Books of Law in the Very Long Tenth Century

A very short note here, just to say that the Books of Law in the Very Long Tenth Century workshop took place last week, on Thursday the 5th and Friday the 6th September here in the Institute for Medieval Research at the Austrian Academy of the Sciences, in Vienna. Here’s the poster with which it was advertised, with an image of the replacement folios in the Lombard law-book, Vercelli, Biblioteca Capitolare, MS 188. As that manuscript originally dates to the mid-eighth century, and the additional folios are from the first decades of the ninth at the latest, it pushes the definition of ‘very long tenth century’ further than any of the contributors did! Although having said that, we comfortably spread from the ninth through into the eleventh, and happily considered cross-overs and developments across that expense.  Centuries, like periodisation as a whole, are tricky, and better left as guidelines than rules.

The conference was, I think I can honestly say, a great success, and we had ten very thoughtful and engaging papers, all of which shone light onto obscure corners of legal history, book cultures and the overlap thereof; some of which have re-written major parts of the field and will open new and re-open some old debates. Hopefully these will come to light and the public eye in the near future, and the next step for the workshop will be for me to assemble and submit a book proposal to a suitable academic publisher, while the contributors turn their already engaging and rigourous papers into final chapters. Watch this space for further information.

Once again, thank you to all the contributors for making this small but focused workshop such a great success!

 

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CFP: Books of Law in the (Very) Long Tenth Century

All has been quiet on this blog for too long, for which I do apologise!

However, I am returning with a call for papers for a workshop on the subject of: Books of Law in the (Very) Long Tenth Century to be held in Vienna on the 05-06 September 2019.

A pdf of the call can be found here, and the full text follows:

Books of Law in the (Very) Long Tenth Century

Manuscripts containing various regulatory and normative texts were produced, emended, augmented and used across the early medieval period, with a ‘long’ tenth century. Many of the legal texts – from law-codes and canon collections, to capitularies, formularies and cartularies – were first drafted in preceding centuries, but continued to be copied, updated and re-written in response to the contemporary needs and understandings of their scribes and readers throughout the tenth century and beyond. Each manuscript witness therefore comprises a unique attestation of the legal and/or normative contexts, made immediate through text, paratext and mise-en-page, revealing the development of law, legal literacies and the legal imagination through the adaptation of the technology of the book.

This workshop therefore proposes a manuscript-led approach to law-books and normative collections, positioned at the intersection of the disciplines of the History of Law and the History of the Book. Contributions might consider the specific contexts of an individual legal manuscript, comparative studies of multiple manuscript witnesses of a single law-text or of laws within the contexts of legal pluralism, comparative analysis of approaches taken to different laws and legal texts at a local level, or within/between regions. Specific directions of enquiry might address how the law-books were produced or were developed over time, how scribes in the long-tenth century adapted and updated the laws, evidence for readership, manuscript-led analysis of legal literacies (both pragmatic or ideological) and cultures, intertextual readings, textual communities, and so forth.

Please send proposed titles, abstracts of ca. 250 words, and a short bibliographical note to thomas.gobbitt@assoc.oeaw.ac.at, by Sunday 31 March 2019. The conference forms part of the Austrian Science Fund (FWF) research project, Lombard Law-books and Book Culture, ca. 850-1025 (P-29968). An edited collection of the proceedings and related contributions considering Books of Law in the First Millennium more broadly will be submitted for consideration to the (peer-reviewed) Medieval Worlds journal of the Institute for Medieval Research of the Austrian Academy of Sciences.

On Quire Diagrams

I’ve just spent a couple of hours reflecting on my model and methods for producing quire diagrams, trying to work out a way to incorporate a little bit more specific information into them. It seems to me that this could be of use, so I’ve added it here in case it is of interest to anybody. This is very much a work in progress as, as will rapidly be seen, I’m as much throwing out ideas as they arise as proposing a complete system, and this post is ‘more of a question than a comment’, as it were. Any thoughts will of course be greatly appreciated!

There are a lot of different ways in which the collation of a given quire can be represented in a diagram. Some of the varieties are simply aesthetic. The method that I’ve used over the last several years is shown in Figure 1. This represents a regular quire of eight folios formed from four bifolia arrange according to the Rule of Gregory. Technically, this is a diagram of Quire 2 of Paris, Bibliothèque Nationale de France, MS Lat. 9656 – a copy of the Liber Papiensis dating to the third-quarter of the eleventh century – although the collation here is so regular it could have come from many other manuscripts.

Figure 1: Paris, MS Lat. 9656, Quire 2 (fols 9-16)

The diagram is relatively straight forward, I think. It has one box per folio, with the number of the folio given in a large font in the centre at the top of the box and an ‘h’ and ‘f’ in the lower corners to signal which side of the folio is the hair-side of the parchment and which the flesh. (I’ve not yet had the pleasure of working with a laterally split piece of parchment, but imagine that if/when I do I will then use an ‘s’ to show the split side). The series of bracketed lines underneath, of course, represent the spine of the quire and show which folios are connected as bifolia (in this case all), and can also be adapted to show half-sheets and so forth. Figure 2 shows the final quire from the same manuscript (Quire 15), which now comprises three bifolia and a half-sheet, as the final folio has since been lost

Figure 2: Paris, MS Lat. 9656, Quire 15 (fols 109-115)

The ‘blocky’ approach I’ve used may be slightly ungainly, but on the one hand I find it takes less space than employing a series of stacked ‘v’ shapes while conveying the same information, and on the other hand, it is very easy to create using the ubiquitous table tool in word processing software. As an aside, having had some formatting issues when submitting quire diagrams for publication, I tend to use a screen-shot of the diagram rather than the original tabulated form.

