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Irina Metzler "Medieval Blindness and the Law: Visual impairment in canon law and civil jurisprudence, and

as judicial consequence" Notions and perceptions of blind and visually impaired people as presented in legal discourse can tell us about the status, social position and rights (or restrictions) they may have had. Similarly, the evaluation of impairments in legal documents can illuminate societal attitudes. What degree of legal differentiation was made? Were all impairments simply bundled together as so-called disabilities, or were physical impairments hierarchised (e.g. was sensory impairment regarded as worse than orthopedic impairment; was blindness regarded as worse than the loss of one ear)? Throughout I speak in terms of impairment when describing an anatomical, biological, material condition, rather than disability which as a term is reserved for the social and culturally-specific construct superimposed on impairment. In this distinction I am following the discipline of disability studies in the Anglophone world. 1 I wish to give an overview of blindness in three areas of medieval law: firstly, in canon law, secondly in secular law, and thirdly to briefly look at one of the nastier effects of legal measures, that is blindness caused by judicial mutilation. Canon law Derived from the Old Testament passages in Leviticus, the physical perfection required of the priest, and incidentally of the sacrificial animal too, is encountered in subsequent theological texts. This relates to the concept of idoneity of the priest. The quality or state of being idoneus means possessing suitability or fitness, but it could also apply to moral or social suitability, e.g. priest not being of illegitimate birth. Leviticus has always been over-emphasised, in that there has been an assumption by scholars that this prohibition against disabled people was always strictly adhered to throughout the Middle Ages. The Apostolic Constitutions, dated to the fourth and fifth centuries, include a passage2 stating that bishops must not be prevented from holding their office because of physical impairment or deformity, so in effect repudiating Leviticus 21. 3 However, this covered only the orthopedically impaired and the maimed, who could become bishops, but not the blind, the speech impaired or the demoniac, who may not become clerics. 4 Amongst
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For a fuller discussion of the appositeness of using the theories expounded by modern Disability Studies to aid understanding of medieval attitudes and mentalities cf. Metzler, pp. 20-36. 2 A. Donaldson (transl.), The Apostolical Constitutions, vol. 17, Ante-Nicene Christian Library, Edinburgh, 1880, section 8, paragraphs 77-9 (of 85 canons), p. 267. 3 E. Bredberg, 'Writing Disability History: Problems, perspectives and sources', Disability and Society, 14(2), 1999, p. 193; cf. Didascalia et Constitutiones Apostolorum, ed. Franz X. Funk, 2 vols, Paderborn, 1905 4 C. H. Turner, 'Notes on the Apostolic Constitutions', Journal of Theological Studies, pp. 523-38, at p. 532

