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.

Advertisements

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.

Hair and Flesh

After giving a lecture on codicology in Stuttgart last month, I got a follow up question sent via the organiser (Dr Anja Thaler) regarding differentiating between the hair-side and flesh side of parchment. Rather than just replying, I thought it would make a good subject for a blog post (especially as the month is almost at an end and I’ve not written one yet). So, without further ado hair and flesh.

Before musing on my own experiences, it may first be useful to outline what I mean by ‘flesh side’ and ‘hair side’. First, though, we need to step back and consider parchment (sometimes called membrane, sometimes vellum if derived from cows or bulls). Parchment is the de-haired skin of an animal (particularly cows, sheep or goats, but hey, go wild), which has been soaked, scraped and most importantly dried under tension. The modern definition that leather is prepared through soaking in tannic acid while parchment is not, do not hold for the medieval period, the defining point is the drying under tension. I digress. Imagine the skin while it is still on the source animal, it has two sides: the side facing out from the animal, which has hairs on it, and the side facing in towards the animal in questions flesh and muscles and bones. Flay that skin in one big piece from the (dead, please!) animal and it still has two sides, the ‘flesh’ side that originally faced inwards and the ‘hair’ side that faced out.

Soaking the skin in water, perhaps with some appropriate plant materials added to make a dilute solution of tannic acid or some quicklime, helps loosen the hairs. Scraping the hair side of the parchment helps remove the loosened hairs. More thorough scraping removes the physical structures of the follicles themselves and helps to thin the parchment. Scraping the other side of the skin is also beneficial, any fat left clinging to the flesh side can be removed. Ideally, after its been stretched and dried (and scraped some more during this process) the skin will end up smooth and thin, without too much distinction between the two sides. The practice of pouncing, that is applying finely powdered chalk to the surface, is not always employed, but when it does it makes for a smoother writing surface and causes the hue of the parchment to become paler and more homogenous. Which can add further complications to the job of identifying which side is which.

 

35

This is a manuscript I’ve not yet had the pleasure of looking at in person: Madid, Biblioteca Nacionale MS 413 (I chose it because the images are freely available and hosted by the library on a creative commons license). It’s a tenth- or early eleventh-century century copy of the Lombard laws originally produced in southern Italy, an overview of the manuscript can be found here. The image here shows an opening with the hair side of two facing folios (30v and 31r). The parchment, from the photo at least, seems relatively pale, but look in the right hand margin of the folio on the right, and a clear area of follicle patterning can be seen. Contrast that with the next opening (fols 31v and 32r), and the relative paleness of the flesh side (even in photo) becomes apparent.

36

 

When I first began doing my own manuscript research in the second year of my PhD, I remember sometimes struggling with identifying which side of a folio was the hair side, which the flesh. For every folio where it was instantly apparent, there were others which caused me to scratch my head in confusion. It got easier with time and practice, most things do of course. Knowing that, as a general rule the flesh side tends to be paler and whiter in hue helps, especially when the more starkly coloured hair side has not been pounced, is a useful hint.

During my doctoral research I gathered some useful secondary resources on the subject, and can highly recommend both Robin Reed’s Ancient Skins, Parchments and Leathers and Christopher Clarkson’s ‘Rediscovering Parchment’ (full bibliographical details at the bottom of this post). The majority of the information in this post (and in my brain on the subject) has been assimilated from these. It’s worth noting some of the distinctive points:

  • Parchment from kid skin tends to be white on the flesh side and grey on the hair side with older goats often having grey-black regions on the hair-side.
  • Parchment from lamb skin tends to be yellow on both sides, while sheep skin tends to have a paler flesh side, and
  • Parchment/vellum from calf skin tends to be creamier in colour, but again with a darker colour on the hair side for mature animals.

 

Reed notes that distinguishing between goat and sheep can be almost impossible (even with living animals, and includes a cute photo to prove it), while Clarkson suggests that goats differ and can often be distinguished from sheep or calf on account of having softer and more flexible texture.

Both also note that older animals tend to have more established networks of veins and arteries, the presence of which can sometimes be seen or felt in the texture of the parchment even if remaining iron in the blood has not reacted with tannic acid to leave a dark stain in the shape of the vein. Which apparently can happen, although I have not yet seen it in person. Similarly, older animals are more likely to have suffered injuries and scar tissue or (vastly) stretched holes from tick bites, etc., can frequently be spotted on the surface.

