Tag Archives: death penalty

Pigs and Pledges

The impetus for this post arose from a fruitful discussion the other day, with Dr Jaqueline Bemmer of the Institut für Römisches Recht und Antike Rechtsgeschichte (Institute for Roman Law and Ancient Legal History) of the University of Vienna, Austria. Dr Bemmer, specialises in the early medieval Irish laws and has a particular interest in debts and pledges. She noted that in the Irish laws, the giving of pigs as a pledge for an unpaid debt was considered the worst possible option [a quick update here, I originally wrote the ‘taking’ of pledges, but have just been informed/reminded that this is wrong in the case of medieval Irish law. And that I have incautiously set foot into a hotbed of scholarly dispute. But never fear – a follow up coffee, cake and chat has been scheduled to put this (or at least my knowledge of it) to rights!]. The grounds given in the laws being the damage that pigs to the ground with all that rooting and churning. The Irish laws are beyond the scope of my current research, so I’m delighted to have been given this gem of knowledge; moreover, Dr Bemmer has kindly sent me further details on this, and informs me the law is edited in the Corpus Iuris Hibernici Nos. 471.9-13 (ed. Binchy, 1978), and originates from the Bretha imuillemu Gell (Judgements concerning pledge-interests). It is the 23rd text of the most important surviving early Irish law book, known as the Senchas Már (the texts of which are linguistically dated to c. 650 to 750, so within a century following the promulgation of the first Lombard law-code, the Edictus Rothari), which itself survives in Dublin, Trinity College, MS H 2.15A (cat. 1316), with the clause on pigs as pledges running from fols 33b to 34a.

In the same conversation, Dr Bemmer also asked how things stood in the Lombard laws. This was also beyond my immediate knowledge, as my main focus to date has been on book culture on the one hand, and what might be considered criminal law on the other (injuries, killings, arson and poisoning, in particular). Where I have turned my attention to legal procedure, my focus has been on oaths and pledges, for which I still have a half-written post waiting for me to finalise… Anyway, conveniently I had my copy of Katherine Fischer-Drew’s translation, The Lombard Laws (1973), on me, and over coffee and cake we had a quick flick through and began to see that, while pigs are also not considered suitable pledges in the Lombard laws, there were some notable differences as to why.

Clauses indirectly addressing the taking of pledges occur throughout the Edictus Rothari, but the discussion of the specific legal procedures and circumstances are included in a group of clauses, edited in the modern day as Nos 245-252, following on from some clauses that mostly focus on boundaries (as well as two on forgery and illegal minting of coins interspersed amongst them), and leading in to the collection of clauses on theft.

Rothari No. 245 underscores that a pledge cannot be taken for an unpaid debt until the return of the debt has been demanded three times. Presumably this means on three separate occasions, rather than three times in a single conversation, although here the law is not explicit. Where the clause is explicit is in making clear that the return must be demanded three times. Rather than simply stating the minimum number of times required, the clause emphasises each demand by stating, following Fischer-Drew’s translation, that he ‘shall demand his debt from him once, twice and even three times’ (1973: 101). In the original clause, this stipulation is written in Latin, which contrasts with the specific legal terms written in the proto-Germanic dialect of Langobardic, that crop up throughout the law-code. Nevertheless, the emphatic underscoring seems directed to an audience, ensuring that there are no grounds for a person to claim they had misunderstood. With all due caution, I am tempted to speculate whether this performativity might even reflect an oral mode for the transmission of this segment of the laws, more than it just being a rhetorical device employed in a literate law. I should emphasise that this is not to suggest a strictly (oral) Germanic origin for this facet over a (literate) Roman thread. That oversimplification has, I think, been thoroughly laid to rest with the argument and observation that for more than a century before the Edictus Rothari was penned in 643 CE, the Lombards had been coexisting within a framework of Roman legal literacy, and elements of Roman Law were undoubtedly and indivisibly transmitted as part of the oral culture of law (see Pohl (2000) in particular, and both Everett (2000, 2003) and Petrucci (1995) in general; references given below).

