Vienna, Österreichischen Nationalbibliothek MS Cod. 394 – Lombarda with glosses

With my last major research project having finished at the end of April 2020 (although research continues, as ever), I applied for and was fortunate enough to get a small Stadt-Wien stipendium for researchers and artists in the covid-19 times. In my application I outlined a three-month research project, which began at the start of May following the award of the stipend (project No. MA 7-355810/2020), and is now two-thirds of the way through. The project focuses on one of the manuscripts of the Lombard laws held in the Österreichischen Nationalbibliothek [ÖNB, Austrian National Library]: Vienna, MS Cod. 394. The manuscript comprises a copy of the Lombarda, that is a systemisation according to of the Liber Papiensis collection of Lombard law sand Frankish and Saxon capitularies relating to Italy.

In addition to identifying – and where possible obtaining and reading up! – secondary literature on the manuscript, I had four main objectives:

1. To write up my notes from a viewing of the manuscript made in 2012, and prepare a catalogue description to add to the (slowly growing) list of Lombard law-books here on my website.
2. To work from the black and white scans of the microfilm, to map out the contents and, particularly, investigate the glossing strategy employed throughout the manuscript.
3. To prepare an article relating to the manuscript for submission to a relevant journal. The initial proposal anticipated a comparative study of this manuscript and another also held in the ÖNB, MS Cod. 471 – one of the manuscripts of the Liber Papiensis on which my previous FWF Lise Meitner project had focused (and for which the monograph is currently under review).
4. To deepen my familiarity with the Lombarda variant of the Lombard laws overall, and to further refine my research methodology in preparation for submitting the next research project proposal.

Before considering progress on these four objectives, it may first be of interest to consider the manuscript as a whole. The description of Vienna, MS Cod. 394 as given on the ÖNB website is minimal. At the present time the manuscript has not been digitised, so there is no link to images unlike for other manuscripts. The contents and title of the manuscript are given simply as “Lex Langobardorum cum glossis” [law of the Lombards with glosses], without mentioning which version of the laws it contains, nor the other item added on the final folio, the prologue and first clauses of Ariprand’s Commentary on the Lombarda, composed in the mid-twelfth century (see Anschütz, 1855).

The description on the ÖNB website also does not include either a date for the manuscript’s production or a place of origin, so for this study I was very much beginning in the dark. In the nineteenth century, the manuscript was included in Johannes Merkel’s Die Geschichte des Langobardenrechts (1850) as item No. ‘L2’, and as one of the sources for the MGH edition of the Lombarda, as edited by Friedrich Bluhme (1868). In both these studies the version of the text is identified (and in the latter edited) as the ‘vulgate’ version of the Lombarda, but with no place of origin being suggested for the manuscript. Both, however, gave a date for the production as s. xiiⁱⁿ, that is early in the twelfth century (ca. 1100-1120), which would have numbered it amongst the oldest of the surviving manuscripts of the Lombarda.

Having asked palaeographers online whether they agreed with the dating, Dr Beatriz Porres de Mateo identified the script as being, despite its many oddities and some gothic and caroline features, a late Beneventan minuscule. She kindly directed me towards some more recent relevant scholarship, many of which had mentioned the manuscript in passing, and included date ranges from the mid-twelfth to early thirteenth centuries (Vitolo, 1992; Cordasco, 1996; Magistrale, 1995) and localised the manuscript to in or around Bari, southern Italy. This in turn brought me to E. A. Lowe’s study of Beneventan scripts (1914), where he had identified the manuscript as being of the Bari type and drew attention to a later addition on the verso of the final folio that named Abbot Guglielmo di Macciacotta from Bari as a sometime owner of the law-book. Another addition on the lower margin of the same folio (96r), reads ‘Maurus Iudicis Iohanis’, suggesting that over the years the law-book had had connections with both monastic centres and legal professionals.

 

Project Outcomes (ongoing)

A catalogue description of the manuscript (v. 0.2) has been prepared, and is now available online (per project objective 1). The description is somewhat provisional, and will require a further viewing in the ÖNB to gather more specific information (the dimensions of the folios and ruling grid are representative, taken from a smaller number of measurements, rather than averages derived from measurements from every single folio), Edit: and while my original notes refer to the different ink colours employed, they are not comprehensive. I now have access to colour images of the manuscript, and have revised and updated the description accordingly. The linked file is now version 0.2). As such, I hope to augment and emend the description in the future, as necessary. Nevertheless, I hope the description in its current form will be of use!

