The legal context of death in the time of the Mojmírs and the Árpáds

LYSÝ, Miroslav. The legal context of death in the time of the Mojmírs and the Árpáds. The death of a person is a complex issue fact that older law looked at in two ways. First and foremost, death represented a consequence; the application of a legal sanction. The oldest law considered execution more as a means of healing, as a ritual, and only in the late Middle Ages was execution thought of as a deterrent or a means of retaliation towards a criminal. In the second approach, death could be a prerequisite for a range of legal consequences. For example, a marriage ends with a death, and after the canonical form of marriage was instituted, death was the only legal method of ending a marriage. Naturally, death was key in inheritance law, as it is a prerequisite for obtaining family assets. Legal holdovers from the Árpád period regulated in particular the protection of widows and the interests of the presently forming nobility among the population.

The death of a person is a complex issue fact that older law looked at in two ways. First and foremost, death represented a consequence; the application of a legal sanction. The oldest law considered execution more as a means of healing, as a ritual, and only in the late Middle Ages was execution thought of as a deterrent or a means of retaliation towards a criminal. In the second approach, death could be a prerequisite for a range of legal consequences. For example, a marriage ends with a death, and after the canonical form of marriage was instituted, death was the only legal method of ending a marriage. Naturally, death was key in inheritance law, as it is a prerequisite for obtaining family assets. Legal holdovers from the Árpád period regulated in particular the protection of widows and the interests of the presently forming nobility among the population. D eath, regardless of how it was perceived in medieval times-as a transition to sleep or eternity, a departure to the next world or as a painful event affecting family and close friends-was a natural part of life. Aside from reflecting on the fate of the deceased, coming to terms with human impermanence and pondering the meaning of one's own existence-for which there was a religious answer, death presented the bereaved with purely practical tasks: burial and the exercise of the inheritance right of relatives. It was natural that the family and closest relatives in particular, but not only, bore these after-effects, and it is no surprise that assets remained mainly in the family, which after all, most often handled the funeral details.
The roles of death in the history of law have not yet been given any systematic attention. It is natural that in older legal literature, depending on the structure of the work, death was presented primarily as imparting an important effect on legal capacity, i.e. the ability of an individual to have rights and obligations. 1 This is found in This work was supported by the APVV 19-0131 under grant 19-0131 "Ars moriendi. Fenomén smrti v stredovekom Uhorsku" and by the VEGA under grant 1/0406/20 "Hľadanie a nachádzanie práva podľa Varadínskeho registra. " works dealing with civil law in particular. 2 The phenomenon of death in law, however, goes well beyond civil matters, since death as a punishment is also a very important component. 3 As such, this study attempts to discover a special way to present death in law, and it is also why the questions must be asked whether death in law was a consequence or a cause, 4 a fundamental criterion that serves to divide the following work into two main parts.

Death as a consequence in law
The oldest law took an interest in the consequences of illegal acts, that is, in the illegal state more than in the perpetrator. A breach of the law was not perceived through ethical standards applied to the person who violated the law; who violated the law was not as important as the violation of the law itself. In such conditions, up to the High Middle Ages, "punishment" in today's meaning of the word did not exist, as any applied sanction was more a reaction to the violation as such. The ethical side of any motives for breaching a legal obligation was not so important. 5 If the application of a legal sanction (which is why we cannot equate it automatically with a punishment) resulted in the death of the person who had breached the law, the result was not punishment but rather a ritual sacrifice. Thus, the aim was not to penalise the perpetrator, but to correct the situation, that is, establish peace. 6 At least German legal historian Hans Hattenhauer interprets German law within such coordinates.