My uncritical impression of other quire diagrams that I’ve seen over the years is that including the hair-side and the flesh-side is not the norm, but I’ve found it to be rather useful – especially when a quire turns up that has one or more folios disrupting the overall pattern. I made the decision to include information on the hair-side and flesh-side directly on the quire diagrams at some point during my PhD (2006-2010), and apart from the odd troublesome, well-scraped and heavily abraded folio where it was near impossible to determine which side was which by look or feel, have not regretted it yet!

What I am debating at the moment, is a clear way to incorporate more information about the quire formation, specifically it’s pricking and ruling, into the diagram. The main pieces of information that I want to add are which side of the parchment was the pricking made from for each folio, which side was the ruling made from (assuming it is in hard-point, that is scored into the parchment with the back of a knife or similar tool), and is the ruling grid cut directly or is it the imprint of another grid from within the quire? If a quire has two or more ruling grids cut into it, how might this be simply represented?

Turning attention back to Paris, MS Lat. 9656, the specific information for Quire 2 may be summarised as:

• All the pricking is made from the verso of the quire, with the same shape for the column of prick-marks throughout. (This means that all folios must have been pricked simultaneously, with the quire closed and laying face down on the table).
• All folios are ruled from the hair-side of the parchment.
• The bifolia comprising fols 9:16 and 11:14 are ruled for 42 long-lines in a single column with double vertical bounding lines at the inner and outer edges, and
  • The ruling grid on fols 11:14 is a direct imprint of that on fols 9:16, indicating that the two bifolia were ruled simultaneously with fols 9:16 on top and fols 11:14 underneath.
• The bifolia comprising fols 10:15 and the centrefold fols 12:13 have a different ruling grid, with 40 long-lines per page, again arranged in a single column with double vertical bounding lines at the inner and outer edges, and
  • The ruling grid on fols 10:15 is a direct imprint of that on fols 12:13, again indicating that they must have been ruled as a stacked pair.

The current plan that I have for representing this additional information is to add two additional lines into the boxes representing the folios. I’ve experimented with a few positioning of these, and found that having the line for the pricking above that for the ‘h’/’f’ and having the line for the ruling information below works rather well. Having both above or below makes the diagram feel crowded and unbalanced. In addition to being an aesthetic point, this also impacts on the diagrams legibility and therefore its overall convenience and ease of use. I’m currently using a dagger symbol ‘†’ to mark which side of the parchment the pricking has been made from – in the case of Paris, MS Lat. 9656 Quire 2, that is from the verso on each folio, so as can be seen in Figure 3, these symbols have been added to the right-hand side of the box, immediately above the ‘h’ or ‘f’ indicator, depending on the folio in question.

Figure 3: Paris, MS Lat. 9656, Quire 2 (fols 9-16) with pricking and ruling summary

In the case of the ruling information, it does not seem possible to include every piece of information here. I have opted to use arrow symbols, again put in the area of the box reflecting the side of the parchment from which it has been made. As the arrows are directional, it seemed useful to make them point in the direction that the ruling goes as well, although this is repeating information which can already be deduced form their location on the diagram. I am currently using a double arrow to indicate where the ruling was cut directly into the parchment, ◄◄, and a single arrow for if it is an imprint, ◄. To indicate that there are two different ruling grids in play, I have added numbers before the arrows. The same could be done with the pricking if necessary, as may be seen in Figure 4, which uses this system to incorporate the pricking and ruling information of Quire 15.

Figure 4: Paris, MS Lat. 9656, Quire 15 (fols 109-115) with pricking and ruling summary

Quire 15, as can hopefully be read from this diagram, has been pricked in two sets, the first four folios from their rectos, and the last three from their versos. It would appear then that, unlike Quire 2, this one was pricked open and face down on the table. As afar as I can tell, the ruling was performed on the entire stack simultaneously, with the outer folio (probably originally a bifolium) being the one which was cut, and the others then being imprints. (This is a preliminary observation, however, and it may be that two sets of ruling lines have been cut – I need to return to the archive and double check this at some point…). As all are ruled from the hair-side, the parchment must have been re-arranged after the pricking had been added but before being ruled (so that the hair-side was facing up in all instances). After this, the parchment must have been re-ordered once more to re-introduce the rule of Gregory in the alignment of hair-side of parchment to hair-side and flesh-side to flesh, across each of the quire’s openings.

There are obviously still teething issues with this method for incorporating more information into the quire diagrams. The ruling of the grids by bifolia does not seem to me to be overly apparent, and I wonder if changing the numbering to ‘1a’ and ‘1b’ for the grids would clarify that, so it can be seen that these are two halves of one larger ruling grid, and not simply two iterations of the same half. That would increase the amount of text in the box, however, and I am wary of making the diagrams more crowded than they already are. Likewise, if each separate grid were given its own continuous number throughout a given manuscript, then the box could become very crowded. As such, I think it is more convenient to begin the numbering again for each quire, but that then might be taken to imply that the ruling grid in different quires was literally identical.

I shall keep reflecting on this, and see where it goes.

 

Madrid, Biblioteca Nacional, MS 413

Main entrance to the Biblioteca Nacional, Madrid

 

Over the last two months I’ve been on a number of manuscript viewing, research trips, in Modena, Vercelli, the Vatican, Paris and now Madrid. Undertaking manuscript viewings is definitely one of the more exciting and rewarding parts of being a codicologist, even though a few days with a manuscript (and ongoing work with photographs, ideally) can result in months or years of analysis, writing up and musing. In this post, I want to outline some first thoughts on Madrid, Biblioteca Nacional, MS 413, which I spent a day with earlier this week. My main focus here will be on some features of the pricking and ruling strategies employed in the manuscript, as these caught my interest, and revealed an approach I’ve not personally seen before. Before turning to the pricking and ruling, though, it may first be useful to say a bit about the manuscript itself.

