knights and lower clergy to the lower ranks of both esquires
and bourgeoisie. Even the income qualifications show subtle class distinctions:
knights’ income is measured in marks, which was a money of account rather than
actual specie, and their income was to be from “lands or rents”; the income of the
esquires is also specified as “land and rents” but measured in pounds; while the
clergy’s income is simply stated as marks per year. The incomes of the bourgeoisie
are measured in pounds, but not calculated annually. Instead, the law specifies
that they must “clearly” (clerement) possess goods and chattels of the appropriate
value. There is a certain amount of material detail, though far less than that found
in the Spanish and especially Italian laws. Particularly in the lower categories of
society, the descriptions of forbidden items are rather general, although the maxi
mum price of the cloth which may be worn by each group across the spectrum is
finely graded, with permitted prices differing between categories by as little as
half a mark per ell.34
It is somewhat more difficult to summarize the patterns discernible in the
French laws.35 Like the English regulations, they stipulate the maximum cost of
permissible cloth, but the French regulations also prescribe the maximum num
ber of robes, or sets of garments, permitted per social category per year, and the
groupings are not always parallel. For example, a baron with an annual revenue
of 6,000 livres tournois may have four sets of robes, spending a maximum of 25
sols tournois per year, while a prelate (of unspecified income) may use the same
cloth but is only permitted two sets of robes per year. As may be seen from this
example, the construction of socioeconomic categories is remarkably complex,
as is the breakdown of permissible expense. By my count there are eight separate
prices per aune (a unit of measure) listed, with a wealthy bourgeois being permit
33 This law marks the first official appearance of “esquire” as a recognized status: Coss,
“Knights, Esquires, and the Origin of Social Gradation in England,” 155–56.
34 An ell is a unit of measurement roughly equivalent to a yard, as is the aune used in
French laws.
35 I have used the law of 1294 for purposes of this discussion: it is quite similar to the law
of 1279, but lists a larger number of ranks. See Heller, “Anxiety, Hierarchy, and Appearance,”
for tabular breakdowns of both laws.
cOMMOn Threads: a reaPPraisal OF Medieval eUrOPean sUMPTUary law
ted material costing 12½ sols tournois per aune, exactly half of the 25 sols per aune
permitted to the highest ranks. However, these early French laws are unique in
that they contain no material details of clothing, cloth or ornamentation at all; it is
the number of garments and the cost of materials that is at issue. Indeed, the law
is aimed primarily at the nobility, from dukes down to vavassors, or subfeudato
ries, who are ranked even below the bourgeoisie. Only two ranks are accorded to
the latter: those with income of over 2,000 livres tournois, and those with income
below that figure, with a separate category in each rank for their wives.36 By con
trast, the upper ranks are broken down with particular precision. Onefourth of
the categories, eight ranks, are devoted to the clergy alone; an even greater pro
portion of the categories are devoted to the “knightly” ranks: there are ten differ
ent gradations covering knights, bannerets, squires, and their companions (eleven
including the vavassors).
Although women were clearly not an afterthought in this law, they make up
a relatively small proportion of the total categories: six ranks, less than onefifth
of the total, are devoted to women. There are three categories of wives (in the
higher ranks and in the two categories of bourgeois) and, unusually, three exclu
sively female categories, confined to the higher ranks alone (dame, damoiselle, and
chatelaine), which are not dependent on marital status. And while the wealthy
bourgeois mentioned above was limited to fabric costing 12½ sols per aune, his
wife was permitted to spend up to 16 sols per aune; no such gender gap exists for
the higher ranks.
The early sumptuary laws enacted in England and France, then, itemize rank
and socioeconomic categories with great specificity, while treating the material
objects in question with far less detail. The structure of the early laws in the other
contemporary group, exemplified by the Spanish and Italian laws, is the inverse.
Here, the objects rather than the status categories are itemized in detail, concen
trating on specific types of clothing, ornamentation, or color.37 And unlike the
sporadically enacted laws of England and France, these laws began in the mid
thirteenth century and thereafter were passed repeatedly. Given the resultant
number of laws, their content cannot be compared as systemically as that of the
smaller sample of French and English legislation. Still, comparisons are possible if
we focus on two locales which typify the whole: the laws of Castile and the laws of
Florence as the primary Spanish and Italian examples respectively.
36 The livre tournois was not actual specie but a money of account, comprising 20 sous/
sols/solidi tournois.
37 See note 1 above, on the clause entitled de abottonaturis in a midfourteenth century
Florentine law.
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Spanish sumptuary law is obsessively focused on banning certain kinds of
ornamentation. For example, in the earliest legislation, which emanated from
Jaime I of Aragon in 1234, there are prohibitions against clothing which has been
cut, or which trembles (vestas incisas [. . .] vel trepatas)—that is, clothing with
slashes or possibly dags—striped clothing, orphreys, fringe, and so on.38 In addi
tion, the wearing of fur which has been cut or worked over (aliam pellum fractam,
vel recoctam) was prohibited, and whole ermine or otter furs were permitted only
as trimming on hoods and sleeves.39 Other things which clothing may not display
include gold and silver, various kinds of gold and silver thread and embroideries,
all very specifically described, and several other kinds of fur. Another area of detail,
which is almost unique to the Spanish laws, is a focus on color, as exemplified by
this passage from the Cortes de Valladolid of Castile in the midthirteenth century:
“no squire may wear white furs or scarlet stockings; or wear scarlet, green, dark
brown, pale green, brown, orange, pink, bloodred, or any darkcolored clothing.”40
Similarly, in a slightly later compilation from Castile, the Siete Partidas, there is
a list of colors (red, dark yellow, green, and purple) which knights should wear
when young because they confer lightheartedness (diesen alegría), and a proscrip
tion against darker colors because they bring sadness.41
The social categories of Spanish sumptuary law are also described with some
specificity. Although there are some references to different ranks of city dwellers,
it is on the nobility that the thirteenthcentury laws find their focus. The high
est nobility—the king’s brothers, dukes, marquesses, princes, counts, and vis
counts—are the ricos homes; the king is actually included in many of these laws,
albeit in ways which set him apart from the ricos homes, including his brothers,
38 Dags are ornamental shapes cut into the borders of garments, made possible by the
heavily fulled broadcloth developed in the later Middle Ages, which did not fray when
cut or notched. Dagging was increasingly popular from the thirteenth century on, and
considered very fashionable; at the same time, it was often associated with marginal groups
and outsiders. See DennyBrown, “Rips and Slits,” and Friedman, “Iconography of Dagged
Clothing.” Orphreys are bands of rich embroidery, usually done with gold thread, and most
often used on ecclesiastical clothing.
39 Transcribed in Juan Sempere y Guariños, Historia del Luxo, 72–73. All translations are
mine unless otherwise indicated.
40 Real Academia, Cortes de los antiguos reinos, XIV, (22), 59: “ningun escudero non traya
penna blanca ni calcas descarlata, nin uista escarlata nin uista verde nin bruneta nin pres nin
morete nin narange nin rrosada nin sanguina ninningun panno tinto.”
41 Castile, Les siete partidas, 211–12. There are similar laws in some of the Italian city
states, requiring the wearing of bright colors to dispel sadness or increase prestige.
Muzzarelli gives examples from Reggio Emilia and Ferrara (“Una società nello specchio,” 26).
cOMMOn Threads: a reaPPraisal OF Medieval eUrOPean sUMPTUary law
to whom certain laws and prohibitions were specifically directed.42 Below these
are the lower nobility, including noble knights, nonnoble knights, and even bour
geois knights, with various urban categories below them. As in France, and to a
lesser degree in England, the categories of knights increased over the thirteenth
and fourteenth centuries.
Aside from their chronology, what the representative Italian laws have in com
mon with the Spanish is a preoccupation with the details of dress and ornamen
tation, carried to an even greater extreme. For example, the Florentine statutes
of 1322–25 prohibited (under penalty of a high fine) “clothes with cut, worked,
or superimposed images or likenesses of trees or flowers, animals or birds, or
any other figures,” while the Florentine Pragmatica of 1356, which contained
the regulation on buttons quoted at the beginning of this essay, also contained
detailed specifications governing the conditions under which it was permissible
to wear one “singlelayered fringe [fregiaturam fregii simplice] with gold or silver
but without enamel or anything else ornamenting it.”43 Moreover, this ornament
could not be larger than a certain size and it could only be worn in certain places
on certain garments, each one of which is specified. It is also specified that this
type of fringe may not be worn on
robes which are dimecçate, that is single or double samite or made of
samite and wool cloth or samite and silken cloth or camel’s hair [. . .]
nor on any tucked [?rimbocchatura] cloth of camel’s hair or sindon [light
silk] or ermine or rabbit [. . .] except that tucked cloth may be worn with
impunity over a mantel.44
This level of detail is devoted only to clothing and ornamentation, however; when
it comes to social classifications, the Italian laws are notably concise. In contrast
to all the other laws we have examined, knights, doctors, and lawyers are the only
categories mentioned, and then only to exempt them from the laws to which eve
ryone else is subject. More correctly, I should say the wives of knights, doctors, and
lawyers are exempt, since the Italian sumptuary laws were directed primarily at
women, in contrast to most other European sumptuary laws. Men are mentioned
occasionally, and there were even a few prosecutions of Florentine men in the
42 Note the distinction between ricos homes, who are the uppermost level of the nobility,
up to and including the king’s brothers, and hombres ricos, who are simply rich men.
Gonzalez Arce, Apariencia y poder, 133.
43 Statutes of 1322–25, from Rainey, “Sumptuary Legislation,” 97. The Pragmatica of 1356
is reproduced in full on pages 667–93.
44 Rainey, “Sumptuary Legislation,” 668–69.
153
154
laUrel ann wilsOn
1340s for wearing pleated garments, which seem to have been a cause of particu
lar anxiety for both women and men. But essentially, the laws concerned the cloth
ing and ornaments of women.45
Commonalities: Enforcement and Effectiveness,
Status and Social Change
Having examined some of the differences in content and structure among the ear
liest medieval sumptuary laws, it is time to explore some of the common features
which emerge when they are considered as a group. Two areas are of particular
interest: questions of effectiveness and enforcement, approached comparatively,
offer insight into the nature and function of the laws themselves; while a compre
hensive view of the treatment of social rank opens up a number of perspectives
into changes in social dynamics.
Almost without exception, European sumptuary laws were accompanied by
weak, inconsistent, or nonexistent enforcement, followed by complaints that the
laws had been impossible to enforce, coupled with repeated and often increas
ing attempts to pass new laws, which would prove unenforceable in their turn.
Although such complaints are clearly rhetorical tropes, and appear even in the
preamble to the English law of 1463 (when there had been no prior laws in effect
for a century), they must still be subject to careful scrutiny.46 They cannot simply
be regarded as evidence that sumptuary laws were intended to be instrumental,
did not affect behavior, and therefore were failures. When sumptuary laws are
approached on their own terms, it becomes clear that their paradoxes and ambiv
alences are a function of their symbolic importance and idealism. Rather than
being indications of failure, these inconsistencies are valuable clues to the mean
ings ascribed to these laws and evidence of the resistance and contestation which
invariably arose in response to their enactment and publication.
One indication of the laws’ symbolic nature is precisely the fact that enforce
ment efforts ranged from nonexistent to ambivalent; nowhere do we see a pattern
45 Gender is an obvious target for the kind of comparative approach which I am suggesting,
but at this point it seems to me that there is not yet enough information available to
undertake such a study. Until we have gathered a substantial number of the municipal laws
from southern Italy and southern France, which may well have been focused on women, it
is difficult to make any systematic comparisons. And, as with the other areas of comparison
which I have suggested, a representative sample of the sumptuary laws from German lands,
both municipal and imperial, is sorely needed.
46 Doda, “‘Saide Monstrous Hose,’” 178.
cOMMOn Threads: a reaPPraisal OF Medieval eUrOPean sUMPTUary law
of consistently enforced obedience.47 Among the laws we have just examined, the
English law contains no specified punishment or enforcement mechanism; while
the French and Spanish laws contain schedules of fines, in some cases quite hefty,
but, again, no enforcement mechanism. During this early period there is little
in the known records of England, France, or the Christian areas of Spain to sug
gest that people were changing their behavior in order to avoid contravening the
sumptuary laws—indeed, it is possible that we are more aware of the existence of
these laws than many of the groups who would have been affected by them.48
This is not the case in the Italian citystates, where there are records of pros
ecutions, as well as documented forms of resistance and efforts to circumvent
the laws.49 Nonetheless, even here the laws were ambivalently enforced and
the prosecutions relatively few. Sometimes, the laws gave rise to a licensing sys
tem: in Florence, for example, as early as 1290, we find a reference to registering
garments and recording a payment, a kind of commodity tax or gabella, for the
privilege of wearing forbidden objects. But this system, too, was practiced incon
sistently: licensing fees were more prevalent when the commune was in need of
money, while at other times the fines were clearly intended as actual punishments.
Nonetheless, the practice of paid exemptions continued to the point where, in
1373, what had been ornamenta vetita, ”forbidden ornaments,” were now gabellata, taxable.50 And although stricter laws, permitting no exemptions, did make a
brief reappearance later in the century, the licensing system ultimately prevailed.51
47 This is not a universally held view; the evidence of enforcement is sufficiently patchy
that it has been variously interpreted as evidence both for and against regular enforcement.
Killerby, for example, who refers to Italian sumptuary law as a “manifest failure,” nonetheless
believes that the Italian laws were generally enforced, and that they were passed repeatedly
precisely because they were being obeyed: as individuals continually found ways to get
around the laws, the laws required continual rewriting: Sumptuary Law in Italy, chapter 7,
“Problems of Enforcement and the Failure of Sumptuary Law.”
48 Attempts have been made to compare wills and inventories with the sumptuary laws in
force in a given area, e.g., Burkholder, “Threads Bared,” but I find that the documents do not
consistently give enough information to firmly fix the person’s status according to the laws.
49 See Sacchetti, Novelle, 137, in which he describes some of the ways that women evaded
officials attempting to enforce the laws. According to Rainey, Sacchetti based his novella on
the actual experiences of one of the uffiziali delle donne, the “women’s officials” charged with
enforcing the law. See Rainey, “Sumptuary Legislation,” 234.
50 Rainey, “Sumptuary Legislation,” 206.
51 The licensing/moneyraising aspect of the laws appears elsewhere as well: compare,
for example, the statute in Munich which required a man who wished to wear colored shoes
to supply an archer to the city. Bulst, “Les ordonnances somptuaires,” 779.
155
156
laUrel ann wilsOn
If sumptuary laws were indeed largely ineffective in the instrumental sense,
as measured by enforcement and compliance, the effectiveness of symbolic legis
lation is not related to enforcement or to the impact of the legislation on behav
ior. Rather, its purpose was to demonstrate or affirm certain values, to elevate
the values of a particular group, to create or underscore group or national iden
tities.52 For example, in ancient Rome, rulers enacted sumptuary laws to demon
strate that they were still in touch with the traditional virtues, the mos maiorum of
their ancestors.53 Given that another common trope in the preambles to medieval
sumptuary laws is a lament that the traditional virtues of an earlier golden age
have vanished, it is likely that this was one of the major motivating forces behind
the repeated enactments of sumptuary law in the thirteenth and fourteenth centu
ries, for kings and municipal governments alike.
But if the primary meaning of sumptuary law—to lawmakers and citizens
alike—was as a symbolic statement about virtue and social order, it is clear that
the common conception of sumptuary law as a means of social control, or restric
tion of goods to one or another class, must be completely reexamined.
The other common characteristic which is immediately noticeable in looking at
Western European sumptuary laws as a group is that all are focused in one way or
another on knights and the bourgeoisie. The nobility may or may not be involved;
the lower classes may or may not be involved; but the laws always include knights
and urban merchants and professionals. The focus may have been on strengthen
ing the knightly ranks, as in the Spanish laws; knights may have been exempted
from the laws, as in Italy; knights may have been made subject to the laws through
a carefully graded and increasing series of ranks, as in England and France. Urban
populations, too, are targeted. They may be divided into groups by income, as in
England and France; referenced as comprising the bourgeoisie (France); specified
as merchants and/or the wealthy (England and Spain); or inclusive of doctors and
lawyers (Italy). And one or both groups may also be driving the actual legislative
process (England and Italy). But, regardless of the shape which their involvement
takes, the knightly ranks and the bourgeoisie were always at the center of thir
teenth and fourteenthcentury sumptuary law.
Indeed, because the focus on these two groups remains constant, changes over
time are more easily visible. One of the most obvious is the change in the number
of ranks, on all levels. For example, in the French sumptuary law of 1279, there
52 Gusfield, “Moral Passage,” 228.
53 Zanda, Fighting Hydra-Like Luxury, 159. Compare Diane Owen Hughes’s suggestion that
urban sumptuary laws might be seen as “a symbol of republican virtue”: “Sumptuary Law
and Social Relations,” 74.
cOMMOn Threads: a reaPPraisal OF Medieval eUrOPean sUMPTUary law
are fourteen categories listed. The only knightly rank listed is escuier (squire or
esquire), and it is divided into two groups by income level. Fifteen years later,
when the second law was enacted, the total number of categories had increased
from fourteen to thirtytwo, of which eleven were gradations of knightly status. In
England, the sumptuary law of 1363 contains the first mention of the category of
“esquire.”54 In, Spain from the thirteenth century on, there were a variety of levels
within the noble knightly groups, with the knights who carry banners (rico home
que haya pendón) being the highest status, and further distinctions among knights
who may wear sashes (caballeros de la banda) and non or less noble knights.55
In the fourteenth century, urban knights (caballeria villana: knightly members of
the bourgeoisie) became more powerful, though they had existed for some time;
and here, too, additional gradients were added as time went on.56 Once again, Italy
appears to be the exception, since the only social categories mentioned—with the
exception of servants and slaves—are those listed as exempt. Despite the lack of
the subtle gradations found elsewhere, however, the Italian laws share with all the
others a focus on the knightly and professional classes, since these were precisely
the groups exempted from the laws.57
All of the bodies of sumptuary laws we have considered, whether royally pro
mulgated or stemming from a municipal government, display an intense focus on
the interzone shared by the knightly class and the upper bourgeoisie, including
professionals such as doctors and lawyers, as well as the lower nobility in many
cases. The formation of this status bracket into a relatively selfaware group is
often described as the rise of the “urban elite” (though I prefer the wider Eng
lish term “gentry”) and it has been a subject of much scholarly interest in recent
decades.58 And while sumptuary laws have not been overlooked entirely in the
resultant studies, they have not been considered on a comparative basis. Once
again, a number of avenues remain to be explored. For example, outside of Eng
54 Similarly, the 1463 sumptuary law contained the first use of “gentleman” as a specific
rank.
55 Gonzalez Arce, Apariencia y poder.
56 Although the articles in AsenjoGonzalez, Urban Elites, are primarily devoted to urban
elites in the Christian Spanish kingdoms of the fifteenth century, they show, if only by
implication, the increase and permeability of social categories in the previous centuries.
57 Catherine Kovesi Killerby has summarized the exempt statuses listed in the group of
laws which she studied; out of a total of nearly two hundred mentions, well over half are of
knights, doctors, and judges; counting mentions of related statuses such as “magistrate,” the
proportion is even higher: Sumptuary Law in Italy, 85 (Table 4.2).
58 See Coss, Origins of the English Gentry; and Lachaud, “La ‘formation de la gentry,’” for the
history of the construct of the gentry in the English context. Dumolyn, “Later Medieval and
157
158
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land, the rise of the gentry is often thought to have occurred in the fifteenth and
sixteenth centuries. While the dynamics may have become more obvious or taken
on a different character in later centuries, the attention paid to this very group in
the thirteenth and fourteenthcentury sumptuary laws suggests that the chronol
ogy deserves another look.
The focus on the gentry also helps to elucidate the frictions and contestations
which were taking place within this grouping, as exemplified by the history of the
English sumptuary law of 1363. Like all Parliamentary legislation at the time, this
law originated with a petition to the king from the Commons, a body which was
composed of two knights from each shire, and two citizens or burgesses from each
city or borough—in other words, a representative group of gentry. 59 And yet it
was presumably an equally representative group of gentry who were responsible
for the immediate repeal of the statute, in the following Parliament, alleging that
the statute had caused great financial harm, though there is no evidence that it
was either enforced or obeyed. It seems likely that the immediate repeal, as well
as the initial passage of the statute, resulted from conflict among the various seg
ments of the gentry which made up the Commons. The friction and contestation
among the various components of the gentry are rarely so clearly demonstrated,
but a comparative examination of the multiple iterations and occasional repeals
of sumptuary laws offers another way of making those dynamics more visible.60 A
comparative study of the preambles to thirteenth and fourteenthcentury sump
tuary laws might offer insights as well.
Another area of evident interest is the connection between sumptuary law and
fashion. The emergence of the socalled ”Western fashion system” in the later Mid
dle Ages is now generally accepted by most medievalists and fashion scholars.61
Early Modern Urban Elites,” is an extended discussion of the various terminologies applied
to the powerful as a group (such as elite, aristocracy, patriciate), including a consideration of
the general application of “gentry.”
59 There is an enormous literature on English Parliamentary legislation. For the origin of
legislation in the Commons, see, most recently, Dodd, Justice and Grace. For the composition
of the Commons, see Brown, Governance of Late Medieval England, 180.
60 There seem to have been repeals of the Spanish regulations from time to time for similar
reasons. Gonzalez Arce gives an example from Madrid in 1339: Apariencia y poder, 98.
61 Representative fashion scholars include Laver, Concise History of Costume; Wilson,
Adorned in Dreams; Lipovetsky, L’Empire de l’éphémère; Breward, Culture of Fashion;
Hollander, Sex and Suits. Representative medievalists include Heller, Fashion in Medieval
France; Blanc, “From Battlefield to Court”; Newton, Fashion in the Age of the Black Prince;
Stuard, Gilding the Market; Crane, Performance of Self. Early modernists have located the
advent of a fashion system somewhat later, generally in the eighteenth century.
cOMMOn Threads: a reaPPraisal OF Medieval eUrOPean sUMPTUary law
This system is generally thought to have been fully developed by the midfour
teenth century, although medievalists have variously located its beginnings in the
thirteenth, fourteenth, or fifteenth centuries.62 But the chronological connection
is clear, and continues to be throughout the lifespan of sumptuary law: as fashion
spread down the social scale, sumptuary laws dwindled, disappearing altogether
in the eighteenth century at a point when fashion had become both universal and
feminized, that is, less serious.63
Conclusion
Comparative study of the varieties of medieval sumptuary law can suggest many
new approaches through which to understand an array of topics relevant to the
mission of The Medieval Globe, and part of my purpose in writing this article was
to join fellow historians in urging scholars in many fields to consider approach
ing sumptuary law and its underpinnings comparatively.64 Examined as a com
plex phenomenon, and treated with what Carol Symes calls “the dignity of being
considered relevant and fully real,” it becomes very clear that these laws had no
instrumental function and were not really intended to.65 Sumptuary law has long
been considered a “paradox,” but we perceive it that way in part because we do not
yet understand it.66 Analyzing sumptuary law as symbolic and aspirational, laden
with hidden meanings and contests, is one step towards clarifying our under
standing; considering sumptuary law as a global phenomenon with multiple vari
ants, and thus approaching it comparatively, is another.
62 In my view, the system was not manifest until the fourteenth century, when the crucial
component of continual rapid change was added. See Wilson, “‘De Novo Modo.’”
63 See Belfanti and Giusberti, “Clothing and Social Inequality,” who describe fashion as
“taking the place” of sumptuary law in establishing social categories (362).
64 See note 3 above.
65 Symes, “When We Talk about Modernity,” 717.
66 Hunt, Governance of the Consuming Passions, 355.
159
160
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Vincent, John Martin. Costume and Conduct in the Laws of Basel, Bern, and Zurich,
1370–1800. Baltimore: Johns Hopkins University Press, 1935.
Vincent, Susan. Dressing the Elite: Clothes in Early Modern England. Oxford: Berg,
2003.
Ware, Anthony. “Origins of Buddhist Nationalism in Myanmar/Burma? An Urban
History of Religious Space, Social Integration and Marginalisation in Colonial
Rangoon after 1852.” In Religion and Urbanism: Reconceptualising Sustainable
Cities for South Asia, edited by Yamini Narayanan. London: Routledge, 2015.
Wilson, Elizabeth. Adorned in Dreams: Fashion and Modernity. London: Virago,
1985.
Wilson, Laurel Ann. “‘De Novo Modo’: The Birth of Fashion in the Middle Ages.”
PhD. diss., Fordham University, 2011.
—— . “Status.” In Fashion in the Medieval Age (500–1450), edited by SarahGrace
Heller. [Vol. 2 of A Cultural History of Dress and Fashion, edited by Susan Vin
cent.] London: Bloomsbury, forthcoming.
cOMMOn Threads: a reaPPraisal OF Medieval eUrOPean sUMPTUary law
WoodLegh, K. L. “The Knights’ Attendance in the Parliaments of Edward III.” English Historical Review 47 (1932): 398–413.
Zanda, Emanuala. Fighting Hydra-Like Luxury: Sumptuary Law in the Roman
Republic. London: Bloomsbury 2011.
Laurel Ann Wilson (lwilson@fordham.edu) earned her PhD from Fordham Uni
versity and is currently a Visiting Fellow at the Center for Medieval Studies at
Fordham. Her interests include medieval textile technology and the emergence of
fashion as a social phenomenon: the subject of her doctoral dissertation, as well
as of many conference papers given under the auspices of the Pasold Research
Fund, the North American Conference on British Studies, the Medieval Academy
of America, and the International Congress on Medieval Studies. Her current
research involves changes in the meaning of clothing in the later Middle Ages as
reflected in sumptuary law, liveries, and dress codes. Forthcoming publications
include “Status,” in Fashion in the Medieval Age (500–1450), edited by SarahGrace
Heller.
Abstract Medieval sumptuary law has been receiving renewed scholarly atten
tion in recent decades. But sumptuary laws, despite their ubiquity, have rarely
been considered comprehensively and comparatively. This essay calls attention
to this problem and suggests a number of topics for investigation, with specific
reference to the first phase of European sumptuary legislation in the thirteenth
and fourteenth centuries. It argues that comparative study demonstrates that this
chronology closely parallels the development of the socalled “Western fashion
system” and that the ubiquity of sketchy or nonexistent enforcement is evidence
for the symbolic importance of sumptuary legislation, rather than its instrumen
tality. Comparison across (modern) national boundaries further reveals intriguing
patterns of similarity and difference that require further exploration and contex
tualization; for example, such research reveals that only one social category, that
of knights, emerges as universally important during this period.