Sometimes the hair side of the folio would have been so well scraped that details such as follicle patterns and bits of skin colouring are not really apparent on the surface. Sometimes later damage, abrasion and the such like to the flesh side can have darkened it so much it looks like hair side. Sometimes the parchment has been laterally split to make two sheets, one of which has a hair side and an ‘inside’, as it were, the other a flesh side and an ‘inside’. I’ve not seen this in any manuscripts I’ve studied myself, as it is a later practice not yet developed or employed in the tenth to twelfth century law-books that my research focuses on. It’s a detail worth remembering though, especially as Reed comments that many extra thin parchments assumed to have been produced from uterine vellum (that is parchment produced from calf foetuses) has probably actually been produced as a split skin instead.

Needless to say, in my early days in the archives (still less than a decade ago) I frequently confused hair and flesh, or spent what felt like hours pondering a folio, flipping back and forth. Sometimes I’d just put a question and come back to it. (Hands in the air honesty, it still happens sometimes). On more than one occasion I’d spend ages pondering my way through quire, finally decide on some tricky instances and step back to look at a quire diagram – that gave the same face of two halves of a single bifolium hair on one part, flesh on the other. It happens in recording, but clearly not in the manuscript. The bifolium though sometimes provides an easy solution, if one half is tricky to the point of frustration and the other has a nice, diagnostic feature such as a patch of follicles then the information can just be transferred across the quire. Tricks of knowing where else you can (should) look become a part of the working repertoire alongside an ever attuning eye and holes in the memory that let you slowly forget the difficulties you once had.

 

Bibliography

‘Madrid, Biblioteca Nacional 413’, in Biblioteca Legum: A Database on Secular Carolingian Law Texts, ed. by Karl Ubl <http://www.leges.uni-koeln.de/en/mss/ [Accessed 28 July 2016]

Clarkson, Christopher, ‘Rediscovering Parchment: The Nature of the Beast’, in Conservation and Preservation in Small Libraries, ed. by Nicholas Hadgraft and Katherine Swift (Cambridge: Parker Library, 1994), pp. 75-96

Reed, R., Ancient Skins, Parchment and Leathers (London: Academic, 1973)

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.

End of project, but research continues

On the last day of April 2016 the funding for my current research project came to an end (an Austrian FWF Lise-Meitner international mobility postdoctoral fellowship, project No. M1698-G21 entitled Lombard Law-Books in the Long-Eleventh Century). The project has been a marvelous experience, during which time I’ve discovered lots of new things, answered or refined many of the research questions I began with, and opened up a whole bunch of further questions. One major, and a I hope useful, output of the project has been to produce detailed descriptions of each of the main manuscripts investigated in this project and to make them freely available to the public. At the moment they are in polished draft condition, and final versions should hopefully be uploaded throughout the course of the summer. If you have any comments on them, please do contact me! The portal page can be found here.

In all, I would say that this has been an ideal outcome for a research project. Needless to say, there is still more to be done before and work progresses steadily. The main things on the current agenda are to continue writing the monograph from the project and finalise and submit a couple of articles that are pulling together. I’ll also be presenting some of the research findings at the International Medieval Congress at Leeds this year (am looking forward to seeing you if you’re there too!), and all while laying the foundations for the next research project.

But rather than talking about what comes next, I thought I would take a moment to review the case studies that I proposed at the start of the project, and how they evolved throughout. Originally I envisaged four case-studies in all, some of them more loosely connected than others, but all building on each other. I began by building on the research findings of my preliminary study in which I argued on codicological grounds that one manuscript of the Liber Papiensis, Vienna, Österreichische Nationalbibliothek MS Cod. 471 had originally been produced as two separate volumes that were then bound together into a single codex. I was also able to demonstrate that it was the scribe of the second volume of the manuscript who reworked both parts into a united book. As one of the fundamental defining features of the Liber Papiensis is its unity, and the Vienna manuscript was first produced some three-quarters of a century after the Liber Papiensis was first redacted, this raised some interesting questions.

The first case study then sought to expand the focus from the Vienna manuscript to investigate the other six surviving manuscripts of the Liber Papiensis, produced between the second quarter of the eleventh century and the first quarter of the twelfth. The research demonstrated that five of the manuscripts in all were most likely or definitely produced originally as two volumes, while only one was conclusively produced as a single manuscript from the outset, Padua, Biblioteca del Seminario Vescoville, MS 528. Interestingly, and I would argue significantly, this was also the last of the manuscripts which was produced. The other manuscript, Venice, Biblioteca Marciana, MS 2751, is now only a fragment of 44 folios from what would have been the first part, which prohibits codicological investigation of how the two parts related. This is, to say the least a little frustrating, not least because as the second youngest of the manuscripts its production date of ca 1100 CE falls into the gap between when the last confirmed manuscript of the Liber Papiensis that was produced in two parts (Florence, Biblioteca Medicia Laurenziana, MS Plut. 89 sup 86, CA 1080-1100) and the Padua manuscript, of ca 1100-1125. Such is life. Regardless of the difficulties, this case-study, the findings of which throw into question all previous assumptions about the Liber Papiensis and the book culture of the Lombardist scholars in the eleventh and early twelfth centuries, took a central role in the project, and spawned a follow up research query as to how the scribes and readers envisaged and used the book. In response to this, the focus of the other case-studies shifted to various extents.

