Category Archives: Lombard Law

Bees & Boundaries

The impetus for this blog post arose from a twitter thread today, in which after a news article on the adaptability of bees took flight like a queen in search of a new hive, Stephanie Lahey followed with a fulsome swarm of medieval and occasionally classical miscellanea. Her first tweet on the subject may be hound here. The thread has been constructed in a number of phases, for instance with the fines given for the theft of hives  in the late-ninth-century Anglo-Saxon laws of Ælfred the Great appearing towards what is currently the end of the thread: including a fine of 120 shillings for the theft of horses, gold or bees. At a previous point in the thread the Anglo-Saxon ‘beoceorle’, or beekeeper, was mentioned (Nos 6-6.2), although one exciting detail was omitted; that (at least in the estates addressed in the Rectitudines Sngularum Perosnarum & Gerefa text), a beekeeper with a taxable swarm owed five sesters of honey to his lord per year [No. 6], or more on some estates should it be the custom [No. 6.1]. A sester being about 5kg. Further details and laws may well be added to this growing thread, but I thought I would take the opportunity and inspiration and see what could be found on the subject from the Lombard perspective.

Bees and beehives are mentioned in two adjacent clauses in the Edictus Rothari (643 CE), Nos 318 and 319. In the manuscripts of the Edictus which include the capitula list or incorporated rubrics, the first of these clauses is introduced simply with the heading ‘de apes’ [on bees], while the second clause continues on from it directly. While the clauses are relatively brief, a closer look, as ever, reveals some interesting features.

The first, Rothari No 318, outlines a fine of twelve solidi as a standard fine for the theft of one or more hives. A number of points of significance arise from this. Firstly, bees are counted by the hive, rather than individually, which is understandable, but it is a little unusual for the laws that the theft of multiple hives is explicitly given the same composition as taking one. That is to say, a person who risks being fined for taking just one hive of bees from another person’s land, may as well be stung for taking the lot. This approach is a little at odds, if we consider the surrounding clauses, values are set per animal, with no mention made for the circumstances in which more than one beast or fowl is taken. Should I steal one domesticated swan from you (Rothari No. 317), then I owe you six solidi in composition, and it is inferred therefore that should I steal both your domesticated swans (surely you didn’t own more than two?), then I should pay six solidi composition for each. This isn’t stated explicitly, but it seems to me a fair inference, from the contrast with the clause on bees were the scope for multiple payments are clearly excluded.

The next point to be observed from Rothari No. 318 is the relative weighting of the fine. As Stephanie noted, Ælfred’s Domboc collates the theft of horses, gold and bees into one fine. In the Lombard laws, bees are treated independently. Nevertheless, the value can be contrasted with the theft of other animals in the surrounding clauses: a hive of bees at twelve solidi is double that of the domesticated swan mentioned earlier, and Rothari No. 317 also includes a falcon belonging to another man and a crane at the same value of six solidi, or twelve solidi where it the king’s (Rothari No. 320). The values for domesticated stags vary depending on whether the beast is juvenile or mature, with a fine of six or twelve solidi, respectively, for just ensnaring it, or else a requirement to return it eightfold should the creature be stolen. The clauses on bees, that is Rothari Nos 318 and 319, then, are interspersed in the middle of a selection of other clauses in which falcons are addressed, Rothari Nos 317, 320, as well as Rothari No. 321 which I have not yet mentioned. Rothari No. 321 sets another fine of six solidi for taking falcons, plural, from a marked tree in somebody else’s woods. Two (or more) birds in the bush, then, seem to be worth literally the same as one on the hand!

The second clause on bees, Rothari No. 319, introduces the same distinction between whether they are domesticated (that is in hives) or wild (in marked trees). The fine for taking bees from a marked tree in someone else’s woods is half that of taking a hive, or six solidi. However, should the tree not be marked, however, then anybody may have the bees, unless the land is king’s. Finally, if the lord who actually owns the woods comes along, then he may take the honey without further blame or consequence. These points in their own right are interesting, especially the distinction made between domestic and wild and the brief implications for how beekeeping may have been pursued (or imagined by law-givers and custom) in seventh-century Lombard Italy.

The point about bees in unmarked trees (on somebody else’s land), however, raises for me an important question. Was it expected or imagined that the person who discovered the bees would take them away and establish a hive on their own land? If not, would they leave them in the tree where they were? The latter seems to be implied by the end of the clause where the owner of the woods is permitted to take honey from these claimed bees with impunity. But going back a step, how would the person investigating someone else’s woodlands and discovering an unmarked tree with bees in claim them? Presumably by marking the tree themselves, but that brings our attention back to Rothari No. 240 in which a fine of forty solidi is established for marking a tree belonging to another person, while Rothari No 241 dictates that an enslaved person who does this of their own accord should have their hand cut off. As well as being a significant sum in its own right, the severity is further emphasised by the fine being paid half to the person whose tree it was and the other half to the king. As such, the marking of trees becomes as much a public matter of concern to what might loosely be considered the Lombard state as it is a private issue of the person whose land was thus affected.