Keywords Sumptuary law, clothing, luxury, gentry, symbolic legislation, social
classification, status, knight, Western fashion system
165
TOwARD A HISTORy OF DOCUMENTS
IN MEDIEVAL INDIA:
THE ENCOUNTER OF SCHOLASTICISM AND
REGIONAL LAw IN THE Smṛticandrikā
DONALD R. DAVIS, JR.
a Perennial challenge
in the study of law in medieval India concerns
the encounter of scholastic legal discourse and local and regional practices of law.
Composed over a period of roughly two thousand years, the notoriously ahistori
cal Sanskrit textual corpus called dharmaśāstra contains systematized discussions
of all major legal topics, codified and elaborated through centuries of scholastic
commentary and compilation.1 Datable, locatable evidence for the practice of law
in similar topical areas and over a similar length of time, however, is either scarce,
nonexistent, or unstudied. Indologists have approached this divide in several ways,
ranging from naí�ve acceptance of the scholastic corpus as evidence of historical
practice to the total rejection of the texts as a fantasy of luxurious Brahmins.
The present article takes up the use of documents as a revealing focus for
approaching the encounter of text and practice in the laws of medieval India
(ca. 600–1500 CE, though no one agrees about these limits). The range of writ
ten material available from medieval India may be roughly classified into three
groups: 1) texts, substantial writings by eponymous authors of uncertain dating
that contain treatises or original works of literature, theology, law, science, and
so forth, generally preserved on palmleaf, or later paper, manuscripts that were
continually recopied; 2) inscriptions, short and mediumlength writings by nota
ble political figures and donors that record a specific event, giving the relevant
names, places, and inscribed on durable substances such as stone or copper; and
3) documents, typically short records of particular transactions, agreements, con
tracts, and so on that specify the parties’ names, the materials involved, and other
transactional details, written on less durable materials such as palm leaf, birch
bark, or prepared fabric and rarely recopied.2 Within the last group, many types
I acknowledge with gratitude the valuable feedback and suggestions for improvement given
to me by Elizabeth Lambourn, Patrick Olivelle, and the two anonymous reviewers of the
journal.
1 Lingat, Classical Law of India; Olivelle, Dharmasūtras.
2 These large categories and the subcategories within them are all conveniences that are
belied by regular categorical crossovers. So, the poetic preambles of Sanskrit inscriptions
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dOnald r. davis, Jr
of “document” are spoken about and sometimes copied into “texts” in the special
sense above, though we do not have preserved examples of all types outside of the
texts. From the other side, the types of historical documents actually known from
medieval India far exceed the categories described in dharmaśāstra or in other
textual sources.
The focus here will be a fresh translation of the description of documents in
the twelfthcentury digest of Hindu law called the Smṛticandrikā, (Moonlight on
the Laws) and its possible historical value.3 Its author, Devaṇṇabhaṭṭa, came
from South India and some of his views (for example, the idea of inheritance by
birth) reflect regional views, but beyond this fact we know only his name and that
of his father. His digest of laws is one of the most comprehensive and thoroughly
explained in the entire corpus of dharmaśāstra. Like all digests of law in Sanskrit,
the Smṛticandrikā collects relevant legal rules from “roottexts”—undated earlier
texts by eponymous authors—arranges them topically, and provides explanations
and clarifications in the form of scholastic commentary. As such, it provides a reli
able and intelligent discussion of every major topic of Hindu law, from daily and
occasioned ritual practice to legal procedure and substantive law to penance and
punishment.
The thoroughness and comprehensive intent of the Smṛticandrikā make it
an ideal starting point for a more detailed examination of the use of documents
within medieval South Asian legal practice because this scholastic text categorizes
myriad types for which historical examples exist. The discussion of documents
that will be presented here is found within a larger section on legal procedure and
state policy (vyavahāra)—more precisely as part of the description of evidence
accepted in courts—and it describes thirteen different document types under
the twin rubrics of “royal” and “popular” documents.4 Therefore, historical legal
practice is recorded in the special idiom of Sanskrit scholasticism, even though
are often on par with the best poetry found in texts. Inscriptions likewise can function like
documents, legal and/or political. Salomon (Indian Epigraphy, 110) discusses such overlap
in the context of his now standard survey of the IndoAryan inscriptional corpus.
3 Srinivasacharya, Smṛticandrikā by Devaṇabhaṭṭa.
4 The distinction between “royal” (rājakīya) and “popular” (jānapada, laukika) is basic to
all discussions of documents in Sanskrit. The first is easier to grasp as the set of documents
initiated and executed by the state. The second refers to ordinary documents used for the
transactions of private people. One reviewer suggested “civil” instead of “popular,” but this
carries too many connotations of citizenship and connection to a political body. “Popular”
documents are those relating to or generated by the general public as opposed to the
government. Unfortunately, no single adjective is ideal in translation.
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such practice can only be situated in place and time through other evidence.5
More importantly, however, the way in which different documents are placed into
categories reveals cultural understandings of the distinct functions and purposes
of those documents. Legal documents themselves do not come with a guide on
how to interpret them, but the scholastic texts do, even if one must also read their
taxonomies with a critical eye. The Smṛticandrikā discloses political, social, reli
gious, and economic functions of legal documents, giving us a window into the
cultural significance of documents beyond the legal arrangements described in
the documents themselves. The important conclusion to be drawn here is that the
scholastic tradition of dharmaśāstra helps us to do more than speak of generic
“documentary culture” and rather helps to draw meaningful historical and cul
tural distinctions between the materials and functions of different documentary
types in medieval India. Although they may seem to be straightforward carriers of
information, documents are no more transparent than other types of writing, and
we must, therefore, attend to their contexts and social construction.
The history of law is in part the history of legalism, the processes by which
rules and categories are used to order a conceptual world, typically one invested
with religious or moral value. Paul Dresch writes, “Legalism means the world is
addressed through categories and [explicit] rules that stand apart from practice.”6
What dharmaśāstra texts offer historians is an important Indian articulation of the
salient categories of legal thought and rule formation. As one of the most cogent
and clear categorical presentations of the rules for documents in Sanskrit, the
Smṛticandrikā, therefore, gives us insight into how practical documents may have
been received: that is, how they fit into the conceptual frameworks of the time.
The scholastic nature of the Smṛticandrikā, however, limits how much history we
can read into the text.7 On the one hand, we feel the author’s scholastic compul
sion to be true to the commentarial tradition by not elaborating further categories
of document beyond those mentioned in the accepted roottexts; on the other, the
author is also frustrated by knowing how many more types of document actually
existed “in accordance with local standards.”
The Social History of Documents in Medieval India
In an important way, this is the story of law: the formation of endless practical legal
arrangements, the creation of rules and categories to tame them, and the subse
5 See Lariviere, “Dharmaśāstra, Custom, ‘Real Law,’ and ‘Apocryphal’ Smṛtis.”
6 Dresch, “Legalism, Anthropology, and History,” 15.
7 Rocher, Studies in Hindu Law.
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dOnald r. davis, Jr
quent mutual development of (and tension between) both as an ongoing encoun
ter.8 Within that story, I provide first a very cursory overview of documents from
medieval India, relying on existing syntheses of various sources for the history of
written materials in India. I then give a full translation of the chapter defining docu
ments in the Smṛticandrikā, in order to make one influential systematization of
rules and categories available to a wider audience. The idea is to lay out a prelimi
nary scheme for what it would take to write a fuller history of legal documents in
medieval India. What we need in South Asian history is a volume like M. T. Clanchy’s
classic From Memory to Written Record. Essentially, I would like to sketch here how
it might be done and to relate that sketch to the question of legal encounters.
The most comprehensive work to date on forms of documentation in medieval
India is Ingo Strauch’s edition and translation of the Lekhapaddhati,9 a formulary
of written exemplars of nearly one hundred types of document compiled between
the thirteenth and fifteenth centuries. Here, we have letters addressed to figures
ranging from an honored teacher to family members to friends; “public docu
ments” such as royal instructions, decrees, tribunal decisions, charters, seizure
notices, official communications, and ordeal certificates; “private documents,”
including commercial contracts, sale deeds, mortgages, receipts, gift records, and
bills of safe passage; and “additional documents,” covering tax notices, court judg
ments, bills of credit, and diplomatic communiqués. The huge number of docu
ment types modeled in a regional form of GujaratiSanskrit immediately tells us
that, by the fifteenth century, documents of considerable variety were known to
formulary compilers and, we can safely assume, in practice. Because they provide
exemplarlike models—with names, amounts, and other details—formularies like
the Lekhapaddhati get us close to practice without containing the records of actual
legal transactions.
In addition to excellent work on the formulary itself, Strauch also provides a
thorough study of the development of dharmaśāstra rules concerning documents
in ancient Indian law.10 He stops, however, with the last major roottext in approx
imately the seventh century, ignoring all of the commentarial literature that fol
lowed down to the eighteenth century. While understandable, given his purposes,
it is precisely in the commentarial syntheses of the roottext material that we find
a more coherent and complete view of the rules and categories for documents in
8 For a description of an exemplary regional case of this encounter in late medieval
Kerala, see Davis, “Recovering the Indigenous Legal Traditions,” 166–67.
9 An English translation, but much less reliable than Strauch’s edition and German
translation, can be found in Prasad, Lekhapaddhati.
10 Die Lekhapaddhati-Lekhapañcāsikā, 19–52.
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medieval India. However, it is Strauch’s impulse to move between documentary
instance and categorical reflection that I want to emphasize.
The other essential starting point for a history of documents in medieval India
is the work of Richard Salomon, and D. C. Sircar before him, on India’s large cor
pus of inscriptions. Salomon is the latest in an illustrious line of epigraphy scholars
whose fundamental work made South Asian historiography possible in the first
place. Pertinent to both documents and epigraphy, Salomon notes that “the history
of ancient and medieval (i.e., preIslamic) India must for the most part be recon
structed from incidental sources; that is, sources whose original intent was some
thing other than the recording of historical events as such.”11 The line between doc
ument and epigraph is not always clear. Thus, Salomon’s typological, chronological,
and geographical surveys of the inscriptions in IndoAryan languages include con
tracts, donations, and charters, among other genres that might be classed as docu
ments. The principal distinction lies rather in the material form, documents usually
being written on palm leaf, birch bark, and (later) paper. The almost total lack of
selfconsciously historical texts in India, which is not the same as a lack of histori
cal sense or orientation, has made epigraphy into “a primary rather than a second
ary subfield within Indology” not a “corroborative and supplementary source” as
in other areas of the world.12 The challenges of Indian epigraphy for historians are
unique: “Not only is the material vast, voluminous, and inherently difficult; it also
requires a command of a range of languages, dialects, and script forms far greater
than that needed for epigraphic studies in most other parts of the world.”13
Together, Salomon, Strauch, and others supply a promising baseline for a richer
history of documentary cultures in medieval India. Through their work, one finds
important earlier studies of epistolary writing,14 of regional and dynastic collec
tions of inscriptions,15 and of temple and royal archives.16 If combined with analy
11 Salomon, Indian Epigraphy, 3.
12 Ibid., 4.
13 Ibid., 5–6.
14 For an overview, see Michaels, “Practice of Classical Hindu Law,” 63–67. Among many
collections and studies of formularies and epistolary writing, see also Thakur, “Documents
in Ancient India”; Sanskrit Documents; Banerji, “Study of the Epistolary and Documentary
Literature”; Vidyāpati Ṭhākura, Likhanāvalī; Salomon, “Ukti-Vyakti-Prakarana.” In a recent
study of the Likhanāvalī, Jha (“Beyond the Local and the Universal,” 35) makes the very
plausible suggestion that collections of models for different types of writing for Indic
languages were triggered in part by the influence of Persian inshā texts.
15 Salomon’s bibliography (Indian Epigraphy, 311–27) is indispensable as a reference for
general, regional, and specific studies of Indian epigraphy.
16 Archival studies focused on law include Gune, Judicial System of the Marathas; Documents
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dOnald r. davis, Jr
ses of dharmaśāstra and other textual material, at least two important types of
documentary histories could emerge. First, more regionally focused histories that
describe the typology and chronology of documents in relation to political, legal,
economic, religious, and other social historical themes would bring the documents
out of their incidental historical connection and into an interpretive framework.
The narrower range of languages and scripts involved make such work possible
and would, in turn, create the conditions for a macroscopic overview of document
usage. The goal of this second type of history would be a story about the impact of
documents throughout the medieval period in India, but with the necessary atten
tion to differences of pace and usage that regional histories reveal.
By attending to the specificities of documentary categories, of regional pat
terns, of narrative depictions of document use, and of textual prescriptions for
documents and their authentication, we could move beyond vague invocations of
literacy and documentary culture in the singular.17 Writing itself, of course, pro
duced momentous changes in India as it did everywhere, but its introduction was
neither definitive nor suddenly widespread. In fact, only careful collation of exist
ing enumerations of inscriptions and documents can yield a sense of when the use
of writing per se accelerated, and which specific types of writing emerged when.
The key for any history of documents, in my view, is the desperate need for better
interpretive theoretical frameworks within which one can make sense of writing
from medieval India. Exemplary work, usually based on inscriptions, does exist,18
but so much more is waiting to be studied and, further, to be synthesized beyond
the few regional frameworks that have paved the way for future work.
Legal Encounters of Text and Document
One important source of guidance for a social history of documents will be their
interface with textual traditions like dharmaśāstra. While always suspicious in
their highly systematic and listoriented presentation, dharmaśāstra texts, espe
cially medieval commentaries and digests, give us a preliminary schema of cat
egories and rules within which to place the dated documents of practice. A study
of the connections and disconnections between texts and documents, therefore,
helps us avoid imposing anachronistic or culturally strange assumptions on the
from the Rudravarṇa-Mahāvihāra; Vanjari Grandhavari; and Davis, Boundaries of Hindu Law.
17 As in Gurukkal, “Shift of Trust from Words to Deeds.”
18 So, for example, Stein, Peasant, State, and Society; Chattopadhyaya, Studying Early India;
Orr, Donors, Devotees, and Daughters; Talbot, Precolonial India in Practice; and Veluthat,
Early Medieval in South India.
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material. This dilemma is nothing new, of course, being a version of a central prob
lem of the modern debate over law in action versus law in books and the conflicts
among positivists, naturalists, and realists, each of whom adopts a distinctive atti
tude toward the value of written law and its encounter with practical legal prob
lems.19 When it comes to the role of documents, the Smṛticandrikā suggests that
their legal functions are better captured in texts while their historical valences are
better seen in practical examples.
Consider, for instance, the opening distinction made between royal and popu
lar documents in the Smṛticandrikā. The legal effect of this distinction is still not
fully understood. For example, to interpret a copperplate inscription sealed with
wax by a king or a royal inscription on stone as a legal document is to place it in a
culturally and historically incongruous category. The śāsana, decree or edict (most
often a donation), was first of all a political act that had religious and legal side
effects. In the name of magnifying the king’s glory and political power, decrees
generated religious merit for the donor(s), and they conveyed legal privileges,
exemptions, and protections on the beneficiaries. However, a royal decree in medi
eval India was neither a legislative declaration of a general law nor a record of
legal arrangements intended for evidentiary use in courts.20 As the Smṛticandrikā
suggests, the main threat to a royal decree was a later king (see 1a below), whose
violation of the gift would undermine both its religious and legal value. Contraven
tion by a later king, moreover, would allow no legal recourse through the evidence
of the decree. That is to say, there was no way to take the new king to court, if he
19 Lon Fuller’s classic satire, “Case of Speluncean Explorers,” is as good a place as any
to discern the real difficulties of adopting any rigid, inflexible attitude, no matter how
principled, toward the authority of written law.
20 This strong statement relies on a distinction of political and legal actions that I see as
important and basic in the legal categories of Dharmaśāstra. Consider the recently examined
example of the eighthcentury Vēḷvikuṭi copper plates: Gillet, “Dark Period,” 294–97. The
inscription portrays a Pāṇḍya king restoring a grant of land that had been seized by the
notorious Kalabhra kings to a group of Brahmins, after they had produced a document
showing the antiquity of the grant (nāṭṭāl niṉ paḻamai (y) ātal kāṭṭi). In my view, the scene
conforms well to the future political threats against land grants by later kings described
in the Smṛticandrikā. The aggrieved Brahmins make an appeal to the current, benevolent
king to restore a lost grant, and the king in turn “magnanimously accepted [their appeal
and document] as a royal act of grace” (cemmānt’ avaṉ eṭutt’ aruḷi). There is no legal case
against anyone, least of all the offending kings. Rather, the plea is for the new king’s grace
and beneficence. If the circumstances were legal in nature, we could imagine the Brahmins
having some other recourse, in case the king did not accept their plea and proof. The fact that
they obviously do not have any such legal option leads me to characterize this and similar
situations as primarily political in nature. Any legality in such cases is fragile at best.
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dOnald r. davis, Jr
chose to violate the terms of the old king’s decree. Only political and moral appeals
were possible. In this way, the difference between royal and popular documents is
nontrivial and shapes how we should understand the reception of different docu
ment types in context.
By contrast, the verdict or “victorydocument” (jayapatra)21 at the conclusion
of a fullblown trial is also classed as a “royal” document (see 1b below), but it is
intrinsically legal as well. One might expect that the frequent injunction to provide
a written verdict to a successful litigant would have generated many historical
examples of litigated case law for medieval India.22 Unfortunately, I am not aware
of a single example of a jayapatra from India that delineates a full trial prior to the
eighteenth century.23 To find them, we have to travel to Java and to Mason Hoad
ley’s essay on the transplantation of the jayapatra to Java, which remains the best
survey and study of jayapatras, even for India.24 While acknowledging that some
link to India and some practical presence of verdicts there must have existed,
Hoadley shows that the evidence for written verdicts in Java (and Cambodia)
begins in the tenth century, at least three centuries before any Indian attestation.
Even allowing for the inevitable loss of the majority of such verdicts due to the
fragility of writing material and environmental factors, the paucity of examples
for medieval India still suggests that document production by Indian courts was
neither vibrant nor prolific. Nevertheless, the transplanted and modified forms
found outside India do help soften the argument from silence and seem to allow us
to justify the use of extensive dharmaśāstra discussions of verdicts in describing
the practical legal use of writing in the medieval period.
If the adjudication of civil matters was meant to produce a written verdict,
how then were evidentiary documents used in those judicial contexts? Here again,
in addition to cataloging their various types (lekhyanirūpaṇam), dharmaśāstra
21 Sanskrit orthography would normally require patra, “leaf, document,” to be written
pattra. However, the usage of patra with a single “t” is so ubiquitous in both inscriptional
and manuscript evidence of medieval India that it seems artificial to “correct” what was
obviously an accepted spelling in this period. I have retained the spelling patra, exclusively
used in the Smṛticandrikā, throughout.
22 Similarly, one would expect the Dharmaśāstra texts to refer to the ubiquitous Indian
practice of inscription on stone, but they do not.
23 In addition to the jayapatra of 1794 which he translates, Lariviere (“Witness as the
Basis,” 53–57) tries valiantly to adduce reasons why we would not find jayapatras (decay of
manuscript materials and transfer of cases to Mughal courts), but manages to find only two
ordealrelated (and very truncated) examples from seventeenthcentury Karnataka and nine
additional examples from the eighteenth and nineteenth centuries.
24 Hoadley, “Continuity and Change.”
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supplies extensive discussions of the verification of documents’ legal validity
(lekhyaparīkṣā),25 including the required elements, restrictions on who may have
documents made, and many faults which nullify their evidentiary value. A desire
for authenticity and avoidance of forgery drives the discussion. Indeed, one senses
a mistrust of documents as legal evidence throughout. That same mistrust shows
up in the premium placed on the testimony of witnesses. In fact, as Richard Lariv
iere has argued, documents of many kinds fail without the support of witnesses,
to the point that the witness becomes the paradigmatic mode of proof in Hindu
law.26 Unlike in Islamic law, however, documents always retained explicit doctri
nal sanction as evidentiary proof in dharmaśāstra.27 The effects of this cultural
suspicion led to the abundant use of witnesses to documents in both theoretical
discussions and practical examples. Royal documents written by the king himself
and sealed with the royal seal, however, were accepted even without witnesses’
signatures.28 Without this interpretive frame about the role of witness made pos
sible by dharmaśāstra, we run the risk of succumbing to the “prejudice in favor of
literacy” which Clanchy warns us against.29 In order to see the interpretive help
offered by dharmaśāstra in greater detail, let us now examine the full discussion of
documents in the Smṛticandrikā.
Translation of the Chapter entitled “Definition of Documents”
in the Smṛticandrikā
My translation below is based primarily on the text edited by Srinivasacharya,30
but occasional textual emendations have been made using a compendium known
as the Dharmakośa. I have benefitted greatly from the earlier, hardtofind trans
lation of J. R. Gharpure and from suggestions by Patrick Olivelle. In general,
Gharpure’s translation is good, but it leans heavily toward an offputting hybrid of
Sanskrit and English and consists too often of paraphrase rather than translation.
As a result, a new translation was essential.
25 This section of the Smṛticandrikā follows immediately after the one translated here.
26 Lariviere, “Witness as the Basis.”
27 Compare the wellknown proscription of documents as evidence in classical Islamic
law and its practical encounter with Muslim communities. See, for example, Messick, “Just
Writing.” The broad emphasis of the two traditions seems reversed while the practice
appears closer.
28 Lariviere, “Witness as the Basis,” 67; see also 1a, 1c–e, below.
29 Clanchy, From Memory to Written Record, 7.
30 Srinivasacharya, Smṛticandrikā by Devaṇabhaṭṭa, 3:125–39.
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dOnald r. davis, Jr
The chapter opens with a preamble on the two categories of documents and
is subdivided thereafter into two sections, royal (section 1 in this translation) and
popular documents (section 2). Under royal documents are discussed decrees
(1a), verdicts (1b), orders (1c), instruction documents (1d), and “documents of
gratitude” (1e). The section on popular documents, by contrast, departs from this
typological classification to discuss “types of popular document” (2a), followed by
a concluding discussion of “the utility of popular documents” (2b). The names of
the eponymous authors of the legal roottexts structure the exposition, with the
commentator’s elaborations bringing these disparate sources together.
Following Indological conventions, I have placed cited roottexts in bold, along
with words and phrases glossed from them. Sanskrit commentaries often sim
ply gloss one word with another, making an elegant English rendering difficult in
many places. Page numbers to the Srinivasacharya edition are indicated in brack
ets for ease of reference.
Preamble: The Two Categories of Documents
[125] Among the three forms of evidence,31 Vasiṣṭha32 states:
One should know that documents (lekhya) fall into two categories:
common and royal.
Common is also called “popular.” So says the maker of the Collection:33
The traditional texts state that what is written is of two types: royal
and popular.
31 Namely, documents, witnesses, and possession, first mentioned in the Vasiṣṭhadharmasūtra 16.10: see Dharmasūtras, trans. Olivelle, 413. However, Strauch considers this
a later interpolation belonging likely to the period of the Laws of Yājñavalkya or the Laws
of Nārada, made perhaps in fourth or fifth century CE, in which documents become more
prominent: Die Lekhapaddhati-Lekhapañcāsikā, 51.
32 This name of a reputed author of a roottext of Dharmaśāstra is the first of many
mentioned in the ensuing discussion. Most are names of legendary sages of the Hindu
tradition. Apart from relative chronology and mythological associations, we know very little
about the dates of the texts or the biographies of their authors.
33 The author of the Smṛtisaṃgraha (The Collection of Traditional Texts) is simply known
as Saṃgrahakāra, the “maker of the Collection,” in the Smṛticandrikā and elsewhere. The
collection is known to us only through its citation in later digests and commentaries. See
Kane, History of Dharmaśāstra, 1:537–41.
1. Royal Documents
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Of these, Vasiṣṭha states that the royal is of four types by dividing them into the
decree, and so on.
The royal is of four types: 1) the first is known as the decree (śāsana),
2) the next is the verdict (jayapatra), 3) the order (ājñā), and 4) the
instruction-document (prajñāpanapatra).
1a. Decrees
Among these, Yājñavalkya proceeds to define the decree.
When a king grants land or creates an endowment, he should have an
inscription (lekhya) made in order to inform good kings of later times.
An endowment is property that is to be acquired through an arrangement with
the king, for example: yearly or monthly, those who are engaged in commerce and
the like shall give a certain amount of wealth to this Brahmin or to this deity. Here,
even though it is the people engaged in commerce who actually give the property,
the merit nevertheless belongs to the one who makes the endowment, because the
actions of the former happen only because of the latter. The word land serves to
indicate subvarieties such as villages, gardens, and so on. From this, Bṛhaspati:
After he donates land and such, the king should have a charitable
(dharmya) decree executed on copper-plate or on cloth34 that contains
the place, dynastic lineage, and other details.
Have executed, by the official in charge of peace treaties, war declarations, and
the like35—this completes the sense, because in this case there is a restriction on
who may be an executor of his writings. Vyāsa says the same:
34 Paṭe, “on cloth,” seems to refer to a specially prepared cloth, usually cotton, made
somewhat stiff or sized “through the application of pastes and then inscribed with a stylus”:
Sircar, Indian Epigraphy, 66–67. Unfortunately, not a single example of such a cloth bearing
a royal decree has survived to the present, though similar types of canvas are widely used
for ritual text production and sacred art: see Kapstein, “Weaving the World”; Hatley, “Paṭa.”
It may also have been the case that such canvases were used for “archival” copies of royal
decrees kept by a king’s officials or for draft copies of grants eventually inscribed on more
permanent surfaces. For further description, see Salomon, Indian Epigraphy, 132. My thanks
to several members of the Indology listserv for clarifying this term.
35 The term saṃdhivigrahādikāriṇā likely indicates the scribe of a minister of peace and
war, but it may refer to the minister himself. The two are clearly distinguished in a passage
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As instructed by the king himself, the scribe in charge of peace treaties and war declarations [126] should write out the king’s decree on
copper-plate or else on cloth, detailing the connection of the action
and the agent, including the action taken and the brief purpose.
The connection of the action and the agent, meaning a decree which includes
the connection between the action and the agent.36 Including the action taken
and the brief purpose means that the decree should incorporate the action
taken along with a brief statement of its purpose.37 Yājñavalkya states what details
should be written at the beginning of a copperplate:
The lord of the earth should inscribe his own lineage ancestors and
himself and then a description of the grant, the extent, and the delineation of the gift.