the high and later medieval friars, too, blindness or eye defects were impediments to joining the mendicant orders. Applicants who lacked one or both eyes, or had eye defects that were observable at the time of application and deemed likely to develop more over time, were in effect barred from joining the Franciscans or Dominicans. 5 Theoretically, therefore, such a ban existed, but in practice medieval priests could have been able to obtain a dispensation, though it may have been rarely applied for. Most of these dispensations date from the thirteenth century. The Liber extra,6 a collection of canonical documents promulgated by pope Gregory IX, and which was designed to be authoritative throughout the Church, contained an entire titulus on the subject of physical intactness and perfection, which confirmed that physical deformity, mutilations, and serious blemishes morally disqualified a person as a candidate for higher orders. One may surmise that lower orders, in contrast, did not warrant such disqualifications. In the case of disqualification, a dispensation was required, and commonly received; however, frequent dispensation did not diminish the overall significance of these prohibitions. 7 What does become apparent is that there is evidence that disabled people can have been in holy orders during the medieval period.8 Suffice it to draw attention to a single issue: visibility to others of an impairment. Humbert of Romans, Master General of the Dominicans during the thirteenth century, had argued that "people who are disfigured in this way are debarred from the Lord's service in Leviticus and similarly the church has banned them from public office for fear of popular scandal and ridicule".9 This emphasises visibility as a measure by which people were judged fit, or not, to be a priest, something which the priest in the following story was also keen to point out. 10 In
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A. Montford, 'Fit to preach and pray: Considerations of occupational health in the mendicant orders', in R. N. Swanson (ed.), The Use and Abuse of Time in Christian History (Studies in Church History 37), Woodbridge: Boydell, 2002, pp. 95-106, at pp. 98-99. 6 Cf. Emil Friedberg (ed.), Corpus iuris canonici, 2 vols., Leipzig, 1879-81, vol. 2, cols. 1446. 7 Ruth Mellinkoff, Outcasts: Signs of Otherness in Northern European Art of the Late Middle Ages, 2 vols., Berkeley, Los Angeles and Oxford, 1993, vol. 1, p. 114. 8 On a digressory note, it is worth pointing out that the issue of impaired people in holy orders is still not satisfactorily resolved in the modern Catholic Church. In 1995 the Vatican "provoked fury by issuing a decree banning men who suffer from an allergy to gluten from becoming priests" (Madeleine Bunting, 'Wafer allergy bars priests', the Guardian, 10 October 1995). The Vatican insisted on communion wafers containing gluten as the only suitable kind of wafers; gluten can trigger the debilitating coeliac disease. 9 Cited by Montford, Health, 30; see Opera de vita regulari, ed. J. J. Berthier, 2 vols (Rome, 1888-9, rpt. Turin 1950), II, 406. 10 Visibility of one's impairment had also been of concern to King Alfred: according to his biographer Asser, Alfred was afflicted by an unspecified illness for many years, so that at one point he entered a church and prayed that his present malady might be changed for some lesser infirmity which should not appear outwardly in the body lest it should render him useless and despised; Asser, Life of Alfred, chap. 74, cf. discussion of this episode by Paul Kershaw, 'Illness, power and prayer in Asser's Life of King Alfred', Early Medieval Europe

the 1480s this priest asked for dispensation due to canonical irregularity. He was soldering the handle of his knife with lead when a drop of lead splashed into his left eye, with which he no longer saw anything at the time of supplication, but he emphasised that this injury was not obvious to others.11 Therefore, if a priest already in office became blind due to accident or the effects of ageing, one solution to the problem was the appointment of a coadjutor, a kind of assistant. Several cases of coadjutors in the diocese of York are known from the register of Archbishop William Melton, where during the 1320s and 1330s several blind priests received such assistance, but retained their official post.12 Another priest, Reginald Calle in the diocese of Exeter, wrote to his bishop in 1374, asking for a coadjutor, since he sat "in the shadows, like the elder Tobias" and no longer saw "the light of the heavens", having become blind. 13 Thus blindness was not just a personal problem for the aged priest, but also a wider issue for the local community, since there were some priests who wanted to retire, and should have done so, being blind, senile or deaf, but were not allowed to retire. That is evident from the complaints of parishioners, who frequently protested that their priest was no longer capable. 14 In England a minimum age existed, sixty years or older, before parish priests were allowed to retire or forced into retirement on the grounds that they were blind or otherwise impaired. 15 In 1449 John Yonge, priest in Bristol, was arrested by order of the bishop, who investigated Lollard heresy in the region. Because Yonge - contrary to his name - was an old man and totally blind, leniency was shown toward him despite being pronounced a heretic and excommunicated. "Considering the bodily weakness and great age of the said John," the 10, number 2 (2001): 201-24. 11 Esch, Wahre Geschichten, 48; Repertorium Poenitentiariae Germanicum, vol. VI (papacy of Sixtus IV, 1471-84), ed. L. Schmugge (Tbingen, 2005), case no. 3225. Another priest was decorating the altar of St Dorothy with fresh leaves from trees but while whittling a branch something flew into his eye (Esch, 48; Repertorium Poenitentiariae Germanicum, vol. VII (papacy of Innocent VIII, 1484-92), ed. L. Schmugge (Tbingen, 2008), case no. 2327); and a priest had a white film (pellicula alba) covering his right eye due to an illness, which impaired his vision, but it was otherwise a healthy organ ( remansit tamen organum sanum) (Esch, 48; Repertorium Poenitentiariae Germanicum, vol. V (papacy of Paul II, 1464-71), ed. L. Schmugge (Tbingen, 2002), case no. 1260); furthermore a monk was blinded by one of his fellow-monks, when during renovation works at their monastery the second monk threw lime at his face for a laugh, which impaired his vision (Esch, 48; Repertorium Poenitentiariae Germanicum, vol. VII (papacy of Innocent VIII, 1484-92), ed. L. Schmugge (Tbingen, 2008), case no. 2433 and 2434). During the papacy of Innocent VIII alone, six different cases affecting the eyes were registered (between nos. 1977 to 1995) in quick succcession. 12 All cases from papers held by the Borthwick Institute's archive, online at http://www.york.ac.uk/library/borthwick/projects-exhibitions/equality/disability/medievalclergy-and-disability/ (accessed 1 March 2011). 13 In Orme, 'Sufferings', 64, citing from the register of bishop Brantingham of Exeter. 14 Shahar, Growing Old, 109; Rosenthal, Old Age, 110 and Rosenthal, 'Retirement', 181, mentions the rector of Abbot's Ripton, who was "broken with age, infirm, blind, and unfit to exercise his office". 15 Shahar, 'The Middle Ages', 99.

