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)

Legal Pluralism and the Transformation of the Carolingian World

I had the pleasure of attending a work-shop/conference at the end of January on The Transformation of the Carolingian World. The workshop marked the impending end of the SCIRE research project of the Institute for Medieval Research, Vienna, but was used to outline and explore themes for the next major project that the Institute will hopefully hold. While some research in advanced stages was presented, many of the presentations focused on areas to explore within the scope of the new project, and the methodological and theoretical considerations that might underpin it. Although I am based in the Institute, it is not a project that I am formally associated with (yet). Throughout the conference, however, I felt multiple moments of belonging as the presentations and discussion repeatedly resonated with my own work and interests. Early medieval law played a recurrent role in the workshop: notably a paper from Karl Ubl outlining the manuscript contexts of the Lex Salica in the tenth and eleventh centuries, then a key note lecture on legal pluralism by Stefan Esders followed by a three-paper session on legal pluralism with contributions from François Bougard, Charles West and Helmut Reimitz. I will return to legal pluralism and my own research directions shortly. First, however, I want to note some discussion that arose surrounding the title of this new, proposed project.

The title of this new project is still provisional, and was repeatedly raised and discussed by participants and audience members alike. One problem raised with the ‘transformation’ aspect of the title, especially in relation to the ‘Carolingian world’, was the way in which it appeared to exclude research in areas that were never controlled by the Frankish hegemony. While it was emphasised that this was not the intention of the project, and it was hoped that the project would be wide-reaching, worries that researchers on, for example Visigothic Spain, Anglo-Saxon England or ninth and tenth-century Scandinavia might pre-emptively exclude themselves from participating before even realising their input was vital. One proposed response to this conundrum was to make the title The Impact of the Carolingian World instead.

Unfortunately, I had, and still have, my own problems with the use of the word ‘impact’ here. The impact of the Carolingians on the tenth and eleventh centuries, suggests to me that the agency of the developed being explored lay primarily with what the Carolingians themselves had done. The Carolingian world seems portrayed as a meteor, striking into the tenth and eleventh centuries, and scattering the people there. As a title, it removes the agency of the people in the tenth and eleventh centuries, suggesting that they were nothing more than the passive recipients of unchangeable events which had been predetermined in the eighth and ninth centuries. This implication of ‘impact’ stands at odds with what the organisers of the project repeatedly outlined as the intended focus of study, and was likewise contradicted by every presentation and research proposal. Always the focus returned to the ways in which people in the tenth and eleventh century looked back on the Carolingian inheritance, and then adapted, updated and appropriated it to suit their own immediate ends and historical contexts. As such, I hope that the term ‘impact’ will not be adopted by the project, although quite what term might be used instead I cannot say!

Stefan Esder’s keynote lecture focused primarily on Burchard of Worms  and his compilation of a major Canon Law collection around the turn of the tenth century, and Worms as a well-documented case-study for a detailed analysis of legal pluralism. The legal pluralism explored by Esders was very much the interplay of secular and ecclesiastical laws in the same area, and this theme seemed to me to be echoed to varying degrees in the other presentations that followed in the panel. My own research where it has begun to edge towards legal pluralism, has focused on the multiple use of barbarian laws across the Carolingian Empire and in the centuries following, as exemplified in the production of books containing copies of two or more barbarian law-codes. With a weather eye on future projects, I began assembling a few months back a research proposal relating to manuscripts containing a copy of the Lombard laws augmented with one or more other barbarian law-codes. The first manuscript that I considered for this list was, naturally, Paris, Bibliothèque, MS Lat. 9656 – one of the copies of the Liber Papiensis or Liber legis langobardorum which my current project focuses on, dating to the third-quarter of the eleventh century and containing in its final folios part of the prologue to the Lex Baivariorum (fol. 109r) and the Lex Salica Karolina (fols 109r-115v). Exploring further, I identified another five earlier manuscripts dating from the third-quarter of the ninth century through to the second quarter of the twelfth century, and, with the possible exception of one, having all been produced in northern Italy.