This apparent contradiction in whether trees could be marked or not may be resolved, on the basis that Rothari Nos 240-41 follows on from a set of clauses on the destruction of boundary markers, with Nos 238-39 explicitly detailing the cutting down of trees which had been marked as such (the former by a freeman, the latter by an enslaved person on his own authority). It would perhaps make sense, then, that the unauthorised marking of trees in Rothari No. 240 specifically related to boundary markers alone, but unlike in the preceding clauses on their destruction, this point was not made clear. Moreover, the phrasing in Rothari Nos 240-41 seems to imply that the marking of trees could be for any purpose, not just to signal a land boundary. I cannot yet, then, provide a good explanation for how these two clauses, with heir apparently opposing attitudes to the marking of trees, might be resolved, except to assume that the latter, when addressing bees, presents but does not make explicit, an exception to the normal rule.

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

Crimes Punishable by Death

Having previously collated the clauses in the Edictus Rothari which set restitution at 900 solidi, and those in proportion to the victim’s praetium or worth, I thought I would next collate those which are punishable by death. Clauses with a death penalty attached are again set at multiple levels, those from which there is no escape from death, and those in which emendation can be made through a monetary payment. The majority of the capital clauses are clustered at the outset of the Edictus, but others can be found throughout the law-code, particularly when the perpetrator is not a freeman.

Rothari No. 1 proscribes capital punishment and, explicitly, the confiscation of all property from anybody who conspires against the life of the king, or even gives council. The difference in value between plotting against royalty and against a freeman, with composition set at 20 solidi (Rothari Nos 10-11), is distinct. Here the crime must be considered unamendable, as no recourse is offered for the person who is found guilty to make good their crime through a monetary payment instead. Indeed, as the clause demands the confiscation of all property as well as the death of the accused, the possibility of buying redemption from the crime is here removed. Confiscating the property of the accused, then, not only serves to disinherit their heirs, but also prevents emendation for the crime being made through other means. This is not to say that an accusation of conspiring against the king was an automatic death penalty, however, as Rothari No. 9 offers grounds for a (free)man accused in front of the king of a crime punishable by death to prove his innocence through oath or camfio – that is judicial duel or trial by combat. I won’t say much on this subject for now, however, as I have a somewhat stalled blog post in the making that I hope to finish up soon.

The next crimes outlined are Rothari Nos 3 and 4, which are again made unamendable both by the clause explicitly stating that the accused’s property will be confiscated and by having no mention of the payment of a monetary composition being possible. The first of these clauses addresses a (free?)man who tries to flee the country, the latter the (free?)man who invites or introduces enemies into the land. The scope of unamendable crimes thus far, then, concern themselves with the protection of the Lombard regnum itself, the king as its leader and the protection of its borders. The laws do not explicitly state that the confiscated wealth will go to the royal fisc, but it seems to be the most likely outcome. While the laws in the Edictus frequently impart justice at a horizontal level, with composition being given by the accused to the victim (or their heirs, guardians or owners), here the wronged party is the state. Reparation, then, is made vertically, and ensures the protection and unity of the Lombard regnum as a whole – or at least from the royal perspective.

The contents of Rothari No. 5 expand on the clause preceding it, setting a death penalty, emendable with composition of 900 solidi, for anybody who aids a spy already in the land, either by hiding or provisioning the spy. Here the clause is explicit that, should monetary emendation be made, the payment is made to the king. Here, as might be expected, should the punishment be death, no mention is made of the property of the accused being confiscated in the process. Presumably, therefore, the heirs of the accused were still able to inherit, despite the crime.

The next two clauses, Rothari Nos 6 and 7, mark the end of the crimes punishable by death given at the outset of the Edictus. Here the attention turns to preserving discipline in the Lombard army, with the former being the punishment for raising a revolt against king or duke, and the latter for desertion. Neither of these clause includes mention that the property of the accused should also be confiscated, nor that emendation for the crime can be made through monetary payment. Three levels of capital punishment are then observable in the clauses which open the Edictus. In rising order of severity, these are firstly, emendable with a fine of 900 solidi; secondly, apparently unamendable but with no further impact on the personal wealth of the accused and, therefore, the wealth and status of their heirs; and thirdly, unamendable with the complete confiscation of their property. Assuming in the most severe case that their heirs or women whose mundium they held, had some personal wealth of their own already, this situation might not strip them entirely of their position in Lombard society. But, presumably, the more central and powerful the accused was within the social dynamics of a given family group, the more impact on the social status and wealth of that family his accusation of one of the most severe of unemendable crimes would have. Here, penalties of death and confiscation might serve to preserve the Lombard social order as a whole, but the impact on a specific family within that structure might be far more wide-reaching. These consequent implications, however, are not explicitly outlined in the laws.