At the beginning, he should inscribe in the customary manner a benediction com
municating the gift of boons by the glorious king, whose realm is the whole raised
earth, and who is the very body of Lord Varāha. And then, he should inscribe
the names of his three lineage ancestors—greatgrandfather, grandfather, and
father, in that order—by means of a description of their virtues such as heroism
and so forth, and himself as the fourth. Then he should have written the grant, the
extent, and so on. Grant in this case means what is being granted, that is the land
or the endowment.38 Its extent means the quantity. The delineation of the gift
signifies the boundaries of the land and such that is being given.39 Vyāsa too states:
of Vyāsa below, but not elsewhere. In any case, this ministry is regularly given responsibility
for drafting royal decrees. See Scharfe, State in Indian Tradition, 151–52; and Sircar, Indian
Epigraphical Glossary, 295.
36 The gloss in this case simply clarifies that the connection should be written as part
of the decree itself and not separately, which is not perfectly clear from the root text. The
compound kriyākārakasaṃbandhaṃ must be interpreted as a bahuvrīhi, which means
literally, “in which there is a connection of action and agent,” in order to link it to the word
śāsana, “decree.” The action refers to the detailed terms of the grant or decree and the agent
specifies that it is the king himself who takes the action.
37 Grants of the sort being described often include a short statement assigning the
spiritual merit or beneficiary of the donation or indicate another purpose for making the
gift. The verse from Vyāsa below provides an example.
38 The word in question is pratigraha, which can signify both the acceptance of a gift and
the gift itself. Devaṇṇabhaṭṭa ensures that the latter meaning should be understood here.
39 The gloss in this case is sensible, but the term dānaccheda, literally “cutting the gift,” is
also regularly used to refer to imprecations against those who might violate or renege on the
gift in the future. See the texts from Bṛhaspati and Vyāsa below.
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Indicating the year, the month, the fortnight,40 the day, and the name of
the king, as well as the caste and other details, and the kin-lineage and
Vedic school of the recipient.41
The second half of this verse means that one should also write the caste (jāti), fam
ily, and Vedic school, in order to make clear the unique character of this donation.42
Similarly, other things should also be written, as Vyāsa himself states:
He should write down the locale, lineage ancestry, region, village, and
what is received, informing the Brahmins43 and all other dignitaries,
officials, [127] heads of important families, managers, envoys, physicians, and village headmen, all the way down to foreigners and outcastes: “For the merit (puṇya) of my mother and father and of myself,
I give this gift to so-and-so of this Vedic school, the son of so-and-so.”
So also, Bṛhaspati:
A gift should never be divided or taken away; it should be free from all
interference;44 it should endure for as long as the moon and sun shall
last; and it should pass down from son to grandson and to all descendants. The donor and the protector of a gift shall enjoy heaven, but the
one who rescinds it shall suffer hell for sixty thousand years—these
are the rewards of giving and violating that he should write down.
To complete the sense, he does this in order to admonish future kings and others.
Vyāsa has exactly this in mind:
40 Indian calendars, especially ritual calendars, recognize both a bright and a dark half of
the month, or lunar fortnight, following the phases of the moon.
41 The compound sagotrabrahmacārikam refers to the gotra, one of several Indic kinship
groups, and śākhā, the special branches or schools of Vedic recitation. The Smṛticandrikā
makes this identification clear below, but see also Mitākṣarā on Yājñavalkya 2.85. See the
similar requirement in section 2 below.
42 In other words, as Gharpure’s translation suggests (Smṛticandrikā, 101), the decree
should be written to allow the gift, the donor, and the recipient to be uniquely and completely
identified.
43 Read brāhmaṇāṃs tu for brāhmaṇasya. See Dharmakośa 1.375.
44 The compound sarvabhāvyavivarjitam, unexplained in the Smṛticandrikā, is taken by
one commentator to mean devabrāhmaṇanāpitādilabhyavarjitam, “exempt from the dues
normally given to gods, Brahmins, barbers, and so forth” (Dharmakośa 1.365). Another
digest offers the easier reading sarvabhāgavivarjitam, “exempt from all taxes,” especially
those levied to support the maintenance of the king’s military (Dharmakośa 1.365).
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The king should write the rewards of giving and violating that shall
last for sixty thousand years in order to admonish future kings and
governors.
Similarly, another verse, recorded only by him, should also be written.
This bridge of the Law is shared by all kings. May you protect it time
upon time, as the good Lord Rāma calls anew upon all the illustrious
lords of the earth.
Now, the king himself should write his signature (svahasta). And, thus, the same
author:
He should himself write the location and extent of the grant and his
signature.
This means he should himself write something like, “I, king soandso the son of
soandso, affirm what is written here above.” But, the scribe should also write his
own name, as the same author states: [128]
The minister of peace and war or else his scribe shall at the instruction
of the king himself write the king’s decree. At the end, he should write
his own name and seal it with the royal seal. This is the kind of royal
decree relating to villages, fields, homes, and so forth.
And, this should be entrusted to the recipient because he is the one to whom it is
useful.45 On this point, Viṣṇu:
He should give a document on cloth or copper plate and marked with
his seal in order to inform future kings.
The maker of the Collection also:
Having the mark of the king’s signature and containing his command;
bearing the royal name and sealed with the royal seal; in the local script,46
45 The phrase tasyopayogitvāt, “because he is the one to whom it is useful,” indicates that
the author anticipated situations in which a decree would need to be produced to verify the
arrangements established by the decree itself. The kind of situation the author has in mind is
noted in the next passage, namely, the failure of future kings to uphold the grant.
46 The legal validity and necessity of writing in a local script is also confirmed in section
2 below, in cases where “foreign” parties are directed to write in their own script. In fact,
royal inscriptions in India almost always employ the script used in that region. The use
of multiple scripts in epigraphy is rare (Salomon, Indian Epigraphy, 70–71), and the use
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expressed without grammatical errors, and with complete ligatures
and letters—what is granted by the king through the scribes in charge
of peace treaties and war declarations is to be known as a decree.
This means that what is given by the king to another in the stated form and writ
ten down by the scribes in charge of peace treaties and war declarations shall
be given the name decree. But, this decree is not for the purpose of making the
grant legally valid (dānasiddhyartham), because its validity occurs only through
the act of acceptance. Rather, it is for the purpose of making the grant permanent,
as the unending rewards promised depend on its permanence (sthiratva).47 For,
similarly,
For as long as his radiant fame outshines all heaven and earth shall the
doer of good dwell at the foot of the divine.48
With exactly the same intention, Yājñavalkya too states:
[129] He shall have a permanent49 decree bearing his signature and
the time executed.
Bearing the time means describing the gift or other grant specified by a particu
lar year, etc. Similarly, Vyāsa also:
The donor should write “I approve” in plain letters. It should also be
marked with the year, month, fortnight, day, and with the royal seal.
Following this procedure, he should write the document called a royal
decree.
of more than one script in documents is unstudied, to my knowledge. Cox (“Scribe and
Script,” 17–22) discusses the strategic use of the nonlocal Nāgarí� script in several royal
charters of the western Cālukyas in the eleventh century, though without the use of two or
more scripts in any single inscription.
47 Devaṇṇabhaṭṭa seems to intend here that only an irrevocable grant of unending
duration produces the everlasting spiritual merit desired by the donor.
48 Devaṇṇabhaṭṭa emphasizes the effect of the correlative tāvat, “to this extent,” in this
verse to connect it with the issue of a grant’s permanence. He implies that a king’s merit lasts
only as long as he continues to make gifts and protect them.
49 The word sthira, “permanent, fixed,” and its derivatives are used several times in this
section. It seems to refer, in the first place, to a longlasting material form: that a grant should
be written on a permanent or durable substance, such as copper or stone. The permanence
of a gift’s religious reward is thus said to depend on its material permanence.
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1b. Verdicts
And, similarly, the same author proceeds to define the verdict (jayapatra).
After he himself conducts legal procedures or has been briefed by the chief
judge, the king should then give a verdict for the information of others.
If one asks, to whom it should be given, he himself states:
A successful litigant is one who uses evidence to prove himself the
owner of moveable or immoveable property in the face of a doubt
raised by an accusation about a portion of it. The king should confer
upon him a definitive verdict.
Bṛhaspati, also:
When a king confers upon a successful litigant a document that ends
with the decision and incorporates the plaint, reply, and evidence, that
is called a verdict.
Incorporates the plaint, reply, and evidence is for the purpose of providing a
summary of the proceedings, because the same author also states:
What occurs in a legal procedure—the plaint and reply, as well as the
evidence and decision—all of this should be written in a verdict.
Vyāsa, also:
The plaint, the reply, the proof-stage, the adducing of evidence, the
testing of it, [130] the depositions, the traditional texts, and the determination according to the assessors (sabhya)—all of this should be
summarily written down in a verdict.
Proof-stage refers to the phase for assigning the burden of proof also known as
the determination of the burden of proof. Depositions means the testimony of
witnesses. According to the assessors means without contravening the asses
sors. Summarily, briefly. Kātyāyana, also:
The statements of the claimant and respondent, the plaint, the witnesses’ statement, and the decision that he has himself determined—
this should be successively entered letter by letter on a document.
The same author elaborates what is meant by successively.
First, the statements of the plaintiff and defendant should be entered.
Then, on the same document, he should have written the determina-
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tions of the assessors, the chief judge, or, beyond these, of the families,50
as well as of the traditional legal treatises,51 and the line of thought.
The line of thought, of the king and the others—that completes the sense. The
writing of this line of thought, however, is to be done by one’s own hand, because
the author had just previously enjoined the writing of a judgment in another’s
hand in the phrase above that he has himself determined. Following this, the
same author states:
A litigant should be awarded with the amount proven in law and the
king should, with the appropriate courtesies, give him a document containing his signature. The assessors knowledgeable in the traditions
and treatises who were present for the case should likewise be required
to provide their signatures, in accordance with the rules for documents.
The meaning is: In the case of verdicts, the king should require the judges to pro
vide their signatures, as if it were a popular document.52 Vṛddhavasiṣṭha, also:
[131] When a case has been won, the winning party should be given
a verdict marked in the hand of the chief judge and other judges and
sealed with the royal seal.
Kātyāyana calls this kind of verdict by the name conclusivedocument (paścātkāra):
The wise know a document created according to this procedural rule
as a conclusive-document.
But this conclusive-document is given only in a special type of judicial decision
and not in every case, as the same author states:
A conclusive-document is given in a case where one party meets the
burden of proof by means of evidence itself, but this is not prescribed
for all cases.
50 Kulānām seems to refer to cases in which the court of jurisdiction is an extended family
or kula. See Yājñavalkya 2.30.
51 These are the Dharmaśāstra texts themselves, the smṛtis. Unlike most legal writing,
the few extant verdicts or victorydocuments we have do in fact cite relevant Dharmaśāstra
rules.
52 Jānapadalekhyavat, “as if it were a popular document,” is an important simile that
emphasizes the distinction to be made between most types of royal document and ordinary
documents in other contexts. Jayapatras, however, resemble the daytoday documents
described below in their specifically judicial and evidentiary use in courts and in their use
of signatures.
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Burden of proof means what is to be proven. By saying by means of evidence
itself, he intends to say that a conclusivedocument is given only in a legal proce
dure with all four phases, not in a proceeding with just two phases. And Bṛhaspati
makes this clear:
In a legal victory, one should prove the matter to be proven through all
four phases of the trial. And, a verdict including the royal seal is then
required.
In a twophase proceeding, a verdict consisting of the plaint and reply is still given,
and it is only the label “conclusivedocument” that is prohibited as it would not
reflect an accurate summary in this case. The same author describes yet another
verdict.
A verdict complete with a full account of the proceedings is to be given
to those other than the five types of losing parties, starting with the
one who changes his plea.53
Those other means the party that did not lose.54
1c. Orders
Both the order and the instructiondocument have been explained by Vasiṣṭha.
A document that instructs vassal kings, retainers, or regional governors and the like about what to do is called an order.
1d. instruction-documents
[132] A document that informs a sacrificial priest, a family priest, a
teacher, a religious dignitary, or other honorable person about what to
do is an instruction-document.
53 The Laws of Nārada (Mā 2.33) lists these five types of defeated litigants: “There are five
kinds of losers: one who changes his plea, one who shows contempt for the proceedings,
one who does not appear, one who does not reply, and one who absconds when he has been
summoned” (Nāradasmrti, 460). See also Mitākṣarā on Yājñavalkya 2.6.
54 Read ahīnavādinām for hīnavādinām. See Dharmakośa 1.366.
1e. Documents of Gratitude
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Bṛhaspati describes yet another type of royal document called the document of
gratitude.
When a king, being pleased with someone’s service, valor, and so forth,
grants in writing a locality or the like, that is a document of gratitude.
Therefore, royal documents are of five types; one should understand the earlier
statement by Vasiṣṭha that they are of four types as stated carelessly.
2. Popular documents
Now, Vyāsa defines the popular.
A scribe in a well-known location should write popular documents,
incorporating the order of the king’s lineage along with the year,
month, fortnight, and time.
Incorporating is to be read also with list beginning with the word year. Time,
day. The same author states what else should be required in a document.
He should write the name and caste of the creditor and debtor,55 as
well as the names of their fathers and ancestors, along with the extent
and the classification of the property and the interest agreed upon by
both parties.
Agreed upon by both is a specification that also modifies both of the words property and interest. Relatedly, Yājñavalkya:
In regard to any matter concluded willingly and mutually, a document
should be drawn up containing the witnesses, preceded by the creditor.
Containing the witnesses means including the names of impartial people knowl
edgeable about the matter concluded. Similarly, insofar as what is to be written
with respect to the time, creditor, debtor, witnesses, and so forth possesses legal
validity for its specific arrangement through specific details, a document should
be drawn up that provides those details. Thus, the same author says:
A document should indicate the year, month, fortnight, day, name,
caste, common kinship-lineage, common Vedic school, and one’s own
father’s name, etc.
55 From the outset, we see that the prototypical “popular” document is a contract of loan,
mortgage, or other interestbearing financial instrument that creates a legal debt.
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[133] Common Vedic school refers to the secondary name given to a branch of
Vedic recitation such as the Bahvṛca or Kaṭha.56 One’s own father’s name indi
cates the father’s name of the creditor, debtor, and witnesses. The word etc. should
be understood to mean that the inclusion of, for example, the day of the week and
similar details should follow local standards. In this connection, Vyāsa:
In accordance with local law, the document (kriyā) should clearly note
the actions taken, what is mortgaged, and what is received.
In accordance with local law means the legal instrument (karaṇa) should follow
local law.57 What is mortgaged is the mortgaged property. Nārada, also:
A document including the witnesses should be made, in which neither the order nor the letters are broken, that follows the standards
required by local law, and that is complete with respect to all required
elements.
Vasiṣṭha, also:
One should enter the time, the king, the locale, the residence, the
names of the donor and recipient, as well as the names of their fathers,
the caste, the kinship-lineage, the Vedic branch, the property, the mortgage, including the amount, the interest, the signature of the recipient,
and two witnesses who know the transaction.
Yājñavalkya states the manner in which the recipient should enter a signature.
When a transaction has been concluded, the debtor should enter his
name in his own hand, “I, the son of so-and-so, affirm all that is written
here above.”
By saying written above, he shows that the section of letters in one’s own hand
comes below the section of letters written previously. Debtor is intended to also
indicate the witnesses. Thus, the same author:
And, an even number of witnesses should write their names preceded
by the names of their fathers in their own hand, “I, so-and-so, am a
witness to this.”
56 Branches (śākhā) of the Ṛgveda and Yajurveda, respectively. Indian inscriptions
regularly record the Vedic affiliations of the Brahmins when they receive grants and gifts.
57 The sense is that the form of the legal instrument should include details as dictated
and expected by local custom, even if those deviate from the specific lists given in the texts.
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[134] In documents requiring that the witnesses be written down, they too should
each write, “I, so-and-so, son of soandso, am a witness to this transaction.”
And, they should be enumerated in an even number, such as two, etc. The mean
ing is that the enumeration should not be in an odd number such as three, etc.
Some read the restriction about the number of witnesses contrarily by assuming
that the negative prefix “a” has been elided.58 One should understand the rule
to conform to the law as observed in a particular locality, and not elsewhere, for
this might lead to doing as one pleases. The plural form witnesses refers to docu
ments that record a very important matter,59 because we have the statement of
Hārí�ta that there should be just two witnesses in an ordinary document:
A document should be made that includes the combination of each
of the following: the creditor and debtor, the two witnesses, and the
scribe—and not otherwise.
Thus, because a document written by another involves five people, namely the
creditor, debtor, two witnesses, and scribe, its common designation among people
is the “fiver” document. Where the number of witnesses required is more, how
ever, that designation is considered secondary.60 With reference to the ordinary
document, Vyāsa also states:
It should be in the debtor’s hand, including the names of the two witnesses and of their fathers.
From this, we can see that the restriction that documents should have an even
number of witnesses should be followed in a way that does not conflict with local
law. But, Nārada explains what to do when a witness or debtor is illiterate.
58 The text reads te samāḥ, “they being even (in number).” The contrary view, plausible
due to simple scribal elision in manuscripts, would read te ‘samāh (that is, te a-samāḥ), “they
being odd (in number).” Two opinions are thus recorded as to whether witnesses should be
even or odd in number. Unless an independent criterion is established, there is no way to
determine which reading is correct. Therefore, Devaṇṇabhaṭṭa insists that local customary
law should control the required number of witnesses. This allows both contradictory
readings of the rule to be possible and yet still binding in practice.
59 In Sanskrit, “plural” must mean at least three, according to the simple grammatical
existence of the dual number, but it might also mean exactly three according to the Mí�māṃsā
maxim of the kapiñjala-nyāya: see Laukikanyāyāñjali, 29–30.
60 If a locality requires more than two witnesses, then the label “fiver” (pañcārūḍha,
literally, “ascended by five”), in which only two witnesses appear, becomes “secondary”
(gauṇa), perhaps a “secondary alternative.”
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An illiterate debtor should have his attestation written for him, and
an illiterate witness should have it written by another witness in the
presence of all the witnesses.
A person who knows only a foreign script should also write for himself because he
is literate, [135] as the statement of Kātyāyana maintains:
Written scripts from all localities may be entered on a document.
Yājñavalkya explains what happens immediately after the witnesses have written
their signatures.
Finally, at the end, the scribe should write, “As requested by both parties, I, so-and-so, the son of so-and-so, have written this.
Vyāsa, also:
At the end, the scribe should write his own name in his own hand attesting, “I, so-and-so, the son of so-and-so, being asked by both parties.”
Thus, Vyāsa has laid down the rule in regard to popular documents.
At the end of the document, which completes the sense.
2a. Types of popular Document
The same author then states that the documents thus described are of eight types.
The eight types of common document are as follows: basic (cīraka),61
self-written (svahasta), acknowledgement (upagata), mortgage (ādhi),
purchase (kraya), local convention (sthiti), reconciliation (saṃdhi),
and purification (viśuddhi).
In this context, the precise number is not the point intended, because other docu
ments such as the partition deed also fall in the common category. The maker of
the Collection now defines the basic.
Basic is the name for what is written by the elder scribes of a town,
selected by the parties involved, and praised as the best around. It
61 The precise meaning of cīraka, or ciraka, here is uncertain. It is mentioned at
Yājñavalkya 2.22 as one of two major categories of writing, with śāsana, or decree, being
the other. It may refer to a particular style of writing that was used for ordinary documents
which employed “strokes” (cīra) or produced documents that resemble rags or tattered
cloth, the usual denotation for cīra. I have opted for a neutral translation that tries to indicate
the ordinary character discernible from the context.
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should bear all the respective personal names of the two parties and
of the witnesses, preceded by the names of their fathers, and others,
as well as the signatures of the initiating party and the witnesses.
It should be clear and understandable with all the characteristics
required according to the traditional texts.
Praised, celebrated. Now, Kātyāyana defines the selfwritten.
[136] A document written by the recipient in his own hand, but lacking
any witness, is known as a self-written document. The wise accept it as
legal evidence.
Similarly, a document written by the donor but acknowledged by the recipient is
known as an acknowledgement. Nārada describes the mortgage deed.
When a creditor receives property as a mortgage and lends his own
money in return, the document made in this case is called a mortgage
deed.
Prajāpati states a specific rule relating to a submortgage.
If a creditor contracts a higher mortgage with that same money, he
should draw up a document for the new mortgage and provide both
the new and the original to the first mortgagor. 62
Pitāmaha defines the purchase deed.
When particular property is purchased, what is executed for the sake
of publicizing the purchase as approved by the buyer and known to the
seller is known as a purchase deed.
Kātyāyana has defined the deed of local convention (sthitipatra).
A convention may belong to a group of knowers of the four Vedas, a
town, a guild, a corporate group, or a group of citizens. A document
intended to legally effect that convention should be known as a deed
of local convention. [When an accusation is leveled before an assembly
of dignitaries, the document giving a legal summary of what happened
62 Although not fully clear, the rule seems to apply to two scenarios: a mortgage to the
same mortgagor in which the terms have been renegotiated or that has been refinanced; or
a mortgage to a new mortgagor in which the terms are more advantageous to the creditor.
In either case, both the mortgage deed with the original terms and the new mortgage deed
should be given to the first mortgagor, presumably to avoid confusion or conflict around the
continuing terms of the new mortgage.
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is known as a document of reconciliation. When the reconciliation
has been reached, the document is called a reconciliation.]63 When an
accusation has been settled by persons performing a ritual penance,
the document containing the witnesses to it is known to them as the
document of purification.
Bṛhaspati also declares the division of documenttypes.
Common documents are of seven types: partition, gift, sale, mortgage,
local convention, slavery, debt, etc. Royal decrees are of three types.
Here, again, the precise number is not the point, because he also illustrates addi
tional documents beyond these. [137] He uses the word etc. for this very reason.
Otherwise, because by simple counting the fact that seven are enumerated, the use
of the word etc. would become pointless. By this fact, we know that the mention of
a certain number of documents is for the purpose of limitation. As a result, there
is no contradiction between rules that give variant numbers. The same author
himself explains documents of partition, and so on.
When brothers who have willingly and mutually divided their inheritance make a document of the division, it is called a document of partition. The document made when land is gifted to a worthy recipient for
as long as the moon and sun last and which is never to be divided or
seized is known as a gift deed. When one buys a house, field, or something similar, the document made furnishing in writing the original
payment price is called a purchase deed. When one gives moveable or
immoveable property as collateral for a loan, the document one makes
indicating whether the mortgage is custodial or usufructuary is called
a mortgage deed. When a village or locality makes a mutual agreement
for a purpose of the Law and it does not contravene the king, they call
that a document of convention. What is written down in a desolate
place when someone who lacks clothing or food says, “I shall perform
work for you,” is called a deed of servitude. When one receives money
on loan at interest and either makes or has made a document with the
terms for repayment, the wise call this a document of debt.
Kātyāyana describes yet another common document.
When a dispute over a boundary has been legally resolved, a boundary
deed is prescribed.
63 The bracketed verses do not appear in the printed edition of Srinivasacharya but are
found in the Dharmakośa and complete the description of different documents.
[138] Yājñavalkya, also:
TOward a hisTOry OF dOcUMenTs in Medieval india
When one has paid off a debt, one should either tear up the original
document or have another made attesting to the acquittance.
2b. The Utility of popular Documents
Marí�ci states the usefulness of documents.
When selling or mortgaging immoveable property, partitioning inheritance, and making a gift, one should both secure its legal validity and
prevent any dispute about it by means of a document.
Mortgaging, a mortgage. The first occurrence of the word and refers to the whole
range of such transactions concluded, such as debts and so on. Prevent any
dispute means that even at some later time, what happened with regard to the
concluded transaction cannot be claimed to be otherwise. Thus, having consid
ered the legal validity secured through preventing disputes about the immove
able property, and so forth, one should determine what to include and what to
remove among the various elements to be written—the royal lineage, the year, and
so on—because these serve a visible purpose.64 As a result, it is not necessary to
write the name of the creditor or debtor in a gift deed, or the like, nor even what
is received, and so forth in a document of debt, or similar contract. Moreover, even
in other types of document, what should actually be written down is a matter for
modification (ūhanīya) because the whole point of documents is to accomplish a
practical, worldly goal. Therefore, when a document, the terms of which have not
yet been fulfilled, becomes incapable of use or is destroyed, another document
must be drawn up. For this very reason, Yājñavalkya states:
When a document is located in a faraway place, has been poorly
inscribed, destroyed, effaced, stolen, ripped, burnt, or cut, another
should be created to replace it.
64 Following Indian hermeneutical principles, the Dharmaśāstra tradition draws a
distinction between properly dharmic actions that have no visible purpose (adṛṣṭārtha) and
essentially mundane acts that function to accomplish some visible purpose (dṛṣṭārtha) in
the world itself. The author here classifies almost everything discussed in this section under
the heading of “visible purpose.” The point for Devaṇṇabhaṭṭa is clearly the freedom afforded
by the possibility to rationally decide which elements should be required in a document,
since those are not subject to the unalterable obligation imposed by actions done for unseen,
transcendental purposes.
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dOnald r. davis, Jr
Located in a faraway place indicates a place from which it is utterly impossi
ble to retrieve. Poorly inscribed65 refers to handwriting that is unintelligible.
Ripped, in two parts. Cut means torn apart. Kātyāyana, also:
A document that is damaged by filth, burnt, perforated, or misplaced,
or erased through perspiration should be replaced by another.
Misplaced, lost. Erased, effaced. As to what Nārada has stated:
When a document is located in a faraway place, ripped, poorly written,
or stolen, [139] then, if the document still exists, one should allow a
delay. If it no longer exists, then one should rely on the testimony of
those who have seen it.
This refers to a situation in which the debtor is prepared to repay the owed amount
right away. In this case, there is no point in making another document. Allow a
delay for the purpose of producing it: that is, fixing an allotment of time sufficient
to produce the document. The testimony of those who have seen it is what can
be made known by the witnesses to the transaction recorded in the document as
it would be available in the document itself, meaning specifically what is supposed
to be done about the repayment of the money. This, of course, should also be done,
even when a document is impossible to tear up, so that witnesses may discharge
their obligation to witness. And, a settlement deed should be received in order to
publicize the repayment. One should only create a new document when there is
money still to be repaid at a later time. For this reason, the same author states:
A new document should be made if a document is ripped, cut, stolen,
effaced, burnt, or poorly written. This is the traditional rule for documents.