bishop absolved him, although he had to renunciate his heretical opinions, a long list of which was read aloud to him, "he himself being blind".16 The conclusion seems to be that people who had an impairment prior to applying for the priesthood were discouraged from doing so, but once someone became blind after they had become a priest, they should not be prevented from carrying out their duties. The distinction between congenital and acquired blindness will therefore have played a crucial role in deciding whether someone was excluded according to canon law or not. Secular laws - this will cover two topics, exclusion and compensation Legal exclusion Exclusion relates to the restriction imposed on impaired persons to participate fully in public life. Roman law in the case of the Justinian codes was particularly concerned about impaired people and their ability to make property transactions of various kinds. Distinctions were made between congenital and acquired impairments, in that people who had been born with conditions such as blindness, deafness or muteness, were excluded from certain legal transactions or their transactions were regarded as not valid. For example, a blind but illiterate testator could make a valid will provided the earlier oral dictation had been re-read to the testator in the presence of seven witnesses. 17 In general, sensorily impaired people could not be guardians of other people.18 However, all groups of sensorily impaired blind, deaf and mute could inherit (Institutes 2.19.4). Similar sentiments were carried forward into northern Europe. Infantilisation and abrogation of the legal rights normally accorded to non-impaired adults were the main restrictive aspects of Roman and some 'barbarian' laws. According to German legal texts from the second half of the thirteenth century, blind people could become neither judges nor members of the town council.19 The well-known German Sachsenspiegel, compiled by Eike von Repgow around 1230, also has sections dealing with the legal exclusion of impaired persons. Most of these relate to the rights to inherit property or make property transactions, similar to the stipulations already found in Roman law. So, certain categories of impaired persons may not inherit: Neither tenancy nor hereditary property can devolve upon the feebleminded, dwarfs, or cripples. The actual heirs and their next of kin are, however, responsible for their care.20
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Cited by Joseph Bettey, Morning Stars of the Reformation: Early Religious Reformers in the Bristol Region. ALHA 8 (Bristol: Avon Local History and Archaeology, 2011), 17; H.-C. Maxwell-Lyte and M. C. B. Dawes, eds, The Register of Thomas Bekynton (Bishop of Bath and Wells 1443-65), Somerset Record Society 49 (1934), 458. 17 O'Neill, p. 85. See Codex Iustinianus 6.22.8 and Institutes 2.12.4 18 See Institutes 5.34.3 19 Schleusener-Eichholz, Das Auge, vol. I, p. 495. 20 Saxon Mirror Book I.3, pp. 69-70 and Sachsenspiegel Landrecht 1.IV, p. 32.