If the army is considered as a part of the infrastructure of the Lombard regnum as a whole then, again, death as a punishment is being used to preserve its integrity. This may be reading too much into the political and legal structure underlying the laws, however. Instead, it seems to me that it may be as much a matter of enforcing social norms. The accused in the opening clauses are assumed to be both male and free Lombards. The clauses given later in the Edictus in which capital punishment is proscribed broaden the scope to a wider range of Lombard society.

Rothari No. 203 proscribes an unemendable death penalty to the woman, free or enslaved, who kills her husband. Here property, which for the most part would have been held by her husband if they were both free, is not confiscated, and it is not directed to the royal fisc. Instead, any land and wealth goes to her children if she has them (presumably children with her late husband, rather than children by another man, although the clause does not state), or else to the relatives of the dead man. No possibility for emendation is given in the clause. Also, however, no comment is made on whether the killing was deliberate or accidental. Death is used here to regulate the behaviour of women and to enforce Lombard social norms and gender relationships. This can be seen by contrasting Rothari No. 203, with the clauses addressing a freeman who kills his free wife, No. 200. Here, the clause first provides a proviso that it only applies if she was innocent, and if she deserved to die according to the laws then no emendation was required. Otherwise he was to pay 1200 solidi to her family in composition. While this value is immense, indeed the highest given value in the Edictus, it still marks a difference between the two crimes: a husband killing his wife deliberately or accidentally, might be legal, and if not it is theoretically emendable. Conversely, a woman killing her husband is always an unamendable crime.

The next set of crimes discussed in the Edictus for which a (free) person might be put to death in the laws are again related to the regulation of sexuality and the protection of marriage (and therefore inheritance) in Lombard society. Rothari No. 211 sets a death penalty for a free man or slave who marries a woman who is already married to another man. The consent of the woman is, however, addressed here, and she is only to be killed if she was a willing participant to the second marriage. The next two clauses address adultery, with a man being permitted to kill his wife and her lover if they are caught in the act (Rothari No. 212), while the clause following is an unamendable death penalty for the man accused of adultery with another man’s wife (Rothari No. 213). Here, echoing the stipulation of Rothari No. 9, the accused may attempt to prove his innocence through either sworn oath or fighting a judicial duel with his accuser.

Later in the Edictus, the social level on which the clauses focuses changes, to consider enslaved people. Rothari Nos 237 and 239 proscribe the death penalty for any slave who, respectively, digs out a boundary marker or cuts down a tree with a boundary marker on it. The crime here is not unamendable, however, and the slave’s life may be redeemed for a fine of forty solidi. The Edictus does not state to whom the payment would be made, whether to the party who owned the land on the other side of the boundary or to the royal fisc. Interestingly, the clauses preceding each of these situations, address the same two crimes when committed by a freeman (Rothari Nos 236 and 238, respectively). In each of these there is no death penalty for the freeman, but a composition of eighty solidi is due when half to be paid to the person whose boundary marker it was, the other half to the king. The wily-freeman who orders his enslaved worker to move a boundary marker, hoping to evade the higher fine, is anticipated in the law, with both Rothari Nos 236 and 238 stating that the freeman must still pay the eighty solidi in this instance.

Theft also includes a death penalty, for both free and enslaved men. At both social levels the sentence is emendable, Rothari No. 253 stating that the freeman caught in the act of stealing (the crime of fegangi in the Langobardic language) should be killed if he cannot pay restitution equal to nine-times the value of the goods he took plus a further eighty solidi composition for having committed the crime itself. While, the enslaved man who commits a theft must also return nine times the value of the goods taken, Rothari No. 254 states also that either a composition of forty solidi should be paid by his lord or else the enslaved man be killed. In the clause addressing the freeman the implication seems to be that he is only to be killed if he cannot pay, while that addressing the enslaved man makes it a choice placed in the hands of his lord.

Conversely, the death penalty is explicitly removed when the thief is a woman, whether free or enslaved (Rothari Nos 257 and 258, respectively). Here the clauses state that only nine times the values of the goods taken should be returned, and that for the freewoman no further restitution is required, although shame should be imputed on her. However, for the enslaved woman, a fine of forty solidi is still required (at least until that requirement is negated in 668, Grimwald No. 9), but in this instance her lord does not have the option to pay with her life instead. No shame is imputed to the enslaved woman, however, emphasising that the construction of gender in the Lombard laws cannot be understood only in terms of sex, but must equally consider at the least how that then intersects with social class.