Concluding Observations
The foregoing translation confirms several points of legal encounter between
scholastic writing and unwritten regional laws in medieval India.66 First, royal or
65 Durlekhya can also, and perhaps more commonly, signify a forgery. See the same in the
Nārada verses below. On forgery in Indian inscriptions, see, most recently, Salomon, “Fine
Art of Forgery.”
66 Very recently, Lubin, “Writing and the Recognition of Customary Law,” has analyzed
the function of writing in several new epigraphical sources in relation to the Sanskrit texts.
His nuanced study of varying legal purposes for written materials is a model of the kind of
history that is possible for India.
TOward a hisTOry OF dOcUMenTs in Medieval india
state documents differed functionally and conceptually from ordinary documents.
Royal decrees, orders, instructions, and judicial verdicts depend on the imprima
tur of the king or an official acting in his name. The only material guarantee that
matters is his seal and signature. Such writing is a political act. By contrast, the
requirement of signatures by witnesses, assessors, and judges in verdicts signals
that signing is a legal act. Ordinary documents, too, require signatures and/or
witnesses in a way that confirms their legality. On this point, we have two modes
of practical writing distinguished through legal categories. When we find royal
inscriptions that contain lists of signatures, therefore, we are obliged to rethink
the scholastic categories and to what extent, whether, and how they may help us
understand the inscriptions.67
A second prominent emphasis in the translation is the recurrence of require
ments to consider and follow local or regional law. More than ten invocations of
local law in the discussion indicate that the specified legal requirements for docu
ments had to yield to local expectations. Even royal writings were required to use
a local script as a way to further their acceptance. In the case of popular docu
ments, local law is constantly called upon to fill in any gaps or clarify ambigui
ties in the textual laws. Signatures can and should be written in whatever script is
known to the transacting parties. Scribes should employ ordinary local language
in conveying the details of the contract. And, most importantly, the precise ele
ments required to make a document legal depend more on local standards than
on the several lists given in the texts. Here, the texts nevertheless give a reliable
impression of the kinds of details we actually find in both royal and popular docu
ments, but Devaṇṇabhaṭṭa gives the strong impression that what counted legally
were the expectations of local people, what local law required. The scholastic
legal texts acknowledge a lawmaking power outside of themselves, even as they
attempt to codify norms that undoubtedly influenced local legal expectations.
Finally, in several places, the discussion highlights aspects of the material
form of writing that were considered critical, even essential, to its legality. Simple
requirements of legibility and continuity (that is, clear, legible handwriting and
unbroken text) obviously serve to thwart forgery and fraudulent manipulation of
both royal and ordinary documents. However, the discussion also suggests that
more than textual integrity is at stake in the repeated insistence on clean, continu
ous writing. Writing is the material extension of the persons writing and transact
ing and witnessing. Its form, therefore, is bound up with their personalities and
the transaction itself. A sloppy, broken, torn, or otherwise damaged or shoddy
document portends problems, legally and morally. The text thus insists that great
67 Davis, “LawStuff: Content and Materiality.”
193
194
dOnald r. davis, Jr
care be taken in the preparation of documents. That care invests the writing with
the seriousness and good intention of the parties involved, thus achieving a con
gruence of form and content.
With these points in mind, our interpretation of the huge corpus of documents
from medieval India described above can begin from a contemporaneous set of
legal categories and generalizations. The contextual meaning of such documents
should start from what others at the time thought of them. Their significance does
not end there, but the interplay of scholastic legal discourse and regional docu
mentary practices demands that we consider both together.
In sum, contrary to the usual lamentations about lack of evidence (I myself
have often cried loudest), sources for a legal history of medieval India do exist in
great abundance, so great that they exceed the capacity of any individual to study
them all. What they seem not to provide, however, is the legal history that we want
to write, because there is very little familiar intrigue or entertaining conflict of the
courtroom variety in a hundred thousand land tenure documents or in a statisti
cal analysis of interest rates on mortgages or in ten thousand more endowments
of perpetual lamps for temples. What we need—what I want—is more informa
tion about dispute resolution through legal channels. But, this information we
will not find in any great measure. We are left, therefore, with the possibilities
of writing a different type of legal history. One could approach the economic his
tory of medieval India with law in mind by drawing conclusions from the aggrega
tion of documentary data about taxation, interest rates, endowment sizes, and/
or corporate and domestic production for a specific place and time.68 More in line
with my argument here, however, would be histories of law that draw upon both
documents and correlative textual and epigraphic sources, especially sources like
dharmaśāstra that are centrally concerned with law. Names, dates, and details are
necessary for any history, and this alone requires us to work from historical legal
documents first, but our understanding must be shaped by the legal encounter
with the textual tradition of dharmaśāstra which, if nothing else, represents an
Indian effort to systematize the rules and categories of law. The prestige and lon
gevity of that tradition demands our attention. An abundance of ripe fruit awaits
scholars willing explore the encounter of text and practice in the law of medieval
India; we just need more laborers in the field to pick it.
68 Excellent studies of some of these issues already exist, but none focuses on the question
of law or legal encounter. The call of this essay asks for more work that addresses the
history of law in India in a direct way. See, for example, Sinopoli, Political Economy of Craft
Production; Chattopadhyaya, Studying Early India; Heitzman, Gifts of Power.
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Donald R. Davis, Jr. (drdj@austin.utexas.edu) is Associate Professor of Sanskrit
and Indian Religions in the Department of Asian Studies at the University of Texas
at Austin. His research focuses on the history of law and religion in medieval
India, especially the tradition known as Hindu law. His major publications include
The Boundaries of Hindu Law: Tradition, Custom, and Politics in Medieval Kerala
(CESMEO, 2004) and The Spirit of Hindu Law (Cambridge University Press, 2010).
Abstract In order to understand the legal use and significance of documents in
medieval India, we need to start from the contemporaneous legal categories found
in the Sanskrit scholastic corpus called dharmaśāstra. By comparing these catego
ries with actual historical documents and inscriptions, we gain better insight into
the encounter of panIndian legal discourse in Sanskrit and regional laws in ver
nacular languages. The points of congruence and transgression in this encounter
will facilitate a nuanced history of documents and their use beyond unhelpfully
broad categories of written and oral. A new translation of one major scholastic
discussion of documents is presented as a way to raise issues relevant to any his
torical description of the legal encounter text and practice.
Keywords documents, India, Hindu law, dharmaśāstra, scholasticism.
CHINESE PORCELAIN AND THE MATERIAL
TAxONOMIES OF MEDIEVAL RABBINIC LAw:
ENCOUNTERS wITH DISRUPTIVE
SUBSTANCES IN TwELFTH-CENTURy yEMEN
ELIZABETH LAMBOURN and PHILLIP ACKERMAN-LIEBERMAN
legal TexTs are
increasingly proving to be valuable sources for the study
of the material culture of the medieval Middle East and the Islamicate world more
broadly. Innovative monographs (such as Leor Halevi’s Muhammad’s Grave: Death
Rites and the Making of Islamic Society) and articles (such as Tziona Grossmark’s
study of glass within Jewish law and Ruba Kana’an’s use of Islamic legal sources in
the interpretation of medieval metalwork production) exemplify the new perspec
tives that emerge from the dialogue between legal texts and material things.1 As
Don Davis proposes in this issue, we can see the “story of law” as “the formation of
endless practical legal arrangements, the creation of rules and categories to tame
them, and the subsequent mutual development of (and tension between) both
as an ongoing encounter.”2 Hence, the objects of material culture offer us a new
opportunity to explore the encounter between the theory and the praxis of law.
Nevertheless, the slow pace at which legal corpora are being integrated into the
study of material culture is a symptom of the complexity of these sources and the
fundamentally interdisciplinary and collaborative nature of such an enterprise.3
This article focuses on a set of legal questions about ṣīnī vessels (literally, “Chi
nese” vessels) sent from the Jewish community in Aden to Fustat (Old Cairo) in the
mid1130s CE. These questions survive in a memorandum subsequently depos
ited in the socalled Cairo Geniza, a document which eventually made its way to
Cambridge University Library (see Figure 5).4
1 Finbarr Barry Flood’s forthcoming transhistorical exploration of the “prohibition of
images” (Bilderverbot) as a perceived characteristic of Islamic cultures also innovatively
integrates legal sources into this debate (the study’s working title is Islam and Image:
Polemics, Theology, and Modernity). Ḥisba manuals (compilations of marketplace rules) are
exceptionally rich, if complex to interpret.
2 Davis, “Toward a History of Documents,” 169–70.
3 Ghabin’s Ḥisba: Arts and Craft in Islam illustrates the problems of interpreting terms
and technologies described in ḥisba texts without a very sharply defined geographical,
historical, and material context.
4 Goitein and Friedman, India Traders, 387, lines 5–12. In Goitein’s classification, the letter
is designated as document II, 33–34, and is composed of two surviving fragments, TS 8J37.1
200
eliZaBeTh laMBOUrn and PhilliP acKerManlieBerMan
While ṣīnī vessels are listed in various Geniza inventories and wills, this is the
only known discussion of the materiality of ṣīnī to occur in any Geniza document,
and also the earliest dated and localized query about these vessels’ status with
respect to Jewish law of vessels used for food consumption.5 Although opaque at
first reading, our analysis of these queries will suggest that their phrasing and tim
ing can be linked to the contemporaneous appearance, in the Yemen, of a new type
of Chinese ceramic material: in effect, an early true “porcelain.”6 Although various
types of Chinese ceramic had been entering the Middle East since the first half
of the ninth century, sometimes in huge quantities, this particular ceramic fabric
presented Jewish scholars and householders at the port of Aden with a perplexing
problem, since its properties confounded their expectations of how a ceramic fab
ric should look, feel, and behave. In particular, the notable translucency of these
early porcelains raised issues of purity (ṭahora) and uncleanness (ṭuma) that were
fundamental to proper Jewish ritual observance: concepts that were structured by
complex material taxonomies. By confounding and destabilizing these taxonomies,
and TS Ar. 5.2; for the English translation of the full letter with footnotes and commentary,
see Ibid., 377–89. The Hebrew edition of the letter includes the full transcription of the
JudaeoArabic original and can be found in Goitein and Friedman, Maḍmūn ha-Nagid, 234–48
(for the JudaeoArabic transcription of this passage see page 239, lines 5–12). The document
is also reproduced, with the text of the JudaeoArabic original and a Hebrew translation, in
Goitein and Friedman, Ḥalfon ha-soḥer, 119–25.
5 See various references to ṣīnī in Goitein’s Mediterranean Society (given in the cumulative
indexes in volume 6 under “porcelain” and “ṣīnī”). To date, we have only been able to identify
possible evidence for one earlier discussion of ṣīnī vessels: see below, n. 7.
6 A European invention of the fourteenth century, the term “porcelain” bears no
relationship to emic Chinese ceramic categories; however, it is commonly used even by
specialists of Chinese ceramics to refer to highfired ceramics with exceptionally hard,
vitreous bodies: this is the sense of the term employed here. Regina Krahl notes that “in the
West, the term ‘porcelain’ is reserved for ceramics that are white, translucent and resonant
and are fired at temperatures above 1,300 degrees Celsius,” whereas in China there was no
distinction made between these fabrics and socalled stonewares, ceramics that can lack
these characteristics and are only fired above 1,200 degrees Celsius. As she observes, “in
practice there is no distinct dividing line between the two but a smooth transition, and the
difference is not necessarily apparent to the naked eye” (Krahl, “White Wares of Northern
China,” 202). The term “porcellaneous” is often used to reflect this complexity. Technically
speaking, the earliest porcelains were produced in China in Henan, at the Gongxian kilns,
in the seventh century; while Jingdezhen in the south began producing early porcelains in
the late Tang/Five Dynasties period (907–60 CE): see Needham, Kerr, and Wood, Science
and Civilization in China, 151–53 and 216–19; see also Pierson, “Industrial Ceramics in
China,” 62. In the Middle East, Chinese ceramics quickly became known simply as ṣīnī, a term
that translates more accurately as “chinaware,” since it came to designate any Far Eastern
ceramic, or indeed any of its Middle Eastern imitations.
chinese POrcelain and The MaTerial TaxOnOMies OF Medieval raBBinic law
Figure 5. Page from the memorandum written by Maḍmūn b. Ḥasan Japheth
(Aden, ca. 1135), showing the postscriptum query about ṣīnī vessels.
Cambridge University Library, T-S 8J37.1, fol. 2r.
Reproduced with permission of the Syndics of Cambridge University Library.
201
202
eliZaBeTh laMBOUrn and PhilliP acKerManlieBerMan
Chinese porcelain became a disruptive substance. Marshalling evidence from con
temporary Jewish legal compendia and other writings produced in this milieu, our
discussion substantially advances some interpretive angles first suggested by S.
D. Goitein and Mordechai A. Friedman. We examine the efforts of Adeni Jews to
place this Chinese ceramic fabric among already legislated substances, notably the
“neighboring” substances of glass and earthenware, in order to derive clear rules
for the proper use and purification of vessels manufactured from it. Indeed, the
pattern of encounter and negotiation revealed here is characteristic of rabbinic
Judaism’s approach to new materials and the technologies behind them, and has
a long history running from the popularization of glass vessels in the early first
millennium CE through to the modernday entry of plastics into the kosher home.
And yet the specific material culture of Judaism has received comparatively little
attention from scholars, so one of the aims of this article is to highlight the unique
and rich potential of this field.
Only eight lines long, the query on which we focus amounts to an aside in a
much longer memorandum; it might even be described as an afterthought, a post
scriptum, since it occupies the last lines of this eightyeightline document. Nev
ertheless, this passage is arguably one of the longest and most complex medita
tions on the material culture of the region. It yields important new data on the
reception of Chinese ceramics in the Middle East, and it adds to a painfully small
corpus of texts documenting the early discursive history of this reception, opening
new perspectives on their taxonomic integration with the varied material cultures
of the region. Even the timing of this query—posed in the 1130s, three centuries
after the largescale importation of Chinese ceramics began in the region—contrib
utes new textual evidence for the chronology of exchanges between the Middle
East and China. Moreover, this passage is also a significant new source for Jewish
legal history. While Tziona Grossmark’s innovative work on glass is beginning to
sketch out the wider processes through which rabbinic Judaism accommodated
new materials, the history of the encounters that produced these new materials
is largely unwritten. The questions examined here represent the earliest evidence
for the debate within Judaism about the ritual implications of Chinese ceramic
fabrics, and thus the beginning of a process of encounter and accommodation.
Hitherto, the debate about porcelain has been traced to the much later rulings
about Chinese porcelain given by rabbis from the sixteenth century onwards, fil
tered through the lens of subsequent Jewish jurists the world over. The survival
of these questions in a letter, rather than in a legal text, suggests that they should
be seen as fresh evidence for the newly contested status of Chinese ceramics in a
ritually observant Jewish environment rather than the remnant of a longstanding
debate within Jewish law. Addressing the interdisciplinary challenges involved in
chinese POrcelain and The MaTerial TaxOnOMies OF Medieval raBBinic law
the analysis of this document, this article is coauthored by a specialist in material
culture (Lambourn) in collaboration with a specialist in Jewish law (Lieberman).
Decoding Two Questions about Ṣīnī Vessels
Sometime around 1135, a prominent Jewish merchant in Aden sent a set of very
precise questions about ṣīnī (“Chinese”) vessels to Maṣliaḥ Gaon, the head of the
Palestinian yeshiva in Fustat (Old Cairo) who held the post between 1127 and
1139.7 The merchant was Maḍmūn b. Ḥasan Japheth, the head of the Jewish
community in Aden and also a shipowner and armorer.8 The queries were not
addressed directly to the Gaon but were to be asked of him, in person, by Abū
Saʿí�d Ḥalfon haLevi b. Nethanel alDimyātí�, a business partner of Maḍmūn’s who
was returning to Egypt. Maḍmūn’s questions are preserved at the end of a lengthy
memorandum (tadhkira) he wrote to Ḥalfon haLevi. As is typical of Geniza docu
ments, the memorandum is written in JudaeoArabic, contemporary colloquial
Arabic written in Hebrew characters. Maḍmūn writes to Ḥalfon:9
Please be so kind, my lord and master, to ask our lord [Maṣliaḥ Gaon]—
may God protect him and keep him alive—about the ṣīnī vessels (‘an
al-aw‘īya al-ṣīnī), the translucent pottery vessels (al-aw‘īya al-ghaḍār
al-shaffāf), and all the ṣīnī tablewares [which are] translucent (wa-kull
al-zibādī [al-ṣīn]ī hiyya shaffāf): whether it is permissible for a menstru
ating woman (ṣāḥibat al-nida) to use them and wash them [or] whether
they will then be ritually unclean (im tiṭame [Hebrew]). Furthermore,
[ask about] a ṣīnī jar (al-barnīya al-ṣīnī) which is [glazed]10 outside and
inside (al-mu[kallas]a min barra wa bāṭin): if something should fall into
it (idhā waqa‘a fī-hā shayy), [whether] that will render it unfit ([hal ya]
c
īthu)11 or if it is permissible to wash it and it will be fit for use. Please be
7 Dates of office given in Goitein and Friedman, India Traders, 379. Goitein bases his
dating of the memorandum on the fact that Ḥalfon haLevi is known to have been in Aden in
1134; however, Friedman adds a more cautious comment, suggesting tentatively that it be
dated around 1135 (see 379).
8 For Maḍmūn’s biography, see Goitein and Friedman, India Traders, 37–47.
9 English translation from Goitein and Friedman, India Traders, 387, lines 5–12; for the full
JudaeoArabic transcription and Hebrew translation, see Goitein and Friedman, Maḍmūn
ha-Nagid, 239, lines 5–12.
10 As Goitein and Friedman indicate in their footnote (India Traders, 387 n. 54) the reading
mukallasa or “glazed” is suggested on the basis of the surviving initial letter mem and the
final he, and was suggested by Paul Kahle in correspondence with Goitein back in the 1950s.
11 This section of the memorandum is heavily damaged and the restitution of the missing
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eliZaBeTh laMBOUrn and PhilliP acKerManlieBerMan
so kind as to obtain for me from [our lord an answer] in this matter, so
that we may act accordingly.”
It is no accident that these very particular queries were sent with Ḥalfon haLevi
on this particular journey: the memorandum makes it clear that he was trans
porting a substantial load of presents for family members of Maḍmūn’s in Fustat,
as well as for various members of the Palestinian yeshiva there. In particular,
he had been charged with delivering a rather generous batch of presents to the
Gaon, Maṣliaḥ haKohen, alone. Ḥalfon carried six satchels containing over five
kilograms of Southeast Asian aromatic woods and spices, one hundred k’b sh’t
ṣīnī (an as yet unidentified Chinese commodity), two South Indian mandīls or ker
chiefs, together with a small basket containing “a dast [set] of ṣīnī bowls (aqdāḥ),12
numbering six bowls.”13 The dispatch of these presents belongs within a complex
and longdrawn out competition between centers of Jewish learning in Iraq and
Egypt—the socalled Babylonian and Palestinian academies or yeshivas—for the
loyalty of Yemeni Jews, and more practically for their donations. Ḥalfon played
a major part in supporting Maṣliaḥ’s authority in Yemen, and these gifts are evi
dently connected to this religiopolitical struggle. Since the authority of an acad
emy was instantiated first and foremost through its role in answering legal que
ries and resolving community matters, the act of asking these questions can be
seen as a further expression of loyalty to the Gaon.14 The legal questions and the
gift assemblage they accompanied suggest that Maṣliaḥ was going to be able to
examine the very sort of ṣīnī vessel about which he was being asked to give his
opinion. This was not an abstract discussion of legal theory but a realworld ques
tion about the application of rabbinic law in lived practice. As Maḍmūn himself
emphasized, he wanted answers so that he could “act accordingly.”
text is still open to interpretation. Friedman was not able to make out the interrogative hal
transcribed by Goitein but agrees with the interpretation that the verb is most probably cyth:
an uncommon verb with the meaning (Form I) to spoil, ruin (s.th.), which Goitein translated
as “render it unfit” (Friedman, personal communication of October 29, 2015). Friedman
suggests the literal translation “spoil [it].”
12 The term qadaḥ (pl. aqdāḥ) is frequently translated “goblet.” However, the surviving
Chinese vessels are more frequently bowls of various sizes, without stems, the smallest
of which might be used for drinking. We therefore prefer the broader translation “bowl,”
although one might also consider “drinking cup” as an alternative.
13 Goitein and Friedman, India Traders, 383, lines 6–7; for the full list of presents see
382–83, lines 13–17 and 1–7.
14 For a discussion of Maḍmūn’s place in the struggle between the academies of Babylonia
and the Land of Israel, see Friedman, Ḥalfon ve-Yehuda ha-Levi, 114–57.
chinese POrcelain and The MaTerial TaxOnOMies OF Medieval raBBinic law
Maḍmūn’s two questions may seem obscure and even strange to those unfa
miliar with Jewish practices of purity. But as the following analysis will show, each
word was carefully chosen and the pair of questions logically constructed. Before
exploring them, it is useful to give a short summary of the principles that struc
tured Jewish ritual practice and generated a unique material taxonomy.
A foundational concern within Judaism centred on issues of purity (ṭahora)
and its corollary, impurity (ṭuma): the contamination of the pure through expo
sure to any substance which has itself contracted impurity, and the transmission
of that impurity through a variety of modes of contact. Where food and drink are
concerned, not only contact with contaminated food and drink but also contact
with blood or other bodily fluids can present a problem. The Pentateuch contains
commandments for the avoidance of certain sources of contamination when eat
ing, procreating, and worshiping God in the Temple. While a principal source of
ritual impurity is contact with a human corpse, several verses in Leviticus intro
duce other such sources: clean and unclean foods, childbirth, menstruation and
other bodily excretions, and skin ailments. Verses in the Book of Numbers also
establish the principle that a utensil can be purified by being exposed to the same
medium through which it was rendered unclean. Thus, vessels rendered unclean
from cooking on a fire would be purified with fire, others rendered unclean
through having unclean food boiled in them should themselves be boiled (Num
bers 21–23). Early rabbinic sages (tannaim) maintained the importance of the
system of purity and even extend its prohibitions to a constituency well beyond
the Temple priesthood. By the early third century CE, a considerable volume of
oral tradition and legal precedent had developed around this issue, in effect ampli
fying “the definition of what is affected by uncleanness, how uncleanness is trans
mitted, and the way in which uncleanness is removed.”15
In fact, the rabbinic system of purity views liquids as more powerful than sol
ids in communicating impurity and identifies seven liquids specifically: water,
dew, oil, wine, milk, blood, and honey. Therefore, vessels or objects that may hold
liquids play a particularly prominent role in Jewish considerations of ritual purity,
since any utensil capable of containing a liquid may be particularly vulnerable.
However, a corollary to the principles governing the transmission of impurity is
the binary notion that various materials are more or less resistant to contamina
tion. Once absorbed, impurity may be impossible to remove. Jewish authorities of
the Talmudic period (that is, ca. 200–500 CE) centered their discussions of con
tamination around the porousness of material substances. By the medieval period,
Judaism had developed a complex body of knowledge and set of practices relating
15 Encyclopedia Judaica, “Purity and Impurity, Ritual.”
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eliZaBeTh laMBOUrn and PhilliP acKerManlieBerMan
to ritual purity founded on a unique taxonomy that took into account the nature of
various material substances as well as their formal qualities.
Each of Maḍmūn’s questions thus sets up a subtly different scenario involv
ing the contamination of a certain sort of ṣīnī vessel, first bowls, and then jars.
First, Maḍmūn asks whether, if a menstruating woman touched these vessels and
rendered them unclean, the vessels might be washed to repurify them. The term
used here is “wash” (trilitteral root GHSL), suggesting a simple act of rinsing the
polluted vessels in water, as opposed to the more formal process of immersion in a
mikveh, a ritual bath. In either case, water performs a cleansing role, returning the
object to purity. However, would the touch of a menstruating woman render these
vessels permanently impure? If so, they could no longer be used and might even
need to be broken. In his comments on this letter, the great Geniza scholar S. D.
Goitein emphasizes the excessively stringent application of Jewish law which this
question assumes, noting that it was only in the Land of Israel that “attempts were
still made to observe the laws of purity and impurity as in the time of the Temple,
when menstruating women forbidden to touch household utensils.”16 “According
to normative Jewish law,” he further explains, “as formulated in the Babylonian
Talmud and later halakhic literature, there is no place for such a question, since
no utensil is rendered unclean by a menstruating woman’s touch,” although men
strual blood itself was polluting.17 Goitein notes, however, that similarly stringent
practices were observable amongst Jewish communities in both Iraq and Egypt
and, on the basis of this query, Yemen too.18 Furthermore, as noted by Mordechai
A. Friedman, the rankandfile of the Jewish community might not have been able
to determine whether the more restrictive practice was a matter of blackletter
law or whether it was simply a pious custom.19 In the latter case, given the signifi
cant financial loss incurred by breaking a precious ṣīnī vessel, it is possible that
this stringency might be relaxed.20 And yet the query does not engage with the
16 Goitein and Friedman, India Traders, 389. Also discussed in Friedman, “Harḥaqat ha
nida” (Distancing from Menstrual Impurity).
17 Goitein and Friedman, India Traders, 389. See also Friedman, Ḥalfon ve-Yehuda ha-Levi, 156.
18 Goitein, “Stern Religion.” Maḍmūn’s note and additional evidence from the Geniza for
these stringencies are discussed in Friedman, “Harḥaqat hanida,” 20; Friedman notes that
the more stringent practice of the Land of Israel was known in Yemen.
19 Friedman, “Harḥaqat hanida,” 13.
20 The Austrian authority Jacob Reischer (1661–1733) records that a group of Venetian
rabbis had permitted polluted earthenware vessels to be used after remaining unused
for only twentyfour hours, but argued that such a leniency should only be allowed in the
event of significant monetary loss: Minḥat Yaʿaqov, 85:64; cited in Walter, “Can Porcelain
Be Kashered?,” 118 n. 21. In presentday debates about the repurification of china or
chinese POrcelain and The MaTerial TaxOnOMies OF Medieval raBBinic law
question of what should become of an unusable vessel—whether it needed to be
broken or, alternatively and far more probably, whether it could be sold outside the
Jewish community with no loss of value in the eyes of other consumers. Maḍmūn’s
question belongs within a wider discussion among Middle Eastern Jewry of the
question of impurity imparted to vessels by menstruant women and recorded in
contemporary responsa from Egypt and elsewhere.21 However, Maḍmūn is the
only one to frame this question with specific regard to ṣīnī vessels, and Aden’s
dominant position in the trade of the Indian Ocean no doubt played a part in this.
