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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.

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