Madrid, MS 413 is a tenth-century copy of the Lombard laws produced in Southern Italy, probably in Benevento or Salerno. In addition to the usual collection of laws, from Rothari’s Edictus of 643 CE through to the additions of Aistulph in 750 CE, it also includes some of the Lombard legislation from after the Carolingian conquest of northern Italy, with a rubric and illumination for Arechis followed by the prologue and laws for Adelchis. I did make some mention of this manuscript in a previous post, discussing the hair-side and flesh-side of parchments, but that was before I had seen the manuscript in person, and was primarily because the photos of it on the Biblioteca Nacional website were on a CC license. On that note of CC manuscript images, here’s fols 156v and 157r, with the end of the laws of Aistulph, the illumination of Arechis, and the start of Adelchis’ prologue – a triple ‘A’ spread!

 

Madrid, MS 413, fols 156v & 157r

It is a lovely manuscript (aren’t they all?!) of reasonably portable size, with 162 folios measuring some 259 mm x 169 mm. However, it does seem to have been trimmed quite significantly during binding, so may originally have been a bit larger. An ownership mark, in the name of the Jurist Marino Freccia, and dated to 1534 is trimmed from the upper margin of fol. 2v, which provides a convenient terminus post quem for when the trimming and binding must have occurred. within the manuscript itself, a lot of the outer faces of quires are relatively more abraded than the folios within the quires, which may even suggest that the ‘book’ was instead used as a pile of unbound quires for a while. This is just idle speculation at the moment, though, and I need to ruminate on it a bit more. But it is far from an uncommon approach.

The manuscript, then, has some intriguing codicological features that need to be considered. I spent Monday examining it and taking notes in the National Library, and have somehow managed to write up a draft catalogue description of it for my Manuscripts of the Lombard Laws page, already. (Or the PDF of the first draft of the description can now be downloaded directly from here, if you are interested). Just as with my previous project, I shall be uploading the draft descriptions of all the manuscripts I work with onto that page of my website, and have slowly started adding in other manuscripts that I’m not working with (yet), to try and make it a complete resource. Hopefully, the descriptions may be of use to somebody, and of course any feedback or comments are greatly welcome.

As I was going through the manuscript, it quickly became apparent that the prick-marks – that is, the small holes used to guide the positioning of the ruling grid for laying out the mise-en-page of the manuscript – only had an erratic survival. Sometimes there would be a couple of folios in a row with prick-marks, only for half a dozen to pass without any sign at all. Taking a step back and considering their positions in relation to the collation of the quires, it on became apparent that the prick-marks where only surviving on the outer bifolium of any given quire.

Erratic survival of the prick-marks is nothing new, of course, especially for a manuscript which has been heavily trimmed, such as Madrid, MS 413. The possibility has to be entertained that this survival pattern was an artefact of the trimming process. Consider, four bifolia of effectively equal dimensions arranged in a quire. When the quire is closed along its folded spine, the outer edge of each bifolium protrudes a little further than the edges of the bifolium outside it. The central bifolium, then, sticks out the most, while the outermost when the least. When the manuscript is trimmed, presumably, the person doing the trimming still wants to keep as much of the folio size as possible, and allowing a little leeway for straightening the edges in the process, that outermost bifolium would form the lowest common denominator for the trimming, and the protruding bits of the inner bifolia would be the ones to get the chop. As such, the inner bifolia would have a greater chance of losing their prick-marks relative to the outer bifolium. And in some of the quires, the surviving prick-marks are so close to the very edge of the parchment, that this could be a compelling interpretation.

Except, there are a number of quires where the prick-marks are at 10-15 mm from the edge. And the same pattern can still be seen. There is no way, then, that the presence of prick-marks only on the outer bifolium can be an artefact of their survival, and instead it would appear that this is a direct reflection of the production practice. Pricking of quires, at least as I have normally encountered it, is usually performed on the whole quire simultaneously as a closed booklet. Using the tip of a knife, an awl or something similarly sharp, small and pointy, the person assembling the quire then stabs the whole pile at once. In this way, the same pattern is present on every folio, and moreover is mirrored across the openings of any two adjacent folios. Examination of the prick-marks on the parchment can often directly confirm this, with the shape of the hole showing that the blade came from the same direction for each. In Madrid, MS 413 the prick marks on the first and last folios of each quire are always from the recto. This means that, again, the bifolium was closed along the central fold of its spine when it was pricked, but that the inner bifolia (three in most cases) must have been removed at that point.

Having the prick marks on every single bifolium, means that each bifolium can be individually ruled. Having the prick marks only on the outer bifolium means that they cannot. Examination of the ruling grid of Madrid, MS 413 reveals that the ruling lines have in fact only been cut into the outer bifolium with the pricking. This was done with the bifolium spread open and lying face down, as can be confirmed from the ruled lines being cut from the recto on the first folio of each quire, and from the verso of the last folio. As this bifolium was, by this point, reunited with the other bifolia of the quire and was stacked on top of them, the imprint of the ruling grid was then transferred through the entire group at once. This can again be confirmed by examining the materials of each quire, where it can be seen that each imprint is fainter than the one before, with the lines on the central bifolium often being so faint as to be almost imperceptible.