Maḍmūn’s second question asks how to repurify a ṣīnī jar (barnīya) after some
“thing” has fallen into it. The halakhic literature is rife with such questions—
“Rabbi, a drop of milk fell into my chicken soup!”22 Where the first question uses
the Hebrew term tiṭma, “rendered impure,” here the vessel is described as poten
tially “unfit for use,” literally “spoiled” even “ruined.” As we have seen, all vessels
and their contents can contract impurity through contact with impure substances
or people in a state of ritual impurity. But Jewish legal material also places consid
erable focus on the material from which the vessel is made, whether the external
or internal surface of the vessel is concerned, whether the vessel itself is finished
or not, the intent of the agents involved, the relative quantities of the various con
taminating substances, and whether the act of contamination occurs deliberately.
Maḍmūn’s second question carefully engages these parameters by shifting the dis
cussion from tablewares to kitchenwares, from vessels used for eating or drinking
to vessels used for storage or cooking. Where the first question repeatedly men
tions the translucency of the vessel type discussed, this question focuses instead
on the fact that the vessel is glazed externally and internally (al-mu[kallas]a min
barra wa bāṭin);23 and where the first question emphasizes the human source of
contamination, the menstruating woman, the agent of contamination here is a
generic nonhuman “thing” (shayy).
Both of Maḍmūn’s questions indicate that contemporary Jews discussed
and reflected on the materiality of the objects in their households and did so
specifically in terms of the ritual implications of their material properties. In
porcelain dinner services, the issue of financial loss plays an important part in determining
a more lenient interpretation. In this vein, contemporary authorities such as Ovadya Yosef
(1920–2013, Israel) apply the principle of “significant monetary loss” to permit the use of
porcelain dishes on which nonkosher meat has been served (Yabiaʿ Omer, Yoreh Deʿa I:6,
nos. 16, 17, cited in Walter, “Can Porcelain be Kashered?,” 118, n. 23).
21 See the extensive discussion of these sources in Friedman, “Harḥaqat hanida.”
22 See, for example, Talmud Bavli, Pesaḥim 75b–76a, concerning permitted matter falling
into prohibited, or vice versa.
23 Note that the word al-mu[kallas]a has been restored by Goitein and Friedman.
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this instance, they were particularly interested in the materiality of ṣīnī vessels,
whether translucent bowls or glazed jars, and were concerned enough to forward
a query about this to the religious authorities in Fustat. Was this ceramic fabric
so glasslike—in its translucency, perhaps its smoothness and thinness too—that
it should in fact be categorized as glass within the rabbinic system? The intense
observation and handling of different vessels and utensils implicit in these two
questions underlines rabbinic Judaism’s unique epistemology, a relationship with
the material world forged around complex taxonomies of substances, pollutants,
purifiers, forms, and modes of contact. Mary Douglas’s now famous anthropologi
cal study of systems of ritual purity, Purity and Danger, emphasizes the important
role of such taxonomies in controlling pollutants, which were seen as “anoma
lous” and disruptive to the symbolic system.24 But Maḍmūn’s questions helpfully
underline that it is not only pollutants that threaten this order but any change to
one of its constituent material categories. By the twelfth century many elements
of this system—polluting substances, modes of contact—were already clearly
and comprehensively identified; however, any new material from which utensils
were fashioned represented a challenge. New materials, and the technologies that
allowed their manufacture, were also anomalous and disruptive of the system.
Grossmark’s examination of the processes through which glass vessels entered
rabbinic taxonomies is an important milestone in the study of this world view and
ultimately the creation of specifically Jewish materialities. Glass’s disruption of
rabbinic taxonomies is evidenced by the multiple, often contradictory categori
zations of this new material—variously likened to metal, earthenware, or even
wood, leather, and bone—issued by rabbis well into the twelfth century.25 In the
present article, it is porcelain’s highly vitrified body and glaze that was “anoma
lous,” and which threatened to destabilize established ceramic categories.
what was Maḍmūn’s Ṣīnī ?
The date of Maḍmūn’s questions, penned in Aden around 1135, will immedi
ately seem strange to historians of material culture. Chinese ceramics had been
imported to the Middle East since the first half of the ninth century,26 and Aden
24 Douglas, Purity and Danger.
25 Grossmark, “And He Decreed.”
26 There is a vast bibliography on the early history of Chinese ceramic imports to the
Middle East; for more recent publications including archaeological material, see Rougeulle,
“Les importations de céramiques chinoises,” and Hallet, “Pearl Cups.” While the majority of
early Chinese ceramic imports would still have been recognizably ceramic (if novel in their
durability, decoration, and form), a smaller number of porcellaneous or porcelainlike wares
chinese POrcelain and The MaTerial TaxOnOMies OF Medieval raBBinic law
was a key node in the Fatimid Indian Ocean trade, a port that the geographer
alMuqaddasí� had described, two centuries earlier, as “the vestibule of China”
(dihlīz al-Ṣīn).27 Although medieval Aden has never been formally excavated,
a wide variety of Chinese ceramic types have been reported as surface finds at
nearby sites28 and have been excavated from Fatimid levels at the port of Aqaba on
the very northern coast of the Red Sea where they are dated to the second half of
the tenth and eleventh centuries.29 They have also been found in large quantities
at Fatimid Fustat from the later tenth century onwards.30 Why then did Maḍmūn
need to ask these questions? Were there not earlier rulings about the ritual status
of ṣīnī vessels to turn to for guidance?
There is suggestive evidence that questions about the ritual status of ṣīnī ves
sels were asked almost as soon as early porcelains began to enter the Middle East
in the later tenth and early eleventh centuries. A sixteenthcentury discussion by
Rabbi David b. Zimra (known as Radbaz) alludes to an earlier ruling which stated
that, during Passover, ṣīnī vessels were to be treated like earthenware vessels:
that is, considered incapable of repurification. The opinion is neither dated nor
attributed to a specific authority, however Radbaz acknowledged its great age
and that it was recorded in the midst of a collection of responsa which included
some from Hai Gaon (939–1038) and other contemporary figures active in the
Jewish academies of Abbasid Iraq.31 Nevertheless, such discussions appear to
did reach the Middle East at this early period: see Guy, “Rare and Strange Goods,” who notes
that alongside the 55,000 Changsha bowls in the cargo of the Belitung wreck (an Arabian
vessel en route to China from Africa around 830 CE) were smaller consignments of two or
three hundred highend whitewares and greensplashed whitewares from northern Chinese
kilns (20).
27 alMuqaddasí�, Best Divisions for Knowledge, 83.
28 Islamicperiod Yemen is poorly surveyed while Aden, as a major port, poses numerous
archaeological challenges making it impossible to present well stratified evidence. For the
abundance of imported Chinese wares in the twelfth century, see Lane and Serjeant, “Pottery
and Glass”; King and Tonghini, Survey of the Islamic Sites; as well as broad introductions
to the archaeology of the Aden area by HardyGuilbert and Rougeulle, “Archaeological
Research” and “AlShihr.”
29 Whitcomb, “Fatimid Residence at Aqaba,” 211. For an overview of ceramic circulation in
both the Gulf and Red Sea at this period, see Rougeulle, “Golfe persique et Mer Rouge.” Zhao’s
work on Sharma provides excellent distribution maps for Chinese ceramics all along the Red
Sea coast: “La céramique chinoise.”
30 For a concise and clear summary of the sometimes confusing publications from the
Fustat excavations, with full bibliography, see Bongianino, “‘And Their Figures.’”
31 This early reference was first noted by Goitein and Friedman (India Traders, 387n54),
who deemed the source too vague to allow any conclusions to be drawn. Further perusal
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be extremely rare, and we have been unable to identify any other references to
ṣīnī earlier than Maḍmūn’s queries. The paucity of discursive evidence may well
reflect the comparative rarity of ṣīnī and runs parallel to similar patterns in the
halakhic discussion of glass. As Grossmark has shown, a delay of several centu
ries can be discerned between the first expansion in the production of glasswares
in the Middle East, in the first century CE, and the discussion of the ritual status
of glass in the fifth century. These are precisely the centuries during which glass
became more popularly available in the region and when issues of its use began
to affect Jewish households on a regular basis, finally triggering a formal schol
arly response.32 Against this background, Maḍmūn’s queries might be read as an
early sign of the popularization of Chinese ceramics in Jewish households in Aden,
and perhaps in the wider Middle East; indeed, this was the conclusion reached
by Goitein and Friedman in their edition of the memorandum.33 Unfortunately,
the absence of archaeological data for medieval Aden makes it impossible to cor
roborate this hypothesis. However, the substantial contemporary evidence for the
importation of Chinese ceramics to Egypt via the Red Sea suggests that Chinese
ceramics were in widespread use. One might also point to The Book of Gifts and
Rarities (Kitāb al-Hadāyā wa-l-Tuḥaf), a Fatimid compilation by Qadi Ibn alZubayr
(1053–71), in which ṣīnī vessels are rarely mentioned—and then only because
of some outstanding feature, such as immense size or unusual color or precious
contents, indicating that more common vessels were both ubiquitous and beneath
notice.34 The overall impression is that while Chinese wares were not everyday
objects, they had nonetheless been widely available beyond the Fatimid elite for
some time before the 1130s.35 The timing of this question therefore remains puz
zling: why the need to ask about ṣīnī now?
of the commentary shows, however, that Radbaz cites part of the earlier JudaeoArabic
responsum verbatim, although the text is corrupt in the printed edition. It is clear that the
geonic responsum is not answering Maḍmūn’s question but deals specifically with the use of
ṣīnī vessels during Passover.
32 Grossmark, “‘And He Decreed,’” 191–212.
33 Goitein and Friedman, India Traders, 389.
34 Ibn alZubayr, Kitāb al-Hadāyā wa-l-Tuḥaf, 384–85 (for example).
35 The contemporary market for, and circulation of, Chinese ceramics beyond the Middle
East is the subject of considerable debate. While Whitehouse (“Chinese Porcelain in Medieval
Europe”) points to the scarcity of finds, and François (“La porcelaine de Chine”) argues
that their absence from Byzantium and the Christian east is evidence for a fundamentally
different taste in ceramics, Milwright (in “Modest Luxuries,” 86 n. 16) notes that “stonepaste
jars were often the containers for expensive commodities such as spices, medicines, or
preserved fruit. It is clear, however, that the vessels themselves were subjects of admiration
chinese POrcelain and The MaTerial TaxOnOMies OF Medieval raBBinic law
We propose that the timing and particular angles of Maḍmūn’s inquiry can only
be explained by the presence in Aden of significant quantities of a substantially
new type of Chinese ceramic ware, a fabric that was substantially different from
previous imports and one that thus challenged established material taxonomies
and elicited new questions from its Jewish consumers. One aspect of this docu
ment’s significance is therefore its contribution to our understanding of the chro
nology of Chinese ceramic imports to the Middle East, testifying to the arrival of a
type now known as qingbai 青白, “bluishwhite,” because of the light blue tinge of
its glaze: a porcellaneous ware of a new translucency and thinness.36 Qingbai was,
as Rose Kerr states, “the material from which most later white porcelain bodies
developed. It was a white and translucent material that could be thinly potted to
create forms of extraordinary delicacy.”37 Qingbai’s exceptional qualities were due
to its china stone (petuntse) body, which was almost 50 percent quartz and high
in calcia and mica. China stone also contained kaolin “so that it produced a more
plastic body” according to Stacey Pierson.38 For export to the Middle East, qingbai
was frequently decorated with combed or incised floral designs. Finally, the qingbai vessel was glazed with a mixture of china stone mixed with crushed, burnt
limestone that produced a hard, vitrified transparent glaze. As Pierson explains,
“not surprisingly, tableware was the most important aspect of qingbai production,
and much of it was destined for frequent use. The porcelain body is ideal for mak
ing durable but light and attractive tablewares.”39
Porcelain stone was abundantly available in the Jingdezhen area of southeast
ern China, and it is here, during the later tenth century, that qingbai proper was
first developed.40 Bing Zhao notes that qingbai begins to appear regularly in Chi
nese tombs from the year 1000 onwards, and this no doubts marks the beginnings
of its wider popularity in China, even if comparatively little is understood about
in medieval European courts.”
36 Kessler (Song Blue and White Porcelain, 348–54) has argued that the term actually
refers to blue and white underglaze porcelains; however, this interpretation has not been
widely accepted.
37 Kerr, Song Dynasty Ceramics, 96. The technology itself was comparatively simple by
Chinese standards, involving low firing temperatures (1170–1260 degrees Celsius) with the
body made from porcelain stone and glazes that used the same porcelain stone together
with a limestone flux. The ceramics were reductionfired in wood fired kilns.
38 Pierson, Qingbai Ware, 15.
39 Pierson, Qingbai Ware, 18.
40 Pierson, Qingbai Ware, 15; and eadem, “Industrial Ceramics,” 62–63. See also Zhao,
“L’importation de la céramique chinoise,” 257 n. 5.
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212
eliZaBeTh laMBOUrn and PhilliP acKerManlieBerMan
Figure 6. Qingbai bowl
with combed decoration,
twelfth century.
British Museum, accession number
1991.1028.5. Height: 8.00 cm.
Diameter: 21.20 cm. Weight: 400g.
© The Trustees of the British Museum.
the Chinese consumers of this ware.41 From Jingdezhen, the technology of qingbai
manufacture spread during the eleventh century to northern and southern China:
between the tenth and thirteenth centuries, several dozen qingbai production
centers have been identified.42 One should note, however, that Chinese ceramic
specialists generally reserve the term qingbai for wares produced at Jingdezhen
itself or in Jiangxi Province, reserving local names for “qingbaitype” wares
manufactured at these other locations, which range over fortyfour counties and
nine Chinese provinces to the north and south of the Yangzi river.43 Qingbai and
qingbaitype tablewares were not only extremely popular in China but found a
large export market and were exported to more than twenty different countries in
Asia, Africa, and Europe.44 That wide distribution has been confirmed and refined
through subsequent archaeology, on land and at sea.45
41 The oldest tomb from which qingbai wares were excavated is dated to 983 CE; see Zhao,
“L’importation de la céramique chinoise,” 263 n. 22.
42 Zhao, “L’importation de la céramique chinoise,” 258. We are grateful to the author for
clarifying that the French fours refers to production centres rather than to single kilns.
43 Once Yuan period production centers are included, the number rises significantly to
over 136 sites producing qingbai wares in the area of Jingdezhen alone for the Song and
Yuan dynasties: see Peng, Song Yuan, 30–36. We are grateful to Rosemary E. Scott for this
reference.
44 Li, “Chinese Export Porcelain,” 103. Of interest for the maritime export trade to the
Middle East is the fact that production centers for qingbaitype wares are found in Guangdong
and northern Fujian, as well as the area of Minnan, the hinterland of the great maritime
port of Quanzhou, in the mid to late eleventh century: see Pierson, Qingbai Ware, 17. For
developments around Quanzhou, see especially Ho, “Ceramic Boom in Minnan,” 258–60.
45 The most recent distribution map for qingbai wares in the western Indian Ocean and
Middle East is in Zhao, “La céramique chinoise,” fig. 222;” see also her “Global Trade,” fig. 9.
For shipwreck archaeology see, for example, Dupoizat, “Ceramic Cargo.”
chinese POrcelain and The MaTerial TaxOnOMies OF Medieval raBBinic law
Fine-bodied qingbai bowl with
lobed interior and rim, 12th century,
Jiangxi Province (surface find S254).
Fine-bodied qingbai bowl, ca. late 11th – mid-12th
century, Hutian or Nanfeng kilns (surface find 506/1).
Fine-bodied conical qingbai bowl,
12th century, Hutian or Xicun kilns
(surface find S423).
Fine-bodied qingbai box,
ca. 1075 – early 12th century, Hutian
or Nan’an kilns (surface find S6).
Medium-bodied qingbai box, ca. 1050–1100,
Xicun kilns (surface find S172).
Figure 7. Shard fragments of fine porcelain qingbai bowls and lidded boxes
from the entrepôt of Sharma, Yemen, spanning the mid-eleventh to twelfth century.
The largest, most complete sherds are often surface finds. Attributions and dates from
Zhao, ‘La céramique chinoise à Sharma,’ Figs. 203–4, 204–1, 206–4, 208–4, 208–5; drawings
by Vincent Bernard and Hélène Renel, reproduced by kind permission of Axelle Rougeulle.
Although we cannot prove which ceramic wares Maḍmūn handled, we wish to
suggest that there is a strong likelihood that they were qingbai. The translucency
of these pieces would have been in marked contrast to the majority of earlier Chi
nese imports and would have elicited exactly the puzzled reaction recorded in the
memorandum. It is impossible to represent through one example the diversity of
qingbai tablewares produced for consumers inside and outside China; neverthe
less, by way of general illustration, we include here a photograph of a twelfth
century qingbai bowl with combed decoration from the collections of the British
Museum (Figure 6). To the best of our knowledge, no complete qingbai pieces
survive from the Middle East—largely because Islam and Judaism alike prohibited
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burial goods, whereas ceramics from Chinese tombs provide some of the best dat
able pieces. But Figure 7 shows sherds from a range of qingbai bowls and lidded
boxes excavated at the entrepôt of Sharma in the Yemen and spanning the mid
eleventh to twelfth centuries. The delicate bowls of various shapes and design,
usually with a diameter of around five centimeters, may well correspond to the
aqdāḥ—“small bowls” or “drinking cups”—sent to the Gaon in Fustat for inspec
tion. The lidded boxes found at Sharma, some of which had a diameter of over ten
centimetres, may correspond to the barnīya jar described in our legal query.
Goitein urged caution when translating the term ṣīnī in the Fatimid period,
since it was by then applied to wide range of Far Eastern ceramics as well as to
their Middle Eastern imitations.46 In many contexts, the term is best translated
simply as “chinaware,” in the inclusive (modern) sense, rather than as “Chinese
porcelain” strictly defined.47 In this particular instance, however, Maḍmūn was
certainly referring to some form of highfired, porcellaneous Far Eastern ceramic.
No contemporary local (Yemeni) ceramics are known to have attempted to imitate
Chinese prototypes and thus merit the appellation ṣīnī.48 It would be nonsensi
cal to send comparatively coarse Yemeni glazed wares, even if they existed at this
period, to such an eminent figure as Maṣliaḥ haKohen; an exchange in the other
direction would have been more likely, as Geniza documents indicate that Aden’s
Jewish elite brought in better quality ceramics from Egypt and Syria.49 The batch
46 Goitein, Mediterranean Society, 4:145–46.
47 Goitein advocated using the term “fine earthenware,” since the low prices indicated for
some sīnī, and the fact that some pieces were owned by the poorer members of Cairo’s Jewish
community, would indicate that this was not a highend ware. In fact, it is more likely that lower
end wares were locally manufactured vessels with a new fritware (also known as stonepaste)
body developed in direct response to Chinese porcellaneous bodies. See n. 61, below.
48 Although local Adeni ceramics have not been studied, there is no firm evidence for
production of glazed ceramics in the Yemen until the late eleventh and mainly twelfth
centuries, and these have been identified at the site of Sharma in the Hadhramaut. In the
opinion of the site’s excavators, these wares may be predecessors of the much better known
Yemeni “mustard ware” so called because of its yellow glaze, which can be dated more
securely to ca. 1250 to 1350 and was produced either around Zabid in the Tihama or Aden
(Axelle Rougeulle, personal communication of September 17, 2015). For more on this ware,
see Rougeulle, “Les céramiques à glaçure,” 250–51. So far, the only known contemporary
parallels for this ceramic ware are an assemblage of bowls excavated at the port of Ghulayfiqa
in the Tihama and dateable to the twelfth century.
49 See, for example, a list of items requested from Fustat for dispatch to Aden, likely on
the occasion of a wedding, which included “a basket of good earthenware made in Amid or
Fustat”: Goitein and Friedman, India Traders, 422, line 17 (“India Book,” document II, 44,
Westminster Misc. 9).
chinese POrcelain and The MaTerial TaxOnOMies OF Medieval raBBinic law
of gifts among which this ṣīnī travelled to Egypt—Chinese k’b sh’t (whatever this
unidentified commodity was); Southeast Asian cloves, nutmeg, and mace; a vari
ety of aromatic woods; as well as silks from the port of Kollam in southern Mala
bar—also support the hypothesis of the vessels’ Chinese provenance, since it is
clear that the entire cache of presents destined for Maṣliaḥ haKohen had been
assembled through the maritime networks of the eastern Indian Ocean and the
South China Sea, with the spices and woods originating in eastern Indonesia, the
k’b sh’t and ṣīnī in China.
Maḍmūn’s questions may accordingly contribute to a still imprecise under
standing of the chronology and routes of qingbai imports into the Middle East.
Chinese ceramics specialists date the start of large scale exports of qingbai to the
late eleventh and early twelfth centuries and some scholars have picked out 1127
as a key date in the development of qingbai as an export product, since it is the
date at which the northern Song territories were conquered and the southern
Song polity reoriented itself and its exports towards southern China and the south
China Sea.50 Pierson has suggested, instead, that it was the opening of a maritime
administration at Quanzhou forty years earlier, in 1087, which marked the turn
ing point in the development of this ware for export.51 For Chuimei Ho, too, there
is little doubt that the fortyseven large kilns producing qingbaitype wares that
appear ex nihilo in Minnan, the hinterland of Quanzhou, in the later eleventh cen
tury, should be dated to around 1087.52 A rise in exports in the latter half of the
eleventh century finds corroboration in contemporary textual sources and the
Song dynasty text 萍洲可談 Pingzhou Ketan (Discourse of the Floating Islands)
published in 1119, which discusses the maritime trade in Guangzhou during the
period 1086–94 and notes that “the greater part of the cargo consists of pottery,
the small pieces packed in the larger, till there is not a crevice left.”53
New archaeological data from the Middle East and East Africa is refining this
periodization. Qingbai bowl bases excavated at Fustat have been dated by Bon
gionino to the Five Dynasties or northern Song, and thus to the late tenth or elev
enth centuries.54 Qingbai sherds excavated in a Fatimid residence at Ayla on the
50 For example, Kerr, Song Dynasty Ceramics, 103; Teo, “Qingbai Ware for Export,” 250.
51 Pierson, Qingbai Ware, 17.
52 Ho, “Ceramic Boom in Minnan,” 258.
53 Cited in Miksic, Southeast Asian Ceramics, 73. The text of the Pingzhou Ketan has not
been translated into English, and this wellknown passage exists in a number of English
translations, paraphrases, and summaries of the Chinese original. We are grateful to
Rosemary E. Scott for pointing us to this source.
54 Bongionino, “‘And their Figures,’” 38 and fig. 11. By contrast, Tadanori Yuba’s discussion
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northern Red Sea coast have similarly been dated to the tenth or eleventh centu
ries.55 Such early dates—largely coeval with the earliest finds of qingbai in Chinese
dated tombs—indicate that some of the very first qingbai productions, believed
by most Chinese ceramic historians to be manufactured at this period primarily
for the Chinese market, were reaching consumers in the Middle East with little
delay.56 This is not as surprising as it may seem: the Middle East’s enthrallment
with Chinese ceramic technology, growing since the ninth century, may have made
it a target market for new ceramic types.57 Islamic ceramic historians have cer
tainly accepted the idea of an early contact with qingbai. As Oliver Watson has
shown, it is likely these Chinese ceramic fabrics that effected a substantial revolu
tion in Egyptian ceramic technology during the earlier eleventh century. In reac
tion to such imports, Egyptian potters are believed to have developed a new white
ceramic body composed substantially of ground quartz particles that produced
a vitrified and sometimes translucent finish: the stonepaste or fritware vessels
noted above. 58 The early and apparently positive reception of qingbai in the Mid
dle East ensured a firm demand in later centuries.59 Zhao has even stated that qinof similar, if not identical, shards assigns them a twelfth to thirteenth century date: “Chinese
Ceramics Found at alFustat.”
55 Whitcomb, “Fatimid Residence at Aqaba,” 222. The site is believed to have been
abandoned in the early twelfth century, perhaps around 1116, and these ceramics must
predate that event.
56 The same is true of East African markets: see discussion and distribution maps in Zhao,
“Global Trade,” 53, 68, and fig. 9. Qingbai shards are also identifiable at the entrepôt site of
Mantai in northern Sri Lanka, believed to have been abandoned in the early eleventh century.
The shards are reproduced in the CD accompanying Carswell, Deraniyagala, and Graham,
Mantai. We are grateful to Melanie Gibson for pointing out this reference.
57 It should not be forgotten that Chinese ceramics could remain in circulation for lengthy
periods precisely because of their perceived value, causing “historic” pieces to be discovered
in substantially later archaeological layers. For example, Zhao notes that “at Mahilaka
in Madagascar, tenth and eleventhcentury qingbai wares have been discovered from
the ‘occupation IIa’ phase of settlement (which is dated to the thirteenth and fourteenth
centuries). This shows that Chinese ceramics might have been kept for centuries as markers
of wealth.” See “Global Trade,” 62.
58 According to Watson (“ChineseIranian Relations”), qingbai “could not be adequately
copied in earthenwares, which were of necessity thickbodied and whose opaque glazes did
not allow for subtle underglaze decoration. As a solution the Near Eastern potters developed
a new fabric based on an ancient Egyptian technology: fritware, compounded of ground
quartz with small quantities of clay and glaze. When fired it yielded a purewhite body; if
sufficiently thin, it could be translucent. It matched the Chinese ware in all but hardness.” See
also Watson, “Fritware.”
