Freedom and Unfreedom in Early Medieval France PDF

PAST & PRESENT
NUMBER 193
NOVEMBER 2006
CONTENTS
page
ANDREW SHERRATT: by Chris Wickham .................................
FREEDOM AND UNFREEDOM IN EARLY MEDIEVAL FRANCIA: THE

EVIDENCE OF THE LEGAL FORMULAE: by Alice Rio ...........
SUBORDINATION, SOLIDARITY AND THE LIMITS OF POPULAR

AGENCY IN A YORKSHIRE VALLEY c.15961615:
by Andy Wood .............................................................
41
RESURRECTING BY NUMBERS IN EIGHTEENTH-CENTURY

ENGLAND: by Lucia Dacome ..........................................
73
THE PAINE BURNINGS OF 17921793: by Frank OGorman .... 111

MASS CULTURE AND DIVIDED AUDIENCES: CINEMA AND SOCIAL
CHANGE IN INTER-WAR GERMANY: by Corey Ross ............ 157
SEEING BEYOND THE STATE: THE POPULATION CONTROL
MOVEMENT AND THE PROBLEM OF SOVEREIGNTY:
by Matthew Connelly ................................................
Published by
Oxford University Press

for the Past and Present Society
197
FREEDOM AND UNFREEDOM IN

EARLY MEDIEVAL FRANCIA: THE
EVIDENCE OF THE LEGAL FORMULAE*
Lack of evidence is one of the most common complaints of early
medievalists, especially those who have anything to do with the
Merovingian period. In view of this, legal formulae constitute
one extremely rich but surprisingly neglected source. It is not
that no one has used formulae: they have been used regularly
ever since they rst attracted the attention of scholars in the
seventeenth century, but in most modern work they rarely
appear as anything more than footnote-fodder, in order to support a point already made on the basis of different sources, and
they have remained relatively under-exploited.1 This is essentially due to their rather loose anchorage in space and time, and
to general uncertainty as to when, where and how they were
used in the medieval period.2 As a result of this, historians have
been reluctant to base arguments on them, some even dismissing them entirely: thus recently Robert Fossier, in his Sources de
lhistoire conomique et sociale du moyen ge occidental, intended
to be a comprehensive introduction, was prompted to state
that formularies [i.e. collections of formulae], containing mere
* My greatest debt of gratitude is to Jinty Nelson for reading and commenting on
many drafts of this article, and for her patient advice and encouragement. I would
also like to thank Monique Bourin, Carlotta Dionisotti, David Ganz, Dominique
Iogna-Prat, Shamus Maxwell, Susan Reynolds and Barbara Rosenwein for reading
drafts or discussing various aspects with me, as well as Chris Wickham, and all
those who attended the Department of Classics seminar, Kings College London,
on 22 March 2005, and the Earlier Middle Ages seminar at the Institute of Historical
Research in London on 1 June 2005, where I presented preliminary versions of the
article.
Note that all specic Formulae cited appear in Formulae Merowingici et Karolini
aevi, ed. Karl Zeumer (Monumenta Germaniae Historica [hereafter MGH],
Legum V, Hannover, 1886), including Cartae Senonicae, Collectio Flaviniacensis,
and the Marculf collection.
1
The work of Fustel de Coulanges can be said to represent the only serious
attempt to use them comprehensively in a general history: Fustel de Coulanges, La
Monarchie franque (Histoire des institutions politiques de lancienne France, iii,
Paris, 1888), passim, esp. 234.
2
Warren Brown, When Documents Are Destroyed or Lost: Lay People and
Archives in the Early Middle Ages, Early Medieval Europe, xi (2002), 33940.
Past and Present, no. 193 (Nov. 2006)

doi:10.1093/pastj/gtl017
The Past and Present Society, Oxford, 2006
PAST AND PRESENT
NUMBER 193
frameworks to be lled out later, can only be useful in the eld

of diplomatic.3
Yet formulae have much to offer historians interested in elds
other than the technical study of documentary forms. Although
their use has traditionally been conned to legal and institutional history and their potential for social history has thus
remained largely untapped, they can give information beyond a
narrowly legal or diplomatic context. They also survive when
many of the documents which might have been based on them
do not, which makes their evidence all the more crucial. I focus
in this article on unfreedom and the question of the transition
from slavery to serfdom: that is, the transition from a state of
unfreedom in which persons were treated as objects, bought
and sold with no legal rights, and involving only a restricted
class of both domestic and rural workers, to a more limited type
of subjection to a lord, involving the majority of the rural population. This is not the place for a systematic account of the
historiography,4 but I would like to make a few preliminary remarks
on some of its broader developments.
I
THE HISTORIOGRAPHICAL DEBATE
The consensus shared today by the majority of English-speaking

medievalists recognizes a changed situation by the ninth century,
by which time the transition to serfdom is thought to have
occurred. This view is essentially based on the evidence of the
Frankish polyptychs (estate surveys). The lack of any evidence
of this type surviving from before the ninth century has made it
difcult to arrive at a more precise chronology or at any clear
consensus on what exactly happened during the period in which
this transition is presumed to have occurred, and with which I
am concerned in this article. The emphasis tends to be on the
diversity of situations: some unfree persons had the right to own
property, some had some access to the justice system, while
3
Robert Fossier, Sources de lhistoire conomique et sociale du moyen ge occidental:
questions, sources, documents comments (Turnhout, 1999), 44.
4
Of which there is an excellent account in Wendy Davies, On Servile Status in
the Early Middle Ages, in M. L. Bush (ed.), Serfdom and Slavery: Studies in Legal
Bondage (London, 1996).
FREEDOM AND UNFREEDOM
others had neither.5 As Wendy Davies has put it in conclusion

to her synthesis on early medieval servi:
At any point between 400 and 1100, in most parts of Western Europe,
there was a spectrum of types of tied dependant, who had less or more
control of their own labour, and negligible to substantial rights recognized by the community surrounding them from the object fed by
the master to the householder censarius who made an annual return to
him. All of these people were in a state of bondage. None of them
would have had much power of, or capacity for, negotiation with his
master; most of them were saleable. But being sold along with landed
property, however the conveyancing was formulated, had nothing like
the personal consequences of being sold and transported. The one kept
family and humanity; the other did not.6
References to the power to negotiate and to the personal

consequences of slavery are characteristic of new directions taken
in the historiography, in that historians nowadays tend to privilege the social impact of unfreedom rather than its economic or
legal dimensions.
The historiography in which Marxist inuence has been
absorbed in a exible way is now essentially concerned with the
social and superstructural, rather than with xed chronologies
for the succession of stages of production.7 One of the rst to
break with traditional Marxist interpretations of the transition
from slavery to serfdom was Pierre Bonnassie. Bonnassie rejected
the idea that the classical style of slavery ended as a result of
the synthesis of typically Roman and Germanic features which
Marx and Engels thought had emerged following the fthcentury barbarian invasions, resulting in the entirely distinct new
system of feudalism.8 Bonnassie argued that classical slavery
5
Ibid., 233, 236. See also Julia M. H. Smith, Europe after Rome: A New Cultural
History, 5001000 (Oxford, 2005), 15360.
6
Davies, On Servile Status, 2456.
7
See, most notably, Chris Wickham, The Other Transition: From the Ancient
World to Feudalism, Past and Present, no. 103 (May 1984), and, most recently,
Chris Wickham, Framing the Early Middle Ages: Europe and the Mediterranean, 400
800 (Oxford, 2005), 2612, for a more exible approach. For more traditional
Marxist interpretations of the transition to serfdom, see Perry Anderson, Passages
from Antiquity to Feudalism (London, 1974); Charles Parain, Outils, ethnies et dveloppement historique (Paris, 1979); Pierre Docks, La Libration mdivale (Paris, 1979).
Parain and Docks disagreed on causes, but followed the same chronological
framework.
8
Pierre Bonnassie, Survie et extinction du rgime esclavagiste dans lOccident
du haut moyen ge (IVeXIe s.), Cahiers de civilisation mdivale, xxviii (1985),
31214. For an English translation, see Pierre Bonnassie, From Slavery to Feudalism
in South-Western Europe, trans. Jean Birrell (Cambridge, 1991), ch. 1.
10
PAST AND PRESENT
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in the Aristotelian sense did not in fact end in the fth century,
but continued until around the year 1000.9 To a certain extent,
he still failed to break free from the chronological constraints of
traditional Marxism, and he retained the idea that the end of
slavery must have coincided with the beginning of feudalism.10
The essential difference was that his chronology took into account
developments typical of French historiography, and followed
Georges Duby in placing both the birth of feudalism and the
end of classical slavery after the year 1000 rather than in the
fth century. Bonnassies work also reects an important development in the denition of what constituted the classical style
of slavery. Since the 1980s, historians, Marxist or otherwise,
have moved away from the model envisaged by Marc Bloch of
chained gangs and plantation-style exploitation, for which it is
now generally recognized there is no clear evidence north of the
Alps in any period,11 and have instead focused on the social consequences of unfreedom, while the problem of economic structures
took a back seat.
This development has been paralleled by the rejection in
French- and English-speaking historiography of an altogether
different vision of unfreedom, developed from the 1950s by
Joseph Vogts Mainz school in explicit opposition to Marxist
economic models, and working instead on the basis of a purely
legalistic denition of unfreedom. This view is now mostly
9
This development has not had many adherents in English-speaking countries,
though see Carl I. Hammer, A Large-Scale Slave Society of the Early Middle Ages:
Slaves and their Families in Early Medieval Bavaria (Aldershot, 2002), reviewed by
Warren Brown, in Early Medieval Europe, xii (2003), 834. Bonnassies position
was supported by Guy Bois in his La Mutation de lan mil: Lournand, village mconnais
de lantiquit au fodalisme (Paris, 1989), now largely dismissed, though it was highly
controversial at the time of its publication: Mdivales, xxi (1991) was dedicated to
debating it. On this vexed issue, see also T. N. Bisson, The Feudal Revolution,
Past and Present, no. 142 (Feb. 1994), and the resulting debate involving Dominique Barthlemy and Stephen D. White Past and Present, no. 152 (Aug. 1996)
and Timothy Reuter and Chris Wickham, with Bissons reply Past and Present,
no. 155 (May 1997).
10
See Davies, On Servile Status, 2312.
11
See the warnings against generalizations concerning this model in Moses
I. Finley, Ancient Slavery and Modern Ideology, ed. Brent D. Shaw (Princeton,
1998); C. R. Whittaker, Circes Pigs: From Slavery to Serfdom in the Later
Roman World, in M. I. Finley (ed.), Classical Slavery special issue of Slavery
and Abolition, viii (1987). See also Wickham, Framing the Early Middle Ages,
2623.
11
conned to Germany, where legal history has traditionally been done