A similar phenomenon can be observed among the Slavs. The law was a means of correction to the "true" state, the ultimate aim of which was Slavic mirъ (peace). 7 Therefore, here it applies as well that the subject of a sanction leading to death was not the person who disrupted the "peace, " but rather the non-legal state, which the community sought to correct by victimising the perpetrator. Such conflict resolution was more akin to magic than legal procedure, in which the rule of "if I do something-this will happen, " applies, The older theory of law is based on the fact that the majority of legal norms are structured into three elements: hypothesis, disposition and sanction. In such a case, death could be a hypothesis (a prerequisite for the origin or application of some right or obligation) or a sanction that follows, if the consequence is not fulfilled in the form of a disposition. It is not always necessary to understand a sanction as only a punishment. In legal theory today, a more complex, multi-element structure of the legal norm is used, see: PROCHÁZKA, Radoslav -KÁČER, Marek. Teória práva. Bratislava : C. H. Beck, 2013, pp. 208-212. 5 HATTENHAUER, Hans. Evropské dějiny práva. Praha : C. H. Beck, 1998, pp. 14-15. 6 HATTENHAUER 1998 TŘEŠTÍK, Dušan. Počátky Přemyslovců. Vstup Čechů do dějin (530 -935). Praha : NLN, 1997, pp. 303-305. and thanks to the magical healing effect of sacrifice, there was never any consideration given towards mitigating circumstances, negligence, intent or contrition when determining a sentence. The sanction must follow the way in which the wrongful situation occurred. An execution, or sacrifice, had to be the consequence of an unlawful state.
With the arrival of Christian law, interest began to turn to the violator of the legal code. New standards started to apply under the influence of Christianity, which were put into practice only very slowly. For a time, both legal approaches worked against each other, like a competition between two legal cultures. 8 In this regard, the story of Prague Bishop Adalbert, who attempted to save an adulteress being threatened with death by her husband's family, is very telling. Contrary to local tradition, the bishop granted her asylum, though the story ultimately ends with cruel revenge against not only the woman, but also against Adalbert's relatives. 9 This story shows that the two systems of law were either in conflict with one another, or in the best case, tolerated one another. Furthermore, archaic law is by its very nature rigid and outdated.
The enforcement of dual law, secular and canonical, can also be seen manifested in the composition of sanctions in the collections of law, as in the Zakon Sudnyi Liudem and elsewhere, where a secular sanction, in the form of a crippling punishment for example, is often accompanied by a Church sanction like repentance or fasting. The relative mildness of punishments, however, is noteworthy. What was decided by city collectives a few centuries later with one form of the death penalty is often solved with a fine in the Zakon Sudnyi Liudem, even regarding such serious crimes as the rape of a virgin for example. 10 The relative leniency of these sanctions was not a pose, but rather characteristic of the law of that time. In period sources, the need for forgiveness and mercy is strongly emphasised because "he who is forgiven more, loves more. " 11 Somewhere within this line of thinking lies also the institution of mercy, which was not only a Christian virtue glorified by legends (e.g. St. Wenceslas 12 in Bohemia or St. Ladislaus in Hungary) 13 but also a major change in the law. From it followed that a sanction in the form of execution was no longer necessary. It was the eventuality of not carrying out an execution, whether due to the failure of the court to impose capital punishment on the accused or because the condemned was pardoned, that led to execution eventually becoming a genuine punishment and not just a magical ritual of atonement.
This also explains why it is common in narrative sources of the early Middle Ages for death to be understood as a sanction for an illegal act, and that this sanction is no longer a mere sacrifice but an execution in the truest sense of the word. Narrative sources especially mention politically significant disputes that could also result in execution, though a lighter punishment was often chosen. The first such significant proceeding in our history is the Bavarian trial of Prince Rastislav (846 -870), whose indictment was likely based on the fact that he had, from the Bavarian point of view, violated an oath of allegiance. 14 The consequences of Rastislav's condemnation were such that there was effectively no probability that he would return, as the punishment of being blinded made it all but impossible for a political exponent to regain his position. Thus, blinding usually meant "political death. " Hungarian ruler King Stephen I (997 -1038) tried several options against opponents during his reign. At the beginning of his rule, he had his uncle Koppány ignominiously dismembered as a warning, 15 and he had his cousin Vazul "merely" blinded and deprived of his hearing. 16 A Hungarian prince, evidently from the Nitra region, was also blinded during the rule of Samuel Aba, 17 as was King Peter Orseolo after his toppling. 18 This "civil" death by blinding which eliminated any possibility of a return or accession to the throne, proved to be an effective tool for preventing a rise to power in most cases, and clearly had a certain advantage in that for the "judge"-the ruler who had ordered the blinding-it appeared to be an of act of mercy. Showing leniency to the defeated was an important element in the practice of capital punishment, which was an alternative to banishing.
However even an exile, one could return to their homeland and seize power, (as in the cases of Peter Orseolo, Andrew I, Béla I and others), and Béla II showed that even a blind man could become king (1131 -1141).