What matters here though, for our consideration of Lombard legal practice (at least how the law-givers imagine and present it), is that the return of a debt had to be demanded three times before a pledge could be taken. The following clause, Rothari No. 246, outlines the response to the pledge being taken prior to that, dictating that the value of the goods taken as a pledge should be returned ninefold. This scale of compensation for the act is identical to that for theft given in a clause that follows soon after, Rothari No. 253. The main differences between the two clauses being that regular theft, when committed by a free man, also includes an eighty solidi punishment for the guilt of the crime, and if the freeman cannot return the goods ninefold then he pays with his life instead. If the thief is an enslaved man or woman, then the price for the guilt (to be paid for by their owner) is forty solidi, although in the case of the enslaved man only he can be killed as part of the settlement instead (Rothari Nos 254 and 258). For the free woman, no additional payment beyond the ninefold return of the goods is demanded for the guilt, but instead shame is imputed to her, as I have previously discussed. Comparatively, then, taking pledges for an unpaid debt that has not been demanded three times per legal norm is set as a crime similar to theft, but not quite identical.

The next clause, Rothari No 247, outlines who can take pledges on behalf of the one who is owed the debt. Essentially this is nobody, unless they are one of their heirs and are claiming their inheritance. The remaining clauses then outline the various types of property which cannot be taken as a pledge, and the compensation that is due in emends should that prohibition be ignored. As you will no doubt have assumed, pigs are included amongst these. However, rather than jumping straight to the swine let us put them in context by first looking at the other things which are excluded from being taken as pledges.

The first property prohibited as a pledge is enslaved men and women, the details given in Rothari No. 248. Where the previous clause, No 245, seemed to go to great lengths to ensure that ignorance or misunderstanding of the law could not occur, this assumes from the outset that an act in which an enslaved person was taken as a pledge must have been by mistake. The clause states that no recompense is due, as long as the person returns the enslaved people taken as pledge immediately upon learning the truth, and swears an oath that they were taken accidentally rather than with evil intent. However, should they not dare to swear the oath, then they must return eight times the value of the enslaved people to the person they took them from. The law does not make explicit why the eightfold value has been given, but I wonder if it can be considered in light of the ninefold value given for both theft and for taking a pledge before three demands for its repayment have been made. Does this value suggest that the relative severity of taking enslaved person as a pledge is noted, but that the law-givers are conscious of emphasising that it is not as severe a crime as first taking the pledge without due legal process? The second point to be observed in the clause is that, should the person who erroneously took the enslaved person as a pledge have injured them in anyway, then he must pay for the wounds per the usual injury tariffs (Rothari Nos 103-126). This, of course, is a subtle reminder that violence against enslaved people by their owner was not compensated: after all, the compensation was paid to their owner, not to them.

Rothari Nos 250 and 251 address taking either horses which have been broken for riding or else oxen that have been trained to the yoke for ploughing. The first of these clauses prohibits taking either, and interestingly sets a ninefold return to the owner. As such, the taking of horses or oxen is set at the same severity as taking a pledge before having (properly) announced it three times. Clearly the earlier speculation about due legal procedure outweighing prohibited items does not count here, or perhaps at all. The second of the clauses outlines a legal procedure for when all the debtor has to their name are broken horses or plough-oxen. In this case the person owed the debt must go to the local legal official, the schultheis, and state his case. Assuming the schultheis performs his duty correctly (or unlikely but possibly perhaps hers, if the contexts of the Carolingian female sculdarissa in northern Italy, identified by Hayley LaVoy (2015), had roots in the Lombard kingdom prior to the Carolingian conquest), then the horse or oxen are placed in the creditor’s possession until the debt is paid off. At which point, they are to be returned to their original owner, emphasising that the pledge does not form part of the repayment. Should the sculdtheis fail to perform their duty, then they are to be fined twelve solidi, to be paid to the king. Neglect of their legal duty here, then, is a crime against the king and, as it were, the state, rather than against the wronged individual. It also ensures that the king and government have a direct interest in seeing that breaches of legal process and duty are addressed.