I feel that this corpus is suggestive of an important thread in the later development of the Lombard laws and hope to return to it in the future. For now, I include below the spiel on legal pluralism that I drafted for the project, to study and contextualise the following six manuscripts:

  • Wolfenbuettel, Herzog Augustus Bibliothek, MS Cod. Guelf. 130, produced in northern Italy in the third-quarter of the ninth century. Lombard, Ripuarian, Salic, Alamanic and Bavarian laws.
  • Paris, Bibliothèque Nationale de France, MS Lat. 4614, produced in Northern Italy in the tenth century. Lombard, Alamanic and Bavarian law-codes.
  • Modena, Biblioteca Capitolare, MS O. I. 2, produced at the end of the tenth century in northern Italy. Liber legum (Servatus Lupus’ ninth-century systemisation of the Lombard, Bavarian, Salic, Ripuarian and Alamanic laws).
  • Gotha, Forschungs- und Landesbibliothek, MS Memb. I. 84, produced in the tenth or early eleventh century, in either northern Italy or Mainz. Liber legum.
  • Paris, Bibliothè Nationale de France, MS Lat. 9656, produced in northern Italy (possibly Pavia or Verona) in the third-quarter of the eleventh century. The Liber Papiensis, prologue to the Bavarian laws, and the Salic laws.
  • Munich, Bayerische Staatsbibliothek, MS Lat. 3519, produced in northern Italy in the second quarter of the twelfth century. The earliest phase of Lombard law (the Edictus Rothari), and the Bavarian laws.

Legal Pluralism in Lombard Law-Books

Legal pluralism, the concurrent use of multiple laws or legal systems within a geographically defined territory (Davies, 2010: 805-27), was central to the legal culture of the Carolingian empire. At an assembly held early in the ninth century Charlemagne made explicit the ‘personality of law’ as the legal norm for the peoples within the Carolingian empire, whereby a person was expected both to know and to be accountable to the specific laws of the ethnic gentes with which they identified (for a nuanced discussion of this event in relation to the legal culture and texts, see Faulkner, 2013: 444-45). Those gentes in whose name a law-code had not already been written were instructed to draft and emend one as inappropriate. Although Northern Italy had come under Carolingian control following its conquest in 775 CE, the Lombards had already produced an extensive collection of laws, beginning with the Edictus Rothari, in 643 CE, and continued to be expanded and augmented through until King Aistulf’s last piece of legislation in 755 CE. Lombard law continued to be used in Carolingian Italy, and, although separate to this study, dukes in the unconquered south of Italy continued to promulgate law as Lombard rulers.

For those peoples who did not already have a law-code of their own, the Lex Salica (507-11 CE) served as a model for the later codifications of the law under Carolingian influence, as it had previously for the laws of the Alamans (early seventh century) and the Bavarians (ca 745 CE). Rather than Salic legal content being (directly) imposed on the new law-codes, local custom was retained and a variety of differing penalties can be seen across the law-codes for similar crimes, such as the injury tariffs which are characteristic of Germanic law (see Wormald, 2003; Oliver, 2011). While far from universally accepted, Patrick Wormald has argued for a relatively weak legal literacy in early medieval Europe. He proposed that rather than being used as legislation, the laws were primarily vehicles for royal ideology and that the differences in tariffs outlined in the laws functioned as markers, used for constructing ethnic identities between groups within the empire and identifying to which a person belonged (1977; 2003). In contrast to this view, Rosamond McKitterick, in particular, has argued for a much stronger legal literacy, combined with a role for written codifications of law that extended far beyond their symbolic value as emblems of royal ideology (1980; 1989; 1994a). Likewise, the underlying features common to the barbarian laws indicate the existence of what Marurizio Lupoi has argued was effectively an early medieval common law, shared across Western Europe (2000; 2007).

While the direct connection between legal cases and written law-books is not clear from the manuscript evidence in Carolingian legal culture, with no direct quote of law surviving in a recorded case, books of law nevertheless must have played a significant role as well over 150 manuscripts containing secular legal texts survive (Faulkner, 2013; McKitterick, 1994b). The ninth-century in particular saw the production of law books of multiple law-codes of the leges barbarorum from across the Frankish realms, with thirteen extant manuscripts which were produced in the leges scriptorium, first associated with Emperor Louis the Pious, and emphasising the overall scale of law-book production there (McKitterick, 1994a; McKitterick, 1994b). These manuscripts variously containing copies of the laws of the Franks, Burgundians, Alemans and Bavarians as well as capitulary collections, Roman law, and other related texts. Most interestingly, however, none of these ninth-century manuscripts include a copy of the Lombard laws, despite the legal pluralism of the Carolingian hegemony and northern Italy having been incorporated into the Empire for well over a quarter of a century when the earliest of these leges scriptorium manuscripts was produced.