The above examples suggest that the stronger side of conciliation rituals was well aware that executing an opponent was not automatically a better solution. If any leaders in the vicinity of the Holy Roman Empire were to fall out of favour with its ruler, the ritual of reconciliation was more suitable political theatre than a cruel and merciless punishment. Among such, the pilgrimage of Břetislav I of Bohemia to Regensburg shows that committing oneself to this person and gaining a political ally could be an advantage. 19 The language of narrative sources sometimes contradicts the results of an analysis of diplomatic material, which is why taking note of the documents and legal standards from the Árpád period reveals a more complete picture. From these sources it follows that the death penalty was not always an exceptional punishment but just the opposite; it was relatively common. Such punishment was aimed at those who conspired against the king's life, committed treason 20 or insulted a county head, 21 but also at murderers and thieves. The most common method of execution, if mentioned in sources at all, was hanging. A relatively common connection of capital punishment with the confiscation of property 22 clearly foreshadows the formation of a special devolution of title for noble estates. 23 It needs to be said, however, that the informative value of sources from the Árpád period is considerably limited by the fact that in the 11 th and 12 th centuries, records on the application of law are an exception and normative sources (thus, Árpád law codes) predominate.

Death as a legal consequence
An entire spectrum of legal relationships was linked to the death of a person. Before getting into inheritance law, which is most closely tied to death, the focus will begin with those legal relationships that are related to inheritance indirectly.
First of all, marital relations need to be mentioned. From a legal point of view, marriage was originally considered a social condition, which was not a contract but did lead to consequences in the law, 24 and marriage under the influence of Christianity later was still understood in this sense. marriage as a private matter of citizens, within which only a few special rules applied, monogamy for example 25 or the prohibition of incest, 26 was associated with this almost exclusively. The Christian concept of marriage, though similar to Roman marriage, recognises only monogamy; in contrast, however, it is based on the concept of the fundamental indissolubility of the union of husband and wife, gradually broadening the number of marital obstacles. 27 So, while Roman marriage and marriage in medieval pre-Christian communities permitted divorce (or separation) 28 as a way of ending a marital relationship, under the influence of canon law, the concept that the death of one spouse was the only proper way of ending a marriage was created.
If a marriage ended with the death of one of the spouses, the question could thus arise whether the widow or widower was able to remarry. Paul the Apostle answered this question authoritatively in his letter to the Corinthians when 29 he wrote that abstinence is better, but if there is no other way, then let the unmarried and widows enter into marriage after all. He was literally writing about widows in his letter to the Corinthians; however, Pope Nicholas I (858 -867), in a well-known communication, was able to emphatically instruct Bulgarian Prince Boris that if the messenger of the faith that Paul wrote about is a widow, it is necessary to understand by this a man-that is, a widower. 30 Medieval law also considered the issue of a husband's death if he were far away from the family. Since this was hardly demonstrable, the widow was required to wait a sufficiently long time for another marriage, otherwise she was considered an adulteress. 31 At the same time, the period of time was not specified, so it can be considered relatively loose. Regarding the question of how many times someone could enter into a legal marriage in his or her lifetime, the Church canons (as we also know them from our territory) had their own answer. If a second marriage were to be allowed according to the Old Slavonic translation of the Nomocanon, there was some doubt about the third, though such a marriage was still better than "unbridled debauchery. " 32 Multiple marriages were already considered "bestial" (literally скотьско). 33 25 Here, for example, in Zakonъ sudnyi ljudьemъ, p. 164, c. 13: "Імѣѩи двѣ жєнѣ да ижденетъ мєньшюю съ дѣтьми ієѩ и тепеть сѧ, а постъ з лѣт(ѣ)." 26 Again, in: Zakonъ sudnyi ljudьemъ, p. 164, c. 12. "Кръвь мѣсѧщии въ свою кръвь свадьбоу дѣють да разлоучать сѧ." Let us recall, however, that the promotion of monogamy in our environment faced big obstacles. Remarriage after the death of a husband was possible, strictly speaking. Marriage was not seen as fulfilling the medieval ideal of life but more as a compelled arrangement for a naturally sinful person. 34 It is no surprise then, if traditions restricting multiple marriages were brought to this territory from the environment of the Eastern Councils.