In one manuscript of the Sachsenspiegel, an illustration accompanies this section of the text: the figures of a leper, a mute man, a blind man carrying a cane, and a cripple without arms and just one leg are shown in the margin of the page. 21 The definition of legally incapable persons has thus been widened by the illustrator above and beyond the original text. Compensation Most European law codes dating from between the fifth and the tenth centuries contained provisions for wergild, the financial compensation for injuries according to their severity. Compensation covers by far the largest section concerning acquired blindness in medieval legal sources, with a multitude of examples in the barbarian codes of monetary payments to injured parties in the event of the loss of sensory or motor function pertaining to specific body parts. The comparative ranking of different injuries and compensations becomes apparent in the tariff schemes found in many of the Leges. The tariff scheme in the Lex Saxonum combines a carefully thought out hierarchy of what the injury or loss of a specific body part means, in terms of its impact on the overall physiological functioning of a person, with a more abstract and symbolic method of allocating the various compensation rates - in multiples of 12, or as fractions of the full wergild - that provides us with examples of the culturally-specific perception of physical impairment. It is interesting to compare such an earlier medieval scheme of compensation with modern rates, as has been done for German law in relation to reduced working ability, a concept originating with late-nineteenth century developments in social security and employment law.22 With regard to sensory impairments, the Ripuarian, Alamannic, Bavarian and Saxon laws all distinguish between loss of the organ (eye, ear) but retention of sensory perception, and damage to the sensory perception but remaining organ. If the eye remains in situ, but has been blinded, the fine is half the amount it would be if the eye has been struck out. 23 This sort of tariff is stated, for example, in the laws of the Ripuarian Franks. In addition, compensation payments were tied to a person's social and legal position: nobles, clerics, freemen, and serfs were compensated for and fined different payments according to their rank. In Anglo-Saxon England the earliest legal text, Aethelbert of Kents code, probably compiled around 602, stated: "If a servants eye or foot is destroyed, the full value is to be paid for

21 22

Depiction in exh. cat. Der Sachsenspiegel, p. 31. See Feldmann, p. 166 on how legal and medical professionals over the last hundred years have framed the notion of disability as one of graded variation according to scientifically measured criteria. However, the metrification of a person has, as the barbarian compensation laws demonstrate, a much older pedigree. 23 Oliver, p. 93, also noting that since the site of a cut-off ear can be covered by hair, the loss is not immediately visible, whereas "there is no disguising the loss of an eye or the nose" (ibid., p. 95).

him".24 This of course meant payment to the lord, not to the servant! These Kentish laws provide an interesting insight into the relative values attached to specific physical abilities, for instance for freemen the loss of a single eye at 50 shillings was rated twice the worth at 25 shillings of losing hearing in one ear. The later ninth-century laws of Alfred and the early twelfth-century Leges Henrici Primi continued to follow the hierarchy of compensation set by Aethelbert's laws, in that loss of an eye was accorded the same value as loss of a foot, but a lesser tariff was paid if the eye remained in the head and just vision was impaired, rather than the eye being lost completely.25 Compensation for injuries, whether sustained accidentally or deliberately, continued to be a feature of later medieval legal practice, despite the overall demise of wergild. For example, in Ghent in 1374 one man had to pay 72 livres Parisienne in compensation to another for shooting him in the eye with an arrow, an injury that would have blinded him in that eye. 26 Also in Ghent, in 1377 a father had to pay 150 livres Parisienne compensation because his son had accidentally blinded another boy by poking an object in his eye while both boys were at school.27 To summarise secular laws, the predominance of compensation laws in the barbarian legal codes over the exclusion laws in Roman codes marks a significant shift in legal attitude to and notion of blindness, and other disabilities. There is far less legal exclusion in the barbarian codes, and not until the later twelfth and thirteenth centuries, with the greater re-use and reworking of Roman laws, do we find in texts such as the Sachsenspiegel the return to ideas of exclusion of some sensorily and physically impaired people. Interestingly, the re-emergence of Roman law appears to have driven the increased use of judicial mutilation. 28
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Cited in Geary, p. 237. Liebermann, vol. II, part II, pp. 292-3, comments that the culprit has to compensate the lord with the value of the full wergild for a serf since such an injury makes the serf unable to work usefully. 25 At Alfred 47,1 Gif hit in dam heafde sie, 7 he noht geseon ne mge mid, stande driddan dl yre bote inne. (If it remains in the head, but he can see nothing with it, one-third of the compensation shall be withheld.) and Leges Henrici Primi 93,5a Si oculus in capite remaneat ut tamen homo nichil inde uideat, tertia pars in eo emendationis consistat. (If the eye remains in the head, but so that the man can see nothing with it, a third part of the compensation otherwise payable shall be withheld.). 26 Nicholas, p. 146. 27 Nicholas, p. 127; the source is Stadsarchief te Gent, ser. 330, Zoendineboeken, Z 6,2, f. 8v. Hence fines were also imposed in fourteenth-century Ghent on people who had been tasked with looking after children if these were injured, but even if such injuries resulted in permanent impairments, fines were set at a lower rate than the equivalent for adult injuries; the 150 pounds paid to the boy may be an unusually high level of compensation (Nicholas, p. 144 and note 48). 28 Geary, 'Judicial Violence', 82, adding that it is an erroneous view to blame the 'barbarian' legal codes for this, instead judicial violence was inherited from the Roman tradition. See also Bartlett, Trial by Fire, 140. On punishments in classical Rome see: R. MacMullen, 'Judicial savagery in the Roman Empire', in Romanization in the Time of Augustus, ed. R. MacMullen (New Haven, CT: Yale University Press, 2000), 204-17.

