Tag Archives: early medieval Italy

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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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.

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.

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

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.

Slaves and the ‘Half-Free’ in Lombard Law, Part I

The structure of early medieval Lombard society, as presented in Rothari’s Edictus of 643 CE, was sub-divided into a number of broad strata. Ignoring the king and his officials, there are the freemen (homo libera) at the top, the country slaves (servus rusticanus) at the very bottom and the household slaves (servus menisteriales) and the ‘half-free’ aldius somewhere in between. English translations throughout are from Katherine Fischer-Drew, The Lombard Laws (University of Pennsylvannia Press, 1973), Latin from Edictus Rothari, ed. F. Bluhme, in Legum, IV, (Monumenta Germania Historica, 1868).

Neither free, half-free nor slave are explicitly defined within the Edictus, inferences about the group as a whole must instead be drawn from similarities and differences in the ways in which each is treated in specific circumstances. My focus here is primarily on the men of the lower levels, comparing the ways in which they are equated and differentiated within the laws. This is the first of two intended posts, the second will explore the extent to which these divisions extend to the social position of women in the Lombard society of the mid-seventh century.

The main aspects of the laws which allow for comparison between the social ranks are the compositions due in redress for killing or inflicting injures on a person, or the punishment allotted for the same crime according to the rank of the perpetrator. Perpetrators of different ranks, such as thieves, will be addressed in Part II of this post, and here I will focus on first injuries and then killings.

Redress for injuries (and killings) is made financially – that is composition is paid to the victim, their family or their owner – and with every injury having its (maximum?) price defined. Despite the apparent ease at comparing a value of, say 16 solidi opposed to 4 or 2 solidi for the same injury made against a freeman, an aldius or a slave, respectively, the situation is more complicated. Aldii, like slaves, are considered property, and the crime is against their owner. Likewise, the composition is paid to the owner as recompense for property damage, not to the person for the injury they sustained. In many instances the laws add to the composition due for the crime against an aldius or slave, redress for the work lost and a requirement to pay the doctor’s fee. Appeasing the honour of the slave or aldius, however, is not a concern: conversely, the clause introducing the tariffs for injuries against freemen firmly states that once payment has been made, the faida, that is the ‘feud’, ends, (Rothari No. 45).

With these provisos firmly in mind, there is still much information regarding the Lombard social hierarchy and the relative worth adjudged to different members that can be derived from Rothari’s Edictus. The injury tariffs divide Lombard society into three broad categories: first come those done to freemen (hominem liberum), in Rothari Nos 45 to 74; next addressing the ‘half-free’ ([h]aldius) and household slaves (servus menesteriales), Rothari Nos 77 to 102; finally the laws turn to country slaves (servus rusticiani), Rothari Nos 103 to 126. Immediately preceding the section addressing the aldii and household slaves, a clause outlines the difference between a household and country slave, defining the former as one who has been “taught, nourished and trained in the home” (Rothari No. 76).

Each set of tariffs addresses roughly the same types of injury in order, and lays out the composition due in redress according to the social class of its victim. A quick cross-comparison of the values given across the three levels rapidly reveals two details: 1) despite the similarity across the three tariffs, specific injures are not addressed at all social ranks, and 2) there are more specific injuries for freemen than for aldii and slaves. Choosing a few injury types from the lists (almost) at random, but excluding injuries where the composition due is a proportion of the injured person’s praetium or ‘worth’ which I will come to shortly, a quick comparison of the respective values can be made (EDIT: a tabulated comparison of all the injury tariffs is given in Appendix I, at the bottom of this post) :

  • Knocking out one of the front teeth ‘that appears when smiling’ accrues a composition of 16 solidi for a freeman (Rothari No. 51). For the same injury inflicted on an aldius or household slave the composition is only a quarter, 4 solidi (Rothari.No. 85), while the country slave it half this value again, or one eighth that for the freeman, with a composition of only 2 solidi (Rothari No. 109).
  • The same proportions by ranks are seen in the case of cutting off a ring-finger (or ‘fourth finger’) has a composition of 8 solidi for a freeman (Rothari No. 66), 2 solidi for an aldius or household slave (Rothari No. 92), and 1 solidus for a country slave (Rothari No. 117).
  • The proportions change slightly in the case of chest wounds, with one made against a freeman receiving redress of 20 solidi, (Rothari No. 59) but with 6 solidi for the same injury against an aldius or household slave (Rothari No. 101). This then is slightly more than a quarter of the composition given for a freeman, but the composition due for a chest wound to a country slave remains in the same proportion (half) to that for the aldius and domestic slave with a value of 3 solidi, (Rothari No. 111).

That the laws associate the household slave and the aldius together in the same section suggests that they shared the same economic worth and social value. A more nuanced situation can be seen, however, by examining the redress due for the killings, a sum defined as their ‘worth’ which is praetium or, occasionally, widrigild (the langobardic cognate of the wergeld of the Anglo-Saxons).