by lawyers.12 Most current historians now nd it too narrow to
be helpful, and have become less interested in identifying legal
constraints than in trying to understand the place of the unfree
in a wider social context.13 The debate is currently focused on the
dehumanizing aspects of slavery and the experience of unfreedom
rather than on its impact in terms of economic organization or
its legal implications.
Accordingly, the closest thing to a generally accepted denition of slavery to have emerged from the recent work of historians and anthropologists emphasizes its social consequences:14
total social exclusion and an associated sense of dishonour, typically characterized by the inability to participate in the justice
system, to own property, to marry free persons or to form
families freely; the restriction of free movement; the threat of
physical violence, and of being bought and sold without ones
consent. Do early medieval servi tick all the boxes? Some historians think so;15 many others are more sceptical.16 As we shall
see from the evidence of the legal formularies, some of the elements on this list, when applied to Frankish servi, reect a rather
blinkered reading of the sources. Others reect an unrealistic
view of what life in the Middle Ages would have been like for
12
Hermann Nehlsen, Sklavenrecht zwischen Antike und Mittelalter: germanisches
und rmisches Recht in den germanischen Rechtaufzeichnungen (Gttingen, 1972), and
recently Detlef Liebs, Sklaverei aus Not im germanisch-rmischen Recht,
Zeitschrift der Savigny-Stiftung fr Rechtsgeschichte: Romanistische Abteilung, cxviii (2001),
are both examples of German historians trained as lawyers, and their approach to
unfreedom corresponds to an essentially legalistic denition.
13
See Wickham, Framing the Early Middle Ages, 55966.
14
Orlando Pattersons Slavery and Social Death: A Comparative Study (Cambridge,
Mass., 1982) was particularly inuential in this respect.
15
Duby considered the status of the tenth-century serf to have been essentially
dened through exclusion from any kind of participation in any community or
judicial institution (lexclusion du peuple franc), arguing that the collapse of these
institutions in the eleventh century was the only thing that could do away with this
status: Georges Duby, La Socit aux XIe et XIIe sicles dans la rgion mconnaise
(Paris, 1953), 110, 210.
16
In France, the work of Barthlemy in particular has gone a long way towards
re-evaluating the notion of total social exclusion envisaged by Duby and Bonnassie:
see Dominique Barthlemy, Quest-ce que le servage, en France, au XIe sicle?,
Revue historique, cclxxxvii (1992); Dominique Barthlemy, La Mutation de lan
mil a-t-elle eu lieu? Servage et chevalerie dans la France des Xe et XIe sicles (Paris,
1997).
12
PAST AND PRESENT
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free people; the threat of violence, in particular, or the restriction

of free movement, cannot have been conned to the unfree, and
there is no shortage in medieval sources of free persons being
badly treated.17
Formulae have been relatively under-used in the debate over
slavery and unfreedom.18 They have occasionally been referred
to, but not very convincingly: Bloch, for instance, counted the
large number of manumissions included in formularies as evidence
that slavery was declining, while Pierre Bonnassie and Detlef
Liebs referred to the large number of self-sale formulae, in
which free persons sold their own free status, to argue the
contrary and support a very bleak picture of early medieval
unfreedom.19 This approach does not take us very far, because
it relies on the idea that formulae are somehow representative
in quantitative terms, something that we cannot realistically
hope for. Focusing on formulae in a more specic and qualied
way, on the other hand, can yield better results.
17
An example of the strength of the idea that bad treatment and lack of free
movement would have been dening elements of slavery, and of slavery alone, is
the case of the separated families in Gregory of Tours, Histories, VI. 45. Thorpe,
Gregorys translator, inserted the word serf when all that the text actually says is
that these were families from the royal estates: History of the Franks, trans. Lewis
Thorpe (Harmondsworth, 1974), 377. The further mention that some were of
good birth (meliores natu), owned property and were able to leave much of it to
the Church casts further doubt on his interpretation. Here Thorpe concluded,
simply from the way they were being treated, that these were serfs families, even
though this is not a tale of routine oppression; the event is presented as exceptional, and Gregory clearly thinks that this was an abuse of power on the part of
Chilperic, who was not his favourite Merovingian. Thorpe admittedly was not a
historian, but his translation of Gregory remains the standard one, and his reading of this passage has been inuential proof that, in English as in Latin, we
need to be careful with words: see, for instance, R. Samson, Slavery, the Roman
Legacy, in John Drinkwater and Hugh Elton (eds.), Fifth-Century Gaul: A Crisis
of Identity? (Cambridge, 1992), 221. The standard French translation of Gregory
has the non-committal domestiques: Grgoire de Tours, trans. Robert Latouche,
2 vols. (Paris, 19635).
18
Though Goetzs recent survey of the evidence for early medieval unfreedom
includes a good but necessarily brief section on legal formulae: Hans-Werner
Goetz, Serfdom and the Beginnings of a Seigneurial System in the Carolingian
Period: A Survey of the Evidence, Early Medieval Europe, ii (1993).
19
Marc Bloch, Comment et pourquoi nit lesclavage antique, Annales ESC, ii
(1947), 37; Bonnassie, Survie et extinction du rgime esclavagiste, 3289; Liebs,
Sklaverei aus Not, 30111.
13
II
UNFREEDOM IN THE LIGHT OF FORMULARY EVIDENCE
Formulae are model documents used by scribes for recording

common legal transactions, such as sales, loans or testaments,
but also for recording the outcome of cases which we would
nowadays associate with criminal law, such as murder, theft,
kidnapping, and so on. Formulae thus offer insights into a variety of situations, and often make for very striking vignettes.20
The problem remains that we have the moulds, not the nished
products, and that we have to nd legitimate ways of interpreting them.
Dating is the thorniest problem. This is largely due to the
difculty of establishing a secure textual link between formulae
and existing datable documents. This does not imply that formulae were not used: they are very close in form to surviving
documents throughout the early medieval period, and thus
indisputably reect the common legal culture of their day. The
problem is not that no connections can be made. The problem
is that there are too many: due to the level of standardization in
20
The standard edition is Formulae Merowingici et Karolini aevi, ed. Zeumer; see
also Karl Zeumer, ber die lteren frnkischen Formelsammlungen, Neues
Archiv, vi (1881); Karl Zeumer, ber die alamannischen Formelsammlungen,
Neues Archiv, viii (1883). Further editions of individual collections include
Raymond Poupardin, Fragments du recueil perdu de formules franques dites
Formulae Pithoei, Bibliothque de lcole des Chartes, lxix (1908); Bernhard
Bischoff, Salzburger Formelbcher und Briefe aus tassilonischer und karolingischer Zeit
(Munich, 1973); Marcul formularum libri duo, ed. Alf Uddholm (Uppsala, 1962).
Many of the manuscripts are admirably described in Hubert Mordek, Bibliotheca
capitularium regum Francorum manuscripta: berlieferung und Traditionszusammenhang der frnkischen Herrschererlasse (MGH, Hilfsmittel, xv, Munich, 1995). Studies
of individual formularies include Werner Bergmann, Die Formulae Andecavenses,
eine Formelsammlung auf der Grenze zwischen Antike und Mittelalter, Archiv fr
Diplomatik, xxiv (1978); Philippe Depreux, La Tradition manuscrite des Formules
de Tours et la diffusion des modles dactes aux VIIIe et XIe sicles, in Philippe
Depreux and Bruno Judic (eds.), Alcuin: de York Tours: criture, pouvoir et rseaux
dans lEurope du haut moyen ge (Rennes, 2004). The debate over the dating of
Marculf accounted for a large part of the historiography in the rst half of the
twentieth century. The classic synthesis on formulae is Heinrich Brunner, Deutsche
Rechtsgeschichte, 2nd edn, 2 vols. (Leipzig, 1906), i; and Rudolf Buchner, Deutschlands
Geschichtsquellen im Mittelalter: Vorzeit und Karolinger, suppl., Die Rechtsquellen
(Weimar, 1953), 4955, has remained the best (and most recent) overview of the
subject. Whereas formulae had been very visible in general works and textbooks of
the nineteenth and rst half of the twentieth century, they became an increasingly
obscure source as the twentieth century progressed, and they are hardly present at
all in recent textbooks.
14
PAST AND PRESENT
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wording and content, any two documents of the same type can
look very similar without necessarily being textually related. Nor
should we expect to nd an exact match between any document
and a formula: a formula would usually have required a fair
amount of adaptation to t new circumstances. Even if secure
textual links could be made, it would be in any case virtually
impossible to tell whether the formula was modelled on the document or the document on the formula.21
Equally troubling is the general uncertainty as to how long
formulae can be said to be relevant after their supposed date of
composition: in other words, their use-by date. All the surviving manuscripts were produced during the Carolingian period,
though many of the collections are thought to have been compiled earlier. As was normal at the time he was working, Karl
Zeumer, who produced the main edition of formulae, was not
primarily interested in the Carolingian end of this story, and
instead focused on reconstituting an original version.22 As a
result, his edition deliberately obscures the uidity of formulae
as texts. They clearly remained work in progress down to the
ninth and tenth centuries: individual formulae from earlier
collections were still being modied, abridged, lengthened,
reorganized and integrated into new collections during the
Carolingian period. As Warren Brown has recently suggested,
this indicates that they were still being used actively as models,
21
Many of the dates for the original compilation of collections suggested by
scholars were based on the dates of surviving documents which they considered,
rightly or wrongly, to have been the original source of a formula included in the collection. Efforts to link formulae with surviving documents include Zeumer, ber
die lteren frnkischen Formelsammlungen; Bruno Krusch, Ursprung und Text
von Marculfs Formelsammlung, Nachrichten von der Kniglichen Gesellschaft der
Wissenschaften zu Gttingen, Phil. hist. Klasse (Berlin, 1916); Wilhelm John,
Formale Beziehungen der privaten Schenkungsurkunden Italiens und des Frankenreichs und die Wirksamkeit der Formulare, Archiv fr Urkundenforschung, xiv (1936);
Heinz Zatschek, Die Benutzung der Formulae Marcul und anderer Formularsammlungen in den Privaturkunden des 8. bis 10. Jahrhunderts, Mitteilungen des
Instituts fr sterreichische Geschichtsforschung, xlii (1937). Identications are also
made in Die Urkunden der Merowinger, ed. Theo Klzer (MGH, Diplomata regum
Francorum e stirpe merovingica, 2 vols., Hannover, 2001), i; and Brigitte Kasten,
Agrarische Innovationen durch Prekarien?, in Brigitte Kasten (ed.), Ttigkeitsfelder
und Erfahrungshorizonte des lndlichen Menschen in der frhmittelalterlichen Grundherrschaft (bis ca. 1000): Festschrift fr Dieter Hgermann zum 65. Geburtstag (Stuttgart,
2006).
22
This is the common complaint of all who have used the Monumenta edition
alongside an existing manuscript: see, for instance, Brown, When Documents Are
Destroyed or Lost, 354.
15
and were not merely a vestige of earlier legal traditions.23 Evidence for continuous adaptation in the manuscript tradition is
a good sign that a formula was still alive. The idea that formulae could remain in use in the very long term is supported by
comparison with documents from the Carolingian period: a
document of Prm from 804, involving land in the region of
Angers, thus shows striking similarities with formulae from the
late sixth-century Angers collection.24
If formulae and formularies were transferable through time,
they were also transferable through space, and collections clearly
spread out beyond the region in which they had originally been
produced.25 The fact that formulae originating from a certain
area could also be used in another suggests that their content was
not very locally specic. The models would not have needed to t
local circumstances perfectly in any case, since differences could
be resolved in the process of drawing up the actual document.26
Looking to tie legal formulae down to one place and time is
therefore a futile task as well as a thankless one. In a sense it is
also reductive. The transferability of formulae should be seen
as their strength as a source, not their weakness. We should
take advantage of the fact that their raison dtre is to draw the
general out of the specic, and to transcend local contexts.
These form-documents cannot be interpreted in relation to
particular circumstances in the way that actual charters can,
and this has created their reputation as a frustrating source to
deal with. To wish that they were more like charters, however,
is to miss what makes them unique. What formulae have to
23
See ibid., 35860.