Cataloguing the contents of the manuscript (objective 2) was an intensive process, in which a table was produced matching the numbered clauses per Bluhme’s edition (1868) to the specific contents of the manuscript, and then adding in transcriptions of glosses in the margins (sometimes just the incipits), for all items copied by the main scribal hands responsible for the initial production phases of the manuscript in the (early) thirteenth century – that is the main scribe (Hand 1), the rubricator (Hand 2), and the scribe of the Ariprand commentary (Hand 3). In addition to commentaries on the legal content and glosses clarifying in Latin what the specific langobardic legal terms meant, one of the main forms of gloss comprise cross-references to related laws and capitularies within the law-book. These cross-references are made, using the same fundamental strategy as employed in the Liber Papiensis and as adopted in Roman law-books following the mid-twelfth century juristic revival – by law-giver and incipit of the clause in question. Where possible I have identified the referenced clause, and begun to visualise – if not unravel – the web of intratextual references being made in the manuscript.

In the process of recording the glosses, my attention got drawn to the legal theme from Book I, Title XXXVI: de culpis servorum [concerning the crimes of enslaved people], in which eight laws and capitularies from Rothari, Grimoald, Liutprand and Charlemagne are brought together into a thematic block. Further study of these legal texts in their manuscript context, and extending the comparison out to other manuscripts of the Liber Papiensis and of the Lombarda, seem to be promising. Consequently, this will be the theme for the article that I am currently preparing (objective 3).

Connections to – and diversions from – the other manuscripts are also becoming apparent, although these will definitely require the extensive focus of a full research project to truly visualise in manuscript and socio-legal context. In this the initial study has identified, refined and developed the scope of the next project proposal and its methodology as intended (objective 4), while the close analysis of a selected legal-theme in manuscript context is similarly establishing a working method for comparable case-studies that I hope to integrate into the next project. I hope that the coming months and years will give me the opportunity to further discuss and share this on a broader and deeper scale.

 

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Bibliography

Anschütz, August, ed., Die Lombarda Commentare des Ariprand und Albertus: Ein Beitrag zur Geschichte des germanischen Rechts im zwölften Jahrhundert (Heidelberg: Akademische Verlargshandlung von J. C. B. Mohr, 1855)

Bluhme, Frederick, ed., ‘In Lombardae Libro et Reliqua Praefatus est’ & ‘Legis Longobardorum Libri Tres Sive Syntagmata Duo, Lombardo Vulga Dicta, Ex Libro Papiensi Confecta’, MGH Leges IV (Hannover: Hahn: 1868), xcviii-cxviii

Cordasco, Pasquale, Contributo allo Studio del Notariato Meridionale (Secoli XII-XIV) (Bari: Levante, 1996)

Lowe, Elias Avery, The Beneventan Script: A History of the South Italian Minuscule (Oxford: Clarendon Press, 1914)

Magistrale, Francesco, ‘La cultura scritta latina e greca: libri, documenti, iscrizioni’, in Federico II: immagine e potere. Catalogo della mostra (Bari, Castello Svevo, 4 febbraio – 17 aprile 1995), edited by Maria Stella Calò Mariani and Raffaella Cassano (Venice: Marsilio, 1995), 125-41

Merkel, Johannes, Die Geschichte des Langobardenrechts (Berlin: Hertz, 1850)

Reynalds, Roger E., ‘Gratian’s Decretum and the Code of Justinian in Beneventan Script’, Mediaeval Studies 58 (1996), 285-88

Vitolo, Raffaele, ‘Tra Cava e Salerno: cultura e scrittura in età normanno-sveva’, Rassegna storica salernitana 18 (1992), 7-24

To whom do the Lombard laws apply?

The following short post began as a reply to a query, regarding if the Lombard laws identify to whom they are applicable. This is only a brief summary and there is much more literature available, from a range of academic disciplines, but as the subject of how to become a Lombard is addressed in occasional clauses, referring to the primary evidence here may be of use – and hopefully interest too! Edit (August 2020): In response to a comment asking for some further clarification, I’ve expanded this blogpost somewhat, the new additions are in this red/brown colour.