The composition due for killing a freeman is a sum equal to his worth, (Rothari No. 11): 300 solidi for an ordinary, land-holding freeman, or 150 solidi for a lesser one who did not own land (see Fischer-Drew, 29). The value could be even higher, such as if the freeman was an officer of the royal court. Clauses in the Edictus running from Rothari No. 129 to 134 lay out the praetium for a range of individuals in the lower social strata. The aldius has the highest amount, valued at 60 solidi (Rothari No. 129). The following two clauses distinguishes between two types of household slave, the ordinary one having a praetium of 50 solidi (Rothari No. 130), and with slaves subordinate to them being valued at half the worth, or 25 solidi (Rothari No. 131). In this way a hierarchy of value is made in the case of killing, for a group who were treated as broadly homogenous in the case of injuries. As four of the injuries identified in the tariffs, however, set the composition as equal to half the praetium differentiation between these classes was produced here by default (gouging out an eye, cutting of a hand, a foot or crippling without severing a hand, foot or limb Rothari Nos 81, 88, 95 and 126, respectively). The severed ringfinger of a household slave might be worth as much as that of the aldius’ (2 solidi), but the gouged eye ranges from 30 solidi for the aldius, to 25 solidi for the household slave and only 12½ solidi for their subordinate slave.

Turning to the agricultural slaves, a master swineherd (presumably still a slave, although the laws give him the specific title of porcariu[s] without the word servus attached) with at least three underlings ranks highest at 50 solidi, equal to the household slave, while his subordinates are valued at 25 solidi each (Rothari No. 135). Further down the social ladder are the tenant slave (Rothari No. 132), ox ploughman (Rothari No. 133) and cattleherd, goatherd or oxherd (Rothari No. 136) all valued at 20 solidi. Valued lowest of all is the field slave who is subordinate to a tenant slave, given a praetium of 16 solidi (Rothari No. 134). The same four injuries in the tariffs for the country slaves as outlined for the aldius and household slaves previously are given composition equalling half their praetium: gouging out an eye, cutting of a hand, a foot or crippling without severing a hand, foot or limb (Rothari Nos 105, 113, 119 and 126, respectively). A quarter of the praetium is awarded to the owner of a country slave for a broken arm, hip or leg that has not healed within a year (Rothari No. 112). Subdivisions in the ranking of the country slaves, then, can also be clearly seen that would be made manifest in the redress given to their owners in the case of specific, severe injuries as well as if they were killed.

The line between the aldius and the slaves is narrow but nevertheless discernible – a sliver of 10 solidi between their 60 solidi and the uppermost value of 50 solidi for the household slave or the master swineherd. While ostensibly distinct, these values still seem very much as part of a group when compared against the 150 to 300 solidi or higher of value given to the freemen. It is a truism of early medieval studies, however, that one cannot directly compare the wergild of the freeman with the praetium of the slave despite the values being reckoned in the same currency (although it should be noted here that solidi is essentially an accounting convention imported into Lombard Italy from their contact with the Byzantine Eastern Roman Empire, rather than reflecting specific coinage in use). Wergeld, or better widrigild, is for appeasing honour and ending the feud, paid to the victim or to their family. Praetium, conversely, is the market value of a commodity, paid to the owner for the damage to or loss of their property. Fischer-Drew’s translation silently corrects the apparent ‘mistake’ found throughout the 1868 Monumenta Germaniae Historica edition and the laws themselves, keeping praetium as ‘worth’ for the salves and aldii but consistently changing it to ‘wergild’ for the free. In the case of freemen the laws occasionally use the langobardic widrigild for ‘worth’, but far more often than not use the Latin praetium instead. I will pose, but not answer the pressing question here: what, then, does it mean that the Lombard laws repeatedly use ‘praetium’ for describing the composition due for free, half-free and un-free? I hope to return to this question in the future, but it is one that requires a close-reading and manuscript-led investigation, and probably one made in comparative study across the surviving ‘barbarian’ laws of Western Europe.

What can be said is that the laws are detailed on the exact relationship of the aldius to the various rankings of slaves. Where the two are treated as a homogenous group, there is still space for distinction – at least when the injuries are at the most severe. Part II of this post will step away from injuries to male aldii and slaves, and will consider the distinction between them when they are the perpetrators of a crime, and when their female counterparts are expressly addressed in the mid-seventh century Lombard society as constructed in Rothari’s Edictus.