Compare Urkundenbuch zur Geschichte der jetzt die Preussischen Regierungsbezirke
Coblenz und Trier bildenden mittelrheinischen Territorien, i, ed. Heinrich Beyer
(Koblenz, 1860), no. 42, with the mandata in Formulae Andecavenses, nos. 48, 51
and 52. Of course, this does not mean that the content reected reality in the same
way. Here the use of a formula could have brought about the survival in the documentary record of the gesta municipalia, the late Roman municipal archives generally thought to have become defunct by the late Merovingian period, even though
by 804 they may have amounted to little more than a legal ction.
25
Zeumer often assumed that manuscripts were produced in the place mentioned in the text of a formulary: he thus assumed that the manuscripts for the
Bourges collection (Leiden BPL 114 Paris; BnF lat. 4629) would have been copied
in Bourges, the manuscript for Angers (Fulda D1) in Angers, and so on, but none
of these links has been conrmed by palaeographical studies.
26
See Paul Fouracre, Placita and the Settlement of Disputes in Later Merovingian
Francia, in Wendy Davies and Paul Fouracre (eds.), The Settlement of Disputes in
Early Medieval Europe (Cambridge, 1986), 30.
24
16
PAST AND PRESENT
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offer is a perspective of continuity. This is not in contradiction

with adaptability or renewal: general continuity in the style of
these documents in the manuscript tradition is complemented
by a willingness on the part of scribes to adapt and modify
points of detail. In this context, problems of dating do not necessarily matter, as long as we recognize that formulae, like any
other source, will only give us a partial perspective. Formulae
offer a range of possibilities rather than a representative picture
of their times: they are less snapshot, more blurry slow-motion.
They live in the realm of the longue dure, and are as a rule
unhelpful for charting events or brutal change. On the other
hand, they can give us unparalleled insights into the workings
of the law and the ways in which people made use of it,
between the sixth and ninth centuries, the period of the earliest
datable formulae and that of the manuscripts.
1) Marriages between Free Women and Unfree Men
An important part of Bonnassies argument for the survival of a
classical style of slavery down to the year 1000 concerns marriages, or rather the absence thereof, between free and unfree
persons. Bonnassie concluded, on the basis of the severe punishments prescribed in the law codes, that marriages between
free women and male servi were impossible, though he conceded
that unions between free men and ancillae, unfree women, may
not have been uncommon.27
For the later end of the period, this conclusion is contradicted by the Carolingian polyptychs, which give plentiful
evidence for marriages between free women and unfree men.28 It
is also contradicted by a number of formulae indicating that such
marriages already occurred during the Merovingian period, or
27
Bonnassie, Survie et extinction du rgime esclavagiste, 3201. Bonnassie has
double standards here; if we trust the evidence of the law codes, marriages between
free men and ancillae were punished equally harshly: Pactus Legis Salicae, XIII. 9,
XXV. 3, ed. K. A. Eckhardt (MGH, Legum I, iv, 1, Hannover, 1962), 62, 94, but
Bonnassie does not consider this to have been much enforced, believing the law
codes to have reected practice accurately in one case but not in the other.
28
As Bonnassie acknowledged: see his Survie et extinction du rgime esclavagiste, 325. On the situation in the polyptychs, see Emily R. Coleman, Medieval
Marriage Characteristics: A Neglected Factor in the History of Serfdom, Jl Interdisciplinary Hist., ii (1971); see also Janet L. Nelson, Family, Gender and Sexuality,
in Michael Bentley (ed.), Companion to Historiography (London, 1997), 1579. On
freeunfree marriages in general, see Hans-Werner Goetz, Frauen im frhen Mittelalter: Frauenbild und Frauenleben im Frankenreich (Weimar, 1995), 2637.
17
even earlier: as we shall see, there is evidence from the Roman

legal tradition to suggest that the classical model in relation to
these marriages needs to be somewhat rened.
According to Salic law, mixed marriages resulted in the loss
of freedom of wife and children.29 This was still supposed to be
the case later on, with Carolingian legislation reiterating the
rule.30 Formularies give a quite different perspective, for they
provide models for documents in which a master, recognizing
the marriage of his servus to a free woman, agrees to renounce
any claim either on the woman or on the couples future children.
Here is one representative example from the seventh-century
formulary of Marculf; others can be found in different collections.31
Charter regarding the offspring, if a servus has abducted a free woman.
Thus I, in Gods name, A, to the woman B. It is not unknown that my
servus named C married you by abducting you against your parents will
and your own, and because of this he could have come into mortal danger. But through the intercession and mediation of friends and good
men it was settled between us that, if any children are born to the two of
you, they shall retain the status of full freedom And if she accepted
the servus voluntarily, say: It is not unknown to all that you followed my
servus named C voluntarily and accepted him as your husband. But
while I could have taken you yourself and your progeny into my service,
in the name of God and for the remission of my sins it pleased me to
write for you the present letter, so that, if there are any sons or daughters born to the two of you, neither we nor our heirs nor anybody else
may submit them into our service, but they shall for ever spend their life
with the status of full freedom.32
Note the alternative possibilities: the rst, envisaged in the

title, is that the woman has been abducted against her own will
as well as against that of her parents, and in consequence the
master of the servus risks losing him if he is killed as a result. In
29
Pactus Legis Salicae, XIII. 8, XXV. 4 (ed. Eckhardt, 61, 94). The results of such
marriages in other early medieval codes vary widely in harshness: see, for instance,
Lex Ribuaria, LVIII. 16 and 18, ed. Franz Beyerle (MGH, Legum I, iii, 2, Hannover,
1954); Liber Iudiciorum: sive, Lex Visigothorum (Leges Visigothorum), III. 2. 3, ed.
Karl Zeumer (MGH, Legum I, i, Hannover, 1902); ibid., III. 2. 7 seems to suggest
that some masters were fraudulently marrying off their slaves to free persons in
order to acquire them as slaves as well! See also Leges Burgundionum, XXXV. 2 and
3, ed. Ludwig-Rudolf von Salis (MGH, Legum I, ii, 1, Hannover, 1892); Leges
Alamannorum, LVII, ed. Karl Lehmann (MGH, Legum I, v, 1, Hannover, 1888).
30
For example Capitularia regum Francorum, ed. Alfred Boretius (MGH, Legum
II, i, Hannover, 1883), no. 142, cap. 3, p. 292 (a. 819).
31
Formulae Andecavenses, no. 59; Cartae Senonicae, no. 6; Collectio Flaviniacensis,
no. 102 (= Marculf, II. 29); Formulae Salicae Merkelianae, no. 31; Formulae Salicae
Bignonianae, no. 11; Formulae Salicae Lindenbrogianae, no. 20; Formulae Morbacenses,
nos. 18 and 19; Formulae Augienses Coll. B, no. 41.
32
Marculf, II. 29.
18
PAST AND PRESENT
NUMBER 193
this case, after intercession by amici (friends, or perhaps here