The most important clause on this, is probably Edictus Rothari, No. 367 which addresses the subject or waregang that is ‘foreigners’. Specifically, the clause begins with the statement that:

All foreigners who come from outside our frontiers into the boundaries of our kingdom and yield to the jurisdiction of our power ought to live according to the Lombard laws, unless through our grace they have merited another law.

Rothari, No. 367 (643 CE)

Fischer-Drew, trans., The Lombard Laws, pp. 124-25

The clause then continues that the same should be true of their children. Here, then, the law is pretty clear that the applicability of the law-code is primarily territorial. Concessions can be made for people to be within the boundaries under a different law, but the impression given here is very much that this is a rare occurrence rather than normal.

Other clauses within the Edictus Rothari emphasise the frontiers and boundary as a political and territorial one, for instance Nos 3-5 on fleeing outside the country, or inviting enemies or spies into the territory, respectively. And laws by later kings add to the sense of territoriality, such as those dealing with permissions for travellers passing through as pilgrims on their way to Rome (Ratchis, No. 13, in 746 AD).

Another method of gaining – or losing – a Lombard identity is through marriage, in which a woman joins the social group of her new husband. This is referred to in Liutprand, No. 127, which was issued in 731 AD. While it could be read as a later emendation to the legal system, the clause is explicitly about re-marriage and without consent of the deceased previous husband’s heirs, and takes the change of a woman’s ethnic/legal identity as an established legal norm.

A law of the Lombard king Liutprand, issued in 727 adds some further insight here into the presence of multiple laws (Roman and Lombard), although it is less clear on the interplay between them. And, again, it doesn’t define who is a Roman or a Lombard, neatly or otherwise, because as can be seen that doesn’t fit with the way the socio-legal contexts the law is responding to and developing. The law begins:

In the case of scribes, we decree that those who prepare charters should write them either according to the law of the Lombards – which is well known to be open to all – or according to that of the Romans; they shall not do otherwise than is contained in these laws and they shall not write contrary to the law of the Lombards or of the Romans…

Liutprand, No. 91: Fischer-Drew, trans., The Lombard Laws, p. 183.

That certainly suggests legal pluralism at play. This is sometimes taken to imply that people could use one law or the other, but the two couldn’t overlap. However, the law itself doesn’t actually say that they couldn’t be mixed, just that each had to be used correctly. And there’s a strong sense that (post) Roman law – more as local customs and practice than the codified form – came in to fill the gaps that Lombard law didn’t cover, such as details on landownership. Another major place where we have Roman law being employed is in relation to the church and church property.  There is already mixing of the legal systems in the eighth century (Pohl-Resl, 1998; Pohl, 2002: 24), and by the tenth century we can see deliberate and active integration of elements drawn from both Roman and Lombard law in individual documents. (There’s a chapter by Sonia Colafrancesco that goes into this in fine analytical detail in my forthcoming edited collection, Law Book Culture in the Middle Ages, that will hopefully be in print in 2021).

The laws themselves then, don’t explicitly identify who or what makes a Lombard. Legally it seems primarily to be territorial and opt in. If a person wants to live within the territory, then under normal circumstances they should adopt the Lombard legal and cultural norms and become one. The laws are one of the strategies used actively to create and reinforce a Lombard identity. Beyond the expectation that the children of a man who becomes a Lombard should also be Lombards and live by Lombard laws (Edictus Rothari, No. 367), there is no sense of it being primarily tied to some kind of ancestral heritage. Instead, being able to identify one’s ancestors as presented in the laws is only relevant for establishing social class (and the right to inherit) within the Lombard social structure itself.

Within the broader studies on ethnogenesis and identity, this socio-legal approach is again apparent: gentis [peoples, for want of a better word] are social identities, consciously built on shared experiences and decisions to work together. Rather than the Lombards being defined on a single biological ancestry, they instead seem to comprise threads drawn from multiple family and ‘tribal’ (again for want of a better word) groups. In the earlier times, becoming a Lombard then is a matter of participating in the Lombard consensus, and at some point between that group invading and settling in (northern) Italy in the sixth century, and the writing of the Edictus Rothari in the mid-seventh century, that group further extended the legal applicability into a territorial setting.