Blindness as a consequence of judicial actions That medieval interpretations of justice could be notoriously harsh is well known, as is the fact that using blinding as punishment was not uncommon. While we lack any statistical evidence to quantify the precise incidence of judicial mutilation, various types of sources, both the legal texts themselves, as well as other administrative records, chronicles and even literary texts, point to judicial mutilation as certainly one cause of acquired disability in general and blindness in particular. I do not wish to elaborate on this distasteful topic for too long, so I shall primarily concentrate on medieval mentalities with regard to blinding. First one may ask, why was mutilation carried out as part of the judicial process? One answer may lie here: In the Laws of Cnut there seemed to be a reluctance to execute criminals outright, instead there was a sliding scale of judicial mutilation. An accused man, who could be accused of any criminal act although the majority mainly related to theft, had three chances of conviction, with a harsher penalty in each instance: the first conviction could still be resolved by a compensation payment and through wergild, but the second and third instances required corporal punishments. Note that in terms of impairments, the second level of punishment caused the convicted criminal to have an orthopedic impairment, while the third level inflicted sensory impairments. Note also the clause denying legal responsibility, in that although it was likely that the third degree punishments would lead to the death of the convicted man, his death would not have been directly caused by capital punishment, which the laws of Cnut expressly tried to avoid for the sake of "preserving the soul". Mutilation was seen as the compromise solution between enforcing and upholding the law, and showing leniency. For example, an English collection of legal articles compiled around 1110-35 stated that eyes should be gouged out and testicles cut off rather than killing or hanging the culprit. 29 The disregard for cruelty in legal discourse is not surprising because legal violence is never perceived as cruel from within that system. 30 Blinding, both of convicted criminals and of vanquished political or military opponents, seems to have been especially popular in Byzantium. Byzantine sources described three types of blinding: firstly, the removal or complete destruction of the eyes by mechanical means such as with a dagger or other sharp tool, secondly, the destruction of the eyes by heat such as with a red-hot iron, or more rarely by boiling oil or vinegar, and thirdly a combination of these two methods.31 The death of the victim was often the result of this form of mutilation, most likely due to the possible infection of his wounds.32 Where the victim survived this
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Article 10 from William I's Ten Articles: "Interdico etiam, ne quis occidatur aut suspendatur pro aliqua culpa, sed eruantur oculi et testiculi abscidantur" (Liebermann, Gesetze der Angelsachsen, I, 488). 30 Baraz, Medieval Cruelty, 27. 31 Lascaratos, 'The penalty of blinding', 134-5. 32 Lascaratos, 'The penalty of blinding', 139. This was apparently the scenario in quite a few of Byzantine judicial blindings (ibid., p. 142).