Rothari No. 280 uprisings amongst enslaved people, who commit violence or killings in the process. In addition to the composition due for the actual damage, injury and death each participant inflicted, the leader must either redeem their own life with payment equal to their own praetium (worth) or else be killed.

To conclude this collation of capital crimes in the Edictus Rothari, it can be seen that the death penalty appears in a number of situations: treason, mutiny in the army, leading uprisings of enslaved workers, adultery, destroying boundary markers and theft. In some instances, the crime is emendable, others not; and in others still it is both unamendable and also involves the removal of all property from the perpetrator. The contrast in punishment and redress established for the same crime between free and enslaved, men and women is significant. While these may at some level reflect the social norms of the Lombards that were condensed into the laws, they also reflect the society that the law-givers imagined and were seeking to foster. At the most extreme level of punishment when the accused might be killed for their crime, the way in which the law-givers both frames this or in certain circumstances negated it is intriguing and will surely reward deeper study.

In proportion to worth

In the course of revising an article and preparing a conference paper, both on different aspects of poisoning in the Lombard laws, I began to think a bit more about crimes in the Edictus Rothari which have composition equal to a proportion of the victim’s praetium, widrigild or ‘worth’. I won’t go in to too much specific detail here on the poisoning clause, that can wait for the article and conference, except to note that Rothari Nos 140 and 142 each award the victim of a failed poisoning attempt redress equal to half their praetium. The former of those clauses addresses the situation where the perpetrator is a freeman or woman, the latter when they are an enslaved man or woman. In the latter case the enslaved perpetrator is also killed, and their own praetium counted towards the composition. Heavy stuff, and informative to the Lombard legal imagination, but as I said mot my focus here. What I want to do instead is gather together the clauses of the Edictus Rothari in which the composition is set in proportion to the victim’s praetium. As with the 900 solidi cases I discussed in a previous post, giving a set of crimes a comparable compensation implies that these crimes were likewise considered to be of comparable severity. Moreover, I wonder, and this is a question that I wish to pose but not necessarily answer at this point, if setting the composition in proportion to the value of the person’s life informs something less tangible, more conceptual about how these specific crimes were imagined?

Or, is setting the composition in proportion to social status simply a convenient means of letting certain crimes be compensated at varying levels within the broader strata into which Lombard society was sub-divided in the injury tariffs? As I have previously discussed, the injury tariffs address three strata as a whole, outlining the composition due for different injuries for, first, a freeman Rothari Nos 43-75, then an aldius (‘half free’ men) or servus ministerialis (‘enslaved domestic worker’), Rothari Nos 76-102, and lastly the servus rustigianus (‘enslaved agricultural worker’), Rothari Nos 103-127. The actual praetium for different individuals within these strata varies, for instance an aldius is set at sixty solidi, a servus ministerialis fifty solidi. Therefore, cutting of the nose of either has composition fixed at eight solidi (Rothari No. 82), but as gouging out an eye is set at half praetium, for this injury Rothari No. 81 awards thirty solidi to the aldius but only twenty-five to the servus ministerialis. The enslaved agricultural worker of any rank similarly gets a pre-established composition should their nose be cut off, this time four solidi (Rothari No. 106). The gouging out of an eye is again awarded as half of the praetium, Rothari No. 105. In this case the higher ranking enslaved agricultural workers, such as the servus massarius (enslaved tenant) or master swineherd would each also be awarded twenty-five solidi for the eye, as both have a praetium of fifty solidi (Rothari Nos 132 and 135, respectively). As an aside, presume the composition would actually go to the owners of the enslaved people, rather than directly to them. While that needs saying, it is outside of my focus here).

At the lowest end of the strata containing enslaved agricultural workers, with a praetium of sixteen solidi each, are the enslaved student of a cattleherd, goatherd or oxherd (Rothari No. 136) and the enslaved field worker subordinate to the servus massarius (Rothari No. 134), for whom the composition for the gouged-out eye is only eight solidi. Despite the overarching system of three layers of Lombard society, which adds greater value to the enslaved domestic workers ‘who have been taught, nourished and trained in the home’ (Rothari No. 76, trans.  Fischer-Drew, The Lombard Laws, p.  65) in comparison to the other enslaved workers out in the field, when it comes to the half praetium crimes the worth of the servus ministerialis and the servus massarius are balanced. An eye for an eye, as it were.


I may have missed a few clauses on my quick skim through gathering them, but hopefully I have the majority (if/when I find any more, I’ll emend the post or make a note). I’ve sub-divided these clauses into a number of broader categories, although it should be noted that these are abstract and not specifically mentioned in the text or peritext of the Edictus.


Gouged Out and Severed Off Bits

As just discussed, gouging out the eye of a freeman (Rothari No. 48), an aldius or enslaved domestic worker (Rothari No. 81), or an enslaved agricultural worker (Rothari No. 105): half praetium. However, gouging out the remaining eye of an already one-eyed freeman has a relatively higher composition of two-thirds praetium. No specific mention is made for the remaining eye of a one-eyed aldius or enslaved person.