Removing the outer bifolium of each quire to prick it, then reassembling the quire once more, is hardly the easiest way of creating the layout. It introduces additional steps, rather than removing them, so it would seem that laziness/efficiency was probably not the motivating factor. The actual reason is something which evades me, and at the moment I am throwing out ideas and mulling over them. did the scribe have a weak hand, and found that pricking through a stack of eight folios was a little too much effort, while two was manageable? If that was so, this must have been something they knew before beginning the book project, rather than discovered as they went along, as the lack of prick-marks in the inner bifolia of quires is present (or absent, even) from the start. Did the scribe in fact prick a stack of bifolia, but then separate that stack and redistribute them one per quire? On the one hand, this would ensure the identical pricking and ruling patterns across much more of the manuscript, and in Madrid, MS 413 the grids are rather consistent. That effect can also be achieved by using the pricking pattern from a previous quire as a guide for the next, although that sometimes leaves at least a few tell-tale signs where a hole has been re-cut. From what I saw, that was not present in this case, although already I am thinking I may need to go back for another viewing to double check that. If you have seen a pricking pattern like the one I’ve described here, and/or have any thoughts, please do leave a comment or send me a message. For me it’s very much a novelty, but I doubt that it is completely unique!

The work on Madrid, MS 413 then, is really still in its early stages – as is the work with all the other manuscripts on this project. I still have three more of the nine from this project to go and see in person, but the research in archives phase is well under way. For the Madrid manuscript it is nice to be reflecting on it, while still in the same city (my flight back to Vienna is later today). There is a lot to ruminate on, for which this intriguing pattern with the pricking is but the first, the ruling grid in the final quire is another intriguing oddity for instance. But that is a subject for another time.

Burning Brands and Unintended Injuries

The Edictus Rothari of 643 CE includes within its scope, four adjacent clauses addressing various forms of arson and fire damage. These comprise:

• Rothari No. 146 on the deliberate burning down of somebody else’s house,
• Rothari No. 147 on (accidental?) injuries inflicted by a burning brand taken from the hearth,
• Rothari No. 148 on damage caused by wayside fires which have been negligently left, and
• Rothari No. 149 on the deliberate burning down of somebody else’s mill.

The clause following these (No. 150) then goes on to address the destruction of a mill (or dam) in other ways, reflecting the ways in which the continuation between adjacent clauses in the Edictus can often be thematic. My focus here, though, is on the burning brands in the second of these clauses, which in Katherine Fischer-Drew’s 1973 translation reads as follows:

Concerning a brand of fire carried more than nine feet from the hearth

He who carries a brand of fire more than nine feet from his hearth and thereby causes some damage to his own or to another man’s property shall render compensation singlefold (ferquido), that is, he shall pay the value of the damage alone as compensation since he did it unintentionally. If the damage occurs to himself or to someone else within nine feet from the hearth, he shall not be liable for compensation.

Rothari No. 147

Trans. Fischer-Drew, The Lombard Laws, p. 76

From Fischer-Drew’s translation, and if we take a black-letter legalism approach to the legal content, the clause appears to address a small number of possibilities, with the intent of establishing the extent of liability. The main division is whether the damage occurs within nine feet of the hearth, or further away than that. As the person carrying the brand is not responsible for any damages caused within nine feet of the hearth, their seems to be an unwritten implication that anybody else within that perimeter should have been aware of the personal risk and only had themselves to blame. Beyond that perimeter, the liability then transfers to the person who took the brand out, but the law still assumes any damage inflicted was accidental. Consequently, the compensation due is singlefold – the Langobardic ferquido, [literally in ‘like (kind)’] is used in the text, which Fisher-Drew helpfully retains in her translation. That is to say, simply paying ‘the value of the damage done’. While Fischer-Drew sometimes expands and clarifies terminology in the text, in this case the re-iteration of the meaning of ferquido is part of the original clause from the law-code – a strategy frequently (but not consistently) employed throughout the Edictus Rothari where a Langobardic term is then reiterated in a Latinate explanation.

The assumption in the clause is that the damage inflicted is accidental (or else that the person who inflicted it is not liable). Consequently, it probably needs to be read in light of the preceding clause in which another person’s house is entirely and deliberately (in asto animo [‘with evil intent’]) burnt down. In Rothari No. 146, the compensation due for that is threefold the damage inflicted, so the two clauses present a contrast between intentional and accidental damages. This can be loosely compared to accidental killing, addressed in Rothari No. 387, where the financial value of the person killed [usually given as praetium or widrigild] need to be paid, but further faida [loosely ‘feud’] is prohibited as the killing was unintentional. Returning to arson, the balancing of the clauses as between the burning of the house and damage to property appear relatively comprehensive, as would the balance of deliberate verses accidental. However, as the clauses in fact comprise, deliberately burning down the house on the one hand and accidentally damaging property with fire on the other, there appear to be some gaps in the scope of the legislation. One assumes that the judges, bone fide homines [‘men of good faith’], and other (perhaps legally competent) interested parties involved, extrapolated to suit the situation. More dramatically, perhaps, we might assume that a person deliberately trying to burn another persons house, was more likely to cause a greater degree of damage (I uncritically assume thatched roofs and wooden structures), while a person accidentally inflicting fire damage would surely be helping to extinguish the flames and limit the spread of further damage…

Another division that I find quite interesting in Rothari No. 147 is the apparent distinction between the types of damage inflicted. Fischer-Drew positions it as accidental damage to property when beyond the nine foot perimeter, but to people when within it. Quite why she added that distinction is not entirely clear to me, the reasons for which can be seen from examination of the Latin used in the original clause, per Frederick Bluhme’s 185 edition for volume IV of the Leges series of the Monementa Germaniae Historica:

De fogum foris novum pedes a fogolarem portatum

Si quis focum foris novem pedes a focularem portaverit, et damnum ex ipso focum sibi aut alterius factum fuerit, ipse qui portaverit, damnum componat ferquido, id est similem, ideo quia nolens fecit. Et si intra ipsos novem pedes, quod est de focularem, damnum facere sibi aut alterius contigerit, non ei requiratur.