ordeal, the eyes would have been bound, although this appeared to have been performed more for aesthetic reasons than for medical ones. The binding of the eyes with special bandages was not to prevent infection but for the sake of appearances, in order to cover the deformity caused by the blinding process.33 This is similar to the kind of mentality expressed with regard to blind priests, in that visibility to other people of another's blindness was the criterion that made blindness morally problematic or socially unacceptable. Medical care of sorts was provided by some of the German cities, such as Frankfurt, where those who had their eyes gouged out were permitted to remain in the civic hospital to be healed before they were sent out onto the highway, 34 or at Hildesheim, where in 1407 the authorities ordered the executioner to have linen cloths at the ready for binding the eyes of those men who had theirs gouged out. 35 The social consequences of judicial mutilation could be significant, especially since by the later Middle Ages a disabled body had come to be associated with a criminal body. Thus blind people sometimes went to great lengths to clear themselves of any suspicion of prior encounters with the law. Measures to 'clear one's name' included providing eminent or honourable witnesses who could affirm the non-judicial cause of a disability. An English example is provided in 1285, when Peter Peverer of Essex felt compelled to notify the authorities that he had lost his eyes through disease and not punishment. 36 In Germany in 1393 a letter was issued by the mayor and the council of the town of Recklinghausen in support of one Johannes Marten. In the course of a feud between the count and the archbishop, Marten had fought on the count's side. Unfortunately he was captured by the archbishop's men, and was blinded in an act of revenge, since earlier the count had ordered the eyes be put out of any captured archiepiscopal supporters. In addition to blinding, during his captivity Marten suffered from frostbite so that one of his feet had to be amputated. The letter of good conduct emphasised that Marten had not been mutilated thus due to any criminal misdemeanour, adding that he was now reliant on begging or on being accepted into a hospital.37
33 34

Lascaratos, 'The penalty of blinding', 141-2. Schubert, Ruber, 117; Albrecht Keller, Der Scharfrichter in der deutschen Kulturgeschichte, (Bonn/Leipzig, 1921, rpt. 1968), 198. 35 The source gruesomely refers to the breaking out of eyes, "do he den mennen de ogen utbrak", Schubert, Ruber, 117; H. Deichert, 'Zur Geschichte der peinlichen Rechtspflege im alten Hannover', Hannoversche Geschichtsbltter 15 (1912), 154. The executioner was paid 3 pounds and 2 shillings for this action, but then he had to be specially hired from elsewhere (Schubert, op. cit., 80); Urkundenbuch der Stadt Hildesheim, Teil 5: Stadtrechnungen 13791415, ed. Richard Doebner (Hildesheim, 1893, rpt. 1980), 299. 36 Calendar of the Patent Rolls: Edward I, A.D. 1281-92 (London, 1893), 192; cited Wheatley, Stumbling Blocks, 37. 37 Jankrift, Mit Gott und schwarzer Magie, 110; see Karl Rbel, ed., Dortmunder Urkundenbuch, vol. 2 1372-1400 Nachtrge (Dortmund 1890, rpt Osnabrck 1978), no. 324a-c, 349.

Conclusions Blindness as a canonical defect, although theoretically based on the sacerdotal idoneity advocated in Leviticus, in practice appears not to have affected either those priests in lower orders, or those clerics who became blind due to old age or disease. However, congenital blindness, that is present from birth, was quite a different matter, and would have precluded entry into the secular clergy or one of the mendicant orders. Roman law, in its reception by medieval jurisprudence, justified certain restrictions in the legal capabilities of blind people, while the so-called barbarian laws of the earlier Middle Ages were primarily concerned with compensating injured parties for damage done to the sense of vision or the organ of the eye. The savage practice of judicial mutilation will have been responsible for actually creating an unquantifiable number of blind persons, especially during the later medieval period when corporal punishments were on the rise and the older compensation schemes were gradually being supplanted. Blind people now had to demonstrate their legal innocence in order to benefit from already decreasing charity.