Cutting off the nose of a freeman is similarly valued at half praetium (Rothari No. 49), while cutting off the ear of a freeman is set at a quarter praetium. The severing of ear, nose or thumb for either an aldius or an enslaved person of any rank are each given a set composition, rather than in proportion to their worth.

Cutting of the hand or foot of a freeman is set at half praetium (Rothari Nos 62 and 68, respectively), as are the same injuries for an aldius or enslaved domestic worker (Rothari Nos. 88 and 95, respectively), and again for an enslaved agricultural worker (Rothari Nos. 113 and 119, respectively). Injuries to either hand or foot that do not sever the appendage, but instead cause it to be permanently paralysed are given only for the freeman, and are valued at a quarter praetium, while the severing of a freeman’s thumb is set at one sixth of the praetium. Comparable injuries for the aldius or enslaved person are either not addressed or else are given a fixed composition.


Beatings and Bindings

Rothari No. 41 proscribes half praetium in composition for surprising a freeman and beating him (without the king’s consent). The law stresses that the high composition is due to the shameful nature of the act and the derisive treatment of the freeman in question. This emphasis on shameful behaviour was one of the points which got me wondering if compositions in which a proportion of the praetium was awarded reflected something more than just compensating for the wounds and injury. If restitution was being made for the shameful behaviour and assault to honour specifically in proportion and symbolic reference to the entire worth of the victim. Unless the same can be argued for the severed bits and gouged eyes mentioned above can be fit into this model, however, the argument may not be compelling. That said, the fact that only the freeman gets restitution in proportion to their worth for a severed nose or thumb may fall somewhere in the middle. Still much to ponder here.

If the assault on the freeman goes further, and he is captured and bound, without cause and again without the king’s consent (Rothari No. 42), then the proportion of composition due is increased to two-third praetium. In this clause, however, there is no discussion of shame or acting with derision. The binding of freemen could perhaps be considered a continuation of the shameful beating, a second clause augmenting the contexts of the first and assuming the treatment to be shameful taken as written. The clause division of Bluhme’s Leges 4 (1858) edition, does not support that reading, but a detailed look at the mise-en-page of the manuscripts is required before I’d like to really pronounce either way. Nevertheless, if the two clauses are considered together, and the do otherwise follow the usual pattern in the Edictus Rothari of addressing outcomes in increasing order of severity, then the shamefulness of the binding as well as the beating may well be inferred. At the very least, the two clauses form a general preamble on overall acts of violence made against a freeman, before the law-givers launch into the specific injuries to specific body parts as detailed in the tariffs.


Unseen/Internal Injuries

The final injuries that are compensated for in proportion to the worth of the victim are the non-lethal, failed attempts at poisoning which I mentioned at the outset (Rothari Nos 140 and 142, depending on whether the perpetrator is free or enslaved) and the case when injuries made to a freewoman cause her to miscarry (Rothari No. 75). In this latter instance, the baby is valued in relation to the mother’s preatium. The poisoning and miscarriage clauses appear on the surface to be substantially different, save for both being awarded the same composition. But I think cross-overs can be inferred, both directly and indirectly, which need to be considered. Firstly, both crimes affect the insides of the victim. The injury tariffs of the Lombards make no mention of internal organs (this is likewise true for nearly all of the early medieval ‘Germanic’ injury tariffs, with the exception of those in the Frisian laws, as discussed by Lise Oliver, and even then it is wounds to the belly that cause the intestines to spill out, and is therefore arguably internal organ as external wound: The Body Legal Legal in Barbarian Law (Toronto: University of Toronto Press, 2011), p. 130). My reading, in the case of poisoning, is that a Lombard legal practitioner assessing the damage done to a victim of poisoning would be unable to determine the specific injuries to the victim without causing them further bodily harm. It seems to me that Rothari No. 75 in part presents a similar difficulty in assessing the specific damage done to the mother and unborn child.

These poisoning and miscarriage clauses differ, however, in their attitude to intent. The poisoning clauses, and likewise those on severing or gouging bits, do not address the intent of the perpetrator. Whether the injury was deliberate or accidental is not discussed, although in the case when a person is accidentally killed, by whatever means, is addressed in the penultimate clause of the Edictus, with the note that, if the killing was accidental, then only financial restitution is needed, and that no further faida [feud] is required (Rothari No. 387). The clauses on poisoning make no mention of intent or accident (e.g. if the wrong mushrooms are added to the soup), but the miscarriage law stresses that no faida is required as the injury was accidental. In fact, the reader of the laws can almost hear the words ‘must have been’ in the tone of the laws, and it seems that the Lombard law-givers had great difficulty imagining that a pregnant woman might be deliberately assaulted so as to abort her unborn child. This, probably, reflects another facet of the (painfully misogynistic) gender binary the law-givers were presenting and trying to legislate for, in which it was deemed absurd that a woman might take up arms and commit acts of physical violence. It seems to me that there is a desperate tone in this clause on miscarriage, the law-givers desperately begging that no woman’s miscarriage could have been deliberately inflicted.