relatives) and negotiations, the master issues a document freeing the woman and her children as a compromise. A second
alternative is given in which the woman marries the servus voluntarily: her parents view of this is not mentioned, but their
consent after the fact is implicit at the point of writing the
document. In this case exactly the same document is drawn up,
but without mention of a possible threat to the life of the servus.
Most formulae of this type do not really allow us to speculate
as to why such an arrangement was made in any given case.
The acts of the fth council of Orlans (549), cap. 14, specied
that, if a free man or woman sold his or her own free status and
then married a free person, their children should remain free;
but none of these formulae mentions any such considerations.
Reasons invoked for allowing the freedom of wife and children
to stand in such a marriage are the intercession of relatives or
goodwill, not the fact that the servus had previously sold himself
or had in any way a special status. A number of other reasons
could be proposed: for instance that this was seen as a relatively
untroublesome way of earning spiritual brownie points; or that
the agreement was a result of the inuence of the womans relatives, who could have been affected if she had become unfree.33
Obviously this type of solution is also likely to have been the
result of compromises and bargaining: perhaps a counter-favour
was also expected from the womans family or lord. Another
formula mentions, besides the servuss owners desire to show
piety and the intercession of inuential local gures, the fact that
the woman had asked for this charter to be drawn up within forty
nights of her marriage, secundum legem Salicam.34 No such
provision survives in Salic law, but forty days or nights certainly
corresponds to the standard length of time within which one could
bring forward a claim to court, as well as the length of time
beyond which a wrong would become a crime.35 It may point,
at any rate, to customary practices regarding such marriages.
33
See Capitularia regum Francorum, ed. Boretius, no. 39, cap. 5, p. 113 (a. 803),
which says that someone whose free status is being questioned must be punished by
death if as a result he murders an unfree relative whose status might lead to his
being claimed as a slave.
34
Formulae Salicae Lindenbrogianae, no. 20.
35
It is for instance the interval of time for the pursuit of fugitive slaves: see Pactus Legis
Salicae, XLVII. 1 (ed. Eckhardt, 183); see also Patrick Wormald, The Making of English
Law: King Alfred to the Twelfth Century, i, Legislation and its Limits (Oxford, 1999), 79, 83.
19
One actual case of intercession in a similar situation is envisaged in the letter sent by Einhards wife Emma to Blidthrut,
written between 828 and 836. Emma asked Blidthrut, a nun at
the convent of Mosbach, to intercede with Albuin, whose servus
had married a libera femina, so as to get him to allow this woman
and any future children to remain free. Blidthruts permission
was also needed, because the servus belonged to Mosbach as
well as to Albuin. The servus is said to have ed to the nearby
church of Saints Marcellinus and Peter at Seligenstadt: the
arrangement was clearly sought after the event.36 Although this
arrangement would probably not have been to the advantage of
the servuss master, it would not have been too much of a disadvantage either, since the marriage had probably been between
people of the same local community and would therefore not
necessarily have disrupted relations between local landowners.
Different localities may have had different attitudes and
customs regarding such unions, and been more or less tolerant
of them: the Saint-Germain-des-Prs polyptych seems to show
mixed couples as quite common on some estates but entirely
absent on others. Local variation therefore needs to be emphasized in this context. Other variables could include the lords
power of enforcement. The very different situation evidenced
in the eleventh-century Book of Serfs of Marmoutier, in which
the monastery as a rule insisted that, in case of marriage between
free and unfree, the spouse and any future children should
automatically become of servile status,37 does not necessarily
indicate a change in overall practice; it may simply reect the
monasterys ability to enforce its demands. The possibility of a
discontinuous evolution is worth stressing.38
Formulae will not tell how common or how rare this solution
ever was. Nevertheless, it is surely signicant that formularies
consistently cover the case of marriages between servi and free
women occurring without adverse consequences: formulae of
this kind survive in eight different formularies in very different
forms, which implies that different models were being devised
36
Einharti Epistolae, ed. K. Hampe (MGH, Epistolae, v, Hannover, 18989),

no. 37, p. 128; translated in Charlemagnes Courtier: The Complete Einhard, ed. and
trans. Paul Edward Dutton (Peterborough, Ont., 1998), no. 15, p. 137.
37
Paul Fouracre, Marmoutier and its Serfs in the Eleventh Century, Trans.
Roy. Hist. Soc., 6th ser., xv (2005).
38
See Barthlemy, La Mutation de lan mil a-t-elle eu lieu?, 22.
20
PAST AND PRESENT
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independently for the same purpose. The likeliest explanation

is that the compilers thought unions between free and unfree
were situations for which lords needed to be forearmed, and for
which legal scribes would therefore need to have formulae handy.
A capitulary of Charlemagne, in answer to a missus (royal representative), mentions servi who marry free women and whose
masters then give them charters to the effect that, if the couple
have any children, they should remain free,39 which at least
conrms the existence of this kind of document in practice.
All this implies that distinctions between free and unfree on a
day-to-day basis were not too rigid; in particular, it suggests an
important level of exibility and negotiability of status in individual cases. This certainly seems to be supported by the SaintGermain polyptych, which shows free and unfree living together
without much apparent distinction, a situation in which mixed
marriages could readily occur.40 Other formulae envisage estates
on which people of different legal status lived side by side.41
Formulae would therefore have been needed to sort out who
was free and who was not as a result of a mixed marriage. This
mix of free and unfree on estates does not imply that all would
39
Capitularia regum Francorum, ed. Boretius, no. 58, cap. 8, pp. 1456 (a. 80114).
This indicates that such documents were not only in use but had also caused
disputes, which in turn suggests a level of negotiability as to the fate of children in
such cases: see Janet L. Nelson, England and the Continent in the Ninth Century:
III, Rights and Rituals, Trans. Roy. Hist. Soc., 6th ser., xiv (2004), 910. On the
term franca femina in this capitulary text, see n. 54 below.
40
Wickham, Framing the Early Middle Ages, 405, 5601. Wickham has argued
convincingly that the number of freeunfree marriages in the Carolingian polyptychs reects a situation in which the gap in status would have been less keenly felt
because peasants all tended to be tenants either way, as opposed to areas where
more owned land in their own right, such as northern Italy: ibid., 405. For Italy, see
also Codice diplomatico longobardo, ed. Luigi Schiaparelli, 5 vols. (Rome, 1929
2003), i, nos. 29, 53; ii, nos. 204, 274; iii, no. 18.
41
For example Formulae Salicae Bignonianae, no. 20: mancipiis, ingenuis his
nominibus vel quicquid ibidem presens est mea dominatio (the unfree and free
tenants named XY, or whoever lives there under my jurisdiction). See also, in
Marculf, I. 2, the mention of the dues de eorum [i.e. the monasterys] hominebus
aut de ingenuis aut servientes in eorum agros conmanentes (of their men, free and
unfree, who reside in these elds), which again suggests mixed status among rural
tenants. For a detailed study of estate descriptions in legal formularies, see Dieter
Hgermann, Einige Aspekte der Grundherrschaft in den frnkischen formulae und
in den leges des Frhmittelalters, in Adriaan Verhulst (ed.), Le Grand Domaine aux
poques mrovingienne et carolingienne / Die Grundherrschaft im frhen Mittelalter
(Ghent, 1985). On the general ambiguity in the terminology of freedom and
unfreedom in early medieval sources, with social practice affecting legal meanings,
see Goetz, Serfdom and the Beginnings of a Seigneurial System, 49.
21
not have been deeply conscious of legal distinctions: if anything, the fact that such documents were produced indicates
that the parties involved understood what was at stake, and
negotiated accordingly. This type of formula therefore conrms
the theory, put forward by Emily Coleman on the basis of the
Saint-Germain-des-Prs polyptych, that marriage to free women
could have been part of a conscious bid on the part of male
servi to improve their own status as well as that of their children, something that Gurard, the rst editor of the polyptych,
had in fact suggested as early as 1844.42 The fact that such
marriages appear in formulae from as early as the sixth century
down to the ninth, by which time they are also documented in
the polyptychs, also suggests that hypergamy was a feature of
peasant life in some areas of West Francia across a very extended
period. By contrast, there is only one example in the formulae
in which the child of a free man and his ancilla obtains free status,
in what would seem to be an unusual situation (a free father
manumitting his daughter in order to make her his universal
heir).43 This is different from situations involving servi and free
women, most obviously because here the relationship is not
sanctioned by marriage. Ancillae do not seem to have had much
opportunity to marry upwards, and hypergamy is thus likely to
have only worked one way.44
Formulae therefore contradict the evidence of the law codes,
though we should not necessarily assume that mixed marriages of this kind would have been totally unthinkable even
under Roman imperial law. A major problem with Bonnassies
42
See Coleman, Medieval Marriage Characteristics; Benjamin Gurard, Prolgomnes, in his Polyptyque de lAbb Irminon (Paris, 1844), 3912.
43
Cartae Senonicae, no. 42 (= Formularum Codicis S. Emmerami Fragmenta, no. 7).
44
The fate of ancillae as opposed to servi has been the object of a debate between
Susan Mosher Stuard, Ancillary Evidence for the Decline of Medieval Slavery,
Past and Present, no. 149 (Nov. 1995), and Jean-Pierre Devroey, Men and Women
in Early Medieval Serfdom: The Ninth-Century North Frankish Evidence, Past
and Present, no. 166 (Feb. 2000). Stuard, focusing essentially on Mediterranean
areas and the later Middle Ages, argued that ancillae, unlike their male counterparts, retained the status of slaves throughout the medieval period, and she stressed
their reduced marriage prospects: Stuard, Ancillary Evidence for the Decline of
Medieval Slavery, 27. Devroey, on the other hand, argued that the meaning of the
word ancilla evolved in much the same way as that of servus, and the condition of
ancillae was equally diverse, with gender creating differences in the personal experience of unfreedom rather than in juridical status: Devroey, Men and Women in
Early Medieval Serfdom, 18. Whether or not the difference was juridical, it was
still clearly present.
22
PAST AND PRESENT
NUMBER 193
interpretation of mixed marriages as being contrary to Roman

legislation is that he does not distinguish between a woman
marrying her own servant and a woman marrying someone elses
servant. What is legislated against most harshly, in the Theodosian
Code as well as in the barbarian leges, is marriage between a
free woman and her own servant. Yet Bonnassie quotes a
passage from Salic law, which gives a womans parents the right
to kill her in punishment for her marriage to a servus, without
pointing out this crucial limiting condition.45 The Theodosian
Code includes all laws concerning marriage between a woman
and someone elses servant in the section involving issues of
personal freedom (Codex Theodosianus, IV. 12), whereas laws
dealing with a woman who marries her own servant (IX. 9) were
included in the section on sexual crimes, following the Julian
law on adultery and a law punishing severely guardians who
seduced girls entrusted to them.46 A woman marrying her own
servant would have been seen as an issue of public morality,
clearly differentiated in the jurists mind from issues of freedom
and legal status.47
In the case of free women marrying slaves belonging to a third
party, Roman imperial law was inconsistent: Gaius mentions a
law of Hadrian according to which both the woman and any
children born from such a marriage were to remain free if the
marriage was made with the consent of the slaves master.48
45
Capitula Legi Salicae addita, III. 98 (ed. Eckhardt, MGH, Legum I, iv, 1,
p. 255). See also Bonnassie, Survie et extinction du rgime esclavagiste, 320;
Leges Visigothorum, III. 2. 2.
46
Codex Theodosianus, IX. 78, ed. Th. Mommsen and Paul M. Meyer (Berlin, 1905).
47
Judith Evans-Grubbs has argued that the fact that Codex Theodosianus, IX. 9. 1
makes it clear that this is a proper marriage, and not just an illicit affair (the woman
is explicitly described as nupta), means that it would not have been seen as
immoral sexual conduct. She concluded that the prohibition of marriage between a
free woman and her own slave suggests a total ban on marriages between free and
unfree, apparently inferring that it would have been more (not less) acceptable than
marriage with another persons slave. This conclusion is debatable: a woman contracting a proper marriage with her own slave could equally well have been
thought far more disturbing. Evans-Grubbs also argued, however, that the legislation concerning these marriages would have been ignored by many of the post-212
new citizens, which would imply a different situation in Gaul in any case. Judith
Evans-Grubbs, Marriage More Shameful than Adultery: SlaveMistress Relationships, Mixed Marriages, and Late Roman Law, Phoenix, xlvii (1993). On
the difculty of mixed marriages, but without distinguishing between the womans
own slave and someone elses, see also Gillian Clark, Women in Late Antiquity:
Pagan and Christian Life-Styles (Oxford, 1993), 335.
48
Gaius, Institutes, I. 84.
23
Later laws49 tended to make the woman as well as her future