However, at broadly the same time that scribes in the leges scriptorium were producing law-books, Servatus Lupus (ca. 805-62 CE), Abbot of Ferrière, was also working within a framework of legal pluralism. He arranged Frankish capitularies chronologically by the rulers who promulgated them; a systemisation which Patrick Wormald notes differed from the practice usually seen in manuscripts of the ninth century (1999: 33). Lupus also undertook the systemisation of various other Germanic law-codes that were in use within the Carolingian empire, including those of the Lombards, along with the codes of the Salic and Ripuarian Franks, Bavarians and Alamans, in a text known as the Liber legum. Lupus’ innovation in ordering the capitularies by promulgator remains as a feature in the later copies of the Lombard legislation. However, beyond two manuscript witnesses of the Liber legum produced in the tenth and eleventh centuries on which this study in part focuses, his systemisation does not appear to have served as a direct exemplar for the later surviving manuscripts of the Lombard laws or its later redactions. Nevertheless, Lupus’ systemisation of the leges barbarorum can be seen as the first steps in over three centuries of legal studies focusing on the Lombard laws.

The absence of the Lombard laws in the ninth-century law-books of the leges scriptorium taken alongisde Lupus’ systemisation suggest (at least) two parallel paths in the development of the legal culture of the personality of law in the Carolingian period. While the leges scriptorium appears not have valued the Lombard laws, Lupus dedicated relatively more attention to thm and the Salic laws than to any of the other of the leges barbarorum, with Wormald describing these as the only laws which were ‘thoroughly overhauled’ by him (1999: 34-35). These two threads appear to have merged by the end of the ninth century, at least in northern Italy where the Lombard laws were still in use, and continuing well into the twelfth-century. The production of manuscripts of the Lombard legilsation within a frame work of secular legal pluralism, then had a long tradition in the later transmission of the laws, continuing through the incorporation of Carolingian Italy into the Holy Roman Empire under Otto I in 962 CE, and the razing of the palace in Pavia in 1024 CE during a revolt by the local inhabitants, from which point onwards Chris Wickham argues, Italy hardly existed as a state (1981: 168). Despite, or perhaps because, of this law-books continued to be produced and the laws were studied and used. New redactions of the Lombard laws were produced and developed, in a thriving culture of legal scholarship (Gobbitt, 2014; Radding, 1997; Radding and Ciaralli, 2007: 67-92).

The role of Lombard law-books augmented with other barbarian law-codes throughout this period and before, legal pluralism and the appropriation of the Carolingian world, then clearly mark significant threads the development of Lombard law and of Lombardist legal studies in particular. A manuscript-led study of the complicated material and historical contexts of these six surviving law-books produced across a period of some two and a half centuries will undoubtedly be informative and rewarding.


References

Davies, Margaret, ‘Legal Pluralism’, in The Oxford Handbook of Empirical Legal Research, ed. by Peter Cane and Herbert M. Kritzer (Oxford, 2010)

Faulkner, Thomas, ‘Carolingian Kings and the Leges Barbarorum’, in Early Medieval Law in Context, ed. by Jenny Benham, Historical Research 86 (2013), 443-64

Gobbitt, Thom, ‘Materiality, stratigraphy and artefact biography: codicological features of a late-eleventh-century manuscript of the Lombard laws’, Studia Neophilologica 86 (2014), 48-67

Lupoi, Maurizio, The Origins of the European Legal Order (Cambridge, 2000)

Lupoi, Maurizio, ‘A European Common Law before Bologna’, in Law Before Gratian: Law in Western Europe c. 500-1100, ed. by Per Andersen, Mia Münster-Swendsen and Helle Vogt (Copenhagen, 2007), pp. 1-20

McKitterick, Rosamond, ‘Some Carolingian Law Books and their Function’, in Authority and Power. Studies on Mediaeval Law and Government presented to Walter Ullmann on his 70th birthday, ed. by Peter Linehan and Brian Tierney (Cambridge, 1980), pp. 13-27