A question naturally arises about the extent to which these standards were actually put into practice. One of the accusations against Moravian Prince Svätopluk I (871 -894) was that he had "rolled in the mire of abominable debauchery, " 35 though nothing more specific was presented. It is not known what kind of "debauchery" it was. In the end, we can easily rule out bigamy for Svätopluk; it is very likely that he was married twice (and consecutively). 36 Marriages taking place one after another were rather common. Although the remarriage of royal widowers was clearly customary, the remarriage of a widow can be found as well. The interesting case of the widow of Břetislav I, Bohemian Queen Judith, who was supposed to remarry the deposed Peter Orseolo, is demonstrative. 37 The laws of Stephen I placed a pronounced emphasis on the free will of the widow regarding the question of whether she wants to remarry or not. Stephen's decree explicitly stated that no one should force a widow to remarry, but that she has that right. 38  be erroneous to understand marriage law regulation only through written (canonical) law, considering that equally important folk customs were still in effect until modern times. Among them were marriage restrictions following from the will of the families of the betrothed, or from property relations. 40 It was the position of the family in particular that was actually most important regarding marriages. Although theoretically a marriage, be it the first or the second, was to be concluded on the basis of free will, family interests superseded this dimension of the marriage.
Despite the fact that marriage was and still is connected in particular with the creation of a new life (and procreation), 41 its associations with death are also important, as is evident above. The death of a spouse was a condition for concluding another marriage; however, this brought not only an ethical dimension conditioned by religion, but property considerations also had an impact. The final part of this study concerns property, since death in law is a central topic of inheritance law.
In questions regarding inheritance, it needs to be remembered that the two basic methods of inheritance, i.e. testamentary and intestate, 42 likely maintained very limited relevance in the earliest period. One of the prerequisites of inheritance is namely individual ownership, which enables the transfer of ownership from benefactor to survivors. A problem occurs, however, with family property, with consequences not only in the creation of a fraternal property community, 43 but also, as Karel Kadlec reminds us, in the common property community between father and sons. 44 The Czech legal historian diverges a little on the concept of paternal property in the Hungarian Tripartitum, literally stating that sons acquire donated property from their father, divided into equal shares along with any pertinent debts. 45 Kadlec explains these facts especially with the significant changes in the concept of family-held property in Hungarian history. 46 Be that as it may, family-held property, well documented in the Tripartitum, was of older origin without a doubt and can be traced it in the law from the Árpád period. Whether family-held property existed in habitorum sub Colomanno rege (Synodus Strigoniensis) 1105-1116. In Hungary, the influence of Eastern and Western canon law was mixed, also regarding the matter of concluding other marriages, see: KOMÁROMI, László. A bizánci hatás egyes kérdései a középkori magyar hazassági jogban. In Iustum Aequum Salutare, 2006, vol. 2, no. 1-2, pp. 159-170. 40 KOMOROVSKÝ 1976 Here it needs to be recalled that due to the impossibility of fulfilling the purpose of marriage, impotentia coeundi became an explicit obstacle to the conclusion of a valid marriage in later law. an even earlier period is debatable, of course. Linguistic borrowings into the Hungarian language (család -tribe) could suggest this. 47 On the other hand, it is impossible to rule out the possibility that the Hungarian legal environment itself developed in a similar manner to the surrounding Slavic one.
