The subject of water wells arises twice in the Lombard laws, in both instances being a fount of interesting information about the legislative mentalities underlying the laws and early medieval Lombard society as a whole. The first instance is in clause no. 306 of the Edictus Rothari (643 CE), in which the instance of an animal falling into a well and being permanently injured or dying is addressed. The next instance comes ninety years later in the twenty-first year of Liutprand’s reign (733 CE), in which clause no. 136 comprises a detailed discussion of the circumstances when a person is killed by the counter weight of the well. Both are translated in Katherine Fischer-Drew’s The Lombard Laws (based in turn on the 1858 Monumenta Germaniae Historica edition, Leges IV, edited by Alfred Boretius).
Rothair’s clause on the water well is brief. It stands amidst a collection of agriculturally themed clauses, following on from a sub-set of clauses addressing various agricultural theft and damages, such as a one solidus fine for stealing a fence pole (No. 287), six solidi for stealing the bell from a horse or ox (No. 289), or six solidi again for either destroying a vine, taking the supporting pole from it, or stealing three or more grapes (Nos 292, 293 and 296, respectively). Felling an olive tree, conversely, is worth only half as much, with a fine of three solidi (No. 302). From there on, the focus changes to death and injury of people and animals caused from impaling oneself on the protruding post of improperly made fence (No. 303), falling into the dug boundary ditch of a field (305), or into the aforementioned well (306). In the clauses after the focus appears to change, as Nos 307 and 308 address the loan of weapons and then on to damage inflicted by a wounded wild animal (No. 309).
The clauses from Rothari No. 303 onwards, however, are all united as discussions of negligence. Where the fence was made improperly, the maker of the fence is liable to pay for the killing or injury inflicted as per the usual tariffs (which I have discussed previously on this blog). In the case of the weapons, the focus is on whether the person who loaned them consented to the violent act which would be committed with them, in which case they were an accessory and were partially liable for paying the composition due (No. 307): while the following clause absolves the owner from blame if their weaponry was loaned to the attacker by a third person (No. 308).
In the case of the ditch, the clause assumes that it was not dug treacherously but instead for the purpose of protecting the field. As such, the law absolves the digger of the ditch completely from having to pay composition for the injury or death, whether to animal or person. The law concludes with an exception to this, that if the ditch was deliberately concealed (essentially, as a pit trap), in which composition as normal was anticipated (Rothari No. 305). In the case of the well, however, the focus changes subtly. In this instance only death or injury to animals are addressed, and humans are excluded. The one who dug or owned the well is excluded from all blame (Rothari No. 306). Although it is not explicitly stated here, it seems to be assumed that a human simply wouldn’t fall into a well, and it can possibly be inferred that if they did so, it would e due to their own neglect. What the clause does focus on, however, is the grounds for excluding the well’s owner from blame. In the case of a boundary ditch, the grounds were that it was not dug treacherously, and the injured person fell in form their own neglect. For the well, the reason is that the water from the well should be available to everyone. The notion that the law did not just reflect society, but could in turn shape future behaviour seems to lie just beneath the surface here, a reminder if needed that even in their earliest phases the makers of early medieval laws imagined them to be more than just the reduction of ancient custom to writing.
Moving forwards ninety years to Liutprand, accessibility to water remains at the heart of the clause (Liutprand No. 136). Where the general idea of a well imagined in Rothair’s clause, seems to be little more than an uncovered hole in the ground, Liutprand addresses a more technically complicated piece of equipment. The well has a raised counterweight which, when released, assists the user in lifting the water. The clause here is clearly responding to a specific instance arising from contemporary Liutprand society, as it seeks to apportion responsibility in the case where a person uses the well and causing the counterweight to fall onto and kill a second person who had been stood underneath it. In this instance Liutprand addresses the unfortunate victim’s ability to reason, noting that not being an unthinking animal, the person should have noticed the potential danger realised that it was an unsuitable place to stand. As such, Liutprand ascribes two thirds of the composition due for the killing to the victim, and the remaining third to come from the person operating the well.
This may appear odd on first inspection. In what way is it possibly useful to demand that the person who has been killed pay two thirds of their own composition? As the money in question would be going straight to their heirs and family either way, this detail makes little effect on the final outcome. Surely, it would have been easier and cleaner to have simply stated that the person operating the well was to pay one third of the praetium or widrigild, that is the ‘worth’ at which the deceased person had been valued according to their position in society? The answer, I suspect, lies in honour, the family of the person who has been killed are due the composition equal to his or her social class. That the killing was (presumably) unintentional means that only the composition is due, and that there is no need for the faida, the honour feud, to be pursued. This situation follows that detailed in the so-called epilogue of the Edictus Rothari, No. 387, but is also explicitly stated in Liutprand’s clause as well: the faida is not needed, and there is no further grievance to be pursued. Reducing the composition to just a third, would mean that honour had not been satisfied, even if the economic redundancy in the transaction had been negated. Instead, the full price is calculated and, theoretically at least, paid, and the victims negligence and contribution to their own death accounted for. But what of the one who built or owned the well (assuming they were not the one who was operating it or died)? Liutprand No. 136 explicitly excuses them from blame. The attention of the legislators again turns outwards, considering that if the owner of the well were held guilty then they would not in future allow others to use their well, in case of mishap. Weighing the potential for a negligently produced and maintained well against the unfairness of denying water to travelers, the poor and those without access to their own well, Liutprand anticipated the needs of the latter, and found in their favour.