But this brings me to another connection between the clauses on poisoning and miscarriage, and the research of Dr. Marianne Elsakkers. In her doctoral research she examines the intersection of poisons and abortives in the early medieval Anglo-Saxon and Salic law-codes and I cannot help but wonder if a related reading should be seen in the Edictus Rothari’s clause on miscarriage.

As I mentioned at the outset, I will not answer here the question regarding the symbolic implications of awarding composition in proportion to the praetium, widrigild/wergeld or worth of the victim as outlined in the Lombard laws. Having collated the main clauses and sub-divided them into speculative categories, my conclusion for now is that the Lombard law-givers’ approach to compensation here is multi-facetted at the least. At this moment, I severely doubt that a unifying interpretation of proportional restitution can be hypothesised, even within the scope of a single law-code, but I’m going to keep picking at it and will let the ideas ferment.

Water Wells

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.

900 Solidi Clauses (in the Edictus Rothari)

A composition of 900 solidi marks one of the highest levels of fine given in the Lombard laws. It is exceeded only by the 1200 solidi fine for killing a free woman or girl (Rothari Nos 200 – 201), and perhaps by crimes which outline the death penalty as punishment. However, Rothari No. 5, which addresses a person who provisions or hides a spy within the land, gives a punishment of either death or a 900 solidi fine, suggesting that the two may have been understand as being broadly comparable. Likewise, Rothari No. 249 proscribes death unless a 900 solidi fine is paid, this time for taking mares or pigs as a pledge without the king’s consent. Certainly 900 solidi is a prohibitively high amount of money, and it must be assumed that only a thin sliver in the upper echelons of Lombard society would have had the wealth to pay off such a fine. As such, it is interesting to collate together all the crimes in Rothari’s Edictus of 643 CE that are reckoned at such a value, to see in what other ways they may be connected.

The first clause in the Edictus valued at 900 solidi, is the provisioning or hiding of a spy (scamaras in langobardic), mentioned previously with the death penalty stated as an alternative (Rothari, No. 5). From the outset, then, the high value of fine is associated with treachery and crimes against the Lombard state and government. The next instance does not appear so treacherous, as the fine is allotted for causing a disturbance in a council meeting or other assembly (Rothari No. 8). These councils and assemblies do not appear to be exclusively royal ones, although arguably it still encompasses protection, albeit of a different sort, of the Lombard administrative structure.

A little further into the Edictus, three consecutive clauses again have a 900 solidi composition ascribed to them, and each seems to have an element of treachery and nefariousness attached to it However, Only the first, defending a person who has killed his lord (Rothari No. 13), seems to be embedded in protecting the Lombard social hierarchy and order directly. In this clause the killer himself is to be killed, with no opportunity for relief through paying a fine, suggesting that the severity of aiding a spy mentioned previously instead overlaps two distinct levels, rather than implying a comparison. The other two crimes, are murder (or morth), which is to say secretly killing somebody and making some attempt by the killer to hide their identity or evidence of their crime (Rothari No. 14), and crapworfin or ‘grave breaking’ (Rothari No. 15). In the case of breaking into a grave, the law specifically mentions despoiling the body and throwing it out, suggesting that crapworfin was a specific plundering of the dead, more than just opening up a grave. As the composition for grave-robbing would be paid to the near relatives of the dead, this may suggest therefore that the family could open their own graves after the burial and retrieve any treasures buried along with the corpse if they so wished. While this may seem a strange behaviour to speculate on, it is a possible practice I have heard being considered, in which it is suggested that many of the robbed graves discovered by archaeologists may have been emptied by family relatively soon after the funeral ceremony was concluded. The conspicuous consumption and lavish wealth of the funerary rites, then, would be returned to the family and continue to circulate. I find such a notion intriguing, and have a long-standing note in my ‘to do’ list to follow up any scholarship on this practice, and flesh out what is otherwise (for me) an anecdote gleaned from a chance comment at a conference. While any information from readers on this subject would be appreciated, however, I digress from the point of this post.

The next clause with a 900 solidi composition comes soon after, with Rothari No. 18 prohibiting attacks on people on their way to or from visiting the king. Royal power and Lombard administration, therefore, is protected, as the cost of personal vengeance against somebody engaged in royal business is set to a prohibitive price.