In the environment of family-held property, however, inheritance did not actually have much significance as it could only regulate the ownership of property in the family. In general, however, family land was the property of the "grandfathers, " interpreted in etymological works as immovable property, or earth. 48 From this it would follow that this immovable property originating from "grandfathers" could not be the subject of inheritance or disposition in the case of death. Any other opinions in such a case are mere considerations that can be scarcely supported with written sources. 49 Medieval national mythology speaks indirectly of the relationship between the cult of ancestors and land ownership. Looking at Cosmas's Chronicle of the Bohemians, however, a story about the arrival of the first inhabitants to Bohemia is based on the idea of the initial occupation of a territory without its own inhabitants, which would make this land something like res nullius. These initial inhabitants were said to carry with them the "household gods" (penates), i.e. evidently the images of ancestors (the "grandfathers, " 50 ) with whom they were all meant to join on Mount Říp and from there take possession of the land named after Boemus as Bohemia. The presence of the "grandfathers, " the symbolic ancestors of legend, meant above all that by occupying the land into ownership, it first becomes an inheritance; that ownership of land is not only a legal situational relationship between living persons (subjects) and the land (object), but this relationship is vertical across time, and it belongs to generations of the living and the deceased, future generations as well. The Czech legend about the settlement of Bohemia by the first inhabitants is thus not only a common ethnogenetic myth where the claim to ownership by the inhabitants supposedly arises, but also a story about how the form of this ownership was understood by those who retold the legend, in this case the Prague chronicler Cosmas. This was ownership of the ideological unity of (no longer living) ancestors, contemporaries and (not yet born) descendants.  , 2015, pp. 113-114. 49 For example, for Třeštík, a Slavic village was a set of free persons with "grandfathers" (i.e. ancestors), and in his theses they were supposed to represent a set of equal and free landowners. The freedom of the village was then guaranteed by the tribe: TŘEŠTÍK 1997, pp. 60-61. The problem with this theory rests not only in its vague connection with written sources, but mainly in the fact that Třeštík in no way specifies what the content of this free ownership should be. The second matter is then the scheme regarding the transition of so-called family common lands to the socalled neighbouring common lands, which belongs more to theoretical ideas not substantiated by sources. KUČERA, Matúš. Slovensko po páde Veľkej Moravy. Bratislava : VEDA, 1974, pp. 39, 339-340. 50 Although the rite in Cosmas was taken from the text of Virgil, the content of the rumour was evidently authentic, see: COSMAS PRAGENSIS, Chronica Boemorum, p. 7, I. 2. A detailed analysis is expounded upon in: TŘEŠTÍK, Dušan. Mýty kmene Čechů (7. -10. století Unlike the Czech tale, authors of the Hungarian chronicle tradition could not pretend that the Hungarians came to Pannonia and occupied it as res nullius. Therefore, they used the notion of a Hunnic origin of the Magyars, thanks to which Anonymus (notary of Béla III), the author of The Deeds of the Hungarians, could pretend that the mythical Álmos was a descendant of the Hunnic king Attila. 51 He even put into his son Árpád's mouth the words that his: "ancestor, the most powerful King Attila [once] owned the land between the Danube and the Tisza as far as the borders of the Bulgarians [...] [and now] I ask only for a part of it for my flocks, to which I have the right." 52 Inferring ownership of the land from the title of inheritance from ancestors was asserted in the Hungarian chronicle tradition as res nullius, like the Czech legend. At the same time, however, despite the existence of actual motives for laying claim to the territory in the Hungarian legend (the "divine" leadership of Álmos, the conquest of the land from its inhabitants, the cunning purchase), Anonymus's The Deeds of the Hungarians most emphasises the Hun origin.
It is necessary to recognize in this context that for this medieval and all but archaic legal thinking, it was completely alien for land to be the subject of some kind of free disposition. Heritability, practically all the way to the perpetuity of human fate and its social status, was tied to land. If a person was a "top" landowner, he was a noble, and if he were a "bottom" (useful) person, he was a subject. 53 Land could be acquired (in a battle, by deception, as res nullius, or by inheritance), but it took a relatively long time before it could be considered the subject of legal turnover. 54 Such land was an ancestral inheritance in the broadest sense of the word, like properties gifted by the Hungarian king Géza I (1074 -1077), labelled as hereditates. 55 Stephen I also received property gifted by inheritance, from Duke Lampert (dedit in hereditatem). 56 The term "hereditary" land-land acquired from generation to generation-has greater logic if it is donated to a specific family or a specific person. If it is donated to a contemporary institution, however, then the term hereditas is inappropriate, though the way the term applied to land ownership is significant. This is stated eloquently in the basic privilege for Trnava from 1238, where the term hereditas is synonymously linked to 51 ANONYMUS, Gesta Hungarorum. P. magistri, qui Anonymus dicuntur, Gesta Hungarorum. SRH I. Edited by Desiderius Pais. Budapestini : Academia Litter. Hungarica atque Societate Histor. Hungarica, 1937, pp. 39-40, c. 5. 52 ANONYMUS, Gesta Hungarorum, pp. 53-54, c. 14 Olomucensia, 2021, vol. 16, no. 1, pp. 23-31. 54 Not to mention the fact that land as capital is clearly an invention of the modern age. Legal turnover with land in our territory was common within mortgage contracts, which represented a collateral element with a loan. 55 Codex diplomaticus et epistolaris Slovaciae 1 (CDSl). Edited by Richard Marsina. Bratislava : Vydavateľstvo SAV, 1971, pp. 54, 56, no. 58. It needs to be noted, however, that this part is likely interpolated. On the other hand, the term itself, although inserted into the text later, remains telling. 56 CDSl 1, pp. 71-72, no. 74. the expression possessiones suas immobiles, 57 which at that time meant land belonging to the township.