The final clause on pledges, Rothari No. 252, prohibits the taking of a casa ordinata tributaria [a holding which owes tribute] as a pledge, and concludes with details on the time limits for paying the debt back after the pledge has been paid (twenty days, if they live within a hundred miles of each other, sixty days otherwise), and the responsibility of the former debtor to retrieve his pledge himself, after the debt has been repaid. Between these two things, the clause lists the things which can be taken as pledges, comprising cows or sheep, but also, and to me confusingly, enslaved men and women. The latter part here clearly contradicts the earlier clause on taking enslaved people as pledges, and unless it is an exception based on the specific economic contexts of the tribute-paying holding, then I cannot yet see how to square these two elements. That, however, is something to think about another day – although any suggestions or insights will, of course, be welcome.

Returning to the taking of pigs as pledges, who we skipped over earlier, they are addressed in Rothari No. 249: here, we see a substantially different set of circumstances. The clause prohibits the taking of pigs along with mares as pledges, but rather than setting up an eight or ninefold return per the other prohibited pledges or a legal process through which the normal situation can be circumvented, the punishment is instead death. The sentence is emendable, however, in that the accused can instead pay 900 solidi, should they have such a sum, half to be paid to the person he took the pig(s) or mare(s) from, and the other half to the king. This clause then must be set in light of the crimes in the Lombard Edictus that are punishable by death which I collated in a previous post, although at that time I somehow omitted this one. In that post, I noted that the crimes for which death, emendable or not, is set as a punishment comprised treason, mutiny in the army, leading uprisings of enslaved workers, adultery, destroying boundary markers and theft. In contrast to the death penalty being applied for theft when the ninefold goods cannot be returned, or the ninefold return of goods with no threat of death should a pledge be taken without repayment of the debt having been demanded three times, for taking pigs and mares as pledges, death is the default response. In the manner which it is allowed to be emended, and as with all such emendable death penalties in the Lombard laws, the taking of mares or pigs as pledges is set as a crime against the king and state. This though is in a vastly different way, and at a vastly different scale, to the case of the sculdtheis who avoids their duty and does not give justice. Clearly this is not about prioritising legal procedure over taking things as pledges which are not permitted, and the socio-economic value of pigs and mares in Lombard agriculture are underscored heavily here. This relative weighting can also be seen in the praetium due for killing an enslaved master swineherd, fifty solidi (per Rothari No. 135, in contrast to the twenty solidi for a goatherd, oxherd or cattle herd of similar social class and experience (Rothari No. 136).

There is undoubtedly much more to be said about both pigs and pledges in Lombard law. However, I hope that this overview of the laws and their implications for Lombard legal process has at least piqued some interest and sparked some thoughts. To return to the comparison with the situation in the Irish laws outlined at the outset, we can see that both early medieval Lombards and the Irish were set against taking the taking of pigs as pledges. The later for the damage the swine caused to good land, the former reflecting the social and economic significance of these animals, as hinted at in the inordinately high value set as recompense for taking them as pledges.


References

Binchy, D. A. ed., Corpus iuris Hibernici: ad fidem codicum manuscriptorum, 7 vols (Dublin: Dublin Institute for Advanced Studies, 1978)

Bluhme, Frederick, ed., ‘Edictus langobardorum’, Leges, 4: Leges Langobardorum, ed. by Frederick Bluhme (Hannover: Monumenta Germaniae Historica, 1868), pp. 1-234

Everett, Nicholas, ‘Literacy and the law in Lombard government’, Early Medieval Europe, 9 (2000), 93-117

Everett, Nicholas, Literacy in Lombard Italy, c. 568-774 (Cambridge: Cambridge University Press, 2003)

Fischer-Drew, Katherine, trans., The Lombard Laws (Cinnaminson, NJ: UPenn, 1973)

LaVoy, Hayley, ‘Hirmindrut Sculdarissa: a ninth-century woman’s original letter and its implications’, Journal of Medieval Latin, 25 (2015), 29-50

Petrucci, Armando, ‘The Lombard problem’, in Armando Petrucci, Writers and Readers in Medieval Italy: Studies in the History of Written Culture, ed. and trans. By Charles M. Radding (Yale University Press, 1995), pp. 43-58

Pohl, Walter, ‘Memory, identity and power in Lombard Italy’ in The Uses of the Past in the Early Middle Ages, ed. by Yitzah Hen and Matthew Innes (Cambridge: University Press, 2000), pp. 9-28

Crimes Punishable by Death

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

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

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

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

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

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

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

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

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

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

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

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

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