By Nella Lonza
Dubrovnik Annals, No.13 (2009)
Abstract: Analysing the Ragusan medieval practice of designating a potential witness by pulling his ear, the author traces the same custom in the legal codes from South East Adriatic (from the islands of Mljet and Lastovo to Shkodër). Finding striking similarities with the antestatio rite in the Twelve Tables code of Roman law, and in a number of testimonies from the Roman literature, the author follows the emergence of a ritual of similar features in the early Germanic law collections (5th-8th c.), in the documents of the Austro- Bavarian region (8th-12th c.), and in the Old Slavic legal terminology. According to the author, the link between the existence of a virtually identical legal ritual in different areas and periods might be accounted by the Roman law tradition, yet basically nourished by the shared understanding of the ear as the seat of memory.
Introduction: A historian immersed in the documentary sources is aware that they record merely a portion of reality. Medievalists are particularly haunted by the question of whether the records mirror what was typical, or, contrarily, the very fact that something was not typical or commonplace guided the recorders to write it down. The realms of oral culture, non-institutional legal behaviour and ritual forms tend to remain beyond the vantage point of historiography. A historian should, of course, write only about the topics that are solidly grounded. This, however, does not exempt him from trying to tackle and interpret the phenomena that are but marginally discernible in the extant sources.
Similarly, a researcher into the medieval Ragusan sources will, through fleeting glimpses, learn about the ritualised behaviour and practice which evidently had complex and far-reaching legal effects without being officially drawn, and more curiously, in a community marked by an advanced written legal tradition, statutory collections and notarial office.
For instance, thirteenth-century Ragusan notary records mention the ritual of ‘falling flat on the ground’ (iactare/ deiactare/proicere se in terram, iactatio in terram, data in terram) through which a debtor symbolically declared his insolvency, which signalled the beginning of a special seizure procedure, regulated by the 1272 Statute. In a case of dispute between the co-owners of a ship in the Dubrovnik port in 1461, as a sign of confirmation of his oath, one of the owners took some seawater with his hand and drank it (et in fidem sacramenti accepit aquam marinam manu et eam bibit).
Based on the analysis of the criminal cases, additionally supported by the evidence in other sources, one may assume the significant role of the settlement ritual that was sealed with a kiss, exchange of gifts or fraternisation which took place out of court and virtually managed to submerge the judiciary. A host of examples may be provided to illustrate this practice.