McKitterick, Rosamond, Carolingians and the Written Word (Cambridge, 1989)

McKitterick, Rosamond, ‘Script and Book Production’, in Carolingian Culture: Emulation and Innovation, ed. by McKitterick (Cambridge: University Press, 1994a), pp. 221-47

McKitterick, Rosamond, ‘Some Carolingian Lawbooks and their Function’, in Books, Scribes and Learning in the Frankish Kingdoms, 6th – 9th Centuries, ed. by McKitterick (Aldershot, 1994b), pp. 13-27

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

Radding, Charles, M., ‘Petre te appellat Martinus. Eleventh-century judicial procedure as seen through the glosses of Walcausus’, in La Giustizia nell’Alto medioevo II (secoli IX-XI), XLIVa Settimana di Studio sull’Alto Medioevo, Spoleto, 11-17 aprile 1996 (Spoleto, 1997), 827-61

Radding, Charles, M. and Antonio Ciaralli, The Corpus Iuris Civilis in the Middle Ages: Manuscripts and Transmission from the Sixth Century to the Juristic Revival (Leiden, 2007), pp. 67-92

Wickham, Chris, Early Medieval Italy: Central Power and Local Society 400-1000 (Michigan, 1981)

Wormald, Patrick, ‘Lex scripta and verbum regis: legislation and Germanic kingship from Euric to Cnut’, in Early Medieval Kingship, ed. by Peter H. Sawyer and Ian N. Wood (Leeds, 1977), pp. 105-38

Wormald, Patrick, The Making of English Law From King Alfred to the Twelfth Century, vol. 1: Legislation and its Limits (Oxford, 1999)

Wormald, Patrick, ‘The leges barbarorum: law and ethnicity in the medieval west’, in Regna and Gentes: The Relationship Between Late Antiquity and Early Medieval Peoples and Kingdoms in the Transformation of the Roman World, ed. by Hans-Werner Goetz, Jörg Jamut and Walter Pohl (Leiden: Brill, 2003), pp. 21-55

Law | Book | Culture cfp

A quick update on the call for papers for the Law | Book | Culture in the Early and High Middle Ages edited collection, announced previously.

The 31 December 2016 deadline has been and gone, and I’ve had a small but brilliant selection of abstracts come through. However, I could really do with a handful more.

I’m extending the deadline to the 22 January 2016 in the hope that people who didn’t see it the first time around or who intended to write something but got drowned in the winter break, might put something together? Please do share the details with colleagues who you think might be interested!

The cfp with the revised date can be found here.

Vampires, Witches and Witchcraft in the Lombard laws

Witches and witchcraft are addressed in four separate clauses in Rothari’s Edictus of 643 CE. Three of the clauses address accusations of woman as being vampires (striga) or witches (masca), with Nos 198 and 199 addressing accusations made against free woman by, first, their guardians and, second, by someone not holding their guardianship; No. 376 addressing the killing of ancilla (female slaves) and aldia (half-free women). The other clause, No. 368, addresses duellers carrying what Fisher-Drew translates as ‘witches herbs’ into combat. The Latin of this latter clause, however, gives it as ‘herbas quod at maleficias pertenit’ [herbs which pertain to bewitching], and may not necessarily represent the same type of witchcraft as the ‘eating of a living man from within’ addressed in the other clauses. It is on the treatment of these apparent masca that I wish to focus here.

The traveller on the Clapham Omnibus might well imagine that the punishment for witchcraft proscribed in the ‘barbarian’ early medieval laws of the Lombards might include burning, torture and execution. Such expectations would certainly fit with the biblical proclamation that one must not ‘suffer a witch to live’ (Exodus 22:18), especially considering the widespread tendency of early medieval royal ideology to present itself within a framework of biblical kingship. The laws, however, stand apparently at odds with this. Rothari No. 376 begins stridently and with clear direction:

No one may presume to kill another man’s aldia or woman slave as if she were a vampire (striga), which the people call witch (masca), because it is in no wise to be believed by Christian minds that it is possible that a woman can eat a living man from the within.