59 Pirazzolit’Serstevens, “Une denrée recherchée,” 73–74.
chinese POrcelain and The MaTerial TaxOnOMies OF Medieval raBBinic law
gbai wares “may have been the main category of Chinese ceramics imported into
the western Indian Ocean from the late tenth to the mid thirteenth century.”60 Qingbai may also have been among the Chinese ceramics that, in the twelfth and early
thirteenth centuries, inspired Persian potters at the city of Kashan to work with
stonepaste and to experiment with substantially new ceramic forms.61
Beyond this broad picture, however, details about the phases and routes of
qingbai’s arrival in the Middle East remain patchily mapped. The general lack of
focus on this ware in the Middle East reflects a comparable neglect in Chinese
ceramic studies, as Catherine Teo has remarked: “when compared to the longer
production periods and popularity of other ceramic types, e.g. blue and white,
and celadons, it is not difficult to understand why so little is known of qingbai
wares.”62 One important site that offers data for a better understanding of qingbai
imports to the Middle East is the entrepôt of Sharma on the northern Hadrami
coast, excavated between 2000 and 2001. The commercial nature of the site has
yielded a finegrained phasing of Chinese ceramic imports over the lifetime of the
entrepôt between ca. 980 and ca. 1150. Analysis of the these ceramics by Zhao
has demonstrated that the qingbai wares from Jingdezhen, along with qingbai
type wares from other kiln sites in China, together represent 41.5 percent of the
Chinese ceramic imports found throughout the lifetime of the site, with a peak in
importation between 1050 and 1120 CE.63 During this period, at least twentyfour
different groups of ceramics were imported from at least eleven different ceramic
production centres, principally in Jiangxi and Guangdong provinces; of these, the
greatest variety of types, fifteen or 62.5 percent, was seen in qingbai wares from
60 Zhao, “Global Trade,” 74.
61 Research is currently underway in this area, led by Melanie Gibson and presented by
her at two recent conferences: “The Impact of Song Period ‘Chí�ní�’ in Iran” (panel, “Things
and Their Ideas: Exchanges in the Visual and Material Cultures of Islamicate Asia,” convened
by Sussan Babaie and Elizabeth Lambourn at the Association of Art Historians 41st Annual
Conference and Bookfair, University of East Anglia, April 11, 2015) and “The Impact of
Southern Song Chīnī in the Production of TwelfthCentury Kashan” (British Museum Study
Day, “Chinese Qingbai Ceramics and their Contexts,” May 15, 2015).
62 Teo, “Qingbai Ware for Export,” 250.
63 The site chronology for Sharma changes subtly between Zhao’s first publication of the
qingbai shards in 2004 as “L’importation de la céramique chinoise,” and the final chapter
in the site publication published in 2015 as “La céramique chinoise.” In 2004, Phase III
was dated to ca. 1050–1120 and Phase IV to ca. 1120–50; in the final publication, Phase
III terminates around 1060, Phase IV spans ca. 1060–1120, while Phase V now marks the
period 1120–1220.
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Jingdezhen and in qingbaitype wares from other Chinese kilns.64 In sum, the data
from Sharma demonstrate the existence of intense commercial networks connect
ing the Arabian coast to kilns across China and exhibiting a high preference for the
importation of qingbai tablewares from Jingdezhen or qingbaitype wares from
other manufacturing centres, particularly between 1050 and 1120 but continuing
well into the midtwelfth century.
Sharma is, of course, only one entrepôt site, and it was also a redistribution
centre; we do not know where its Chinese imports moved on to, or by whom they
were moved. Axelle Rougeulle, Sharma’s principal excavator, has suggested that
Aden might have been one of these destinations and this part of the coast was cer
tainly an important crossroads for ships crossing the western Indian Ocean, either
north to the Gulf or south to the Red Sea. Whether or not Sharma supplied Aden in
qingbai wares and other Chinese ceramics at this period, the site offers a template
that might be applied to other sites in the Arabian Peninsula. It further suggests
that Maḍmūn’s que stions were posed after almost eightyfive years of substan
tial qingbai imports to the region, time enough for merchant elites to accumulate
a substantial number of such vessels in their homes, and to begin questioning
the material properties of these items. Maḍmūn’s question implies that his own
household contained large quantities of translucent Chinese wares: he asks “about
the ṣīnī vessels (‘an al-aw‘iya al-ṣīnī), the translucent pottery vessels (al-ghaḍār
al-shaffāf), and all the ṣīnī tablewares [which are] translucent ([wa]kull al-zibād,
[al-ṣīn]ī hiyya shaffāf).” The accumulation of large quantities of fine qingbai wares
in Aden suggested by this document may thus represent some of the earliest tex
tual evidence for their large scale commercial trade in the western Indian Ocean,
corroborating the archaeological evidence from Sharma and evidence emerging
from other sites in the western Indian Ocean.
The site of Sharma also preserves exported Chinese ceramics previously
believed to be unique to the Southeast Asian market. Research on qingbai imports
in Southeast Asia has noted that Chinese qingbai kilns manufactured a type of
small lidded box specifically for Philippine and Indonesian consumers; the form
is never found in China itself.65 Their size suggests that they were used to hold
preserved fruits, sauces, spices, and, above all, medicines and ointments. Yet
in her analysis of the qingbai found at Sharma, Zhao identified exactly this box
type:66 perhaps a clue that the qingbai wares reaching Sharma were not purchased
64 Zhao, “L’importation de la céramique chinoise,” 263–64.
65 Teo, “Qingbai Ware for Export,” 249. These small boxes came in various forms notably
globular or square with two to three lugs on their shoulders.
66 Zhao, “L’importation de la céramique chinoise,” 275, figs. 3–12 and 3–13.
chinese POrcelain and The MaTerial TaxOnOMies OF Medieval raBBinic law
directly from China but had made their way from Indonesia or the Philippines.
Such boxes in particular might have reached the Yemen, not as commodities in
their own right, but as containers for other exotic products from those regions.67
The evidence from Sharma encourages us to look at commercial networks of
ceramic supply, but we should not dismiss the possibility that some Chinese wares
were obtained via noncommercial modes of exchange. New research on provision
ing and supply in the Indian Ocean is demonstrating the importance of private
transportation networks among Jewish India traders, particularly for household
items, and it is possible that some of the Chinese ceramics in Maḍmūn’s household
reached him through such networks.68 As far as we know, Jewish merchants from
the Middle East were not established in Chinese ports, and much skepticism has
been cast on Benjamin of Tudela’s twelfthcentury description of China;69 never
theless, Geniza documents do record that Jewish merchants at this period traded
in Southeast Asia, where qingbai vessels were actively imported.70 Nor should we
disregard the other, nonJewish networks that Maḍmūn’s close association with
Bilāl b. Jarí�r, the governor of Aden, likely opened for him, and which may well have
extended directly to China. The contemporary historian ‘Umāra alḤakamí� noted
that, when Bilāl b. Jarí�r died in 1151 or 1152, his chattels included “Indian rari
ties and Chinese fineries (tuḥaf al-Hind wa alṭāf al-Ṣīn).”71 There is ample evidence
from Chinese sources that many other Middle Eastern communities were perma
nently represented in Chinese ports at this period and maintained exchanges with
the Middle East.72 There were also regular exchanges of embassies between the
Middle East and China. Indeed, the sixtyfive years between 1071 and 1136 saw
some thirteen merchantled tribute missions from Arab lands (the Ta-Shi) to the
Song court. While Chinese sources do not distinguish between Fatimidsponsored
embassies, which traveled the Red Sea route, and those from the Sunni Abbasid
Caliphs in Baghdad, which very likely travelled via the Gulf, certain gift assem
blages point clearly to embassies travelling via the Red Sea route and thus likely to
67 The Philippine and Indonesian export markets for qingbai are especially well
researched: see Teo, “Qingbai Ware for Export.”
68 See Elizabeth Lambourn’s forthcoming monograph Abraham’s Luggage: A Social Life of
Things in the Medieval Indian Ocean World.
69 See Encyclopedia Judaica, “Benjamin (ben Jonah) of Tudela.”
70 See letters from merchants departing for Southeast Asia in Goitein, Letters of Medieval
Jewish Traders, letters 46 and 47, 227–29.
71 From the Ta’rīkh of ‘Umāra alḤakamí� (d. 1174) cited by Kay, Yaman, 80 (and, for the
Arabic, 59). AlḤakamí� was a Yemeni and a contemporary of Bilāl’s.
72 For a good overview of sources, see Chaffee, “Diasporic Identities”; and Heng, “Shipping.”
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have come from the Fatimids or their local allies in the Yemen.73 Envoys were often
merchants, and they were always recompensed for their tribute, and not infre
quently with ceramics; it is not impossible, then, that returning merchant envoys
brought qingbai back with them. Whatever their route to Aden, the six ṣīnī cups
dispatched to Fustat in the satchel of gifts afforded the perfect opportunity for
Maḍmūn to clarify the status of qingbai within Jewish material taxonomies.
Taming a Disruptive Substance
Maḍmūn’s eightline query represents the earliest securely dated and localized
evidence for a debate about the material status of porcellaneous Chinese ceramic
fabrics within Judaism. The translucency and vitrified body of these wares dis
rupted established material taxonomies, confounding expectations of how a
ceramic fabric should “look,” “feel” and “behave”; it was a disruptive substance.
Since earlier ṣīnī fabrics scarcely appear to have been the object of rabbinic legis
lation, Maḍmūn had no existing rulings to turn to, and, in the absence of these, he
began to formulate his own ideas based on empirical observation of the vessels
and by analogical reasoning from known materials. As Goitein briefly indicates in
his commentary on the document, Maḍmūn’s two questions are carefully crafted
to frame ṣīnī vessels between the much better known materials of glass and
earthenware.74 As we have seen, the new material (and technologies) of glass had
already been incorporated into rabbinic Judaism during the first half of the first
millennium CE. Maḍmūn and the Gaon would have been able to turn to an abun
dant body of legislation about earthenware, glazed earthenware, and glass which
were all well legislated by the twelfth century—even if contradictory opinions
persisted. In this section of our article we unpack the reasoning and precedents
both men might have applied to this problem.
Maḍmūn’s first question, about a menstruating woman’s contact with ṣīnī
tablewares, is notable for its repeated emphasis on the translucency of the ves
sels under discussion. As we have seen, Maḍmūn refers to “the translucent pottery
vessels” and “all the ṣīnī tablewares [which are] translucent.” Goitein remarks that
this chosen vocabulary points to an understanding of ṣīnī as a glasslike substance.
Translucency is indeed a quality more often associated with glass than with
73 See Bielenstein, Diplomacy and Trade. For example, in 1131 an Arab embassy fronted by
a certain P’uyali (likely Abu ‘Ali) brought thirtyfive large rhinoceros horns and 209 large
elephant tusks, products of East Africa; another in 1136 offered frankincense, a product
of the Arabian coast north of Aden, valued by the Maritime Trade Bureau at Quanzhou at
300,000 strings of 1,000 cash: a huge sum (362).
74 Goitein and Friedman, India Traders, 378.
chinese POrcelain and The MaTerial TaxOnOMies OF Medieval raBBinic law
ceramics, which are generally opaque, and the use of the term shaffāf in Maḍmūn’s
question points clearly towards this other material. The translucency and glass
like properties of certain Chinese ceramic bodies had already been noted by
Middle Eastern merchants as early as the ninth century; the author of the Akhbār
al-Ṣin wa-l-Hind, a midninth century Arabic language manual on trade with India
and China, reports that the Chinese “have excellent quality pottery (ghaḍār) from
which are made bowls (aqdāḥ)75 as fine as [glass] flasks (al-qarāwīr): one can see
the gleam of the water through them, even though they are made of pottery.”76 This
material similarity continued to be recorded by later Middle Eastern authors. The
Iranian polymath alBí�rūní� (d. 1048) is perhaps most explicit in his comparison
of Chinese ceramic fabrics with glass. In The Sum of Knowledge about Precious
Stones (Kitāb al-Jamāhir fī Ma‘rifat al-Jawāhir) alBí�rūní� includes bowls made
from ṣīnīyya (al-qiṣa‘ al-ṣīnīyya), that is from “China stone,” a separate category
of “precious stone,” and places them directly after his discussions of glass (zajjāj)
and glass enamel (minā’). AlBí�rūní� was most concerned with documenting how
ṣīnīyya was used in the manufacture of Chinese ceramics, and as part of this he
reported (erroneously) that the best bowls were like glass, for “if they break, they
are molten and recast.” According to one of alBí�rūní�’s informants, the best bowls
were “thin of body, sheer” (al-raqīqa al-jirm al-ṣāfiya).77 AlTha’ālibí� (d. 1038),
writing in Iran around the same period, also included Chinese porcelain among
the specialities of the country in his Book of Curious and Entertaining Information
(Kitāb Laṭā’if al-Ma‘ārif). He describes how the Chinese “have fine, translucent
pottery (al-ghaḍā’ir al-mustashaffa) which they cook food in and one piece of this
may be [used as] a pot on one occasion, a frying pan another or a serving dish
another”: that is, it could be used for boiling, frying, and serving.78 Mustashaffa
derives from the same Arabic trilitteral root (SHFF) as the term shaffāf later used
by Maḍmūn, signifying transparent, diaphanous, or translucent. On occasion, Chi
nese writers also pondered the material similarities between glass and ceramic
75 For the translation of the term qadaḥ (pl. aqdāḥ), see discussion in note 12, above.
76 “Wa lahum alghaḍār aljayyid wa yacmal minhu aqdāḥ fí� riqqa alqawārir yarā ḍau’ al
mā’ fí�hi wa huwwa min ghaḍār”: Akhbār al-Sīn wa-l-Hind, 16. Although the author does not
explicitly compare these ceramics to glass, the fabric’s glasslike qualities are implied and
were highlighted by the translator Jean Sauvaget in his French translation of this text.
77 AlBí�rūní�, Kitāb al-Jamāhir fī Ma‘rifat al-Jawāhir, 195.
78 “W�a lahum alghaḍā’ir almustashaffa yuṭbakh fí�hā alṭabí�kh fayakūn alwāḥid minhā
qidr marra wa miqla tāra wa qaṣ‘a ukhrā”: alTha’ālibí�, Kitāb Laṭā’if al-Ma‘ārif (ed. Abyari and
Sayrafi), 221. Bosworth’s translation (Book of Curious and Entertaining Information, 141)
explicitly associates the qidr with boiling and the miqla with frying. A different translation
again is given in Kahle, “Chinese Porcelain,” 338.
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fabrics. Although in China itself the highest quality ceramics aspired to be jade
or silverlike, at least one Tang writer, Wei Zheng (580–643), noted that “green
ware [celadon] was no different from glassware.”79 Maḍmūn would obviously not
have been aware of Chinese material taxonomies, and there is no suggestion that
he even knew these two Islamic sources; nevertheless, we suggest that all three
passages perfectly illustrate the complex technological position of porcellaneous
ceramics whose ingredients do indeed produce a vitrification of the body and
glaze, rendering them glasslike. It is therefore with glass, porcelain’s most recent
material ancestor, that we begin our discussion.
Glass was not one of the materials originally legislated in the Pentateuch, as
noted above. However, as it became more common in the Middle East over the
course of the first two millennia BCE, it was finally declared subject to ritual impu
rity by the midsecond century BCE. Thereafter, glass was considered a substance
capable of contracting impurity and entered Jewish legal debate. The central and
more complex problem that ensued, as later with ṣīnī, was whether, and if so how,
glass vessels could be returned to a state of purity. To determine that, as Gross
mark’s work has shown, the new substance needed to be framed by existing mate
rial categories. The distinction between the new glass vessels and the much older
tradition of earthenware utensils is outlined in the Babylonian Talmud,80 a central
text of rabbinic Judaism composed in Mesopotamia between ca. 200 and 550 CE.
The timing of this integration coincides with the popularization of glass vessels
across the Middle East as a result of the invention of glassblowing in SyroPales
tine in the first century CE.
Yet opinions were contradictory, and glass refused to be tamed. The most com
prehensive discussion of the ritual purity laws relating to glass vessels is found in
Tractate Kelim of the Mishna (itself generally held to have been redacted around
220 CE). There, glass vessels are grouped with wood, leather, and bone utensils:
“in order to purify the contaminated item, its existence as a vessel must cease,
which is usually done by breaking it.”81 Broken glass can be melted and remade
relatively easily, but the vessel is nevertheless destroyed. However, rabbinic Juda
ism gave ample space for alternative analysis and categorizations, and the Talmu
dic sage Rav Ashi (fl. 375–427 CE) argued that “utensils of glass, since they may be
repaired when broken, are like utensils of metal.”82 By “repaired,” Rav Ashi clearly
refers to the fact that, like scrap metal, broken glass (i.e., glass cullet) may be
79 Cited in HsuehMan, “Luxury or Necessity,” 73 n. 7.
80 Talmud Bavli, ‘Avoda Zara 75b.
81 Grossmark, “‘And He Decreed,’” 203.
82 See Talmud Bavli, ‘Avoda Zara 75b.
chinese POrcelain and The MaTerial TaxOnOMies OF Medieval raBBinic law
melted and reworked; accordingly, glass utensils could be treated like metal ones.
And yet glass was arguably not tamed for another seven hundred years when
Moses Maimonides’s highly influential Mishneh Torah, an encyclopedic system
atization and restatement of Jewish law written at the end of the twelfth century,
grouped glass vessels with earthenware based on the fact that glass was made
from earth, specifically sand. Based on this reasoning, Maimonides declared glass
to be incapable of repurification in a mikveh, a ritual bath.83
We do not know which opinion about the status of glass was current in Egypt
and the Yemen in the 1130s; Maimonides’s influential ruling postdates Maḍmūn’s
question by half a century, and more liberal interpretations of glass’s potential for
repurification continued to circulate. The early medieval Avot of Rabbi Nathan, a
discourse centered around the mishnaic tractate Avot (which was likely composed
in Mesopotamia in the wake of the redaction of the Babylonian Talmud, between
the sixth and ninth centuries) approached the issue through the question of
porousness rather than repair. It rules that a glass vessel is not considered absorp
tive or porous like earthenware and could thus be used for both dairy and meat,
and restored to a state of purity simply by washing: “three things are said of a
glass vessel. It does not absorb, it does not discharge, and it shows everything that
is inside it. In a hot place it is hot; in a cool place it is cool.”84 The material proof of
glass’s neutral absorptive qualities was that it did not preserve heat or cold; fur
thermore, being transparent, it was possible to see that no substances had been
absorbed into the fabric. The Avot of Rabbi Nathan became a widely influential
text and its ruling on glass vessels can be found repeated in the late twelfth/early
thirteenth century by the German Rabbi Eliezer b. Joel haLevi (“Raviya”). Discuss
ing the same issue—namely, the separation of meat from dairy in Jewish cook
ing—the latter added the proviso that Jews could even use glass vessels purchased
from a gentile which might have served in ritually impure or idolatrous contexts.
Old glass vessels [belonging to a gentile]85 that have been used for leaven
[or by a gentile] or for wine libations are permissible, since they do not
absorb. So it is said in a Baraita of Avot de-R. Nathan: three things are said
about an earthenware vessel and three about a glass vessel. An earthen
ware vessel absorbs, discharges, and preserves what is inside it, which is
83 Maimonides, Mishneh Torah, Laws of Utensils (Hilkhot Kelim) 1:5. For an introduction
to the Mishneh Torah, see Twersky’s Introduction to the Code of Maimonides.
84 Avot de-Rabbi Natan, (a), ch. 42. We are grateful to Zvi Stampfer for suggesting this
reference.
85 These words are bracketed in the Hebrew text, indicating the editor’s suggestion that
they be deleted.
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eliZaBeTh laMBOUrn and PhilliP acKerManlieBerMan
not true of a glass vessel. The reason is that it is smooth, as we say about
the heart: (Talmud Bavli, Pesaḥim 74b), “The heart is different because it
is smooth,” and it does not absorb (for if so it would be like the old ones)86
and does not discharge.87
If the more liberal rulings of Rav Ashi and the Avot of Rabbi Nathan were applied,
Maḍmūn’s alignment of this new ṣīnī fabric with glass, implied by his emphasis on its
translucence, would open the way to a variety of nondestructive methods of repu
rification. Whether by analogy with metals or contrast with porous earthenware,
ṣīnī could be repurified by washing in cold water, boiling, or heating directly in a fire.
Ṣīnī ’s high heat resistance would have been especially valuable in this con
text, since repurification also took into account the temperature of the polluting
substance, often nonkosher food, with which vessels had come into contact. The
operative principle, canonized in the Talmud,88 is “as it absorbs, so it expels” (kebol‘o, kakh polṭo): that is, a vessel which was used for cold food may be repuri
fied and made usable through washing in water, while a vessel used for boiling
or directly cooking nonkosher food on the fire required more robust processes
(immersion in boiling water or immersion in fire until the vessel itself becomes
burning hot, respectively). Although the thermal resistance of Chinese ceramics is
mainly mentioned in Islamic sources and in relation to their use for cooking—as
alTha’ālibí� noted, translucent Chinese pottery could be used in cooking as a pot, a
pan, and a serving dish—it is clear that in the Jewish context these same proper
ties made Chinese ceramic fabrics extremely versatile in terms of the variety of
repurification methods that vessels could sustain without cracking.
Maḍmūn’s second question shifts to considering ṣīnī storage vessels and the
pollution of the interior of such vessels by nonhuman agents. These ṣīnī vessels
are not specifically described as translucent because this quality was irrelevant
to the particular angle of reasoning this question explored. Instead, Maḍmūn
focuses on the fact that both the exteriors and interiors of these vessels are glazed.
In framing this question, he appears to be testing ṣīnī against earthenware and
glazed earthenware vessels, perhaps the most obvious categories of comparison
86 Note that the modern editor of this classical text, Avigdor Aptowitzer, read the
parenthetical phrase as incomprehensible in their present location and placed them after
the word “and does not discharge”; cf. Sefer Raviya, 91 n. 23.
87 והכי אמרינן בברייתא. דלא בלעי,וכלי זכוכית ישנים (של גוי) שנשתמשו בהן חמץ או [של גוי או של] יין נסך שרי...“
דאבות דרבי נתן שלשה דברים נאמרו בכלי חרס ושלשה בכלי זכוכית כלי חרס בולע ומפליט ומשמר מה שבתוכו מה שאין
”... ולא בל (דאם כן היה ליה כישנים) ולא פליט, כדאמרינן גבי לב שני לב דשיע, וטעמא משום דשיעי.כן בכלי זכוכית
Sefer Raviya, Part 2, Section 464, 91. We are grateful to Zvi Stampfer for suggesting this
reference.
88 Talmud Bavli, Pesaḥim 30b.
chinese POrcelain and The MaTerial TaxOnOMies OF Medieval raBBinic law
for Chinese ceramics and ones for which an abundant halakhic literature already
existed. Guidance on the treatment of earthenware vessels is given in the Pentateuch and provides the basis for subsequent rulings on this material. As Leviti
cus 11:33 instructs, “any earthenware container into whose inner space one of
these [dead creatures] will fall, whatever is inside it shall become unclean, and you
shall break [the container] itself.”89 From Leviticus onwards, earthenware vessels
were understood to behave in a distinctive manner, contracting impurity only via
their inner spaces, and to be particularly intransigent in terms of repurification.
Because earthenware is understood to be less durable than glass or metal, it may
not be purified through immersion in boiling water or in fire, and therefore if it has
come into contact with nonkosher food that is hot it may not be purified at all.90
This passage from Leviticus clearly provides the starting point for Maḍmūn’s
query about the ritual status of a ṣīnī jar should some polluting “thing”—a maggot
or polluting substance—fall into it, the caveat being that this jar is glazed inside
and out; it is not unglazed earthenware. Does glaze substantially alter the proper
ties of the interior of a ceramic jar and thus the processes through which it can
be rendered pure again? This specific question points to a smaller body of opin
ions which developed as glazed ceramics became more common in the Middle
East during the first half of the first millennium CE. While one authority, Ravina
(d. 499), likened glazed earthenware to glass, which (like metal) might be repu
rified by washing or immersion in boiling water or fire, his near contemporary
Rav Aḥai (late fifth/early sixth century) viewed glazed ceramics as behaving like
unglazed earthenware; as instructed in Leviticus, therefore, glazed ceramics could
only be rendered pure again by being broken and effectively rendered useless in
the process. These opposing conclusions depended on whether glazed vessels
were judged according to their original or their final states: the clay body of a
glazed vessel arguably made it taxonomically close to earthenware; however, its
final glaze, which in the Middle East incorporated lead, brought it close to metals
and by association to glass.91 According to the Babylonian Talmud, it was the lat
ter opinion that prevailed and established that glazed ceramics should be judged
89 Cf. Maimonides, Mishneh Torah, Chapter 13, Halacha 1.
90 For further detail, see the sources in Newman, ha-Maʿasim li-vene Ereṣ Yisrael, 52 and
following; Margulies, Hilkhot Ereṣ Yisrael, 93; and Friedman, “Shne qeṭʿaim misefer,” 14–36.
91 “Concerning glazed utensils Rav Aḥai and Ravina differ; one maintains [that it must be
treated] according to its original state, while the other maintains [that it must be treated]
according to its final state. The ultimate decision is [that it must be treated] according to
its final state,” ”... כסופו: והלכתא. כסופו: וחד אמר, כתחלתו: חד אמר, פליגי בה רב אחא ורבינא- קוניא...“.
Talmud Bavli, ʿAvoda Zara 75b. Note that Marcus Jastrow (Dictionary of the Targumim, 1335)
translates this word as indicating a powdered lime glaze.
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eliZaBeTh laMBOUrn and PhilliP acKerManlieBerMan
according to their final state. The glazing of the entire vessel appears to have been
particularly important in allowing this conclusion: in a fourteenthcentury Cata
lan commentary on Isaac Alfasi’s eleventhcentury Talmudic digest, the jurist Rab
benu Nissim of Gerona explained that the lenient treatment of earthenware items
covered in a glaze applies only when these items are glazed both on their exterior
and interior surfaces.92
While Talmudic literature had considered glass, earthenware, and items
glazed on both sides in a manner that made their absorptive properties (or, per
haps more correctly, their lack of absorption) like glass, the Talmud had not been
able to consider porcellanous, vitrified ceramic bodies. The second question
therefore frames this hypothetical barnīya between earthenware and glazed ves
sels. We cannot be certain that the opinion of Ravina and his successors was also
followed in twelfthcentury Egypt and Yemen. However, Maḍmūn’s emphasis on
the finished state of the vessel, on the fact that his ṣīnī jar was glazed both inside
and out, appears designed to point towards this ruling, distancing his glazed ṣīnī
jar from earthenware and allowing it to be repurified according to the far more
flexible methods prescribed for metals and glass, and sparing him the financial
loss of destroying it or having to sell it.
