Shaved Heads, Floggings & Burning in the Woods, Lothair 81

At the moment I am finalising a paper on arson in the Lombard laws, which I hope to submit before the end of the month. For now it is sitting to one side to be ignored until the last day of the month, to put a bit of distance between it and myself before proofreading it. In the process of writing it I had to brush up my somewhat rusty Latin skills and took to translating one of the capitularies of the Frankish King Lothair (795-855 CE, King of Italy from 821 CE), included in the Liber Legis Langobardorum.

The capitulary, edited by Alfred Boratius as Lotharii 81, is included in the 1868 edition of the law-book for the Monumenta Germania Historica series (Leges iv), p. 555. The working translation is perhaps a little rough around the edges, but proved more than sufficient for my purposes. I had a little help from a few colleagues along the way, mostly just confirming my suspicions as to what a specific sentence meant, but any and all mistakes remain my own.

It is our will, that if any person has dared to make a fire in the woods within the borders of our realm, it must be diligently enquired into; and if it is a slave that has done this, either his lord gives him to be flogged and [to have] his head shaved, or he is compelled to make emends for him for whatever damage he caused. If it is a free person that is proven to have done this, he is compelled to emend completely, and in addition to pay our fine. And if he does not have the composition, let him be flogged. But if it is done, it should be investigated by better men of that place. If any person is under suspicion, if he is a slave [then] he is sent to the judgement of his lord, or he [his lord] makes the oath for him; But if he is a free person, if it is appropriate he renders his own oath.

There are a few points of interest to me that go beyond the scope of the paper but which I wanted to note about this capitulary. The most significant being the ways in which it differs from the legislation in the Edictum. Rothair 148 already accounts for fires in the countryside to some extent, legislating that the cost of damage caused by a fire left negligently by the wayside should be paid in composition. The Rothair clause limits the responsibility of the negligent person somewhat, by defining a geographical limit (an area bordered by public roads and streams) and limiting it to damage done within the twenty-four hours after the fire was abandoned. Lothair includes no such limitations, concerned only to find out who caused the fire an to punish accord to their social position.

Another interesting point is that Lothair refers to the payment of ‘our fine’ in addition to making good for the damage done, which presumably draws on the Frankish laws in the Lex Salica which outline fines on top of restitution. The Lombard laws themselves, however, which this capitulary supplements, only include the singlefold composition for the damage caused. In the case of the deliberate burning of houses and mills, the Lombard laws state a composition of three times the value of the damage done, but this was not extended – at least explicitly – to the countryside or even other types of buildings.

The final point that I wish to draw attention to here is the inclusion of corporal punishment in the clause; if the one responsible was a slave then they were to be flogged and have their head shaved. While the capitulary provides means to negate this, by letting the slave make emends in other ways (I assume that is through labour to make good the damage), the resort to physical punishment in the first instance differs greatly from the Lombard practices (as stated in the extant law-codes) that the capitulary otherwise contributed to. In the Lombard laws themselves, the use of corporal punishment is restricted appearing only in a very few instances. Considering that the Lombard law continued to be in force after the takeover of Italy by the Carolingian hegemony in 775 CE (and again after the incorporation of Italy into the Holy Roman Empire in 962 CE), it is interesting to see such a distinct change in local custom.

I will leave this post with a number of questions that this situation raises for me: how Carolingian in their law had the people of Italy become? If the Lombard law was not used exclusively, how much and how did the regional laws interact? Did this in fact change local custom as it appears to in scholarly hindsight, or was it interpreted as a logical extension of the legal context? Or, of course, was it simply that the change to corporal punishment was legislated only for slaves and if they raised their voices to protest such a stark change in custom, they simply were not heard?


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