The Lombard Laws, trans. Katherine Fisher-Drew, p. 126

Despite the biblical model for witchcraft that the Lombard legislation could have been drawn on, then, Rothari and his advisors took a distinctly different direction. The belief in witchcraft is denounced as being against the rationality of Christian belief, and the guilty party is actually the accuser who has killed the aldia or ancilla, for an imagined crime. The clause then continues to stress that the action is both ‘illegal and impious’ and reinforces this with relatively weighty penalties on top of the composition for the killing itself. In addition to the sixty solidi for killing an aldia (as per Rothari No. 129) the clause outlines a further fine of 100 solidi. In the case of an ancilla, the composition for the killing varies depending on whether she was a household or field slave (again, as per Rothari Nos 130-136, and ranging therefore between sixteen and fifty solidi). The additional fine is set at sixty solidi regardless, however, and is split in two equal parts, with half going to the owner of the aldia or ancilla and the other half going to the king. As such, royal interest in preventing the killing of women as masca or striga can be clearly seen, and even if a man killed his own ancilla or aldia on grounds of witchcraft he would still be liable to pay either thirty or fifty solidi, respectively, for his impious and un-Christian act.

That Rothari and his advisors, had set themselves against such un-Christian behaviour, of course, does not mean that the average Lombard agreed with the sentiment. That the clauses existed at all indicates that women were being accused of – and killed for – ‘eating a living man from within’ and sometimes it seems that this occurred at the instruction of a judge who had presumably overseen the accusation of witchcraft. To counter this Rothari No. 376 concludes by stating that:

If indeed a judge has ordered him to perpetrate this evil act, then the judge shall pay composition according to the above written penalty from his own property.

The Lombard Laws, trans. Katherine Fisher-Drew, p. 127

Judges, then, it seems were considered as likely as ordinary Lombards to participate in the killing of women for witchcraft, and the opposition to such behaviour began at, and was perhaps limited to, the uppermost echelons of royalty and royal advisors.

The two clauses addressing accusations of being a masca or striga made against free women or girls, Nos 197 and 198, differ from the previous clause in their severity. Both clauses assume only the accusation was made, not the woman in question was killed, and appear in a swathe of other clauses that address the legal protection of women and crimes made both against or by them. The first focuses on an accusation made by a man who holds the guardianship (mundium) of the woman in question, and nominally results in the accuser losing her mundium and it being transferred to either her relatives or the king, as she wishes. However, the law specifically excludes the father or brother from inclusion in this crime, indicating that if her mundium is already held by her immediate relatives and it is they who make the accusation, then there is no further legal protection for her. In the case of No. 197, where the accusation is made by a man who does not hold her mundium, the crime is framed as an assault on her honour and unjustified imputation of shame. Where the other clauses relate accusations of being a witch (masca) or vampire (striga) together, here the emphasis shifts to be an accusation of being a witch/vampire (strigam) or a harlot (fornecariam). As such, the crime has moved from the supernatural to the misogyny and sexual control of fragile masculinity.

This shift to the regulation of female honour and sexuality is reflected in the next part of clause No. 197, in which, if the man can prove that the accusation was made in wrath rather than in certain knowledge, then he pays a composition of twenty solidi and is not further liable. If the accuser maintains his claim, however, then its validity is to be determined by the ordeal of a judicial dual (camfio): and if proven false here once more the accuser pays composition equal to her wergeld. Conversely, if the duel proves the accusation to be correct, the she is ‘guilty and [to be] punished as provided in this code’ (The Lombard Laws, Trans. by Fisher-Drew, p. 90). Fisher drew cross-references this to the 100 solidi composition outlined in Rothari No. 189 for fornicating free women, and to the previously discussed clause on the killing of aldiae and ancillae. How the latter of these would have worked in practice remains unclear, would an accusation of witchcraft proved by the camfio simply have resulted in the same punishment as for fornication? Or, did the strident terms of Rothari No. 376, denouncing accusations of witchcraft as illegal and impious, rise to the surface and take precedence once more?

Considering that the judicial duel would surely have been overseen by a judge who was, presumably, in possession of a copy the law-code, the punishment for the guilty must surely have been determined by him. Whether or not the capital punishment of a freewoman for witchcraft at the instigation of a judge led to said judge paying the composition and fine as for the killing of an aldia or ancilla, however, remains unclear.