Boxed Ears or a General Slap?

This is more of a short musing post, which is more a matter of raising possibilities in comparative speculation, rather than providing any solid conclusions.  The focus is a clause in the Edictus Rothari of 643 CE that I just stumbled across in passing which snagged my interest: No. 44. A content warning for the entire post may be of use here as the clauses discussed more broadly here focus on various trauma, including beatings and, particularly, injuries to, and the severing of, ears. The specific clause, per Katherine Fischer-Drew’s translation reads as follows:

He who hits another man with his fist shall pay him three solidi as composition. He who strikes another on the ear shall pay six solidi.

Fischer-Drew, Trans. The Lombard Laws, p. 61

It’s a relatively simple seeming clause, that sets a blow to the ear [alapas] at double the value of any other punch. The value given for the ordinary punch, in fact, reiterates the value given in the preceding clause, where one punch is valued at three solidi, two punches at six solidi, three at nine solidi, and four or more at twelve solidi (Edictus Rothari, No. 43).

The positioning of the clause in the law-code more broadly is the first point of interest. With the specific focus on the ear in No. 44, it feels like it should be part of the injury tariffs, which for wounds inflicted on freemen run from Nos 46-74, and as discussed previously, list a wide range of injuries to specific body parts. (For a fuller discussion of these across the early medieval law-codes, see Lisi Oliver’s The Body Legal in Barbarian Law). The intervening clause (No 45), serves as a general introduction to the tariffs, outlining that the compositions given in the list below must be paid accordingly, and that thereafter the faida [feud] should end. As such, the separation of the blow to the ear form the specific injury tariffs seems to be a deliberate strategy by the law-givers when they organised the law-code. Moreover, the ear appears twice more in the main injury tariffs, with Edictus Rothari, No. 53 setting composition at a quarter of the victim’s praetium [the amount to be paid should they be killed] if the ear is severed fully. A few clauses later, Edictus Rothari,  No. 56 outlines a fine of sixteen solidi as composition, if a person strikes and wounds the victims ear. Perhaps, then, we simply have three clauses, haphazardly arranged in the law-code, with increasing composition for increasing severity of the damage inflicted.

The positioning of this clause before the introductory clause for the tariffs, however, emphasises that it is not part of the injury tariffs as a whole. Instead, it forms the final clause of a short cluster on the beating of a freeman (Nos 41-44). The main organisational strategy here, then, could simply be that the wounds in the beatings cluster are inflicted by bare hand, while those in the tariffs are for more significant wounds that might be inflicted with weapons and result in lasting damage. Perhaps, then, the blow to the ear in question is just part of a fist-based drubbing.

The clauses on the beating of a freeman address a number of possibilities. In Edictus Rothari, No. 41 the beating is premeditated (but not under royal instruction) and the victim is assumed to be standing about or walking along unprepared. The assault is described as being turpiter [disgraceful, shameless], and as an assault on honour the composition is calculated at half their praetium [worth]. The next clause increases the composition to two-thirds his praetium, if he is tied up in the process. It is worth noting that the Edictus Rothari does not give specific values for the praetium of a freeman, but an approximate scale can be inferred from Liutprand, No. 62, issued in 724 CE, in which a freeman who is not a landholder is set at 150 solidi, while one who has land at 300 solidi. Assuming these values were even close to those used eighty odd years earlier, then the severity of the crime and composition can be clearly seen, especially when contrasted to the values given in the next clause, of three solidi per blow up to a maximum of four blows and twelve solidi.

So how does the doubling of the composition for a blow to the ear fit into this? Is the ear being considered as a more delicate part of the body which might be damaged internally from a blow form a fist, even if no visible wound remains? I find myself wondering if the issue is in the translation. The Latin of the law-code in fact uses ‘alapas’ for the blow in question, which can mean boxing the ears, but may more broadly be translated as a slap in general.

It seems to me unlikely that an openhanded slap could do more physical damage than a punch thrown by the same person, as the open hand would surely dissipate the force somewhat. So the doubling of the composition from three solidi to six for the blow seems to me unlikely to be corresponding to that. I assume, instead, that the act of slapping itself is being taken as a form of insult, where the assailant is more concerned with damage to their victim’s honour and standing than they are with actually causing lasting physical harm. But if that is the case, then the increased values given for insult to honour are still exceedingly low compared to those for the deliberately premeditated assaults considered in the nearby clauses (or the twelve or twenty solidi for verbal insults made in the heat of the moment, per Edictus Rothari, Nos 381 and 198, respectively). Nor is their any moralising in the clause. If the focus is not specifically the ear here, then perhaps a slap amongst Lombards is just a (very) petty insult, with a little more compensation due, but not drawing further comment?

CFP Housebreaking & Breach of Courtyard in Medieval Law and Legal Cultures

Another short update, with a call for papers for a collection to be edited by myself, (provisionally) entitled: Housebreaking and Breach of Courtyard in Medieval Law and Legal Cultures. A pdf of the file can be downloaded here.

 

Violation of the boundaries of house and home appear in various forms across medieval laws and regulatory texts produced and used throughout, broadly, the first millennium CE. Such transgression might be overt or covert, whether performed as an act of violence, to commit theft, or similar. The person crossing the boundary might be caught in the act or identified later. The boundary might be transgressed entirely by the person, or group, or only partially in that a person remains outside while throwing a projectile weapon across the boundary, or sending an associate across in their place. Crossing at night may have different implications than during the day. Legal norms on the crossing of the boundary, then, imagine the significance of place, and imputation of intention, and may be violent, subversive, or imagined. The focus here centres the boundary in the argument, and examines how laws and law-givers frame this as both an event and a crime.

The wording of these clauses provides insight into pragmatic legal approaches and the legal imagination of the law-givers and their concepts of personal property and the transgression of the individual, as well as reflecting on the norms of an idealised society. The often selective focus of (early) medieval laws on these subjects vary by law-code, area and period, which can both complicate and reward a comparative analysis while revealing the extent and nature of local and regional practices. The collection hopes for a broad geographical focus, extending across the medieval worlds of Afro-Eurasia.

Contributions, therefore, are sought investigating this multi-faceted theme in the history and archaeology of medieval law and legal cultures across the first millennium within a broad range of theoretical and disciplinary frameworks, ranging from dogmatic and comparative legal studies, on the one hand, through to linguistics and literary approaches to the law, on the other.

  • Abstracts of 250-500 words and a short biographical note should be sent to thomas.gobbitt@assoc.oeaw.ac.at, in English, by Sunday 26 April 2020.
  • Submission of accepted chapters, of 7,000-10,000 words including footnotes, are provisionally anticipated for late summer 2021.

 

 

 

 

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.

BooksOfLaw2019_poster

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!

 

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.

ParisLat9656_Q2

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

ParisLat9656_Q15

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.

ParisLat9656_Q2_expanded

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.

ParisLat9656_Q15_expanded

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

Madrid Biblioteca Nacional

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!

 

Madrid413_156v_157r

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!