children become either servi or coloni of the slaves owner according to the circumstances, though a separate law species that
free women marrying servi of the sc (that is, imperial property)
would not lose their freedom, while their children would be
classied as free Latins, a category of freedmen whose independence was limited because they had been manumitted
informally (Codex Theodosianus, IV. 12. 3, from the 320s). This
last provision is symptomatic of the variety of solutions as well
as the general exibility and negotiability of late Roman law
regarding the status of the children of mixed marriages. The
simple rule ad inferiorem personam vadit origo,50 stipulating
that the legal condition of children should automatically be the
same as that of whichever of their parents had the lower status,
was not in practice applied consistently. This is probably because
the main distinction in the Roman legal tradition between free
and unfree was no longer workable in the fourth and fth centuries (if it ever really had been), because reality was too uid
and unsystematic. It seems likely that the status of children was
decided by negotiations in each particular case between the wife
and her family on the one hand, and the servuss lord on the other:
local variation should again be emphasized in this context.
2) Unfree Men, Service and Ties of Dependence
Ownership of property is another instance in which the evidence
of formularies can modify our perception of unfreedom in the
early medieval period. The inability of servi to own property is
central to the argument for the continuity of the classical model.51
One formula, however, says:
Manumission which a servus can make for his own servus.
The Lord says in the gospel: Release, and you shall be released (Dimittite
et dimittetur vobis). Therefore I, in Gods name, A, although I am low
among all servi, with the permission of my master B, grant by this
charter of manumission that my vernaculus named C, whom I am
known to have purchased at date X from a man named D, be free . . .
And let him have permission to choose his protection and defence,
49
Such as Codex Theodosianus, IV. 12. 1 (from the year 314), IV. 12. 6 (from 366);
or, for a more complicated situation, Novellae Valentinianae, XXXI. 1 (from 451),
included in Codex Theodosianus, ed. Mommsen and Meyer.
50
Codex Theodosianus, IV. 8. 3, model for Lex Ribuaria, LVIII. 11 and 14: generatio
eorum semper ad inferiora declinetur.
51
See Bonnassie, Survie et extinction du rgime esclavagiste, 320.
24
PAST AND PRESENT
NUMBER 193
whatever place he wants to choose for himself under the power of Saint
E, and he is not to do the service of a freedman to any of my heirs or
indirect heirs, but, as I said, let him always be able to remain properly
free and secure.52
Here dimittere is used in a more specialized meaning than its

usual one in this biblical quotation (Forgive, and you shall be
forgiven, Dimittite et dimittemini, Luke 6:37), in a deliberate pun.
The situation envisaged here seems more complicated than the
normative legal material suggests.53 Consider this example of a
colonus (unfree tenant) owning a servus:
A, representing the monastery of Saint B . . . in place of the venerable
Abbot C of the said monastery, having come on day X to the public
court (mallus) of the city of D, accused there a certain man called E. He
said that [E] was a servus of the monastery of Saint B, and that the
colonus of Saint B named F had bought him from a free man (de Franco
homine),54 and that he had wrongly ed from or denied [that he owed]
service to the monastery of Saint B. His servus was asked whether this
was true or not; but this servus strongly denied this. And Abbot C and
his representative spoke against the said servus and said that they could
bring forward the testimony of free men (homines Franci), who were
present, that this colonus had bought him, and that they had seen him
serve in his service, and that by law he must be the servus of Saint B;
and in this hour Abbot C and his representative A promised a sworn
testimony from seven men named GM . . . and these men testied that
by law he was the servus of Saint B . . . Once more this servus was asked
whether he admitted that this claim was the truth; and the servus E
admitted this claim in every particular and returned himself into
service.55
52
Formulae Salicae Lindenbrogianae, no. 9 (Munich Lat. 4650; see also Copenhagen
Gl. Kgl. Saml. 1943 for a slightly different version).
53
The idea that the unfree had no right to own property beyond the level of small
savings is traditionally seen as one of the crucial points of difference between freedom and unfreedom. That an unfree person could have rights over another conicts with modern denitions of slavery. There are mentions of servi owning ancillae
in Capitularia regum Francorum, ed. Boretius, no. 16, cap. 7, p. 40 (a. 758/68)
(Goetz, Serfdom and the Beginnings of a Seigneurial System, 378), although
here the situation should probably be explained more in terms of gender.
54
Francus homo and franca femina are difcult to translate; apart from ethnic
identity, itself problematic, the terms could also designate either a free person or a
particular and privileged type of dependant: J. F. Niermeyer and C. van de Kieft,
Mediae latinitatis lexicon minus, 2nd edn, revised J. W. J. Burgers, 2 vols. (Leiden,
2002), ii, 5901. See also Brunner, Deutsche Rechtsgeschichte, i, 351.
55
Formulae Senonenses recentiores, no. 3. Goetz describes this text as dealing with
the question whether a servus had the right to testify against a colonus: Goetz, Serfdom and the Beginnings of a Seigneurial System, 43. Exciting though this
would be, it seems to me that it is not actually the colonus who has ed, but the
slave. Naturally it is implied that the testimony of several free men outweighs the
testimony of one slave, but this in itself is hardly a surprise.
25
Many of these notitiae may not have been employed in real

disputes, but enabled users to assert rights in public; perhaps
that is the case in this formula, though the situation is not clear.56
Here we have a servus who belongs to a colonus who himself
belongs to a monastery; but the servus is said to be a servus of
Saint B and the bid to recover him is brought forward by the
abbot. The monastery would have constituted a more powerful
party, so it would no doubt have been more likely to be successful in a legal dispute, in effect supervising the settlement of
a dispute within its own lordship. It is also likely that this would
have worked in a context of a network of simultaneous rights
over different people: the monastery claims both colonus and
servus under its authority. This situation is paralleled in another
formula, in which a colonus buys a servus but it is the colonuss
own master who legally asserts his rights.57 We should perhaps
relate this to the clause, in Formulae Salicae Lindenbrogianae,
no. 9, and let him have permission to choose his protection
and defence, whatever place he wants to choose for himself
under the power of Saint E, which may indicate that although
this owner could manumit his servus, he could not manumit him
outside the jurisdiction of the monastery of Saint E: either he
may have belonged to it personally, or (who knows?) his own
master may have been a dependant of this monastery himself.
The point is illustrated in another formula, which is rather
striking in its depiction of the possibilities of the unfree as owners
of land and people, and which, like the two formulae translated
above, again shows us a complex picture of varying claims and
rights being asserted over persons:
If someone wants to give something to his servus or gasindus. They who
serve us faithfully and with eager service are supported most justly by
our gifts. I, in Gods name A, to our faithful B. Out of respect for your
delity and service, by which you did not cease to devote yourself to us,
by a most ready decision we grant to you from the present day the small
estate called C or: the mansus C within the boundaries of our
estate D, with every appurtenance seen to belong to this small estate
or: small mansus , lands, houses, mancipia, vines, little meadows, little
woods and the other benets that are seen there.58
56
This is the case most clearly, for instance, in Formulae Senonenses recentiores,
no. 6. It is known in the writings of German Rechtshistoriker as a Scheinprozess: see
Fouracre, Placita and the Settlement of Disputes, 26 and n. 13.
57
Formulae Senonenses recentiores, no. 6.
58
Marculf, II. 36.
26
PAST AND PRESENT
NUMBER 193
Here servus seems to be proposed as an equivalent to gasindus

(an armed retainer). We are explicitly not in a royal context,
since this text is included in Book II of Marculf (and not Book
I, which contains all the royal charters): the someone here
therefore probably refers to a lordly person making a gift to one
of his followers. This is a gift of land, and we are not dealing
with a person of very humble status: it may even be difcult to
believe that this formula really refers to an unfree person, though
unfree retainers are known to have existed in this period.59
Gasindus is adapted from the vernacular: servus may have been
intended as a classicizing gloss on this unorthodox word, in which
case gasindus would be likely to reect what Marculf meant
more accurately. On the other hand, gasindus is not normally
found in Frankish sources: it tends to be used in a Lombard
and Italian context. Marculf may not have grasped its meaning
fully, which would also account for the variety of the glosses he
gives to the word: other equivalents to gasindi are amici (I. 23
and I. 24) or pares (I. 32). Marculf does not normally gloss
words of Germanic origin, whereas he systematically glosses
gasindus. It may be that the word was a chance occurrence in one
of the documents he was consulting. If he was not sure of this
word, then servus, not gasindus, would have reected his meaning better. It is also possible that servus and gasindus did mean
different things to him (perhaps distinguishing between free and
unfree armed retainers) but that he considered both to be
appropriate recipients for such a gift.
Either way, the idea that at least one type of person described
here really is unfree is not in contradiction with an honourable
status or a military function. The military function of some unfree
persons is mirrored in the Histories of Gregory of Tours, for
instance, with the ambiguous meaning of the word puer, which
can describe both unfree servants and military retainers. For
the other end of our period, the situation described here may
59
On the gasindus as an unfree retainer and the shift in the meaning of words
originally signalling unfreedom but later expressing high status (as with vassus, or
thegn in Anglo-Saxon England), see Karl Bosl, On Social Mobility in Medieval
Society: Service, Freedom, and Freedom of Movement as Means of Social Ascent,
in Sylvia L. Thrupp (ed.), Early Medieval Society (New York, 1967), 90, 92; also
Franz Irsigler, On the Aristocratic Character of Early Frankish Society, in Timothy
Reuter (ed. and trans.), The Medieval Nobility: Studies on the Ruling Classes of France
and Germany from the Sixth to Twelfth Century (Amsterdam, 1979), 110.
27
also be linked with a passage from Charlemagnes Capitula missorum, which mentions those servi who, as honorati, hold beneces
and have special duties (benecia et ministeria) or are honorati in
vassalage together with their lord, and may own horses, arms
and a shield and a wooden lance and a short sword.60 Perhaps
the recipient of the document laid out in this formula could
have qualied as what Patterson called an ultimate [i.e. elite]
slave.61 Even if this is not a typical instance, it is revealing of
the mentality of the period regarding the concept of service, a
sign that the opposition often made by modern historians
between the service of the unfree and that of vassals was not
such a signicant one in terms of mental and linguistic associations, regardless of differences in social status.62 The word
servus here clearly does not evoke a dishonourable situation:
rather one type of dependence within a general framework
based on relationships of dependence and protection. Material
rewards seem to have sometimes been granted in exchange for
unfree as well as free service, and in this context even full ownership of land was not totally beyond the reach of the unfree.
Two formulae from a ninth-century collection thus show us an
archbishop granting to a serviens of his church a mansus or an
urban property, in either case with the stipulation that the
beneciary would have the right to pass it on to his heirs, and
that the property could not be taken back from him or his
descendants, even if they were found slow or negligent in their
servitium.63
3) Self-Sale
Self-sale formulae are unusual in having received a fair amount
of attention from scholars in recent times.64 They have been
60
Capitularia regum Francorum, ed. Boretius, no. 25, cap. 4, p. 67 (a. 792 or
786).
61
Patterson, Slavery and Social Death, 299333.
62
On free and unfree service, see also n. 76 below. The vocabulary of service
is also found in very similar terms in a familial context (for instance with a wife
describing herself as her husbands ancilla in Marculf, II. 17).
63
Addenda ad Formulae Senonenses recentiores, nos. 18 and 19 (Formulae
Merowingici et Karolini aevi, ed. Zeumer, 7234).
64
This is the only type of formula that Bonnassie, Survie et extinction du rgime
esclavagiste, 3289, and Nehlsen, Sklavenrecht zwischen Antike und Mittelalter, 339,
referred to, and it has also been the subject of a more recent article along very similar lines: see Liebs, Sklaverei aus Not.
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used to demonstrate rampant poverty and the oppression of the