The laws, then, do not include a core definition of who counted as a Lombard, not because it was omitted, but because it made no sense in the historical contexts of the early medieval period in which they were produced and used. The evidence in the laws itself, then, supports the modern critically-informed directions that more recent academic arguments have been uncovering and establishing, and which have not only rejected the nationalist interpretations that prevailed in the nineteenth and first half of the twentieth centuries, but more importantly have refuted and disproved them. This is unsurprising, of course, as the modern arguments have been derived from the primary sources, and with increased resources. Rather than needing to ‘go back to the sources’ to unravel the complexities of the modern understanding and image of the early medieval period, Likewise, the development of further technological, theoretical and methodological toolkits for analysis has allowed the continuing refinement of modern understanding. Moreover, these fit into an increasingly inter-disciplinary approaches, and have been corroborated with a much wider and more detailed range of disciplinary approaches, in particular archaeology and, more recently, through genetic studies of ancient DNA.

It’s long been known that within the Lombard regnum, there’s really no distinction between Roman and Lombards as ethnic groups by the end of the Lombard period – going back, at least, to Niccolò Machiavelli’s Istorie Fiorentine (published 1532). By then, the only thing strange about them was their name. A good point for seeing the interrelation can be found with “Paulus deaconus” [Paul the deacon], writer of the History of the Lombards, and born at some point in the 720s. As Walter Pohl notes, he was given a Roman name reflecting his ecclesiastical (and possibly also monastic) career, while his older brother, Arechi, had a ‘Lombard’ name (2002: 24). Naming as a means of creating ‘ethnic’ identification had clearly stopped by then.

Pohl’s provides a clear, informative and fair-handed analysis of the situation and state of research in the early twenty-first century (2002: 11-33). The clearest take away from the evidence is that the intermixture of both ‘groups’, as it were, occurred quickly, and that more importantly both groups were already very diverse. We also do not know what size the two groups were, but the idea of a small group of ethnically coherent Lombards and a large group of ethnic homogenous Romans has no foundations in the historical and archaeological evidence,. And ongoing aDNA studies are continuing to show how muddied that perspective already is. Considering how ethnically diverse Italy already was in the ale Roman period, this is unsurprising. And considering how ethnically diverse the various migrating/invading groups themselves were, the complexity again becomes apparent.

Quoting a large section of Pohl’s discussion that summarises the situation may be of interest and use here:

What happened to the Romans under Lombard rule? Many historians believe that Roman landowners were killed or driven into exile and that the Roman population was enslaved by the new lords. There is little evidence to support that interpretation. In the cities of the kingdom, church organization continued to function as before, and funerary inscriptions provide evidence of the survival of many well-to-do citizens and artisans. In the years after 568 the level of violence and raiding was high, but the Lombards had come to stay, and to do so they employed the existing infrastructures. Instead of a few tens of thousands of Lombards commanding millions of Roman slaves, we should think in terms of local societies that became ethnically mixed. The principal change was that the civil lay aristocracy disappeared, a change that was taking place in all western European countries. In the long run, only two models for the elite remained: that of the warrior-landowner claiming some prestigious barbarian identity, and that of the ‘Roman’ cleric. Roman landowners may also have decided to rise into the ranks of the Lombard aristocracy, although that is a process that is better documented for Frankish Gaul and Visigothic Spain. Others could seek protection by the bishop, donating their estates to the church and receiving them back as a permanent loan. roman traders and artisans continued in business and came to be protected by royal legislation (for instance the magistri commacini, the builders).

Pohl, Invasions and Ethnic Identity, 22-23 (my emphasis)

That the ‘Roman’ builders were already under Lombard law (Rothari, Nos 144 & 145, specifically focusing on responsibility for negligent deaths on the building site) by the time the Edictus was promulgated, less than a century after the Lombard migration/invasion into Italy stands as testament to how closely entwined these two groups had become. The Lombard laws may talk of Lombards and romans and Roman law, but there is clearly no direct mapping of ethnicity to law. The laws are territorial and situational, rather than personal and ethnic.