Rothari No. 147

Ed. Frederick Bluhme, Leges, iv, p. 34

As can be seen from the emphasised words in the clause, the object to which the damage is inflicted is the same in both cases: damnum. On the one hand, this term does mean injury to either person or property, and a translator has some license to adopt whichever meaning best suits their situation. But changing which within the dependent situations addressed within the scope of a single clause seems to me to be a little confusing. My best guess for why Fischer-Drew may have done this, is due to the types of compensation mentioned in the respective parts of the clause. Beyond the nine foot perimeter, the compensation is in ‘like’ kind (ferquido) for that which is damaged, a presumably clumsy, brand-wielding Lombard in the seventh century could hardly replace an accidentally burnt arm, for instance, with a good one. So opting for property here does make sense. Conversely, in the second part, the clause specifically mentions the damage being to ‘himself or to someone else’ [sibi aut alterius] so the possibility of it being a direct injury that is intended is much more apparent. With the use of ‘damnum’, though, damage to a persons property is surely also included within damage to the self. And, as we know from the injury tariffs of the Edictus Rothari, a wound to the person can be financially compensated for. By stating that the injury was unintentional and recompense is in ferquido, the clause may be limiting the spread of the faida rather than exclusively emphasising property damage. Fischer-Drew’s translation ,then, needs reading with a pinch of salt.

Another point in which Fischer-Drew’s translation seems to slip from the original is in the very first line. She makes the hearth the possession of the person who takes the fiery brand from it, i.e the brand is taken more than nine feet ‘from his hearth’. The Latin, however, seems only to specify that it is taken from the hearth in general – ‘a focularem portaverit’. The assumption that the person taking the flaming brand from the hearth must also be the owner, is an unexplained extrapolation. Perhaps Fisher-drew had some idea of Langobardic politeness being in play, and could not imagine that a person visiting another person’s house would be removing burning wood from the hearth for untold purposes (other than deliberately burning the place down). But there is nothing in the clause itself to suggest that, and the addition of the possessive limits the scope of the law in a way that the original clause is not limited. Again caution is required. Reading the clause in its original Latin, a visitor accidentally burning the owner of a house more than nine-feet away from the hearth is liable for compensation, but that possibility is excluded twice from Fischer-Drew’s translation, as she limits the party inflicting the injury to the owner of the hearth only, and damage only to property.

One would assume in the case of damage to property or self, that compensation would only be due if two parties were involved. After all, if the person wielding the brand damaged their own belongings, even if they were beyond the nine foot perimeter and therefore liable who would they actually pay the compensation to? It seems an irrelevant extrapolation of the clause, but in the second part, again, it specifically address if the damage is to self or to other. So clearly this situation was in the minds of the law-givers. On the one hand, this may be a null-issue, in that the statement is specifically that no compensation is required, and the wording could be taken as an expressive way of emphasising that nobody but themselves were at fault for being injured. But in the process of writing this, one possibility has just occurred to me – if we take into account that the brand may be taken from the hearth by *anybody*, not just its owner per Fischer-Drew, then perhaps this wording deliberately addresses and nullifies the situation where a visitor to a house takes a flaming brand from the hearth (accidentally) injures themselves with it and then tries to claim compensation from the actual owner of the hearth and home? It is the best explanation I have, and it has echoes with Liutprand’s exclusion of the owner of a well with a counter weight from liabaility in a clause written some ninety years later (Liutprand, No. 136).

This clause of Rothari, and those on arson in the Lombard laws in general, then, is interesting, informative and a touch illusive. There’s a lot to be considered about legal mentalities and practice encoded within it, that I hope to return to in more detail in the future. At the same time, the clause reveals a number of gaps in my broader knowledge about the materiality and social customs of Lombards as a whole, how does this nine foot perimeter relate to a typical Lombard house, for instance? And how would domestic space become delimited by it. Likewise, is it polite, acceptable or even usual for a visiting Lombard to take a flaming brand from the hearth and carry it more than nine feet away, and if so for what purposes? These are, for me, burning issues beyond the nine foot perimeter of my usual research foci, that I hope to illuminate with time – hopefully without inflicting injury to persons or property along the way!

Bees & Boundaries

The impetus for this blog post arose from a twitter thread today, in which after a news article on the adaptability of bees took flight like a queen in search of a new hive, Stephanie Lahey followed with a fulsome swarm of medieval and occasionally classical miscellanea. Her first tweet on the subject may be hound here. The thread has been constructed in a number of phases, for instance with the fines given for the theft of hives  in the late-ninth-century Anglo-Saxon laws of Ælfred the Great appearing towards what is currently the end of the thread: including a fine of 120 shillings for the theft of horses, gold or bees. At a previous point in the thread the Anglo-Saxon ‘beoceorle’, or beekeeper, was mentioned (Nos 6-6.2), although one exciting detail was omitted; that (at least in the estates addressed in the Rectitudines Sngularum Perosnarum & Gerefa text), a beekeeper with a taxable swarm owed five sesters of honey to his lord per year [No. 6], or more on some estates should it be the custom [No. 6.1]. A sester being about 5kg. Further details and laws may well be added to this growing thread, but I thought I would take the opportunity and inspiration and see what could be found on the subject from the Lombard perspective.

Bees and beehives are mentioned in two adjacent clauses in the Edictus Rothari (643 CE), Nos 318 and 319. In the manuscripts of the Edictus which include the capitula list or incorporated rubrics, the first of these clauses is introduced simply with the heading ‘de apes’ [on bees], while the second clause continues on from it directly. While the clauses are relatively brief, a closer look, as ever, reveals some interesting features.