poor in early medieval Francia, as well as to illustrate the slippery slope into servitude.65 Here is a typical example:
This is an act of sale for a man in esceno posito.66 To my lord A, I, B.
Because [my] crimes and my great carelessness combined [against] me
in the matter of the theft which I committed, I was tortured and
condemned67 and could have been put to death, but your piety gave X
solidi out of your property. I therefore took care to have an act of sale
made for you for the entirety of my own status with all that I own, so
that you may have the power in every way, with Gods guidance, to do
whatever you please with me, as with the rest of the mancipia born
into your service.68
In this case, someone pays compensation on behalf of a thief,

who cannot pay back his benefactor in any other way than to
put himself into his service.69 In this sense at least the situation
counts as enslavement for debt. The idea of debt is very strong
in self-sale formulae, both for crime and for actual unpaid debt,
which were not strongly differentiated.70 But a closer look also
shows us some less straightforward cases: for instance cases in
which unfreedom is presented only as temporary (even if the
temporary could in practice end up becoming permanent if the
debt was never repaid):
To [my] lord brother A, B. Since to provide for my necessity you lent X
solidi for my benet, according to what pleased me, it was agreed
between us that, until I can return to you these solidi from my own
property, I will have to spend Y days each week in your service, to do as
yourself or your agents bid me. If I seem negligent or slow in this, you
65
Liebs thus ends his survey by comparing the fate of the average Frankish peasant to that of the parents of Hnsel and Gretel, with a claim that the tale refers to
an early medieval reality: Liebs, Sklaverei aus Not, 311.
66
Zeumer grimly suggested that esceno stands for scamno, a torture rack (Formulae
Merowingici et Karolini aevi, ed. Zeumer, 6 n. 1), because the accused is said to have
been in turmentas, but this is not the only possibility; esceno could equally well
derive from excambium (esc-, sc-, -ammium, -amium, -angium, -annicum), which can
mean exchange but also compensation: Niermeyer and Van de Kieft, Mediae
latinitatis lexicon minus, i, 509.
67
eologias = elogium, charge, verdict or conviction: Niermeyer and Van de
Kieft, Mediae latinitatis lexicon minus, i, 503.
68
Formulae Andecavenses, no. 3.
69
This practice is also referred to in the Edict of Chilperic, from around 575
(Capitularia regum Francorum, ed. Boretius, no. 4, cap. 8, pp. 910, trans. in Fouracre,
Placita and the Settlement of Disputes, 3940). It was not particular to Francia:
there is a similar case in Adomnn of Ionas Life of Saint Columba, II. 39, for early
medieval Ireland.
70
For similar situations in the Book of Serfs of Marmoutier, see Barthlemy,
Quest-ce que le servage?, 265: Dailleurs, toutes les formes de seigneurie ne
reposent-elles pas sur une idologie de la dette?
29
will have the right to inict corporal punishment as on your other servientes.
And when I can return your solidi, I will recover my deed of security,
without the need for a deed of annulment.71
Here, unfreedom is limited to a certain number of days in each

week, and lasts only for the duration of the debt: this probably
counted as interest on the loan. The clause regarding corporal
punishment as on your other servientes, typical of formulae of
sale and self-sale, shows that the resulting status was still treated
as one of unfreedom, despite its limited nature in time. This situation could also come up to compensate for a crime, as in one
case in which a man caught burgling a monastery was made to
work there until such time as he was able to repay his debt, again
with the specication that he could be beaten if found too slow
or negligent. Here there is no doubt this really did reect temporary unfree status, because of the mention of the formal ceremony by which this unlucky burglar handed himself over to the
monastery, quite literally by the scruff of his neck.72
Self-sale formulae on their own may not tell us the whole
story. Another type of document may be relevant here, closely
linked with the self-sale formulae, and which to my knowledge
has not been remarked upon: formulae of annulment. Acts of
annulment usually deal with loss of title of ownership, and,
when presented side by side with the self-sale formulae, put
things in a rather different perspective:
As it is known that this man named A gave an act of sale of his free status to this man named B and his wife C, and they were completely
unable to nd this act of sale, I took care to send this to you signed by
our own hand: if at any point this act of sale is found, let it remain void
and useless, and let this deed of annulment remain rm.73
The document seems to be issued by a third party, but comparison with the next formula shows that the third person could
71
Marculf, II. 27.

Formularum Pithoei Fragmenta, no. 75. Zeumer reconstituted these fragments
from quotations given by Charles Du Cange in his Glossarium mediae et inmae
Latinitatis (Paris, 1678), which Du Cange had copied from a now lost manuscript. A
modern copy of this lost manuscript was later discovered and published by Poupardin, Fragments du recueil perdu de formules franques dites Formulae Pithoei.
The same formula (whether or not it was taken from the same lost manuscript) was
included by Henri Bignon in his Marcul monachi formularum libri duo (Paris,
1613). Following Bignon, Zeumer included it as Formulae Salicae Bignonianae,
no. 27 in his edition, despite its mysterious absence in the manuscript used for this
collection (Paris BnF lat. 13686).
73
72
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be used at the same time as the rst person to designate the same
party:
As it is known that this man named A had a deed of security from this
man named B for his [free] status, whereby [A] paid [B] X ounces of
silver in order that, for Y years, [B] should perform whatever service
[A] demanded of him, and A was completely unable to nd this deed
of security, I therefore gave you this annulment by my hand and those
of good men, as if you had given me back my property: and if this deed of
security is found, let it remain void and useless, and let this deed of
annulment remain rm.74
In these two formulae the loss of the document seems to decide

all, even though the initial basis for ownership is not itself contested. The same situation occurs again in another formula in
rather more detailed terms: a man has lent money to another and
agreed in writing (with a cautio, or deed of security) to work for
him for a certain number of days in each week until a certain
date, at which point he is to repay this debt. The time of the
placitum (court case) at which the debtor is meant to return the
money has arrived, and the creditor is unable to nd the deed
of security: as a result the debt is annulled with the same type
of document as that in the Angers formulae.75 When servitude
was temporary, therefore, there was a natural point at which the
creditor would have been required to produce and return the
deed of security for the debt, as stipulated in Marculf, II. 27;
this is clearly the case in Formulae Andecavenses, no. 18. In the
previous formula (no. 17), on the other hand, the sale had been
intended to be denitive, and it is difcult to explain this document unless we see it as the result of a dispute over labour: this
dispute could have been initiated either by the master, if he
had tried to assert his rights over someone but was unable to
produce written evidence to support his claim, or by the servant himself.
Another hint that self-donations should be seen in the perspective of a multiplicity of duties and legal conditions is the
example of a man who, declaring himself unable to obtain food
or clothes, puts himself into a lords service, promising servicium
vel obsequium, without specifying in what capacity, in
exchange for the necessities of life, but making it clear that he
74
75
Ibid., no. 18.

Cartae Senonicae, no. 24.
31
will do all this ingenuili ordine, as a free man.76 The formula

makes it equally clear, however, that neither man may go back on
this agreement: the lord is to provide for the man who serves,
and the latter is to stay in the lords service, for the rest of their
lives. This was evidently not seen as incompatible with free status, which for the man in this document was still worth claiming explicitly: it must therefore have been important, though
not in quite the sense that modern historians have tended to
think of it. It seems likely, therefore, that the distinction between
free and unfree would not have been linked to the existence of
ties of dependence, but rather to the type of duties that could
be demanded of a man who served.77 Freedom itself was not a
uniform status. Another formula from the Angers collection,
entitled cautio de homine, is both strikingly different and
strikingly similar to the self-sale formulae. In it, one man agrees
to give half of his status (statum meum medietatem) over to
another in exchange for money, and do whatever legitimate
work he is ordered to do (qualecumque operem legitema mihi
iuncxris) for one day out of seven for a certain number of
years.78 Although the arrangement is here made on very different terms from the self-sale formulae, it still implies that a free
status, like an unfree one, was not perceived as monolithic or
undifferentiated, but that it could be fragmented, modied or
redened to suit different situations.
Even formulae of self-sale or entry into service, then, do not
constitute straightforward evidence in favour of a society split
neatly between free and unfree. The fact that unfreedom could
be part-time, temporary or reversible shows that even these
texts, traditionally used as evidence for the continuity of a
76
Formulae Turonenses, no. 43. Gerd Althoff interpreted this formula as showing
a vassal entering an agreement with a lord, and as early evidence for the triumphal
march of the institution of vassalage: Gerd Althoff, Family, Friends and Followers:
Political and Social Bonds in Early Medieval Europe, trans. Christopher Carroll
(Cambridge, 2004), 104, but I see no basis for this. If anything, this formula indicates that lordship over the free was not as fundamentally different from lordship
over the unfree as Althoff suggests: ibid., 103.
77
This would explain why peasants are still so keen to negotiate and dene their
status in legal cases surviving from the Carolingian period: see Janet L. Nelson,
Dispute Settlement in Carolingian West Francia, in Davies and Fouracre (eds.),
Settlement of Disputes; Nelson, England and the Continent in the Ninth Century:
III, Rights and Rituals.
78
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classical style of slavery, can be shown to reect a far more