Thankfully, then, we can say that the world reflected in the Lombard laws is as multifaceted and complex as modern societies are. Within the laws it is clear that – assuming the opportunity to move into the territory or marry a Lombard – becoming a Lombard was really open to anyone, regardless of where they had first come from. Coupling that with Italy as not only on the route to Rome for travellers coming across the Alps, but also a nexus point within the Mediterranean as a whole, Lombards are probably better understood within an Afro-Eurasian context.

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Bibliography

• Colafrancesco, Sonia, “Juridical Dualism in Medieval Southern Italy: Studies on the Codex diplomaticus Cavensis“, in Law | Book | Culture in the Middle Ages, ed. by Thom Gobbitt (Leiden, [forthcoming]).
• Fischer Drew, Katherine, The Lombard Laws (University of Pennsylvania Press, 1973) 
• Pohl, Walter, “Invasions and Ethnic Identity”, in Italy in the Early Middle Ages, ed. by Cristina La Rocca, (Oxford, 2002), 11-33
• Pohl-Resl, Brigette, “Legal Practice and Ethnic Identity in Lombard Italy”, in Strategies of Distinction: The Construction of Ethnic Communities, 300-800, ed. by Walter Pohl and Helmut Reimitz (Leiden, 1998), 205-19

 

Putrid Water & Wedding Parties

Aistulf became king of the Lombards in 749 CE, following the abdication of the former king, Ratchis, his brother. Aistulf remained king up until his death in December 756. Throughout the course of his reign, he augmented the Lombard laws on two separate occasions, issuing nine clauses on 1 March 750 (Aistulf, Nos 1-9), and a further thirteen clauses in the fifth year of his reign, on 1 March 755 (Aistulf, Nos 10-22.  A further two clauses are also attributed to him, edited by Friedrich Bluhme as Aistulf Capitula Spuria, Nos 23 & 24. The clauses, presumably, reflect the various pressing socio-legal concerns of his day, with some augmenting and updating previous legislation or responded to cases that had been brought to the attention of the royal court as they were not easily resolvable. A content note may be required here, as some of the law clauses mentioned in this post involve violence and killing, abduction and forced marriages, including with young girls.

My focus here today is Aistulf No. 15, issued as part of the second legislative session in 755, which addresses the situation in which a group of ‘perverse men’ [perversi hominis] threw ‘polluted and unclean water’ [aquam sorditam et stercoral] over the wedding party bringing a bride to the wedding (Bluhme, ed., Edictus Langobardorum, 201; Fischer-Drew, trans., The Lombard Laws, 234). In addition to the skin-crawlingly icky contexts – surely something that should be drawn to the attention of Horrible Histories, and reflecting the soap opera of early medieval Lombard life – the broader legal details revealed in the clause are also of interest. This can be seen from the modern English translation of the clause:

It has been made known to us that when a number of men walked along with a wedding party [paranimpha et troctingis] that was taking a bride to her bridegroom certain per- verse men threw down polluted and unclean water upon them.

Since this evil has been committed in several different places, we decree, lest a breach of the peace [scandalum] or homicide occur from this cause, that if any freeman tries to do such a thing, he shall pay 900 solidi as composition, half to the king and half to [the woman’s] mundwald [legal guardian]. If they are men who belong to someone else and they do this thing without their lord’s consent, and if their lord dares to offer oath that the thing was not done at his desire or with his counsel or advice and thus clears himself: the slaves shall be handed over to [the woman’s] mundwald, and he may do with them as it pleases him. In this case their patron shall bear no further blame. But if their lord does not dare so to swear, he shall pay 900 solidi as composition, as read above.

Aistulf, No. 15

(Fischer-Drew, trans., The Lombard Laws, 234-35)

Firstly, the clause begins by noting that ‘It has been made known to us…’ reflecting the situation in which new clauses address some of the specific cases that have been brought before the king, presumably as they could not be resolved by iudices [judges] and other legal officials acting at a local level. This, in turn, reflects the campaign undertaken in the second decade of Liutprand’s legislation, in which resorting to local judgement and custom where the law-book had not yet addressed a given circumstances were actively prohibited. This theme is discussed in the prologues to the legislation of Liutprand’s thirteenth, fourteenth and fifteenth years (725-27 CE). As an aside it should be noted that this campaign may have been a little too successful, and the prologue to Liutprand’s legislation of the nineteenth year, has a somewhat weary tone as it refers to ‘Our clemency [being] constantly beseeched by the unceasing controversies of the superstitious and vain.’ (Fischer-Drew, trans., The Lombard Laws, 194).