The first, Rothari No 318, outlines a fine of twelve solidi as a standard fine for the theft of one or more hives. A number of points of significance arise from this. Firstly, bees are counted by the hive, rather than individually, which is understandable, but it is a little unusual for the laws that the theft of multiple hives is explicitly given the same composition as taking one. That is to say, a person who risks being fined for taking just one hive of bees from another person’s land, may as well be stung for taking the lot. This approach is a little at odds, if we consider the surrounding clauses, values are set per animal, with no mention made for the circumstances in which more than one beast or fowl is taken. Should I steal one domesticated swan from you (Rothari No. 317), then I owe you six solidi in composition, and it is inferred therefore that should I steal both your domesticated swans (surely you didn’t own more than two?), then I should pay six solidi composition for each. This isn’t stated explicitly, but it seems to me a fair inference, from the contrast with the clause on bees were the scope for multiple payments are clearly excluded.

The next point to be observed from Rothari No. 318 is the relative weighting of the fine. As Stephanie noted, Ælfred’s Domboc collates the theft of horses, gold and bees into one fine. In the Lombard laws, bees are treated independently. Nevertheless, the value can be contrasted with the theft of other animals in the surrounding clauses: a hive of bees at twelve solidi is double that of the domesticated swan mentioned earlier, and Rothari No. 317 also includes a falcon belonging to another man and a crane at the same value of six solidi, or twelve solidi where it the king’s (Rothari No. 320). The values for domesticated stags vary depending on whether the beast is juvenile or mature, with a fine of six or twelve solidi, respectively, for just ensnaring it, or else a requirement to return it eightfold should the creature be stolen. The clauses on bees, that is Rothari Nos 318 and 319, then, are interspersed in the middle of a selection of other clauses in which falcons are addressed, Rothari Nos 317, 320, as well as Rothari No. 321 which I have not yet mentioned. Rothari No. 321 sets another fine of six solidi for taking falcons, plural, from a marked tree in somebody else’s woods. Two (or more) birds in the bush, then, seem to be worth literally the same as one on the hand!

The second clause on bees, Rothari No. 319, introduces the same distinction between whether they are domesticated (that is in hives) or wild (in marked trees). The fine for taking bees from a marked tree in someone else’s woods is half that of taking a hive, or six solidi. However, should the tree not be marked, however, then anybody may have the bees, unless the land is king’s. Finally, if the lord who actually owns the woods comes along, then he may take the honey without further blame or consequence. These points in their own right are interesting, especially the distinction made between domestic and wild and the brief implications for how beekeeping may have been pursued (or imagined by law-givers and custom) in seventh-century Lombard Italy.

The point about bees in unmarked trees (on somebody else’s land), however, raises for me an important question. Was it expected or imagined that the person who discovered the bees would take them away and establish a hive on their own land? If not, would they leave them in the tree where they were? The latter seems to be implied by the end of the clause where the owner of the woods is permitted to take honey from these claimed bees with impunity. But going back a step, how would the person investigating someone else’s woodlands and discovering an unmarked tree with bees in claim them? Presumably by marking the tree themselves, but that brings our attention back to Rothari No. 240 in which a fine of forty solidi is established for marking a tree belonging to another person, while Rothari No 241 dictates that an enslaved person who does this of their own accord should have their hand cut off. As well as being a significant sum in its own right, the severity is further emphasised by the fine being paid half to the person whose tree it was and the other half to the king. As such, the marking of trees becomes as much a public matter of concern to what might loosely be considered the Lombard state as it is a private issue of the person whose land was thus affected.

This apparent contradiction in whether trees could be marked or not may be resolved, on the basis that Rothari Nos 240-41 follows on from a set of clauses on the destruction of boundary markers, with Nos 238-39 explicitly detailing the cutting down of trees which had been marked as such (the former by a freeman, the latter by an enslaved person on his own authority). It would perhaps make sense, then, that the unauthorised marking of trees in Rothari No. 240 specifically related to boundary markers alone, but unlike in the preceding clauses on their destruction, this point was not made clear. Moreover, the phrasing in Rothari Nos 240-41 seems to imply that the marking of trees could be for any purpose, not just to signal a land boundary. I cannot yet, then, provide a good explanation for how these two clauses, with heir apparently opposing attitudes to the marking of trees, might be resolved, except to assume that the latter, when addressing bees, presents but does not make explicit, an exception to the normal rule.

Pigs and Pledges

The impetus for this post arose from a fruitful discussion the other day, with Dr Jaqueline Bemmer of the Institut für Römisches Recht und Antike Rechtsgeschichte (Institute for Roman Law and Ancient Legal History) of the University of Vienna, Austria. Dr Bemmer, specialises in the early medieval Irish laws and has a particular interest in debts and pledges. She noted that in the Irish laws, the giving of pigs as a pledge for an unpaid debt was considered the worst possible option [a quick update here, I originally wrote the ‘taking’ of pledges, but have just been informed/reminded that this is wrong in the case of medieval Irish law. And that I have incautiously set foot into a hotbed of scholarly dispute. But never fear – a follow up coffee, cake and chat has been scheduled to put this (or at least my knowledge of it) to rights!]. The grounds given in the laws being the damage that pigs to the ground with all that rooting and churning. The Irish laws are beyond the scope of my current research, so I’m delighted to have been given this gem of knowledge; moreover, Dr Bemmer has kindly sent me further details on this, and informs me the law is edited in the Corpus Iuris Hibernici Nos. 471.9-13 (ed. Binchy, 1978), and originates from the Bretha im Ḟuillemu Gell (Judgements concerning pledge-interests). It is the 23rd text of the most important surviving early Irish law book, known as the Senchas Már (the texts of which are linguistically dated to c. 650 to 750, so within a century following the promulgation of the first Lombard law-code, the Edictus Rothari), which itself survives in Dublin, Trinity College, MS H 2.15A (cat. 1316), with the clause on pigs as pledges running from fols 33b to 34a.