The word hereditas is also a highly interesting phenomenon regarding the ownership of institutions, as it leads to several important conclusions. The first has been noted; land was to be acquired "in perpetuity, " or at least for a sufficiently long time. Therefore, it was in the interest of each recipient to obtain such an object of property hereditatis iure. 58 Hungarian donation practices denoted that heirs could no longer freely dispose of such property. 59 A second important conclusion is related; the designation ius hereditatis as the equivalent of immovable property (or object of land ownership) was principally bound to permanent ownership and a usufruct relationship. 60 In this way, the designation could very likely relate to the fact that donations before the 13 th century did not have to be permanent. As such, it was not important whether this inheritance related to a family or to institutions, such as a church or a town. Although this designation and method of donating is seen even earlier, it becomes widespread mainly in the 13 th century.
Finally, the Golden Bull of Andrew II from 1222 for royal servants is also revealing because among other things, it stipulates what should happen to the estates of royal servants (servientes) if they die without a male heir. The result is the institute of the so-called "daughter quarter" (quarta filialis) and the possibility of testing freedom. 61 This provision was also confirmed in a modified form in the renewed Golden Bull of Andrew II in 1231, which, aside from the above-mentioned facts, also included the death of the king. 62 When the Golden Bull was renewed by his son Béla IV in 1267, the arrangement of the inheritance of nobles' properties was formulated a bit less clearly than in previous versions. Here too, emphasis was put on the fact that these properties were inherited by more distant relatives. 63 57 CDSl 2. Edited by Richard Marsina. Bratislava : Vydavateľstvo SAV, 1987, p. 31, no. 44 As early as the 13 th century, the duality of the fate of an estate, which depended on the sex of the survivors, became evident within the framework of inheritance. The estate was to go first and foremost to male descendants due to the fact that nobles acquired property for merit, often military success. 64 As a result, women gained some legal advantages over men. Aside from property rights as a part of marital relations, special institutions also fell within inheritance law, which concerned noble persons of the female sex. The beginning of these women's privileges favorabilia stretch back to the Árpád period and follow from the emphasis that medieval society placed on the protection of widows and orphans. 65 Above all, this includes a widow's right to live on the property of the family into which she married. 66 This right lost only if she were to marry again. According to another provision, a wife had the right to "hold" 67 her husband's property if he left the country, and only if she sought to voluntarily marry could she take her clothes with her. 68 In a later period, these provisions became the foundation of the developed institution of a widow's inheritance, with its essence stemming from the different legal status of the two sexes. The power of noble men over their family properties was compensated for by the institutes in favour of widows, with a woman's property security stretching beyond the boundaries of a widow's inheritance; it also naturally included property relations between spouses. In the Hungarian environment, these property relations were a legacy of standards evidently deriving from the Frankish environment, 69 and from this we can assume why they are not found in the so-called Great Moravian legal monuments which had a stronger Byzantine legal influence.

Conclusion
In the 13 th century, a major transformation in Hungarian society took place. Nobility arose (by the granting of subjective rights this time not only to specific persons or families, but to the entire social group designated as servientes regis or nobiles), and its property rights secured, with inheritance and the permanence of ownership playing a principle role. In the end, the origin of privileged towns and the competition of emerging municipal law also take unprecedented importance, and inheritance law is undoubtedly a part, though its specific form can only be reconstructed on the basis of later legal collections.
When Hungarian law is studied in relation to the death of a person up to the end of the 13 th century, it is clear that it is only partially developed. It was natural that in death, a biological and social reality, human fate transfigured into everyday life and a part of the cycle of life or the counting of time, and was at the same time an important fact for contemporary customary law, permeating canon law and the emerging statutory law. Just as death took a complexity of forms in real life, it was manifested likewise in the world of legal standards.