Of particular interest here, though, is the further statement in the clause that, ‘Since this evil has been committed in several different places…’, meaning that this was not an isolated case brought before the royal court. Rather, it seems to have occurred on multiple occasions. Presumably the previous instances had been individually dealt with, until Aistulf and his advisors recognised that it was a more deep-rooted problem. The clause them takes particularly heavy measures to prevent it from occurring again in the future, and outlines the broader reasons for doing so within the logic and structure of honour and the violence of the faida [blood feud].

Restitution for this crime is set in the clause at the distinctly high price of 900 solidi. In a previous blogpost I gathered together many of the clauses from the Edictus Rothari in which composition of this value was set. It is, for instance, equal to the composition due for committing morth [murder], that is the ‘secret’ killing of a freeman or enslaved man or woman, in which some attempt was made to disguise the identity of the killer(s) and/or victim. It can be further contrasted with the openly admitted and public killing of another person, in which for an enslaved man or woman the value would be between sixteen and fifty solidi, depending on their specific duties and degree of training (Rothari, Nos 130-36). While Rothari does not give specific values for the ‘widrigild’ or ‘praetium’ [wergild, worth], of a freeman, in 724 Liutprand had set the values at 150 solidi for if he was without landless or 300 solidi if he was landed (Liutprand, No. 62). The nefariousness of murder is particularly apparent in the relative differences in composition required to offset the insult to honour, and to stop further revenge-violence from ensuing. Free women, it will be noted, are not included in this discussion. The reason firstly being that the open killing of a free woman or girl had already been set at 1200 solidi, (Rothari Nos 200-01), with no specific distinction being made for murder. As the general value for a secretive murder would have been lower than for an open killing, the reasons for excluding freewomen from the clause on morth seem apparent.

Other clauses addressing crimes committed against free women do, however, include a 900 solidi fine, including Rothari No. 26 for ‘wegworin’ that is (forcefully?) blocking the road against her; Rothari No. 186 abducting a woman and taking her unwillingly to wife; or Rothari No. 191, abducting a woman who is already betrothed. Liutprand, No. 12 had also set a fine of 900 solidi for betrothing or marrying a girl under the age of twelve. In this, then, the values given in Aistulf No. 15 for tipping filthy water over a wedding party, accord with attacks on women and injuries to their honour (or, rather, through them that of their mundwald [legal guardian] per Lombard legal norms which did not allow women legal competency). The composition due, however, was to be split into two portions, half paid to the woman’s mundwald, the other half going to the royal fisc. With half the money going to the royal coffers, the clause establishes that this assault is not just a private matter against the woman and her guardian, but also against the Lombard regnum and rulers. This also echoes the practice where an underage girl is married or betrothed, within again half the composition going to the royal fisc. In Liutprand, No. 31 (723 CE) the earlier law on abducting women was augmented so that half of the composition would again go to the royal treasury. At the very least, the setup gave legal officials working on the behalf of the throne a strong motivation to pursue these manner of cases, and conversely removed any incentive for the families involved to decide to just let the events slide.

The composition of 900 solidi is usually only due when the perpetrator is a freeman. In the case of an enslaved person or people having thrown the putrid water at the bride, then the clause stipulates instead that their dominus [lord, enslaver] should swear oath that the crime was not committed at his bidding. Here the clause introduces a conditional argument for the outcome. Should the dominus be willing to swear that oath, then he is absolved of guilt and responsibility, and the perpetrators are instead to be handed over to the woman’s mundwald [legal guardian]. As ownership of the enslaved people has changed, this effectively would allow physical punishment or killing in retribution without perpetuating the faida or incurring further composition for the revenge. Should the dominus be unwilling to swear oath that he was not involved, then nor more mention is made of the enslaved people, and the dominus becomes fully responsible as if he had thrown the putrid water over the bridal party himself.

 

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.

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.

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!