The second case study, if I am to be honest, is probably the one which suffered the most from the revision of research objectives in light of the ongoing findings of the project. Originally I proposed a comparative study of the Vienna manuscript and its sister, Paris, Bibliothèque Nationale de France, as they were not only near contemporaries from the third quarter of the eleventh century, but also shared two scribes. One of these scribes was identified in an earlier study by the palaeographer Antonio Ciaralli, to be a notary named Iohannis, who was active in the vicinity of Pavia in the 1070s, and who produced a charter witnessing the sale of a vineyard. The case study initially intended to focus then on the book culture at Pavia in the period. However, beyond the charter written by Iohannis there is too little evidence to explicitly tie the two law-books to Pavia. Rather than remaining a narrow study of the book culture of just two of the manuscripts, the scope of the study expanded to include them all, but in a more abstract, north Italian setting. Looking back over the original proposal, and thinking back over the progress of the research this outcome seems to have been inevitable, and to have been hinted at from the outset. The joy of hindsight! Much still remains to be done in this area, although I can already see the threads coalescing as I progress through the first draft of the monograph and work on a couple of articles.

Case-studies three and four were closely related from the outset. Each proposed to study the mise-en-page of a section of the Liber Papiensis, the one examining the laws of Liutprand, the other the capitularies of Charlemagne. In practice, this expanded, to become a structured analysis of the mise-en-page of the entirety of each manuscript. One part of this focused on the peritext, and the way in which additions, glosses and diagrams were connected to the main text, which in turn fed into the second case-study. The second part of this focused on the construction of hierarchy for sub-clauses, and the treatment of prologues for the laws of individual kings and emperors. This latter part of the study allowed developments in the mise-en-page across the manuscripts to provide independent confirmation of the codicological arguments for the Liber Papinesis as being, throughout most of the eleventh century, a book of two volumes.

In all, then, the project has been a success, but also one which has developed organically and reflexively throughout its duration. One such point has been my transition from using the term Liber legis langobardorum to the Liber Papiensis instead. Originally, I rejected the latter term as it was only the name by which the laws were edited under in the 19th century edition published by the Monumenta Germaniae Historica (Leges IV). Conversely, a few asides in the scholarship noted that some of the manuscripts were entitled as the Liber legis langobardorum which, as the attested medieval title, made it seem a far more appropriate name to use. However, on examination of the manuscripts, it was revealed that this latter title was only ever used for manuscript witnesses of other versions of the text, for instance in the twelfth-century version of the (so-called?) Lombarda redaction, now held at Naples, Biblioteca Nazionale Brancatina, MS I. B. 12 (note that, in the MGH discussion of manuscripts, this is given the wrong (or previous?) shelf-mark of MS II. B. 28 – Leges IV, p. lxi)

I am still pursuing and refining the implications of a lot of the project’s findings but wish to conclude with one general but important point. The use of the term ‘the long-eleventh century’. This was originally used as a short hand means of fitting the temporal focus of the project (which extended from the late tenth century to the early twelfth century) into a 60-character limit, including spaces. The term, however, received some flak from various quarters, including one of the anonymous reviewers of the project. As the project has progressed however, the inevitable conclusion has been reached that the eleventh century must be considered long. It does not matter that the following twelfth century may also be considered long, and it is certainly not an implication of that that the eleventh century must by needs be short. This period was one in which great changes happened, but changes which evolved from the previous.

Overall, the fact that extending the eleventh century to be a ‘long’ one has received such emotive (and sometimes vitriolic) responses, suggests to me that there is something worthwhile to be considered there. Something which people, perhaps, do not want to face. Significant changes did occur in that time, and they developed through continuous agency form the materials that came before, and rejecting a narrative that can incorporate that is to reject the agency of people in the eleventh century. Likewise, it seems to me little more than an attempt to cling on to the outdated and repeatedly disproven notion that the twelfth century was a time of revolution, in which ideas and approaches sprung from an intellectual vacuum. The book cultures of the eleventh century, along with countless other things, emphasise that enforcing a strict line in the periodization between the early and high middle ages is naïve, disingenuous and ahistorical.

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
Priority
Lombard Freeman
or Freewoman
Aldius
or Aldia
Enslaved
Person
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.

References

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