ABSTRACT

The aging Visigothic law had to be progressively updated with usualia to face new social and judicial challenges. 1 This culminated in the second half of the twelfth century, when the legem consuetudinaria 2 were defined as the Usatges of the county of Barcelona, as a collection of updated normative responses to deal with the real problems in feudal society. This new code underlined the power to decree justice over the land or society—“quia terra sine iustitia non potest vivere, ideo datur potestatibus iustitiam facere” 3 —, recognising the full capacity of the corresponding lords to apply justice: “sicut datur est eis iustitiam facere, sic limitum erit eis cui placuerit dimitttere et perdonare”. 4 When applying justice, they had to dispense a wide range of graduated possibilities, which, in the case of necessity, culminated in the death penalty applied on the gallows:

Quia iustitiam facere de malefactoribus datum est solummodo potestatibus, scilicet de omicidis, e adulteris, de veneficis, de latronibus, de raptoribus, de bauzatoribus et de aliis hominibus, ut faciant eam de illis, sicut eis visum fuerit: truncare pedes et manus, trahere occulos, tenere captos in carcere longo tempore, ad ultimo vero, si opus fuerit, eorum corpora pendere. 5

The code of the Usatges adopted the fragmentation of power that the feudal system favoured, demonstrated the new realities and included the juridical lines inherited from Roman law. 6 Indeed, the twelfth century was a fruitful moment for generating new forms of government and social structure in Europe, thanks to the intersection of emerging powers, feudal strength, economic development and new ideas and values. 7 Similarly, this was the moment when the different counties in the north-east of Iberian Peninsula were perceived as a social and cultural unity, keeping a common name, Catalonia, 8 and accelerating cohesion through the consolidation of both feudal and urban development. The jurisdictional fragmentation was maintained despite the rise of the count of Barcelona over Catalonia, reinforced by his position as king of Aragon. 9 In this context, the acceptance of Roman law provided the ideal framework for defining the new balances of power. This new 22legal doctrine provided the monarch, nobles and municipalities with arguments to justify and consolidate their respective positions, while clearly defining the duality of domain over a single good, either the direct power and the useful domain of emphyteusis, or the merum and mixtum imperium in the jurisdiction. On this subject of vital importance, which tells us who sovereignty belonged to, the crucial aspect was the punishment of crime. Full and supreme authority corresponded to those empowered to judge crimes that carried the death penalty. Anyone with this power enjoyed the merum imperium, and could cede the mixtum imperium, that is the minor jurisdiction, without losing their supreme position. The approach meant the inclusion of the death penalty in the judicial exercise that, as we have seen, was not usual in the application of justice in the preceding centuries. In reality, all over Europe in the twelfth century, the same Romanist juridical principles promoted the reintroduction of the death penalty. 10