uid situation.79
4) Sales, Manumissions and Domestic Slavery
The ability to buy and sell slaves demonstrates without doubt
that they were considered in some sense as property, and a
number of formulae give us examples of acts of sale. Here is a
typical example:
Sale of a servus or ancilla. To [my] lord brother A, B. It is established
that I sold you, as I did indeed sell you, my servus by right or: the
ancilla named C, neither a thief nor a runaway, nor an epileptic, but
healthy of mind and of his whole body, for whom I have received from
you as payment, according to what pleased me, X good gold solidi
weighing the xed amount, and I immediately transferred this servus
into your possession, so that from this day you may have the full benet
of free authority to have, hold and do whatever you decide with him.80
This formula immediately follows formulae for acts of sale of

a villa, an urban property and a eld successively, which again
shows that the slave is treated, here at least, as straightforward
property. Have we nally reached incontrovertible evidence
that, in this sense at least, slavery in a classical sense did survive? What should we make, for instance, of the servus whom
one man may buy from another in mercado in Cartae Senonicae,
no. 9? We have to admit that these texts jar with the rest of our
formulary evidence.
We should distinguish here between rural and domestic slaves.
It makes more sense to see those formulae that deal with sales
of individuals as concerning only domestic slaves, as opposed to
selling tenants together with the land on which they lived, which
would doubtless have been less disruptive to their lives than
relocation. The distinction is difcult for historians to apply
because of the unspecic nature of the words servus and serviens
in our texts, since both are used to characterize unfree status in
very general terms. Occasionally, however, the choice of words
is more revealing. In the case of the sale of a foundling in
79
For a similar conclusion based on a survey of sources, see Goetz, Serfdom and
the Beginnings of a Seigneurial System, 47. Arguably, formulae of self-enslavement
are more difcult to intepret than is often appreciated; for a re-evaluation of some
eleventh-century material, see Barthlemys work on the self-enslavements in the
Book of Serfs of Marmoutier: Barthlemy, Quest-ce que le servage?; Barthlemy,
La Mutation de lan mil a-t-elle eu lieu?
80
Marculf, II. 22.
33
Formulae Turonenses, no. 11, for instance, the fact that the infant
is intended to become a household servant is made explicit (si,
Deo presule, convaluerit, ipsum in suis servitiis ac solatiis iuxta
legis ordinem retineat).81 Formulae Andecavenses, no. 9, an act of
sale similar to the Marculf one given above,82 has the word vernaculus instead of servus. It seems highly likely that the word
vernaculus specically designates a household servant. The word
appears in sale formulae,83 as well as in many manumission formulae;84 it does not appear in any other type of document, and
never seems to be used to describe a rural tenant. In all such
cases, therefore, it makes sense to read the formula as relating
to a household slave. Domestic slaves, through constant contact with their master, would have been objects of closer attention than tenants, and that could have made them more likely
to be manumitted, as well as more liable to suffer violence.
Medieval domestic servi may therefore have been treated similarly to classical domestic servi.85 The important thing is not to
extend evidence which in all likelihood refers to domestic service to the life of rural tenants. Rights and conditions of life are
likely to have been determined by activities and circumstances,
rather than by legal status: free domestic servants, for instance
in their vulnerability to the threat of violence, would probably
have been similar to unfree domestic servants, just as unfree rural
tenants would have led similar lives to those of free rural tenants.86
The picture of early medieval unfreedom which we nd in
the formularies is therefore very diverse, and hardly one of total
social exclusion from any community or public institution. On
81
Liebs found this text particularly shocking, and thought it an example of the
lack of social solidarity in early medieval times: Liebs, Sklaverei aus Not, 311.
82
The title in the manuscript (Here begins the act of sale which one makes when
selling oneself) does not t the content of the formula.
83
Formulae Andecavenses, no. 9; Formulae Salicae Bignonianae, nos. 3 and 5.
84
Formulae Salicae Bignonianae, nos. 1 and 2; Formulae Salicae Merkelianae, nos.
13b and 43 (in which an infantulum is manumitted); Formulae Salicae Lindenbrogianae, nos. 10 and 11; Formulae Augienses Coll. B, no. 42; Formulae Codicis Laudunensis, no. 14; see also Formulae Salicae Lindenbrogianae, no. 9, quoted at n. 52 above.
85
Even in this context, however, we nd a variety of situations: the gasindus in
Marculf, II. 36 could for instance qualify distantly as a household dependant.
86
Although it is often assumed that some horror stories in our narrative sources
reect specically the violence of masters towards slaves, medieval authors rarely
bothered to make it clear whether the victims were technically free or unfree (for
instance in the case of the victimized pueri in Gregory of Tourss Histories), which
suggests that legal status was not the most important issue in practice.
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PAST AND PRESENT
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the other hand, we still get a strong sense of its importance: that
a good proportion of all surviving formulae (over 15 per cent)
deals with issues involving servi suggests that degrees of personal freedom were of concern to both compilers and those
who needed their services. Formulae show that relationships of
dependence and rights over persons, as well as links of protection and patronage, were worked out in a more integrated and
negotiable way than tends to be allowed for, with a strong consciousness of rights on the part of our servi.87 As a result, status
and owed labour would have been all the more difcult to pin
down and reassert, and would have needed constant attention
in documents. Freedom and unfreedom were stages on a sliding scale rather than a clear-cut tiered system, or, as Susan
Reynolds has put it, the layers of [medieval] society were more
like those of a trie than a cake: its layers were blurred, and the
sherry of accepted values soaked through.88
III
UNFREEDOM AND THE LEGAL SOURCES
Arguments for the dehumanized, object-like status of early

medieval servi have been made primarily on the basis of written
laws. As we have seen, the picture of unfreedom derived from
formulary evidence is rather different. How can we explain this,
and which should we believe? Most historians now have grave
doubts as to the ability of written law to reect social reality in
any case; but what of formulae? We should consider whether
they really preserve otherwise undocumented real cases or were
only abstractions intended for teaching future notaries.
As textbooks, formulae are of a highly practical nature, unlike,
for instance, later treatises. They do not give the impression of
being merely hypothetical. The practice of giving alternative
wordings to t different situations shows this best: it only makes
sense if the text was in some sense a working model. Even in
the case of the couple forced to let their servant go free after losing their deed of ownership, there is no hint that the situation
87
See Nelson, England and the Continent in the Ninth Century: III, Rights and
Rituals.
88
Susan Reynolds, Fiefs and Vassals: The Medieval Evidence Reinterpreted (Oxford,
1994), 40.
35
is a reductio ad absurdum: the text of Formulae Andecavenses,

no. 17, is short and sober,89 and it is very similar in its wording
and general intent to more standard acts of annulment (such as
Marculf, II. 35) in which a loan has been repaid as planned, rather
than the deed of security lost. The point here is not to present a
law student with a difcult problem, but to give a practical
example to a scribe in the employ of a property-owner.
It is likely, on the other hand, that formularies contained, as
well as models for day-to-day transactions, a number of less
common situations (though not so uncommon that they were
not worth preparing for), and, more precisely, situations in
which a contract or settlement was made that explicitly went
against the prescriptions of written law. This is the case with
some of the formulae discussed here. When this happens, there
is always a mention of what could have happened if the parties
involved had followed the law; but then the document makes a
point of stating that they have chosen to do something else
because that happened to suit everyone much better, and that
this can in no way be held as invalidating the transaction: a
good example of this is Marculf, II. 12, in which a father makes
a testament dividing his property equally between his sons and
daughter, thereby contradicting one of the most famous clauses
of Salic law.90 On the other hand, formulae also occasionally
cite Salic law or the Breviary of Alaric as support for an action
when the corresponding clauses never existed, so far as we know.91
This would naturally have depended on what the scribe thought
the law was: his idea of written laws may well have derived from
precisely such references in formulae rather than from a more
intimate knowledge of the codes.92 Reference to written laws,
whether made with the intention to observe them or go against
them, need not imply that scribes were really expert in written
legal sources: what is important is their attitude to them, and
89
See at n. 73 above.
Pactus Legis Salicae, LIX. 6 (ed. Eckhardt, 223).
Again, see Formulae Salicae Lindenbrogianae, no. 20.
92
See Wormald, Making of English Law, 79: it seems that it was the general body
of Salic custom, not the actual text of the law, that judges and scribes had in
mind, and on formulae as the main point of contact between documentary practice
and written laws: ibid., 83. See also Patrick Wormald, Lex scripta and verbum regis:
Legislation and Germanic Kingship from Euric to Cnut, in P. H. Sawyer and I. N.
Wood (eds.), Early Medieval Kingship (Leeds, 1977), 122.
90
91
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PAST AND PRESENT
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their willingness to adapt them to suit the circumstances of their

patrons.
Law was therefore more a reference to be customized than an
enforceable rule. This does not mean that all the arrangements
described in formulae would necessarily have been exceptional
or even unusual, though perhaps there was a more urgent need
for a document when the situation was less standard. But
whether formulae reect unusual circumstances or not, the
same circumstances are often expressed in varying ways in many
collections unrelated in their manuscript traditions. Even the
less standard solutions depicted in this material were clearly
widespread enough for different examples to occur independently,
and for them to be thought worth keeping as models for future
documents. We may therefore infer that formulae are capable of
reecting trends, not just freak occurrences.
The contrast between the view of unfreedom offered in the
legislation and that offered in the formularies reveals a broader
divide between prescriptive legal texts and social practice. Written laws in this period give an ambiguous message: they were in
essence conservative, and referred to the principles of Roman
legal tradition for its prestige as well as its intellectual foundations, but they were also meant to apply to real and varying situations.93 In a sense the same can be said of the Theodosian Code,
which referred to classical jurisprudence while at the same time
offering rather different glimpses of reality. When Charlemagne
made his famous conservative statement non est amplius nisi
liber et servus (men are either free men or slaves, and nothing
beyond that) he did not intend to give a representative analysis
of the structures of unfreedom, but to encourage a missus to use
judgement. It is safe to assume that if things had been so
straightforward in practice, the missus would not have asked his
question. Charlemagne was not merely reiterating a commonplace: he meant to reduce a confusing situation to clear-cut
terms.94
Rather than seeing them as attempting to develop measured
solutions in response to social practice, it makes more sense to
read laws as stating the upper limit of what could be expected
from a person by whom one had been wronged whether this
93
94
On this issue, see Wormald, Lex scripta and verbum regis.