In the same conversation, Dr Bemmer also asked how things stood in the Lombard laws. This was also beyond my immediate knowledge, as my main focus to date has been on book culture on the one hand, and what might be considered criminal law on the other (injuries, killings, arson and poisoning, in particular). Where I have turned my attention to legal procedure, my focus has been on oaths and pledges, for which I still have a half-written post waiting for me to finalise… Anyway, conveniently I had my copy of Katherine Fischer-Drew’s translation, The Lombard Laws (1973), on me, and over coffee and cake we had a quick flick through and began to see that, while pigs are also not considered suitable pledges in the Lombard laws, there were some notable differences as to why.

Clauses indirectly addressing the taking of pledges occur throughout the Edictus Rothari, but the discussion of the specific legal procedures and circumstances are included in a group of clauses, edited in the modern day as Nos 245-252, following on from some clauses that mostly focus on boundaries (as well as two on forgery and illegal minting of coins interspersed amongst them), and leading in to the collection of clauses on theft.

Rothari No. 245 underscores that a pledge cannot be taken for an unpaid debt until the return of the debt has been demanded three times. Presumably this means on three separate occasions, rather than three times in a single conversation, although here the law is not explicit. Where the clause is explicit is in making clear that the return must be demanded three times. Rather than simply stating the minimum number of times required, the clause emphasises each demand by stating, following Fischer-Drew’s translation, that he ‘shall demand his debt from him once, twice and even three times’ (1973: 101). In the original clause, this stipulation is written in Latin, which contrasts with the specific legal terms written in the proto-Germanic dialect of Langobardic, that crop up throughout the law-code. Nevertheless, the emphatic underscoring seems directed to an audience, ensuring that there are no grounds for a person to claim they had misunderstood. With all due caution, I am tempted to speculate whether this performativity might even reflect an oral mode for the transmission of this segment of the laws, more than it just being a rhetorical device employed in a literate law. I should emphasise that this is not to suggest a strictly (oral) Germanic origin for this facet over a (literate) Roman thread. That oversimplification has, I think, been thoroughly laid to rest with the argument and observation that for more than a century before the Edictus Rothari was penned in 643 CE, the Lombards had been coexisting within a framework of Roman legal literacy, and elements of Roman Law were undoubtedly and indivisibly transmitted as part of the oral culture of law (see Pohl (2000) in particular, and both Everett (2000, 2003) and Petrucci (1995) in general; references given below).

What matters here though, for our consideration of Lombard legal practice (at least how the law-givers imagine and present it), is that the return of a debt had to be demanded three times before a pledge could be taken. The following clause, Rothari No. 246, outlines the response to the pledge being taken prior to that, dictating that the value of the goods taken as a pledge should be returned ninefold. This scale of compensation for the act is identical to that for theft given in a clause that follows soon after, Rothari No. 253. The main differences between the two clauses being that regular theft, when committed by a free man, also includes an eighty solidi punishment for the guilt of the crime, and if the freeman cannot return the goods ninefold then he pays with his life instead. If the thief is an enslaved man or woman, then the price for the guilt (to be paid for by their owner) is forty solidi, although in the case of the enslaved man only he can be killed as part of the settlement instead (Rothari Nos 254 and 258). For the free woman, no additional payment beyond the ninefold return of the goods is demanded for the guilt, but instead shame is imputed to her, as I have previously discussed. Comparatively, then, taking pledges for an unpaid debt that has not been demanded three times per legal norm is set as a crime similar to theft, but not quite identical.

The next clause, Rothari No 247, outlines who can take pledges on behalf of the one who is owed the debt. Essentially this is nobody, unless they are one of their heirs and are claiming their inheritance. The remaining clauses then outline the various types of property which cannot be taken as a pledge, and the compensation that is due in emends should that prohibition be ignored. As you will no doubt have assumed, pigs are included amongst these. However, rather than jumping straight to the swine let us put them in context by first looking at the other things which are excluded from being taken as pledges.

The first property prohibited as a pledge is enslaved men and women, the details given in Rothari No. 248. Where the previous clause, No 245, seemed to go to great lengths to ensure that ignorance or misunderstanding of the law could not occur, this assumes from the outset that an act in which an enslaved person was taken as a pledge must have been by mistake. The clause states that no recompense is due, as long as the person returns the enslaved people taken as pledge immediately upon learning the truth, and swears an oath that they were taken accidentally rather than with evil intent. However, should they not dare to swear the oath, then they must return eight times the value of the enslaved people to the person they took them from. The law does not make explicit why the eightfold value has been given, but I wonder if it can be considered in light of the ninefold value given for both theft and for taking a pledge before three demands for its repayment have been made. Does this value suggest that the relative severity of taking enslaved person as a pledge is noted, but that the law-givers are conscious of emphasising that it is not as severe a crime as first taking the pledge without due legal process? The second point to be observed in the clause is that, should the person who erroneously took the enslaved person as a pledge have injured them in anyway, then he must pay for the wounds per the usual injury tariffs (Rothari Nos 103-126). This, of course, is a subtle reminder that violence against enslaved people by their owner was not compensated: after all, the compensation was paid to their owner, not to them.