The next clause outlines a 900 solidi fine for either falling on another person with arms to avenge some grievance, or else leading a band of up to four armed men into a village for similar reasons (Rothari No. 19). To me the first part of this is somewhat confusing, as it seems to contradict the more general fines outlined for killing a person by physical violence, in which composition equals to their praetium (that is, ‘worth’) or widrigild (cognate to the English ‘wergild’), according to their social class.

Rothari No. 26 gives a 900 solidi fine for the crime of wegworin, or blocking the road, against a free woman or girl. Here the payment goes half to the royal fisc and half to the man who holds her legal guardianship (her mundwald). The extent of fine here should be contrasted with the same crime against a free man, who is awarded 20 solidi, plus the composition for any injuries he may have suffered (per the following clause, Rothari No 27).

Two further clauses relating to women with fines of 900 solidi appear around the middle of the Edictus, with Rothari No. 186 being the fine for abducting a woman and taking her unwillingly to wife, and No. 191 for abducting a woman already betrothed to another. In both cases the composition is again divided equally between the king and the woman or girl in question’s mundwald. In the case of No. 186, the clause provides that if she has no relatives, then the king receives all the composition. It then goes on to state that the woman can then choose who should her mundium, naming father first, then brothers or an uncle, before concluding with the king. As with the exception of the king, the men named are all relatives, it seems unlikely that this final part of the clause is following on directly from the preceding point regarding the king receiving the entire composition when the abducted woman has no relatives. Instead, then, it may imply that, as her original mundwald had not been able to prevent her from being abducted in the first place, she may wish to transfer her guardianship to somebody with whom she feels more secure. This, however,is speculation beyond the scope of the clause’s stated content. The other clause, Rothari No. 191, seems far less in the abducted woman’s favour, stating that once the composition is paid, it may be arranged for the abductor of the already betrothed woman to become her mundwald.

The next clause to include a 900 solidi fine, Rothari No. 249, specifically outlines death if the fine is not paid. As with the provisioning of spies in Rothari No. 5, mentioned previously, the severity of this crime may then have been considered relatively more serious than the other 900 solidi clauses discussed here. In this clause, it is the taking of mares or pigs as pledges, without the king’s permission, that is the offence. I will throw my hands up here and admit that the underlying details for this currently escape me, as my research to date has focused on neither the functioning of pledges in Lombard society, nor the economic, social and agricultural structures revolving around various livestock. This is something I hope to return to with time, however.

Rothari No. 279 loosely echoes the previously discussed clause Rothari No. 19, in that 900 solidi is given as the composition due from a freeman who leads a band of enslaved people into a village for the purpose of committing a crime. The composition is split equally between the king and the injured party, and again a death penalty is outlined if the composition cannot be paid.

The last two clauses of relevance in the Edictus Rothari both address exceptions to the clauses outlining 900 solidi fines. Rothari No. 371, first confirms that if the crime is committed by an enslaved person, then the fine must still be paid (presumably by the one who owns them). It then emends the law to state that, however, should the enslaved person be owned by the king, then they are to be killed and no composition is to be paid. The second clause, Rothari No. 378, states that if a woman actively participates in a brawl, then she should be compensated for any wounds as if they were committed against one of her brothers, but because she joined the fight, she looses the 900 solidi composition outlined for certain crimes committed against her. From the crimes outlined above specifically addressing women, that would seem to imply that if a (free) woman’s passage along a road is blocked, or if she is abducted. As a consequence, Rothari No. 378, then, seems to argue that she only receives the full 900 solidi composition if she takes a passive role when these acts of violence are committed against her. Should she actively resist her attackers with force, then she looses the legal protection granted to her in Lombard law by her sex. Frequently throughout the laws, female resistance, activity and agency is implied, often even discussed directly. The laws, however, imagine a society in which femininity is passive and non-physical, and seek repeatedly to enforce that. The 900 solidi fine is just one means amongst many through which that was attempted.

This initial outlining of the 900 solidi fines is, I think, informative as to the main concerns of Rothari and his advisors, their legislative mentalities and the social structure which they were trying to enforce or create. In many of these cases the 900 solidi fine is split between the injured party (or the person who owns them or holds their legal protection) and the king. Royalty and the Lombard state, therefore, benefited directly from these crimes being pursued and punished, which contrasts distinctly with the vast majority of other crimes in which only the injured person (or their relatives, owner or guardian) profited. As such, at least some of the 900 solidi crimes show the interests of the Lombard state in maintaining and enforcing certain behaviours through multiple means, not only in the prohibitive value of the fine that is outlined. The main areas that can be seen to have been addressed in these laws comprise the protection of women, the restriction of nefarious crimes and the upholding of state and administrative structures. The clauses, then are both overt and subtle in their imagination, creation and enforcement of socio-legal norms. Further analysis and close-study of these will be both informative as to the concerns and structures of Lombard society and will provide a useful benchmark for comparative study when considering the relative severity attached to other crimes and clauses.

