This post concerns an old and much-cited legal chestnut that I have come to think might be more profound (and more tied to “law and religion”) than first appears. It is also a bleg — a request for help from anyone out there with some expertise in medieval law or medieval Latin, or both.
the Bolognian law, mentioned by Puffendorf [sic], which enacted “that whoever drew blood in the streets should be punished with the utmost severity,” [and] was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.
The point here, of course, is that words should not be read literally if that would give them “a very absurd signification.”
Blackstone’s source, Samuel von Pufendorf, discusses this “case” in his “Law of Nature and Nations,” first published in 1672, and Pufendorf in turn cites a 1516 digest of legal arguments by Nicholas Everhard (aka Everardi, Everts, and several other names). Pufendorf, for example, adds that the defendant “was in no little peril because it was added in the statute that the words should be taken exactly and without any interpretation.” Everhard leaves out that tidbit, but does spin out the legal argument at greater length, and emphasizes that punishing the healer would be “absurd and inhuman,” not merely “absurd.”
Now, my intuition tells me that there’s more to this odd tale than meets the modern eye. For one thing, I’m not sure (and at least one historian I’ve consulted isn’t sure either) if it was a real case or an old law professor’s hypothetical. In any event, though, I suspect that — real or hypothetical — it would have been a harder case in medieval Bologna than it appears to us, or for that matter appeared to Blackstone and Pufendorf.
Blood in medieval thinking was, as it often is in many traditional cultures, a deeply fraught substance. It was associated with the Eucharist (and Eucharistic miracles), as well as with Christ’s suffering on the cross. More generally, blood was both deeply powerful and potentially deeply contaminating. As the historian Caroline Walker Bynum puts it in a different context, blood in medieval thought was
both life and death, continuity and separation, immutability and violation. It [was] both a protest against change and a breaching or pouring forth. It [was] spilled out and lifted up.
Indeed, medieval thought considered the “shedding” of blood to be an especially charged and often contaminating act, even when done for a good cause or without any intention to harm. Thus, canon law in many places allowed Catholic priests to be physicians, who dispensed medicine and gave advice, but not surgeons or barber-surgeons, who spent much of their time trying to cure patients by bleeding them; the deeply evocative reason was that priests would defile themselves by “shedding blood,” even for the sake of healing. (That’s one reason the two occupations remained separate for so many centuries, and why barber-surgeons in particular were not considered true professionals.) More gruesomely, medieval manuals instructed priests engaged in the fine art of torture how to inflict pain without actually “shedding blood.”
So it would be no surprise that a law in Bologna might punish with extra severity the “shedding of blood” on the city streets, or that a surgeon’s work might be thought to pollute the public streets and prompt a difficult prosecution.
Going back several more centuries, and to a different religious tradition, there is actually a debate recorded in the Talmud, in Sanhedrin 84b, that closely parallels the Bologna case. The Talmud in that passage is discussing the severe prohibition at Exodus 21:15 on a child striking his parent, and asks whether it even applies to a child who is trying to help his father, as for example by removing a thorn. The majority allow such healing, taking the common sense view that the parent would welcome the help and citing the greater principle that “you shall love your neighbor as yourself” (Leviticus 19:18). But some Rabbis dissent, worried about even benevolent acts that risk drawing blood. Nobody claims that applying the prohibition would just be silly.
So the story of shedding blood in Bologna turns out to be relevant to “law and religion” in two ways.
First, it might, if I am right, be an example of how religious thought in a particular time and place can influence the legal imagination in ways that those of us in a different time and place might fail to see.
Second, if the Bologna prosecution (real or hypothetical) was actually a “hard case” to the medieval mind, then we need to probe more deeply into why the barber would be acquitted after all. My intuition is that here too a certain religious sensibility — call it grace or an application of the Golden Rule — might best explain the willingness to forgive the barber for shedding blood and polluting the streets of Bologna. The larger point is that our legal tradition has a habit of domesticating expressions of the law’s willingness to love, and recognize love, and turn them into straightforward, even allegedly merely logical, doctrines and conclusions. Here, in our desperate desire for legal certainty, we might (if I am right) have turned a poignant drama into a simple chestnut.
Now here’s where this blog post turns into a bleg. Can anyone out there, with some expertise in medieval law or medieval Latin, help me explore these intuitions? I’d like to know, for example,
- What were Everhard’s sources, and can the line of authority be traced back to a yet more original and even authoritative source? (Both Pufendorf and Everhard wrote in Latin. Pufendorf’s text is available in English translation, but Everhard’s is not. A friend who is a classical Latin scholar was kind enough to translate his discussion for me, but she was stumped in trying to make sense of some of the medieval Latin, and in particular of the abbreviations that Everhard used to cite earlier books.)
- Moreover, was this a real case or a hypothetical? Was there even a real law in medieval Bologna “that whoever drew blood in the streets should be punished with the utmost severity”?
- And what did “absurdo” actually mean in medieval Latin? The modern meaning of “absurd” is a figurative extension of an old Latin word that literally referred meant “out of tune,” as in a musical instrument. In medieval usage, did the word mean “irrational or illogical” as it does for us and did for Blackstone, or something more like just “wrong” or “inharmonious”? Is it significant that Everhard would have referred to the prosecution as “absurd and inhuman”? Would the actual medieval usage of the word shed light on my untutored intuition that there’s something possibly quite deep going on here?
- Most fundamentally, is there something to my intuition that the prosecution of the surgeon shedding blood on the streets of Bologna would have been a genuinely “hard” case to the medieval mind?
If there are any particularly learned readers of this post who might be able to help with these and some other questions I have, please feel free to e-mail me privately at my Rutgers address. I’d be glad to send you copies of the texts. In the meantime, my advice to all concerned, even today, is to avoid shedding blood on the streets of Bologna.
[Updated 1-27-2014 with minor corrections]