Appendix I: Comparison of Injury Tariffs in Rothari’s Edictus

Crime Freemen Aldius / Household Slave Agricultural Slave
Strikes so a wound is apparent 1 solidus
(Rothari No. 77)
1/2 solidus
(Rothari No. 125)
— two blows 2 solidi
(Rothari No. 77)
— three blows 3 solidi
(Rothari No. 77)
— four or more blows Up to 2 solidi
(Rothari No. 125)
Hits another man on head, bone broken 12 solidi
(Rothari No. 47)
–two bones broken 24 solidi
(Rothari No. 47)
— three or more bones broken 36 solidi
(Rothari No. 47)
Gouging out an eye Half praetium
(Rothari No. 48)
Half praetium
(Rothari No. 81)
Half praetium
(Rothari No. 105)
Cutting off nose Half praetium
(Rothari No. 49)
8 solidi
+ lost work,
+ doctor’s fee
(Rothari No. 82)
4 solidi
+ lost work,
+ doctor’s fee
(Rothari No. 106)
Cutting off lips 16 solidi
(Rothari No. 50)
— if 1, 2 or 3 teeth exposed 20 solidi
(Rothari No. 50)
4 solidi
+ lost work,
+ doctor’s fee
(Rothari No. 84)
3 solidi
(Rothari No. 109)
Knocking out a front tooth 16 solidi
(Rothari No. 51)
4 solidi
(Rothari No. 85)
2 solidi
(Rothari No. 109)
— two or three teeth
(or several: aldius / household slave;
or more: agricultural slave)
16 solidi per tooth
(Rothari No. 51)
4 solidi per tooth
(Rothari No. 85)
2 solidi per tooth
(Rothari No. 109)
Knocking out jaw teeth (molars) 8 solidi per tooth
(Rothari No. 52)
2 solidi per tooth
(Rothari No. 86)
1 solidus per tooth
(Rothari No. 109)
Cutting off ear Quarter praetium
(Rothari No. 53)
2 solidi
+ lost work,
+ doctor’s fee
(Rothari No. 83)
2 solidi
+ lost work,
+ doctor’s fee
(Rothari No. 107)
Wound to the face 16 solidi
(Rothari No. 54)
1 solidus
(Rothari No. 104)
Wound to the nose
if heals leaving only a scar
16 solidi
(Rothari No. 55)
Injury to the ear
if heals
16 solidi
(Rothari No. 56)
Arm wound
pierced
16 solidi
(Rothari No. 57)
Arm wound
not pierced
8 solidi
(Rothari No. 58)
Punctures arm or leg 3 solidi
+ lost work,
+ doctor’s fee
(Rothari No. 102)
2 solidi
+ lost work,
+ doctor’s fee
(Rothari No. 110)
Strikes arm or leg
doesn’t puncture
1 solidus
+ lost work,
+ doctor’s fee
(Rothari No. 102)
1 solidus
+ lost work,
+ doctor’s fee
(Rothari No. 110)
Strikes on chest
wounds
20 solidi
(Rothari No. 59)
6 solidi
+ lost work,
+ doctor’s fee
(Rothari No. 101)
3 solidi
+ lost work,
+ doctor’s fee
(Rothari No. 111)
Strike on hip
pierced
16 solidi
(Rothari No. 60)
Strike on hip
not pierced
8 solidi
(Rothari No. 60)
Broken hip or shin 3 solidi
+ lost work,
+ doctor’s fee
(Rothari No. 94)
Breaking arm, hip or shin 3 solidi
+ lost work,
+ doctor’s fee
(Rothari No. 112)
— if not healed within a year Quarter praetium
(Rothari No. 112)
Cut off hand Half praetium
(Rothari No. 62)
Half praetium
(Rothari No. 88)
Half praetium
(Rothari No. 113)
— hand paralysed but not severed Quarter praetium
(Rothari No. 62)
Hand, foot or limb crippled but not severed Same value as if entirely cut off
(Rothari No. 126)
Same value as if entirely cut off
(Rothari No. 126)
Cuts off thumb sixth praetium
(Rothari No. 63)
8 solidi
+ lost work,
+ doctor’s fee
(Rothari No. 89)
4 solidi
(Rothari No. 114)
Cuts off index finger 16 solidi
(Rothari No. 64)
6 solidi
(Rothari No. 90)
3 solidi
(Rothari No. 115)
Cuts off middle finger 5 solidi
(Rothari No. 65)
2 solidi
(Rothari No. 91)
1 solidus
(Rothari No. 116)
Cuts off ringfinger 8 solidi
(Rothari No. 66)
2 solidi
(Rothari No. 92)
1 solidus
(Rothari No. 117)
Cuts off little finger 16 solidi
(Rothari No. 67)
4 solidi
(Rothari No. 93)
2 solidi
(Rothari No. 118)
Cuts off foot Half praetium
(Rothari No. 68)
Half praetium
(Rothari No. 95)
Half praetium
(Rothari No. 119)
— foot paralysed but not severed Quarter praetium
(Rothari No. 68)
Cut off big toe 16 solidi
(Rothari No. 69)
4 solidi
+ lost work,
+ doctor’s fee
(Rothari No. 96)
2 solidi
(Rothari No. 120)
Cut off second toe 6 solidi
(Rothari No. 70)
2 solidi
(Rothari No. 97)
1 solidi
(Rothari No. 121)
Cut off third toe 3 solidi
(Rothari No. 71)
2 solidi
(Rothari No. 98)
1 solidus
(Rothari No. 122)
Cut off fourth toe 3 solidi
(Rothari No. 72)
1 solidus
(Rothari No. 99)
1/2 solidus
(Rothari No. 123)
Cut off little toe 2 solidi
(Rothari No. 73)
1 solidus
(Rothari No. 100)
1/2 solidus
(Rothari No. 124)