Conclusions
We do not know what reply Maḍmūn received from the Gaon; few of the letters sent
from Egypt to the Yemen ever made their way back into the Cairo Geniza. Nor is it
possible to judge the contemporary currency of such questions and the answers
tendered, since only one trace of this debate has been identified: Maḍmūn’s
memorandum. And yet porcelain clearly remained a disruptive substance within
Jewish material taxonomies. As Chinese ceramic imports grew in volume from the
later sixteenth century, and as Europe developed its own approximations of china
ware, questions about ṣīnī’s material status became more common and leave more
significant textual traces. Although there is currently no comprehensive compila
tion and focused study of later debates about its purification, one might point to
the record of the experiments carried out in the sixteenth century by the Egyptian
and Palestinian authority Radbaz, who tested ṣīnī’s porosity. In one experiment, a
piece of china was weighed before and after having been soaked in food, and was
found to have taken on additional weight after having been soaked.93 In the sec
92 Rabbenu Nissim on Alfasi, ʿAvoda Zara 39b40a, s.v. “vehilkheta kesofo”.
93 Shut haRadbaz, 3:401; discussed but incorrectly cited in Walter’s “Can Porcelain be
Kashered?”
chinese POrcelain and The MaTerial TaxOnOMies OF Medieval raBBinic law
ond experiment, a dish was heated and Radbaz noticed “a flame emerge from the
dish, [so] he concluded that there must have been residue in the china which was
the source of the combustion.”94 From the two experiments, Radbaz concluded
that china was porous like earthenware and therefore impossible to render clean
again. Nevertheless, his opinion did not settle the question and Chinese porcelain
continued—and continues—to disrupt rabbinic taxonomies.
Even with the advent of modern materials science in the nineteenth and twen
tieth centuries, which finally provided incontrovertible evidence for the vitreous
nature of porcelain, porcelain continues to be evaluated in Judaism within mate
rial taxonomies established in late antiquity; in that context, porcelain can only
ever be problematical and “Other.” The modern prevalence of porcelain or bone
china dinner services and the proliferation of porcelain for sinks and other kitchen
fittings has engendered a veritable flood of queries about the status of these mate
rials, traceable through the numerous questions and answers exchanged online
between observant householders and rabbis.95 There is, however, some sugges
tion that rabbinic authorities in North America and Europe are increasingly reach
ing the consensus that porcelain is not “kosherable.” The subtle premodern cali
brations of porcelain between earthenware, glazed ceramics, and glass examined
in this article are increasingly giving way to its inclusion among a bulk group of
ceramic technologies to which one rule applies: as Wayne Allen wrote in 1994,
“the standard halakhic rule is that earthenware, enamel, porcelain, and glazed
china cannot be ‘koshered.’”96 Instead, it is the principle of “great loss” (hefsed
merubeh)97 on which a leniency might be hinged, should an heirloom dinner ser
vice (for example) have been exposed to nonkosher food items.98 Maḍmūn’s que
ries show that these modern questions must be understood in a deeper histori
cal context: the disruptive potential of ceramic materials within Jewish material
taxonomies has been debated for well over two millennia. Indeed, the introduc
tion of new technologies for the production and storage of food continue to chal
lenge the existing typologies established within Jewish law. The mass production
94 Cited in Walter, “Can Porcelain be Kashered?” 113 n. 9. In the words of Ibn Abi Zimra,
”...וזה דרך הנסיון כי לקחתי ממנו חתיכה והכנסתי אותה באש ויצא ממנה שלהבת כדרך הכלים הבלועים...“
(This was my experiment: I took a piece [of porcelain] and put it in the fire, and a flame came
out of it just like those utensils which absorb [. . .]).
95 See, for example, “China Dishes, Porcelain” <http://www.aish.com/atr/ChinaDishes
Porcelain.html> [accessed April 8, 2015].
96 Allen, “Kashering China,” 147.
97 Jewish law overrides certain prohibitions ascribed to rabbinic (as opposed to Torahitic)
law in the case of a significant financial loss; cf. Encyclopedia Talmudit, “hefsed merubeh.”
98 Allen, “Kashering China,” 149–50.
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eliZaBeTh laMBOUrn and PhilliP acKerManlieBerMan
of plastic from the 1940s onward has challenged rabbinic authorities to consider
whether plastic should be considered akin to stone (considering its petrochemi
cal source) and therefore not subject to the absorption of impure foods, or like
wood and therefore porous.99 The contemporary responsa call to mind the ques
tion Maḍmūn posed to Maṣliaḥ Gaon in the twelfth century.
Maḍmūn’s queries open unique new perspectives on the reception of Chinese
ceramics in the wider Middle East. They add nuance to a story that has tended to
focus on technological and formal responses and to treat the region’s inhabitants
as a monolithic, apparently areligious, group. They remind us that a significant
religious minority within the largely Muslim population might have a radically dif
ferent history of reception compared to other faith communities. Muslim, Chris
tian, even Zoroastrian ritual purity systems operated within very different mate
rial taxonomies, and there is no evidence that any of these faiths ever questioned
the place and propriety of Chinese ceramics. Instead, for most Middle Eastern
consumers, the glasslike qualities of certain Chinese ceramic vessels would have
been a matter of wonder rather than concern. AlTha’ālibí�’s short description of
Chinese ceramics occurs in a chapter on the special crafts practiced by different
peoples, presented alongside Chinese statues, paintings, patterned silks, felts, and
other manufactured things as evidence for “the skill of their hands and for their
expertise in fashioning rare and beautiful objects.”100
Maḍmūn’s questions also represent an important addition to the small corpus
of textual references to ṣīnī in sources from the medieval Middle East. As work
on the much later European reception of Chinese ceramics has demonstrated,
what people thought and wrote about chinaware, and how they did so, offers an
essential complementary perspective to surviving material evidence.101 Physical
and visual analysis grounded in material culture studies, now supplemented by
an array of advanced scientific techniques, have provided insights into the most
microscopic details of design and manufacture, information unlikely to have
entered contemporary written records. On a macro scale, as analysis of the Chi
nese ceramics from the site of Sharma has shown, shard percentages can give
us a good idea of the proportion of Chinese ceramics within the larger ceramic
99 See, for example, Responsa Minḥat Yiṣḥaq (Isaac Jacob Weiss, twentiethcentury
Poland, Palestine and Israel), 8:92; Responsa Ṣiṣ Eliʿezer (Eliezer Yehuda Waldenberg,
twentiethcentury Palestine and Israel), 7:37.
100 “Makhṣuṣūn biṣina‘a alyad walḥidhq fí� ‘amal alṭuraf walmulaḥ”: alTha’ālibí�,
Kitāb Laṭā’if al-Ma‘ārif, 220 (for Bosworth’s English translation, see Book of Curious and
Entertaining Information, 141).
101 See a good overview of this literature and new work on the sixteenth century in Hwang
Degenhardt, “Cracking the Mysteries of ‘China.’”
chinese POrcelain and The MaTerial TaxOnOMies OF Medieval raBBinic law
assemblage of any given site in the Middle East at a given period. Yet these mate
rial sources privilege economic, technological, and design perspectives and cannot
tell the whole story of reception. In the 1950s, the German scholar Paul Kahle initi
ated the important task of combing Islamic texts for references to Chinese ceram
ics, but this enterprise has hardly progressed since,102 and this type of discursive
historiography remains absent from current surveys of the topic.103 Legal queries
and halakhic opinions, such as those discussed here, constitute an important addi
tion to this corpus and open new avenues for writing a history of the reception of
Chinese ceramics that does not begin in 1500, nor center on Europe.
102 See Kahle’s seminal “Chinese Porcelain in the Lands of Islam” and “Chinese Porcelain
in the Lands of Islam –Supplement.” Milwright’s “Pottery in the Written Sources” is a rare
exception among later scholarship; while not specifically focused on Chinese imports, he
demonstrates the wealth of textual references awaiting scholarly attention.
103 For broad panoramas of the global impact of Chinese ceramics. see Pierson, Transfer;
and (with caution, since the author is a historian rather than a ceramic specialist) Finlay’s
Pilgrim Art. A recent thematic issue on Chinese ceramics also provides a useful overview of
recent scholarship: Journal of World History 23.1 (2012).
229
230
eliZaBeTh laMBOUrn and PhilliP acKerManlieBerMan
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chinese POrcelain and The MaTerial TaxOnOMies OF Medieval raBBinic law
Acknowledgments
Elizabeth Lambourn thanks the Leverhulme Trust for funding her Major Research
Fellowship during 2011–13; the present article is a direct outcome of research
conducted during that period as part of her project on West Asia in the Indian
Ocean, 500–1500 CE. She is also extremely grateful to Jessica HarrisonHall
(Curator of Chinese Ceramics and the Sir Percival David Collection at the British
Museum) for including her in the British Museum Study Day on Chinese Qingbai
Ceramics and Their Contexts (May 15, 2015). The handling session was invalu
able and discussions with the specialists in Chinese ceramics present at this event
have been highly influential on the writing of the final draft of this article. Special
thanks go to Rosemary E. Scott (International Academic Director of Asian Art at
Christie’s), who generously shared a large number of references from Chinese and
other specialist sources; her contributions are acknowledged in the footnotes.
Thanks, too, to Li Baoping (Senior International Researcher at Sotheby’s) for his
engagement with the ideas presented here and for sharing some of his recent pub
lications and suggesting additional bibliographic material. In Paris, Zhao Bing of
the Collège de France has been more than generous in reading and commenting
on the final draft as well as sharing the final proofs of her article “La céramique
chinoise à Sharma.” Axelle Rougeulle also shared her piece on “Les céramiques
à glaçure” and kindly answered my queries about the rather late development of
glazed ceramic production in the Yemen. Melanie Gibson generously commented
on an early draft of this article, shared some of the less accessible articles found
in the bibliography, and generally helped demystify the scholarship on the Middle
East’s response to Chinese ceramics.
Phil Lieberman would also like to thank the Leverhulme Trust, as well as Rabbi
Joshua Barton of Nashville, Tennessee, for his assistance in translating difficult
passages in the rabbinic literature related to the subject matter of this article.
Both authors wish to thank the anonymous peer reviewers for their generous
and perceptive comments. Any errors are, of course, the authors’ own.
237
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eliZaBeTh laMBOUrn and PhilliP acKerManlieBerMan
Phillip Ackerman-Lieberman (phil.lieberman@vanderbilt.edu) is Associate
Professor of Jewish Studies and Law, Associate Professor of Religious Studies, and
Affiliated Associate Professor of Islamic Studies and History, at Vanderbilt Uni
versity in Nashville, Tennessee. He is a social, economic, and legal historian of the
medieval Islamic world. His current project examines Jewish urbanization under
the early Abbasids and subsequent Jewish migration to the emerging communities
of the Islamic Mediterranean. His 2014 book, The Business of Identity (Stanford
University Press) was a finalist for the National Jewish Book Award. He also served
as one of the editors of The Encyclopedia of Jews in the Islamic World (Brill, 2010).
Elizabeth Lambourn (elambourn@dmu.ac.uk) is Reader in South Asian and
Indian Ocean Studies at De Montfort University in the United Kingdom, where
she works on diverse aspects of mobility in the precolonial Indian Ocean world.
Coming to history from a background in the study of material culture, her research
is particularly focused on Indian Ocean materialities and the identification and
study of new material archives. Her monograph, Abraham’s Luggage: A Social Life
of Things in the Medieval Indian Ocean World, will be published with Cambridge
University Press in 2017.
Abstract This article focuses on a set of legal questions about ṣīnī vessels (liter
ally, “Chinese” vessels) sent from the Jewish community in Aden to Fustat (Old
Cairo) in the mid1130s CE and now preserved among the Cairo Geniza holdings
in Cambridge University Library. This is the earliest dated and localized query
about the status of ṣīnī vessels with respect to the Jewish law of vessels used for
food consumption. Our analysis of these queries suggests that their phrasing and
timing can be linked to the contemporaneous appearance in the Yemen of a new
type of Chinese ceramic ware, qingbai, which confounded and destabilized the
material taxonomies underpinning rabbinic Judaism. Marshalling evidence from
contemporary Jewish legal compendia and other writings produced in this milieu,
our discussion substantially advances interpretive angles first suggested by S. D.
Goitein and Mordechai A. Friedman to examine the efforts of Adeni Jews to place
this Chinese ceramic fabric among already legislated substances, notably the
“neighboring” substances of glass and earthenware, in order to derive clear rules
for the proper use and purification of vessels manufactured from it.
Keywords Aden, Yemen, China, Indian Ocean, ‘India Book’, Cairo Geniza, Judaism,
medieval, Middle Ages, ceramic, porcelain, qingbai, glass, earthenware, halakha,
purity, purification, pollution, kosher, koshering, menstruation, material taxono
mies, material culture.
INDEx
Abbasid caliphate, 132, 209, 219
Abyssinia, 96, 100–101
acquittance, 191
Adal, 76, 94, 96–98, 100–102
Aden, x, 78, 199–200, 203, 207–11,
214, 218–20
adultery, 8–11, 14–15, 20–21, 115,
128–33
Æthelberht of Kent, laws of, 122n38
Africa, vii, 78, 87, 91, 95, 99–100,
212, 215
Africans, 94, 109
agent(s), legal, 43, 178, 207
See also incapacity, legal
agrarian practices, 34, 36, 49–50
See also labor
Ahmad ibn Ibrahim alGhazi, 101–2
ahzab, 85, 93–44, 103
Akhbār al-Sīn wa-l-Hind, 221
Alemanni, 124
Amatus of Montecassino, 122
Amdä Ṣeyon, king of Ethiopia, 80
Americas, ix, 1, 42n42, 63
amo, 42
Anawalt, Patrica, 23–24, 27
ancestor(s), 37, 40, 53, 178, 185
Andes, 33, 36, 40–42, 63, 65
AngloSaxons, 119, 122n38
animals, 37, 45, 49, 51–52, 56, 61, 63
antiquity, xiii, 97, 117, 173n20, 227
See also periodization
Arab(s), 73, 75, 87, 89, 94–96, 99,
100, 109, 132, 219
Arabia, 76, 78, 100, 102, 106
Arabic, 79, 81–83, 203, 221
Aragon, 152
Arthaśāstra, 120, 128
assemblies, 105, 189
See also public opinion
Atahualpa, 33, 42, 45
Audiencia, 46n62, 51, 54, 59
See also courts; judges
authenticity, 11–22, 62, 98, 172, 175
authoritarian rule, 23–27
authority, x, 10, 18n48, 21–22, 37,
45–49, 52, 57, 59n114, 60,
80–81, 83, 85, 89n53, 91–92,
116, 119–20, 123, 126, 204,
209, 225–26
Avot of Rabbi Nathan, 223–24
ayni, 39–40
See also custom(s)
Azcapotzalco, 8–9, 18, 23
Babylon, 206, 222–23, 225
Bädä Maryam, king of Ethiopia, 100
Baghdad, 132, 219
baptism, 86, 93
barbarism, accusations of, 122
barbers, 126, 179n44
See also doctors; medicine
barnīya, 203, 207, 214, 226
See also ceramics
Basilios I the Macedonian, 81
Baudhāyana, code of, 125, 128–30
beating, 119
Bible, 73, 85, 87–91, 119, 130,
132–33
See also law, rabbinic; law,
religious; Torah
240
index
birch bark, 167, 171
See also writing
blinding, 115, 127
Bloch, Marc, x, 116–17
blood, 36, 124–25, 152, 205–6
books, 5–6, 8, 14–17, 65, 78, 173
See also documents; manuscripts;
recording; text(s) and
textuality; writing
bonds/bondage 50, 86, 94
bone(s), 124, 126, 208
boundaries, 17, 52, 86, 118, 128, 131,
165, 178, 190
bourgeoisie, xi, 146, 149–51, 156–57
See also class, social
Brahmin(s), 124–25, 167, 173, 177,
179, 186
branding, 115, 119, 125
bribery, 21, 50
Byzantium, 75, 79, 81–83, 119,
121, 130
cabildo, 41, 47, 49, 60n117
cacique, 41, 46n61, 50, 57–58
See also indigenous peoples
Cairo, Old. See Fustat
de Camudio, Lorenço, 52
Cape Verde Islands, 46
Caribbean Sea, 45
Carrasco, Alonso, 51n84
caste, 123–29, 179, 185–86
See also class, social
Castile, 35, 41, 151–52
castration, 124
See also punishment(s)
de Castro, García, 48
Catholic Church, Roman, 3–4, 46–47,
84n33
Central America, 45
See also Americas
ceramics, 200–208, 210, 213–22,
224–29
See also barnīya; pottery; ṣīnī
ceremonial, x, 36–40, 53; centers of,
36–37, 53
See also custom(s); ritual
Chachapoyas, 51
Charles V (Carlos) of Spain, 43
Chattopadhyaya, Brajadulal, 117, 120,
172, 194
charter(s), 74, 91–92, 103, 170–71,
181n46
See also deeds; documents
Cheras dynasty, 118
Chérrepe, 49, 53, 54
Chimalpopoca, 10, 18
Chimu, 38, 50
China, Imperial, xii, 146, 200n6, 202,
209–28
Chola dynasty, 117–18
Christian(s), ix–x, 37, 42–43, 46,
73–108, 118–19, 126, 155,
157n56, 210n35
Christianity, 76, 78, 84, 86–87, 93–94,
101, 103–6
chronicle(r)(s), 24, 34–36, 45, 54,
80, 90, 93–94, 99, 101, 104–6,
109, 122
chronologies, viii, 38, 114, 146, 148,
153, 159, 171–72, 176, 202, 215
See also periodization
churches, 47, 62, 73–74, 76, 78–81,
84, 87, 89–91, 93, 101, 104–5,
109, 119
cities, 1, 7–8, 12, 16–25, 41–52,
56, 59, 61, 141, 144–47, 152,
155–56, 217
See also municipal government(s);
urban areas and governance
citizen(s)/citizenship, 41, 50, 58, 61,
158, 168n4, 189
See also householders; rights
citystate(s), 23–25, 141, 144–47, 155
civilization(s), 1, 23–26, 76, 118
class, social, 37, 41, 54, 92, 102–4,
123, 142, 150–57, 176, 185, 206
See also caste; nobility; slavery
clergy/clerics, 74, 104, 119, 142,
150–51
See also priests
cloth. See textiles
Cnut the Great, 130
code(s). See law, codes of
Codex Borgia, 14
Codex Mendoza, 8, 15–17
colonialism, vii, 1, 4n15, 12, 25n74,
33–37, 40, 63, 117, 146
color(s), xi, 145n23, 149, 151–52, 210
commerce, 11, 26, 81, 93, 170, 217,
218–19
See also economy; merchants; trade
commodities, 142, 204, 215
communication, ix, x, 4–6, 75, 170
conflict, x, 1, 18, 27, 34, 45, 49–51,
56, 63, 75, 78, 98, 158, 173, 187,
189, 194
See also dispute(s)
consumption. See law, sumptuary;
luxury
contract(s), 167, 170–71, 185n55,
189, 191, 193, 205
conversion, 86, 94, 101, 105–6, 119
Constantine V Copronimos, 82
Coptic Church, x, 75–90
corregidor(s), 35, 41, 47–48, 60
See also governer(s)
corruption, 15, 18, 125
courts, 11–21, 15–18, 21, 37, 50, 80,
90–91, 103–7, 132, 143, 168,
170, 173–74, 194, 219
credit, 185–87, 191
See also debt; loans
crime, 10, 93, 115, 120, 123–27
de Cuenca, Gregorio Gonzales, 51–53,
57–58
culture(s), viii, xi, xii, 3, 6, 76, 79, 84,
116–19, 121–23, 131, 133, 169,
171–72, 199, 202–3, 208, 228
curaca(s), 37, 53n97, 57, 60–61
index
custom(s), 8, 9, 21, 33, 34, 36, 39–40,
45, 53, 63, 79, 81, 83, 86, 94, 105,
120, 121, 185–87, 206
See also law, customary
Dahlak, 76, 95
Damot, 87, 94, 105, 108
Das, Sukla, 115, 125, 127, 129
David b. Zimra, Rabbi. See Radbaz
Davis, Donald R., 121
debt, 185–87, 190–92
See also credit; loans
decree(s), 22, 34, 44n52, 48, 53–54,
56–57, 59–60, 90–93, 141, 170,
173–93, 208, 222
See also edict(s); law; statutes
deed(s), 84, 92, 170–72, 188–91
See also charters; documents
defendant(s), 3, 182
See also courts; judges; legal
process
Dehli Sultanate, 117
Denmark, 130
Derat, 95, 76
Devaṇṇabhaṭṭa, 128, 168, 178, 187,
193
See also Smṛticandrikā
dharmaśāstra, xi, 117–19, 167–70,
172–76, 191n64, 194
dialect(s), 35, 171
See also language
disfigurement, 116, 121, 132, 133
See also blinding; branding
dispute(s), 1, 22, 45, 51n84, 64, 120,
190–91, 194
See also conflict
diversity, 39, 107, 118, 213
divination, 14n44
doctrine(s), 46, 84, 97, 98, 105
See also jurisprudence; law;
legal theory
doctors, 55, 104, 127, 149, 153, 156–57
See also health; medicine
241
242
index
documents, ix, 4–6, 9, 12, 14,
25n74, 26, 40, 43, 51, 91–93,
107, 155n48, 167–68, 170–77,
181n46, 183–85, 187–88,
190–94, 214, 219; damaged,
190–92; political and legal
functions of, 171–73, 178–79,
189; popular, 183–90; types of
(in India), 166, 170, 174, 205
See also books; manuscripts;
recording; text(s) and
textuality; writing
dress codes, 142–43
See also law, sumptuary
drunkenness, 11, 21, 24–26
dynasties, 8, 76, 215
earcutting, 128, 130
See also punishment(s)
eartheating, 21
EastWest binary, problems
inherent in, vii, 2, 115–19,
132, 144, 147, 158
See also “Western” paradigms
and ideologies
economy, 1, 23, 25, 26
See also commerce; trade
edict(s), ix–x, 73, 75, 78–79, 87–88,
90–97, 102–9, 117, 119–21, 173
See also decree(s); law; statutes
Egypt, 75–83, 94, 99, 127, 203–4,
207, 210, 214–16, 223, 226,
Eliezer b. Joel haLevi, Rabbi.
See Raviya
elites, xi, 1–2, 12, 16, 54, 96, 118, 127,
142, 147, 157–58, 210, 214, 218;
urban, xi, 147, 157–58
See also class, social
emic/etic interpretive categories, 26,
200
empire/emperor(s), ix, 1–4, 21–23,
36–37, 43, 76, 81–83, 90, 97,
103–4, 106,
encomienda(s), 41–42
See also colonialism; grants;
land tenure
encounter(s), vii–xiv, 1, 9, 21, 34, 51,
73, 75, 78, 96, 115, 167, 170–73,
175n27, 192, 194, 199, 202
endowment(s), 84, 177–78, 194
England, xi, 141, 147–49, 151, 153,
155–57
Ennarya, 105–6, 108
environment(s), 6, 39, 108, 174, 202
envoys, 5, 219–20
epistemology, 19, 208
ethnicity, ix, 1, 8, 18, 19n53, 34–37,
39–40, 54, 107, 122
ethnography, 6, 9, 12n38, 16, 18,
20–21, 26–27
Europe, vii–xi, 22, 76, 115–21,
124–27, 129–30, 132–33, 141,
145, 147, 212, 226–27, 229
European, 13n42, 21, 22, 24n68, 27,
33–35, 43, 45, 51, 63, 115–16,
119–25, 127–29, 132–33,
146–48, 153–54, 156, 200n6, 228
evidence, x, 5, 9, 11, 13n42, 18–20,
23–27, 40, 58, 62–63, 78, 80, 83,
90, 95, 103, 105, 109, 122, 127,
129, 131, 133, 147, 154, 155n47,
158, 167–69, 173–76, 182–84,
189, 194, 202, 208–10, 214n48,
218–20, 227–28
execution, 21, 126
See also punishment(s); stoning
exile, 49, 131
See also punishment(s)
fashion, 14n44, 119, 144–45, 147,
152n38, 158–59
Fatimids, 220
See also dynasties
Fetha Nägäst, 73–75, 79–87, 96–97,
102–5, 108
feudalism, 116–17
finance(s), 158, 185n55, 206–7,
226–27
See also commerce; trade
fingercutting, 122, 129
See also punishment(s)
Flanders, 147
Flood, Finbarr Barry, 122, 129, 199n1
Florentine Codex, 22n59, 25
food, 10, 42–47, 190, 200, 205, 221–28
forgery, 175, 192n65, 193
France, xi, 58, 144–45, 147–49, 151,
153, 154n45, 155–56
Franks, 123–24, 126, 129
Franciscans, 3, 5, 12
Frederick II, emperor, 130
freedom, 10, 12n36, 33, 42, 63, 73,
81–87, 93–97, 102–9, 123–24,
127–29, 191n64
Friedman, Mordechai A., 152, 202,
206, 210
fritware, 214n47, 216–17
See also ceramics
Fustat, 199, 203–4, 208–9, 213–14,
215, 220
gäber, 92, 93
Gälawdéwos, king of Ethiopia, 73–109
Gamo, 87, 94, 108
garroting, 10
See also punishment(s)
gender, 116, 127, 143–51, 154n45.
