Category Archives: legal procedure

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!


Pigs and Pledges

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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