See at n. 39 above.
37
involved marriage without the consent of the wifes parents, or

neighbouring landlords competing for manpower. This initial
statement, by denition tending to conservatism, ruthless
language and, above all, the advantage of the dominant elite,
could then have worked as a basis from which parties would
negotiate to reach an agreement. This is broadly demonstrated
in examples of settlements of disputes in the formulae, as well as
in other cases reported in charters, placita and narrative sources.
Formulae operate in this margin for manoeuvre left for negotiation and private settlement: they do not contradict the evidence
of the laws so much as complement and rene our view of it.
This makes the evidence of the formularies more secure,
since it is always difcult to justify following one type of source
at the cost of dismissing another completely. It ts in well with
our current understanding of how early medieval law worked,
and it seems increasingly likely that this is also how Roman law
would have worked. The gap between these two periods respective historiographies on written laws and their application in
practice has been signicantly narrowing (a development which
can only help to make more sense of both), with a new tendency to view Roman law as more adaptable and less absolute
than was traditionally thought. Ernst Levy opened the way with
his seminal work on the various popular adaptations of Roman
law commonly referred to as West Roman vulgar law, while
more recently the work of historians of late imperial law has
stressed the variety of solutions to conict that did not involve
recourse to the provisions of written law, pointing to a diversity
in local practice.95
Formulae give us a unique perspective on the Frankish kingdoms, because they can tell us the sort of thing that could be
expected to happen in practice, and the complexity of life
beyond the narrow denitions of contemporary written law.
They are of course still limited in that they only tell us of cases
95
Ernst Levy, West Roman Vulgar Law: The Law of Property (Philadelphia, 1951).
Among recent work, see especially Jill Harries, Law and Empire in Late Antiquity
(Cambridge, 1999); Jill D. Harries, Resolving Disputes: The Frontiers of Law in
Late Antiquity, in Ralph W. Mathisen (ed.), Law, Society and Authority in Late
Antiquity (Oxford, 2001); see also Traianos Gagos and Peter van Minnen, Settling a
Dispute: Toward a Legal Anthropology of Late Antique Egypt (Ann Arbor, 1994),
relating to Egypt but with wider implications. Levy saw the Frankish formulae as
proof of the continuing inuence of vulgar law: Levy, West Roman Vulgar Law, 10.
38
PAST AND PRESENT
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in which a document was needed: we get no details, for instance,

on those other unfree (reliqua or originaria mancipia) mentioned in the self-sale formulae. Formulae show us a variety of
possible situations in reality, but do not help us to deduce what
was the norm and what was not. What is signicant, on the
other hand, is the variety of the situations observed.
This much is clear: a sharp division of persons between free
and unfree was not applicable in practice even according to our
earliest evidence, despite contemporary laws sometimes referring to it as a principle; nor is it likely that there ever was a time
in either Antiquity or the Middle Ages in which this opposition
was actually applicable in reality.96 We could extend some of
the conclusions reached from eleventh-century evidence on the
nature of serfdom, in particular with the work of Dominique
Barthlemy and Paul Fouracre,97 to this earlier period: in other
words that this was not a caste society, that a single blanket
condition which could be characterized as either slavery or
serfdom is nowhere to be found, and that what we do nd is a
multiplicity of status and a multitude of grey areas, giving
unfree people few rights rather than no rights. Formulae, in this
sense, can perhaps help to tie up loose ends, and trace back to
the Merovingian and Carolingian age features already recognized in better-documented periods.
At the other end of the chronological scale, they also t in
rather well with developments in the historiography of the late
antique period. The work of Finley has been fundamental in
reassessing the importance of chattel slavery during the Roman
period, and it is now no longer thought to have existed anywhere
outside the Mediterranean classical heartland. C. R. Whittaker
has shown the difculty of detecting any signs of a radical change
in the use of slaves during the late antique period: it is impossible
to document at any point a replacement of slaves by either
coloni or serfs. The colonate is also now considered to have
covered a wide range of meanings, and to have been a legal dead
96
Barthlemy, Quest-ce que le servage?, 253.

Ibid., 268: il faut renoncer au concept dune classe servile, quon se
reprsente ncessairement trop restreinte ou trop large. Il y a seulement une discipline servile. Barthlemys discussion is focused essentially on the eleventh century,
but it offers insights on earlier periods, particularly since he envisages eleventh-century
serfdom in a perspective of continuity from the Carolingian world: ibid., 2834. See
also Fouracre, Marmoutier and its Serfs.
97
39
end rather than a point of transition between neat categories of

slavery and serfdom.98 At the same time, recent work has shown
that Roman law was subject to a level of diversity and exibility
in practice, in such a way as to lessen the traditional contrast
made between it and its medieval counterparts.
One outcome of all this is seriously to question the classical
point of departure from which slavery in early medieval Europe
is supposed to have evolved. That point of departure seems at
least increasingly elusive. The reason why the suggested dates
for the transition from classical slavery to serfdom have been so
varied (from the fth century to the year 1000 and at almost
every point in between), and the proposed explanations for the
change so tentative and unconvincing, may be that there was
no clear transition. The lack of evidence for change could be
due not to the survival of a classical type of slavery down to
the year 1000 (and severe doubt has been cast on the advisability
of setting the latter date as a turning point), but to the absence
of a classical starting point to change from in the rst place.
Perhaps, then, it is time to abandon the classical model, which
has done little for this debate except confuse the terms of the
issue. Aristotles and Varros writings cannot be taken to represent real practice in their own time, let alone in the medieval
period.99 For once the problem of dearth of sources is on the
classical side. But it is possible that if we did have evidence for
Roman Gaul similar to that provided by formularies it would
show us an equally complex and diverse, and not entirely
dissimilar, picture. Perhaps the reason why it is so difcult to
observe a very remarkable transition north of the Alps is that
98
See Finley, Ancient Slavery and Modern Ideology, ed. Shaw; Whittaker, Circes
Pigs; B. D. Shaw, A Wolf by the Ears: M. I. Finleys Ancient Slavery and Modern
Ideology in Historical Context, in Finley, Ancient Slavery and Modern Ideology, ed.
Shaw, 3440; E. M. Wightman, Peasants and Potentates: An Investigation of
Social Structure and Land Tenure in Roman Gaul, Amer. Jl Ancient Hist., iii
(1978). A fundamental reassessment of the colonate was made by Jean-Michel
Carri, Le Colonat du Bas-Empire: un mythe historiographique?, Opus, i (1982),
and Jean-Michel Carri, Un roman des origines: les gnalogies du colonat du
Bas Empire, Opus, ii (1983). See also Diether Eibach, Untersuchungen zum sptantiken Kolonat in der kaiserlichen Gesetzgebung unter besonderer Bercksichtigung der
Terminologie (Bonn, 1980), Elio lo Cascio (ed.), Terre, proprietari e contadini
dellimpero romano dallaftto agrario al colonato tardoantico (Rome, 1997), and
Wickham, Framing the Early Middle Ages, 5207, for an instructive account of the
historiography.
99
Aristotle, Nicomachean Ethics, 1161b; Varro, De re rustica, I. 17. 1.
40
PAST AND PRESENT
NUMBER 193
the situation there had always been different: the picture of

complexity and negotiability which we get from the formularies
complements and qualies prescriptive legal evidence throughout this period, from the Theodosian Code to the Carolingian
capitularies. There certainly was change throughout this period,
but it did not go one way; it was less dramatic, more irregular,
and more tentative than is often assumed; and it was based on
shifts in the balance of power and relationships in specic and
variable circumstances rather than in the overall nature of an
institution. Lack of sources will always in some measure distort
our understanding of unfreedom in Late Antiquity and the
early Middle Ages. That is why we cannot afford to neglect any
available source. Formulary evidence, when taken on its own
terms rather than enlisted to t preconceived metanarratives
hypothesizing structural change or stasis, can help us piece
together a more nuanced picture of early medieval life, in which,
as in any other society, the meanings of freedom and unfreedom
were anything but straightforward.
Kings College London
Alice Rio

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PAST & PRESENT

FREEDOM AND UNFREEDOM IN EARLY MEDIEVAL FRANCIA: THE

SUBORDINATION, SOLIDARITY AND THE LIMITS OF POPULAR

RESURRECTING BY NUMBERS IN EIGHTEENTH-CENTURY

THE PAINE BURNINGS OF 17921793: by Frank OGorman .... 111

Oxford University Press

FREEDOM AND UNFREEDOM IN

Past and Present, no. 193 (Nov. 2006)

The Past and Present Society, Oxford, 2006

PAST AND PRESENT

frameworks to be lled out later, can only be useful in the eld

The consensus shared today by the majority of English-speaking

FREEDOM AND UNFREEDOM

others had neither.5 As Wendy Davies has put it in conclusion

References to the power to negotiate and to the personal

PAST AND PRESENT

FREEDOM AND UNFREEDOM

conned to Germany, where legal history has traditionally been done

PAST AND PRESENT

free people; the threat of violence, in particular, or the restriction

FREEDOM AND UNFREEDOM

Formulae are model documents used by scribes for recording

PAST AND PRESENT

FREEDOM AND UNFREEDOM

See ibid., 35860.

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offer is a perspective of continuity. This is not in contradiction

FREEDOM AND UNFREEDOM

even earlier: as we shall see, there is evidence from the Roman

Note the alternative possibilities: the rst, envisaged in the

PAST AND PRESENT

this case, after intercession by amici (friends, or perhaps here

FREEDOM AND UNFREEDOM

Einharti Epistolae, ed. K. Hampe (MGH, Epistolae, v, Hannover, 18989),

PAST AND PRESENT

independently for the same purpose. The likeliest explanation

FREEDOM AND UNFREEDOM

PAST AND PRESENT

interpretation of mixed marriages as being contrary to Roman

FREEDOM AND UNFREEDOM

Later laws49 tended to make the woman as well as her future

PAST AND PRESENT

Here dimittere is used in a more specialized meaning than its

FREEDOM AND UNFREEDOM

Many of these notitiae may not have been employed in real

PAST AND PRESENT

Here servus seems to be proposed as an equivalent to gasindus

FREEDOM AND UNFREEDOM

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used to demonstrate rampant poverty and the oppression of the

In this case, someone pays compensation on behalf of a thief,

FREEDOM AND UNFREEDOM

Here, unfreedom is limited to a certain number of days in each

Marculf, II. 27.

PAST AND PRESENT

In these two formulae the loss of the document seems to decide

Ibid., no. 18.

FREEDOM AND UNFREEDOM

will do all this ingenuili ordine, as a free man.76 The formula

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classical style of slavery, can be shown to reect a far more

This formula immediately follows formulae for acts of sale of

FREEDOM AND UNFREEDOM