Toeing the Line Fine

At the start of last month somebody found my earlier post, in which I tabulated the fines for various injuries in the Lombard laws, by asking “why is the big toe worth two solidi, while the smallest toe is only worth half a solidus?” Two months prior to that, I got discovered with the terms “cut off fourth toe”. A theme seems to be appearing in the way that this blog gets discovered, and it presents a subject for this month’s discussion.

So, toes. To the latter enquirer I can only recommend seeking medical assistance, so it is to the former query I turn my attention to and the details given in the Lombard injury tariffs in the Edictus Rothari (643 CE).

The values identified by my visitor, two solidi for the big toe, half a solidus for the smallest actually mark the (probably maximum) values awarded for an enslaved person. The fine awarded would be paid to their owner, rather than to the person whose toe it was that got chopped. Moreover, the values searched for are only for the two ends, as it were. The second and third toe, for an enslaved person, are one solidus a piece, while the fourth toe is valued the same as the little toe, at half a solidus (Rothari, Nos 120-24).

For the aldius or aldia, the somewhat mysterious rank of the ‘half-free’, the values are double that of the enslaved person. Four solidi for the big two, two solidi for the second and third toes and one solidus each for the fourth and little toe (Rothari, Nos 96-100). The big toe of the aldius, as well as being valued more highly in terms of the actual composition, has two other parts included. Firstly, whoever cuts the aldius’ big toe off has to pay for the doctor’s fee and secondly has to cover the costs for the work lost while they were recuperating (Rothari, No. 96). As such, it can be seen that the payment for the de-toed aldius or aldia is again going to the one who owns them. ‘Half free’ seems still very close to enslaved.

The freeman (or woman) whose toes are severed has a similar progression of descending value from largest to smallest toe. The big toe is worth sixteen solidi, the second toe six solidi, the third and fourth toes three solidi each, and the little toe three solidi (Rothari, Nos 69-73). The step between half-free and free, therefore, is far greater than that between enslaved and half free people.

The value allotted to toes in the Lombard laws, aside from the differentiation by social class, is structured simply to descend by size, from largest to smallest. The real question, of course, is how do these values compare to the functionality of the respective toes? Conveniently, this is a subject that has already been addressed by the late and dearly-missed Lise Oliver in her The Body Legal in Barbarian Law. In Chapter Five she discusses to hands and feet across the early medieval, ‘barbarian’ laws has, and dedicates a section to toes in particular (Oliver, 2011: 159-62).

Lise notes that the most important toe is the big one, which carries half the weight carried by the front part of the foot; a lost big toe, then, would cause the person to limp for the rest of their life (Oliver, 2011: 159-60). This significance is clearly acknowledged in the Lombard laws, with the highest values of sixteen, four and two solidi are given according to social class.

From here, however, functionality and the Lombard injury tariffs diverge. Lise states that second most important are the two smallest toes at the outer side of the foot. She then adds, perhaps a little confusingly, that the three toes in the middle are the least important, and losing any one of them would have little effect on balance, walking, working, and so forth (Oliver, 2011: 160-61). Now, Lise seems here to have accounted for six toes on each foot there. In practice, the fourth toe is reckoned twice; for ranking the importance of the toes, it should perhaps be put halfway between the third and little toes.

The order of priority given to toes can be ranked according to the physiological importance and the relative value of fines.

Toe Physiological
Lombard Freeman
or Freewoman
or Aldia
Big Toe 1 1 1 1
Second Toe 4 2 2 2
Third Toe 4 3 2 2
Fourth Toe 3 3 3 3
Fifth Toe 2 4 3 3

Lise’s reckoning of the relative priorities of the toes in the Lombard laws, gives only the rankings for the freeman or free woman (although she does not make this explicit), but the descending order from inner to outer given for the aldius and enslaved people corresponds enough with the pattern she identified (Oliver, 2011: 159, figure 5.5). She contrasts this approach to the value of toes with those given in others of the Barbarian laws, and argues that only the laws of the Alamans and Saxons come closer to functionality. Even then a descending order can be noted. The Alamans give the big toe priority and rank the other four equally, while the Saxons also give the big toe priority, then treat the three interior toes equally, but treat the little toe as being the least significant (Oliver, 2011: 159, figure 5.5).

When the Lombard values for the toes of an aldius or enslaved person are considered, the gap in attitudes between Lombard and Saxon becomes even smaller. However, even without this there is some wiggle room for interpretation of the relationship of the different law-codes to physiological functionality. What seems most clear, though, is that with the possible exception of the big toe, the Lombard’s were not ranking the worth of toes by their functionality, but instead it would seem on size.


Lise Oliver, The Body Legal in Barbarian Law (Toronto, 2011)