Rothari Nos 250 and 251 address taking either horses which have been broken for riding or else oxen that have been trained to the yoke for ploughing. The first of these clauses prohibits taking either, and interestingly sets a ninefold return to the owner. As such, the taking of horses or oxen is set at the same severity as taking a pledge before having (properly) announced it three times. Clearly the earlier speculation about due legal procedure outweighing prohibited items does not count here, or perhaps at all. The second of the clauses outlines a legal procedure for when all the debtor has to their name are broken horses or plough-oxen. In this case the person owed the debt must go to the local legal official, the schultheis, and state his case. Assuming the schultheis performs his duty correctly (or unlikely but possibly perhaps hers, if the contexts of the Carolingian female sculdarissa in northern Italy, identified by Hayley LaVoy (2015), had roots in the Lombard kingdom prior to the Carolingian conquest), then the horse or oxen are placed in the creditor’s possession until the debt is paid off. At which point, they are to be returned to their original owner, emphasising that the pledge does not form part of the repayment. Should the sculdtheis fail to perform their duty, then they are to be fined twelve solidi, to be paid to the king. Neglect of their legal duty here, then, is a crime against the king and, as it were, the state, rather than against the wronged individual. It also ensures that the king and government have a direct interest in seeing that breaches of legal process and duty are addressed.

The final clause on pledges, Rothari No. 252, prohibits the taking of a casa ordinata tributaria [a holding which owes tribute] as a pledge, and concludes with details on the time limits for paying the debt back after the pledge has been paid (twenty days, if they live within a hundred miles of each other, sixty days otherwise), and the responsibility of the former debtor to retrieve his pledge himself, after the debt has been repaid. Between these two things, the clause lists the things which can be taken as pledges, comprising cows or sheep, but also, and to me confusingly, enslaved men and women. The latter part here clearly contradicts the earlier clause on taking enslaved people as pledges, and unless it is an exception based on the specific economic contexts of the tribute-paying holding, then I cannot yet see how to square these two elements. That, however, is something to think about another day – although any suggestions or insights will, of course, be welcome.

Returning to the taking of pigs as pledges, who we skipped over earlier, they are addressed in Rothari No. 249: here, we see a substantially different set of circumstances. The clause prohibits the taking of pigs along with mares as pledges, but rather than setting up an eight or ninefold return per the other prohibited pledges or a legal process through which the normal situation can be circumvented, the punishment is instead death. The sentence is emendable, however, in that the accused can instead pay 900 solidi, should they have such a sum, half to be paid to the person he took the pig(s) or mare(s) from, and the other half to the king. This clause then must be set in light of the crimes in the Lombard Edictus that are punishable by death which I collated in a previous post, although at that time I somehow omitted this one. In that post, I noted that the crimes for which death, emendable or not, is set as a punishment comprised treason, mutiny in the army, leading uprisings of enslaved workers, adultery, destroying boundary markers and theft. In contrast to the death penalty being applied for theft when the ninefold goods cannot be returned, or the ninefold return of goods with no threat of death should a pledge be taken without repayment of the debt having been demanded three times, for taking pigs and mares as pledges, death is the default response. In the manner which it is allowed to be emended, and as with all such emendable death penalties in the Lombard laws, the taking of mares or pigs as pledges is set as a crime against the king and state. This though is in a vastly different way, and at a vastly different scale, to the case of the sculdtheis who avoids their duty and does not give justice. Clearly this is not about prioritising legal procedure over taking things as pledges which are not permitted, and the socio-economic value of pigs and mares in Lombard agriculture are underscored heavily here. This relative weighting can also be seen in the praetium due for killing an enslaved master swineherd, fifty solidi (per Rothari No. 135, in contrast to the twenty solidi for a goatherd, oxherd or cattle herd of similar social class and experience (Rothari No. 136).

There is undoubtedly much more to be said about both pigs and pledges in Lombard law. However, I hope that this overview of the laws and their implications for Lombard legal process has at least piqued some interest and sparked some thoughts. To return to the comparison with the situation in the Irish laws outlined at the outset, we can see that both early medieval Lombards and the Irish were set against taking the taking of pigs as pledges. The later for the damage the swine caused to good land, the former reflecting the social and economic significance of these animals, as hinted at in the inordinately high value set as recompense for taking them as pledges.

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References

Binchy, D. A. ed., Corpus iuris Hibernici: ad fidem codicum manuscriptorum, 7 vols (Dublin: Dublin Institute for Advanced Studies, 1978)

Bluhme, Frederick, ed., ‘Edictus langobardorum’, Leges, 4: Leges Langobardorum, ed. by Frederick Bluhme (Hannover: Monumenta Germaniae Historica, 1868), pp. 1-234

Everett, Nicholas, ‘Literacy and the law in Lombard government’, Early Medieval Europe, 9 (2000), 93-117

Everett, Nicholas, Literacy in Lombard Italy, c. 568-774 (Cambridge: Cambridge University Press, 2003)

Fischer-Drew, Katherine, trans., The Lombard Laws (Cinnaminson, NJ: UPenn, 1973)

LaVoy, Hayley, ‘Hirmindrut Sculdarissa: a ninth-century woman’s original letter and its implications’, Journal of Medieval Latin, 25 (2015), 29-50

Petrucci, Armando, ‘The Lombard problem’, in Armando Petrucci, Writers and Readers in Medieval Italy: Studies in the History of Written Culture, ed. and trans. By Charles M. Radding (Yale University Press, 1995), pp. 43-58

Pohl, Walter, ‘Memory, identity and power in Lombard Italy’ in The Uses of the Past in the Early Middle Ages, ed. by Yitzah Hen and Matthew Innes (Cambridge: University Press, 2000), pp. 9-28