Tag Archives: ancilla

Toeing the Line Fine

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

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

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

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

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

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

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

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

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

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

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

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


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


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.

Theft, Aldia and Ancilla: Slaves and the ‘Half-Free’ in Lombard Law, Part II

This is the second of two posts, discussing slaves and the ‘half free’, in Rothari’s Edictus, focusing in this part on female slaves and half-free in particular. The first post can be found here. The main points made previously were that the praetium, or ‘worth’ owed to their owner should they be killed, were highly differentiated for different types of slave depending on their duties. The lowest being a field slave subordinate to another slave valued at 16 solidi, the highest 50 solidi for either a trained household slave or a master swineherd with three or more underlings. The aldius, or ‘half-free’ was valued somewhat higher, at 60 solidi. Conversely, in the case of injuries, these are merged into two broad groups: aldii and household slaves in the first group, and agricultural slaves in the second.

While these tariffs for death and injury appear to refer only to men, sometimes explicitly, a clause close to the end of the Edictus elaborates on specific instance in which women are killed. Rothari No. 376 addresses the killing of another man’s aldia or woman slave, on the grounds that she was a vampire ‘striga’ or witch ‘masca’. True to early medieval style, it is the perpetrator of this attack who is punished, on the grounds that it is illegal, impious and that ‘it is in no wise to be believed by Christian minds that it is possible that a woman can eat a living man from within’ [trans. Katherine Fischer Drew, The Lombard Laws, pp. 126-27]. For killing an aldia the perpetrator paid a fine of 100 solidi ‘for the guilt’ as well as 60 solidi for her life. The same praetium as for her male counterpart. In the case of a female slave the killer pays 60 solidi for the crime and composition according to her status as a household slave or field slave, and here a cross-reference is made to the values outlined previously in the Edictus. While the values laid out are often explicitly male in their terminology, women appear to be implicitly included within them. Women are only discussed directly in the cases where the nature of the crime is such that the victim or perpetrator is explicitly female. The most notable instances are rape (The potential for men to also be victims of rape not being recognised in the Lombard laws) and injuries leading to the death of an unborn child (Rothari No. 75, set at half the praetium of the mother according to whether she is free, unfree or half-free).

The focus of discussion here, though, is on crimes committed by female slaves and aldia to see how the distinction between these ranks is addressed. The main instance in the Edictus is theft, which at the very least reflects the stereotypical behaviour which the Lombard law-makers expected from unfree and half-free women. Theft is addressed directly in four of the clauses: Rothari No. 253 addressing theft by a freeman, No. 254 by a slave, No. 257 by a folkfree woman, and No. 258 by a female slave or aldia. In all cases the basic reparation is for the thief (or the one who owns them) to return the value of the goods nine-fold, with further details according to status and gender. Theft by freemen, for example, are only considered if the value taken is over 10 seliquae (twenty-four seliquae being equal in value to one solidus). In addition to the nine-fold return of the goods, the freeman must also pay 80 solidi in composition for the guilt, but if he is unable to do so then he is to be killed. A similar situation is true for the slave, except that the composition due is 40 solidi.

In the case of the ‘folkfree’ woman who commits theft (Rothari No. 257), that is a woman who has been freed rather than one who was born free, no additional composition is due, but, as discussed in this post, the law states that ‘shame [should] be reflected on her who did this disgraceful deed’ [Trans. Fischer-Drew, The Lombard Laws, p. 257]. As it is the ‘folk-free’ woman who is specifically addressed her, it may perhaps be assumed that the ordinary freewoman is subject to the same punishment as for the freeman. The imputation of shame for having committed theft, then, may be a statement reflecting on one who has previously managed to increase their station on the social ladder, but has kept the stereotypical behaviour from their previous position. I would still argue, however, that as this law only address folk-free women, not freedmen, the moralising on behaviour by the Lombard lawmakers is still fundamentally about gender, rather than exclusively social mobility. Or rather, that it relates specifically to female social mobility.

Thefts committed by either an aldia or ancilla are addressed together in Rothari No. 258. No distinction whatsoever is made for the various distinctions in rank and position as identified for injuries and praetium discussed earlier. Instead, all are subject to the same punishment: return of the goods nine-fold by her lord and a payment of 40 solidi for the guilt. No mention is made here of imputing shame, which strengthens the argument made before that the moralising in the previous clause was explicitly about female social mobility. The question that rises, however, is what purpose exactly does this clause serve? If woman are being implicitly addressed in the explicitly male clauses, then how does this clause differ? Both proscribe a nine-fold return of the goods stolen, and both proscribe a 40 solidi composition for the guilt itself.

Conversely, these two clauses differ in a number of small but significant ways: firstly, the aldius is not mentioned at any point in relation to theft, only the aldia. Secondly, theft by male slaves is only addressed if the value of the property taken is up to ten seliquae (therefore opposite to the freeman, where theft is only considered for property above that value), while for the ancilla and aldia no maximum or minimum limit to the value is discussed. Thirdly, where restitution cannot be made by men (free or unfree), they are put to death, no capital punishment is outlined for women. Finally, it is explicitly stated that the lord of the ancilla or aldia makes the payment, while it is not made clear in the case of the male slave. If anything, then, the law seems to take responsibility and consequence away from the female perpetrator, making it explicit that it is the lord who pays and removing the threat of death from them. For the male slaves, however, the situation is reversed, and the laws appear to lessen the responsibility of their lord, apparently burdening the slave with a composition they most probably will not be able to afford to pay, and facing therefore death.

The laws, therefore, hint at the role of women in the lower social strata of Lombard society, and many inferences both wild and cautious could be drawn from the evidence. The implications of these laws for the distinction in social hierarchy between aldia and ancilla are less clear; the clause makes no distinction between the two. Taken alongside the injury tariffs and the praetium for the different social ranks, it becomes increasingly clear that no distinct line can be drawn in Lombard society between the aldius or aldia and the slave or ancilla. On the one hand, fine distinctions are sometimes made within these groupings, to the extent that the aldius or ancilla appear as simply one more gradation of value, positioned just one small step higher than the most valued of slaves. On the other hand, aldius and slave, aldia and ancilla can be grouped together without need for distinction: honour does not appear to be at stake and half free seems still to be, to a great extent, property.