See also wives; women,
legislation dealing with
Geniza, Cairo, 199, 203, 214, 226
See also Fustat
gentry, xi, 157–58
See also class, social
geography, viii, 39, 42, 120, 133, 141,
143n8, 146, 171, 209
See also environment
German(s), 120, 144, 154n45, 170n9
Ghaznavid conquest, 117
gifts, 36–37, 53, 95, 99–102, 170, 173,
178–81, 186n57, 190–91, 204,
210, 215, 219–20
index
glass, 199, 202, 208–10, 220–28
global studies, viiix, 146, 159,
229n103
Goitein, S. D., 202, 206, 210, 214, 220
Gospels, 73, 87–91. See also Bible
governor(s), 35, 41, 47–48, 60, 74, 91,
106–7, 180, 184, 219
See also corregidor
grant(s), 31, 41–42, 46–48, 59–63, 86, 99,
173n20, 177–78, 180–81, 185–86
Greece, 83, 100; ancient, 116, 146
Greek, 79
Guangdong, 212n44, 217
Guayna Cappac, 45
guano, 38
Guanuco, 51
guardian(s), 41, 128
guarantee(s), 36, 48, 50, 63, 93, 129
guilt, 11, 20, 106, 125, 129
Gupta Empire, 117
hacienda(s), 48n69, 56, 63
See also agriculture; labor
Hai Gaon, 209
handbooks. See manuals
haircutting, 49, 122
See also punishment(s); shaving
hair, untying of, 124
health, 37, 54
highlands, 76, 78, 93, 98, 101
historiography, viii, ix, 12–13, 22,
117–18, 143, 171, 229
Holland, 58
homesteads, 42, 55
honor, 41, 85, 116, 121–23, 127,
170, 184
See also shame
de Hoses, Juan, 54
hospitality, 37
householder(s), 41, 127, 200, 227
See also citizen(s)/citizenship;
rights
Huascar, 45
243
244
index
Ibn Abi Zimra, David. See Radbaz
Ibn alAssal, AbulFada’il, 79, 81–82
Ibn alZubayr 210
Ibn Rushd, 98
identity, 39, 40, 76, 78, 93, 107, 127
ideology, 2, 24, 119
idolatry, 101, 223
Ifat, 74, 79, 91
illegality, definitions of, 11, 25, 58–60,
92, 95–97, 102, 107–8, 141
See also law
Illimo, 52
images, 5, 11, 153
impurity, xii, 124, 200, 205–9,
222–28. See also uncleanness
Inca, ix, 33–34, 36–37, 40, 42,
45–47, 55
incapacity, legal, 44, 128, 130, 144
See also agents, legal
incest, 11
Indian Ocean, ix–x, 121, 207, 209,
215, 217–19
Indians, 11, 33, 41, 44, 52, 55
infidels. See ahzab; idolatry
indigenous peoples, viiiix, xiii, 1–6, 9,
11–12, 13–14, 16, 19–20, 22–23,
26–27, 33–35, 41–63, 81
injuries, 119, 121–25
See also mutilation; punishment(s);
wounds
inscriptions, 78, 167, 168n2, 171,
172, 180n46, 186n56, 193
See also writing
instruction, 12, 14, 15, 58, 59, 62, 99,
170, 176, 177, 180, 184, 193
See also manuals; schools
insult(s), 123
See also injuries
interest, 185–86, 190, 194
See also debt; loans
inventories, 155n48, 200
Iraq, 204, 206, 209
Ireland, 123, 132
Islam, 78, 82–83, 98–102
See also Muslim(s)
Israel, 204n14, 206, 228n99
Italy, xi, 122, 127, 130, 144–45, 147,
149, 154–57
Japan, 116, 142, 146
Jesuits, 106
Jews, x, xii–xiii, 37, 84, 100, 117, 142,
199–229. See also Judaism
Jiangxi, 212–13, 217
jihad, 75, 76, 96–102
See also war
Jingdezhen, 200n6, 211, 212, 217–18
Judaism, xii, 202, 205, 208, 213, 220,
222, 227. See also Jews
judges, 11, 16–19, 90, 95, 104,
157n57, 183, 193
See also courts; jurists
judgments, 8, 18–19, 21–22, 61, 75,
104, 170, 182–83
See also legal cases
judicial process. See legal process
jurisdictions, 11n36, 14, 25, 35, 46,
48, 50, 53, 183n50
jurisprudence, ix, 2, 3, 9–16, 18–21,
27, 81–83, 101, 118
See also legal theory
jurists, viii, 9n26, 19, 79, 80, 98, 104,
129, 202, 226
See also courts; judges
justice, 16, 44, 46, 49, 50, 82, 84, 85,
92, 96, 104, 105, 116
Justinian, 86
Kerala, 117–18, 170
killing, 2, 10, 15, 19–20, 44, 78,
89–90, 101–2, 128–31
kinship, 36, 37, 53, 85, 95, 179n41,
185, 186
king(dom)(s), ix–x, 41–42, 45–49,
55–56, 58–62, 73–109, 118–23,
127–30, 141, 146, 149, 152–58,
173–75, 177–86, 190, 193;
vassal kings, 184
See also emperor(s); viceroy(s)
knights, 141, 148–58
Kogali, 129–30
kosher practices, 202, 207n20,
224–27
See also impurity; ritual
labor, 5n17, 25–26, 36, 39–42, 49,
55–57, 63, 198
See also agriculture; peasants;
slavery
land, ix, 2, 5n17, 8, 22, 24–26, 33–35,
38–40, 42–49, 51–63, 74, 83,
86–87, 90–92, 93, 99, 103n98,
104–6, 150, 173n20, 177–78,
190, 194, 206, 212, 219
landscape, 36, 37, 78
See also environment
land tenure, 2, 22, 24–26, 34, 36,
40–41, 46–47, 58–64, 194
See also ownership; property
language(s), ix, 4n16, 9n25, 19n53,
21, 26, 35–36, 52n92, 75–76, 81,
86, 107, 115, 123, 128, 171–72,
193, 221
Larivière, Richard, 121, 169n5, 174–75
law, 1–2, 80–86, 87–96, 102–5; Aztec,
ix, xiii, 1–4, 6, 8–10, 12, 16,
18–19, 21–27, 132, 146; civil,
120, 168n4, 174; Biblical, 87–91,
119, 130, 132–33, 223–27;
codes of, 18–19, 80–82, 86,
92–93, 120–33, 142–43, 223;
comparative, x, 1, 3, 16, 18n48,
26, 30, 79, 96, 115–24, 129, 132,
141, 143, 146–49, 151, 154,
157–59, 202, 211, 221, 224;
customary, 187; enforcement
of, 38, 56, 75–83, 102, 106, 142,
144n15, 149, 152–56, 165;
Hindu, xi, 115, 117–21, 168,
index
175, 176n32; imperial, 8, 18, 37,
43, 53, 58, 144, 146, 154n45;
instrumental, 142–45, 154, 156,
159; prescriptive, 121, 142;
rabbinic, x–xiii, 202–9, 220–28;
regional, x–xiii, 75, 90, 146–47,
167–68, 170–72, 184, 192–94;
religious, viii, x, 1, 3n14, 5, 37,
40, 44, 53, 62, 73, 76, 78, 80–81,
86–87, 93, 98, 107, 115, 118–19,
122–24, 126, 133, 143n8, 146,
169, 172–73, 181n49, 184, 208,
228; Roman, 75, 79, 81–83, 119,
121, 130; royal, 43–48, 54–53,
76, 80, 87, 90–91, 102–3, 105–9,
116, 143–44, 168, 170–77,
180–85, 190–93; Spanish, xi, 1,
3–6, 8–9, 12, 16, 18, 21, 23, 28,
33–36, 40–41, 43–48, 50–63,
150–53, 155; sumptuary, xi,
23–27, 81, 93, 107, 141–59;
symbolic, 142–45, 154, 156,
159; western European, early
medieval, 119, 124–25, 127–32
lawyers, 35, 149, 153–57
See also courts; judges; jurists
legal cases, 3, 22, 120, 174
legal definitions, 56, 127
See also taxonomies
legal formularies, 170
See also books; documents; manuals
legal precedent(s), ix, 12, 15, 18, 19,
79, 84n33, 130, 205, 220
legal process, xi–xii, 3, 8, 11–12, 16,
18–19, 21–22, 27, 34, 48, 75, 79,
83, 104, 116, 119–21, 125–26,
132, 144, 156, 158, 169–70,
182–83, 193
See also courts; jurists; judges
legal theory, ix, xii, 36, 46, 54, 63, 75,
79–93, 98–101, 126, 199, 204
See also jurisprudence
legalism, 18–19, 27, 169
245
246
index
legislation, 45, 53, 62, 79, 97, 109,
129, 144, 147, 151–52, 156,
158, 220
Leo III Isauricos, 82
Lewis, Martin, 118, 99n83
Lima, 34, 40, 43, 47–49, 56, 63
lineage, 35, 37, 39, 40, 45, 47,
49, 53–54, 60, 62, 177–79,
185–86, 191
See also dynasties; kinship
lipcutting, 131
See also punishment(s)
literacy, xi, 4–5, 107, 172, 175, 187–88
See also books; documents;
manuscripts; oral testimony;
recording; text(s) and
textuality; writing
litigants, 17, 184n53
See also courts; legal cases;
legal process; legislation
livestock, 43, 49, 51, 56, 61
loans, 25–26
See also commerce; interest;
merchants
Lombards, 119, 125, 127–32
lords. See amo; curaca; encomendero;
knights; nobility
lowlands, 78, 98
luxury, 24, 142n5, 143, 146
See also law, sumptuary
Madmūn b. Hasan Japheth, 201, 203
Madrid, 34, 158n60
Mahabharata, 128, 131–33
Mahfuz, 100, 101
Maimonides 223–25
Manu, 128
manuals 79–82, 103–4, 199n1, 221
See also books; legal formularies
manumission, 82–83, 86
See also slavery
manuscripts, 4–5, 22, 34–35, 73–109,
167, 174, 187n58
See also books; documents;
recording; text(s) and
textuality; writing
Mapa Quinatzin, 6n17, 11–16, 18–21
market(s), 23–24, 42n43, 49, 56, 89,
100, 106–7, 110n35, 145, 199n1,
212, 216, 218
See also commerce;
merchants; trade
Marqués de Cañete, 48, 59n113
marriage, 8, 14–15, 20, 86n42,
128–32
Marxism, 2, 22, 24, 26
Masliah haKohen Gaon, 204, 214
Massawa, 76, 95
material culture, xii, xiii, 3, 133, 143,
145, 169, 199, 202–3, 208, 228
Mathur, Ashutosh Dayal, 119–20, 127
mayordomo, 43
medicine(s), 127, 210, 218.
See also doctors
Melchites, 79, 81, 82
de Mendoza, Antonio, 47
menstruation, 203, 205–7, 220
See also impurity; uncleanness
Merced(es), 41, 46, 47, 56, 57, 59, 60
merchandise, 90, 94–95, 107
See also commerce; markets;
merchants; trade
merchants, 42, 78, 89, 90, 93–96, 100,
107, 146, 156, 203, 218, 219,
220, 221
See also commerce; markets; trade
mercy, 89, 95
Mesoamerica, 1, 6, 22, 25–26, 33,
38, 40
See also Americas
mestizo(s), 34, 35, 52
Mexica, 2n6, 4n16, 8
Mexico, xiii, 1, 2, 4n16, 7, 8, 9n26, 11,
18, 22–23, 27, 146; Basin of, 2, 7,
18, 23
See also Americas
Middle East, vii, xii, 107, 132, 199–202,
207–11, 214–17, 219, 221–29
migrants, viii, 4, 45, 63
mikveh, 206, 223
See also impurity
military rule, 11,16, 24, 33, 97, 100, 105
Minas, king of Ethiopia, 102, 107
Minnan, 213n44, 215
Mishna, 222–25
Mishneh Torah, 223–25
missionaries, 5, 12, 84n33, 106
mita, 57
See also labor; slavery
Mogrovejo, Toribio, 12, 49
monasteries, 54, 62, 92, 100–104, 122
moon, 36, 47n65, 55, 179, 190
Moonlight on the Laws.
See Smṛticandrikā
morality, 3, 27, 85, 108
See also custom(s)
mortgage(s), 170, 185–86, 189–91,
194
Moteuczoma Ilhuicamina, 23, 26
Moteuczoma Xocoyotzin, 17, 23
Motolinía, Toribio de Benavente,
12–13
Mughals, 117
Muhammad, 82, 98, 99
municipal government(s), 36, 41,
44, 48–50, 57, 63, 144, 148,
153, 156–57
See also cities; urban areas
and governance
alMuqaddasi, 209
murder, 10
See also killing
Muslim(s), 37, 89, 78–79, 83, 87, 89,
91, 94–102, 106, 117–18, 121,
130, 133, 142n7, 228
See also Islam
mutilation, 115, 116, 119, 122,
124–26, 129, 130, 131, 132, 133
See also punishment(s)
index
Nahua, ix, 1, 4–15, 18–19, 22, 25–27
Nahuatl, xiii, 1, 3n12, 4, 9, 18, 21–22,
26–27
natives. See indigenous peoples
networks, 49, 57, 215, 218–19
See also communication
Nezahualcoyotl, 3n11, 12–15, 18,
20–22, 40
Nezahualpilli, 12–13, 15
nobility, 20, 25, 83, 89, 102–7, 146,
148–57
See also class, social; elites
“nonWest,” vii
See also EastWest binary;
“Western” paradigms and
ideologies
Nomocanon, 79–82
Normans, 122
nosecutting, 128–32
See also punishment(s)
obligation(s), 36, 40, 89, 93, 95, 191–92
See also custom(s)
offense(s), 8, 11, 15, 19
See also crime
offerings, 37, 38, 40
See also ritual
office(s)/official(s), 4n16, 8, 11,
23–24, 43, 46, 48–51, 53–63,
79, 89–91, 94–95, 103–7, 124,
150n33, 155n49, 170, 177, 179,
193, 203
Old Testament, 22, 119, 130, 133
See also Bible; law, religious; Torah
Olivelle, Patrick, 118–19, 125, 167, 175
oral presentations/testimony, 5–6, 9,
21, 34, 46, 62, 76
ordeal(s), 121, 125, 132, 170, 174n23
See also legal process; trials
orders, 3n12, 18, 44, 52–53, 123,
176, 184, 193
See also decrees; edicts
ornamentation, 151, 152, 153
247
248
index
See also law, sumptuary; luxury
ownership, ix, 25, 52n92, 56–57,
60–61, 63, 82, 86, 93, 127
See also property
Pacasmayo, 49
pachaca, 37
Pacific Ocean, 36
Paita, 42
Palestine 222, 228n99
palmleaf, 167, 171
See also writing
Panama, 42
paper, 6, 39, 167, 171
See also writing
Parliament, 141, 148–49, 158
partnership(s), 43, 50, 55
pasture, 43, 45, 51, 55, 60–62
peace, 78, 90, 98–99, 120, 127,
177–78, 180–81
peasant(s), 34, 39, 51, 63, 129, 149
See also agriculture; labor;
servitude
penance, 119, 125, 128, 130, 168, 190
performances, 5, 9
See also ritual
performativity, 10
periodization, viii, 116–21, 215
See also chronologies
Persia, 100, 122, 171n14, 217
Peru, ix, 33–34, 44–45, 53n96;
Viceroyalty of, 33, 35, 45n59,
47–48, 50, 53–60
petlatl, 21, 22n58
Philip II of Spain, 49, 54, 58–60
pilgrimage, 37
Piura, 41, 42, 51, 63
Pizarro, Francisco, 33, 40–41
plaintiff(s), 3, 182
See also courts; legal process
plastic, 202, 211, 228
pleading, 95, 173, 184
poet(s), 12n38, 99, 123, 167–68
Polanyi/Polanyist, 2, 22, 24, 26
politics, x, 12, 21–22, 75, 91, 96
porcelain, x, xi, xii, 200, 202, 208–9,
211, 214, 221–22, 226–27
See also ṣīnī; ceramics
pottery, 202, 206n20, 208–9,
214–16, 220–27
See also ceramics
Prasad, Ishwari, 121, 170n9
premodernity, ix, xiii, 227
See also periodization
priest(s), 6, 9–11, 14, 35, 43, 54,
58n111, 63, 120, 184, 205
See also clergy/clerics
prisons/prisoners, 15, 20, 101–2
privilege(s), 41n42, 125, 141n3,
155, 173
Procheiros Nomos, 81–82, 85
prohibition(s), 142
property, 11, 26, 33, 36, 45–46,
52–54, 60–63, 81, 85, 89, 94,
106, 124, 127–29, 142, 177,
182, 185–86, 189–91
propriety, 58n11, 122–32, 150, 183
See also custom(s); morality
prostitution, 128–30, 142
protection(s), legal, 41, 47, 54, 56, 58,
62, 73, 86, 93, 95–97, 101, 103,
106, 108, 173
protector(s), 44, 49, 58n111, 179
See also lords
province(s), 35, 74, 88, 91, 94,
100–101, 212, 217
See also jursidiction
public opinion/publicity, x, 11, 18,
20, 53, 59, 62, 96, 102, 107, 123,
154, 168n4, 170, 189, 192
Pueblo, 35, 41n41, 54n100, 216
punishment(s), 10, 15, 18, 20–21,
49, 82, 107–8, 115, 119, 123–30,
133, 155, 168; corporal, 116,
118–19, 125–26, 132
purity. See impurity
qingbai, 211–20
Quanzhou, 212n44, 215
Quechua, 35–36, 52n92
quipu(s), 35n13
See also documents; writing
Quito, 37, 45
rabbi(s), 202, 205–9, 227
See also law, rabbinic
Radbaz (David b. Zimra), 209–10,
226–27
Rashtrakuta dynasty, 117–18
Ravina, 225, 226
Raviya (Eliezer b. Joel haLevi), 223–24
realenga, 59
See also property
receipt(s), 170
recording, ix, 6, 9, 47n65, 51n84, 74,
91, 122, 155, 171
See also books; documents;
manuscripts; text(s) and
textuality; writing
Red Sea, 76–78, 95, 100, 209–10,
216, 218–19
reducción, 46, 53–54, 59, 62
religion, 76, 86, 87, 98, 102, 103, 119
See also law, religious
rent, 41, 53, 63, 150
residencia, 48
resources, 8, 34, 36, 38, 39, 42, 98,
142; appropriation of, 34, 45
revenue, 41, 49, 58, 150
Reynolds, Susan, 115–16, 121,
132–33
rights, 5n17, 8, 22, 25–26, 35–36,
38–39, 46–47, 54, 59, 60–63,
84–85, 95; human, 84
See also custom(s); propriety
ritual, 25, 36, 40, 78, 168, 177n34,
179n40, 190, 200, 202–10,
222–25, 228
See also ceremonies; custom(s)
Roldan, Juan, 41, 52
index
Roman Catholic Church, 3–4, 46–47,
84n33
Roman Empire, x, 75, 79, 81, 82, 83,
120, 127
See also law, Roman
rules, ix, 3, 10–15, 18–21, 24–27, 39,
93, 96, 131, 168–69, 170, 172,
183, 190, 194, 199, 202, 223
See also custom(s); law
sacrality, ix, 10, 34, 120
sacrifice(s), 37, 39
See also ceremonies; offerings;
ritual
Sahagún, Fray Bernardino de, 3,
21–23, 25–27
Sälama, Bishop, 80
sale(s), 11, 25–26, 49, 57–63, 73, 75,
83, 86, 89, 96, 98, 108, 170, 190
Salerno, 122
Salic law, 123–24, 126
Sanskrit, xi, 127, 132 167–93
Santo Domingo, 42
sapci, ix, 34, 38
Särṣä Dengel, king of Ethiopia, 74, 80,
104–7
scandal, 61, 132
scholasticism, 167–68
schools, 99, 104, 179, 185–86
See also instruction
screenfold, 6, 14
scribes, 7, 35, 52, 74, 92, 178, 180–81,
187–88, 193
See also documents; writing
servant(s)/servitude, 25, 41–43, 52,
85–86, 91, 95, 100, 105, 157, 185
See also labor; slavery
settlements, ix, 33, 48, 53, 63, 192,
216n57
See also courts; legal process
settlers, 41, 43, 49, 57, 60, 63
See also colonialism
sex, 8–11, 20, 129
249
250
index
sexuality, viii, 9–11, 24, 115, 128–30
Seville, 34, 42
Shafite tradition, 101
See also Islam; jurisprudence
shame, 121–33
Sharma, 117, 213–14, 217–19, 228
shaving, 49
See also punishment(s)
Shembra Kuré, battle of, 100
Sicily, 130
Siete partidas, 152
signatures, 175, 180–83, 186,
188–89, 193
See also scribes; writing
Šihāb adDīn Aḥmad bin Abd alQāder
bin Sālem bin Uṯmān, 99, 101
sin, 127, 132, 142n5
ṣīnī, 199–220
See also porcelain; ceramics; qingbai
Sinodos, 80
skin, 124, 205
slavery, 10–12, 19, 26, 56, 73–75,
78–79, 81–109, 124, 129, 157,
190
slave trade, ix, 73–75, 78–89, 92–99,
101–3, 105–8
Smṛticandrikā, ix, 167–98
Song China, 215, 219
song, 9n25, 12n38
Soto, Hernando de, 41
South Asia, vii–viii, x–xi, 75, 118,
132, 168, 170–71, 204, 212, 215,
218–19
South America, vii. See also Americas
Spain, xi, 11, 34, 35, 41, 42, 44, 45, 50,
58, 98, 141, 147, 149, 155–57
Spaniard(s), 1, 6, 10, 13n42, 33, 34n9,
35n11, 41–45, 47–50, 56, 57, 58,
60, 61, 63
state(s), 2, 8, 10, 15, 18, 23, 25–26,
34, 38, 76–78, 81, 95, 97–101,
103, 108, 117, 119–20, 146–47,
168, 193
status, 25, 37, 39, 60, 86, 94, 101, 108,
119, 122–29, 133, 148–54, 200,
202, 209–10, 220, 223–27
See also caste; class, social
statutes, 153–58
See also decrees; edicts; law
stoning, 8, 10–11, 15, 20, 132
See also execution; punishment(s)
stonepaste, 210n35, 214n47, 216–17
See also fritware
storytelling, 131
See also chronicle(r)(s);
oral presentations
strangulation, 15, 20
See also punishment
Sucre, 34, 63
sun, 36, 40–42, 47n65, 55, 179, 190
surgery, 126
Susenyos, king of Ethiopia, 104, 106
symbolism, xi, 142–45, 154, 156,
159, 208
See also law, symbolic
Symes, Carol, vii, 73, 159
Syria, 81, 214, 222
SyroRoman Law Book, 81
Tädbabä Maryam, 73–74, 87, 90–91,
109
ṭahora, 200, 205
See also impurity
Talmud, Babylonian, 206, 222–25
tannaim, 205
Tangarará, 41
tattoo(s), 93, 125
taxonomies, xii, 169, 200, 208, 211,
220, 222, 226–28
Tenochca Empire, 42
Tenochtitlan, 4n16, 8, 12, 14–16, 18,
21–25
Teotihuacan, 13
Tequen, 38
tequitl, 25
See also labor
terrazgo, 53
See also rent
Texcoco, 1–3, 10–14, 16, 18–21, 23, 27
texts(s) and textuality, 3–6, 10–11,
19, 22, 25–26, 73–109, 115–16,
121–33, 143–59, 167–95,
199–202, 210n31, 214–15,
218, 222–26
See also books; documents; manu
scripts; recording; writing
textiles, xi, 10, 23, 26, 35n13, 49,
141–59, 177–78, 180, 190
Tezozomoc, 8
theft, 10–11, 15, 21, 115, 125–27,
191–92
threat(s), 50, 95, 123–24, 126–27,
130–33, 173
Tierra Firme, 56
tierras baldías, 56
See also land tenure
tilmatli, 10, 23
title(s), x, 5, 45–47, 53, 56–62, 80,
84, 89, 104, 124
See also land tenure; ownership;
property; nobility
Tlailotlaque, 7
tlalqualiztli, 21
tlatoani, 25
Tlaxcala, 25
Toledo, Francisco de, 35, 53–55
Torah, 223–27
See also Bible; law, rabbinic;
law, religious
torture, 124
See also punishment(s)
town(s), 2, 4n15, 8, 11–13, 20–21, 35,
38, 41, 46–51, 53–56, 59–60, 63,
101, 149, 188–89; councils, 41,
47, 51, 59–60, 63; crier(s), 59
See also cities; municipal
government(s)
Tractate Kelim, 222–23
See also Mishna
index
trade, xi, 73, 78, 84–88, 92, 94–98,
101–3, 106–8, 133, 143, 207,
209, 215, 217, 219, 221
See also commerce; merchants
trade routes, 78, 89, 98, 215–20
translator(s), 35, 52, 79–81, 126
treasure, 40, 42
See also money
treaties, 46, 177–78, 181
Treaty of Tordesillas, 46
trial(s), 174, 184
See also legal process, ordeal(s)
tribute, 5n17, 16, 25n74, 36, 40,
42–43, 49, 51, 54–56, 219–20
Trujillo, 41, 43, 47–51, 63
Tucume (also Tucome), 41, 52
tuma, 200
See also impurity
Tumipampa, 37
turkey(s), 11, 25n74
Tzadua, Abba Paulos, 83
tzontequi, 21
See also judges; legal decisions;
legal process
Umar, Caliph, 99
uncleanness, 200, 205
See also impurity
urban areas and governance, 36, 41,
47, 52–54, 59, 144, 147, 150, 153,
156–58
usufruct, 22, 61n61, 47, 60, 190
See also ownership; land tenure;
property
usurpation, 46, 58, 63
Valverde, Vicente, bishop of Cuzco,
43, 49
vecinos, 43
See also citizens
Vedas, 123, 179, 185–86, 189
See also law, religious
Veluthat, Kesavan, 117–18, 172n18
251
252
index
verdicts, 174, 176, 182–83, 193
See also courts; judgements;
legal process
viceroy(s), 33–35, 45–48, 53–60
Vikings, 130
village(s), 35, 42, 53, 54, 127, 177,
179, 180, 190
violation/violence, 75, 85, 90–92, 97,
103, 107, 115, 119–20, 130–32,
148n30, 179–80
Visigoths, 119, 124, 130
visita de la tierra, 57–58
See also land tenure; title(s)
Vivāda Ratnākara, 124
Wäldä Heywät, 84–85
war(s), x, 5, 11, 18, 23, 36, 45, 55, 58,
83–86, 97–101, 107–9, 178–81
“Western” paradigms and ideologies,
misleading application of, 2, 6,
9–10, 22, 25–26
See also EastWest binary
whipping, 49. See also punishment(s)
will(s), 43n46, 56n103, 103n98,
155n48, 200
witnesses, 8, 21, 37, 76, 107, 175,
176n31, 182, 185, 187–89, 190,
192, 193
See also courts; legal process;
documents
wives, 8, 10, 41, 122, 130–32,
151, 153
See also marriage
women, legislation dealing with, 8,
10, 15–16, 24, 35–36, 51, 55,
85–86, 102, 116, 124, 127–33,
141, 146–49, 153–55, 203,
206–7, 220
See also marriage
wound(s), 124–26
See also injuries
writing, xiii, 5n17, 23, 54, 76, 78,
84, 90, 92, 107, 122, 126, 159,
166–67, 169, 171–72, 174, 177,
180n46, 183, 185, 188n61, 190,
192–94, 202, 229
See also books; documents;
recording; scribes
Xolotl, 5, 7, 13–14
Yämanä Krestos, Ras, 74
Yekuno Amlak, emperor of Ethiopia,
76
Yemen, xi, 99–101, 199–229,
yeshiva, 203–4
Zärä Yaqob, king of Ethiopia, 76, 80,
81, 93, 107
Zeila, 76, 95