Tag Archives: freemen

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

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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.

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.

Toeing the Line Fine

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

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

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

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

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

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

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

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

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

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

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

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

References

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

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)

Ferrymen and Fugitives

Legislation relating to the portunarium, or ‘ferryman’, appears four times within the the Edictus, the first of the written barbarian law-codes of the Lombards, promulgated in 643 CE in the name of King Rothari. The clauses on ferrymen run consecutively in the law-code, and are edited as Nos. 265 to 268 in Frederick Bluhme’s mid-nineteenth-century, Monumenta Germaniae Historica edition of the Lombard Edictus and Alfred Boratius’ edition of the eleventh-century version of the texts, the Liber legis langobardorum or Liber Papiensis in the same volume. The arrangement of clauses with related themes so that they are adjacent to each other in the laws is nothing unusual, numerous thematic blocks can be identified. In many cases these groupings also progress thematically from one to the next, or, after taking a step back, can be seen to work as units within a larger theme. The clauses to either side of those dealing with the ferryman illustrate this perfectly.

Rothari clause Nos 253 to 263 address the subject of theft, looking at various social iterations beginning with theft committed by a freeman, and then considering slaves, free women, ‘half-free’ women (that is, aldia), freemen ordering their slaves to steal for them and so forth. The following clause, No. 264, progresses from theft to freemen or slaves apprehended while trying to flee the country. While the person could of course be fleeing for many reasons, the clause specifically notes that, following Katherine Fischer-Drew’s translation of the Lombard laws, that the apprehending ‘judge or other resident’ should ‘keep safe the property which he [the fugitive] carried with him’, and then stresses on two occasions that the ‘properties that he took’ should be returned. While these could easily have been the personal properties of the fugitive, as the clause follows on directly from the discussion on theft, it seems strongly implied that those properties were stolen goods.

The clauses following here, Nos 265 to 276 address fugitives in different ways, including a bond’s man who run from their own lord to another (No. 269) and if that second man refuses to return them (no. 270); if they run to the king’s court (No. 271) or take sanctuary in the church (No. 272); if someone harbours or aids a fleeing bondsman (Nos 274 to 276) or, going back a few clauses in the laws to the focus of this discussion, the culpability and responsibilities of ferrymen who aid, knowingly or otherwise, fugitives (Nos. 265 to 268).

Rothari No. 265 begins the discussion on ferrymen, by allowing a ferryman accused of transporting a fugitive OR thief across a river to clear themselves from guilt with only an oath. Here it is assumed that the ferryman will not offer false oath, and the emphasis is on the ferryman having not known that their passenger was on the run. The specific requirement of ‘oath alone’ emphasises the law overall being on the ferryman’s side and hints at their importance in the travel and communication networks of the Lombard regnum.

Rothari No. 266, however, modifies this to include the situation where the ferryman is in the know and transports a thief fleeing with goods anyway. Here the ferryman becomes treated as an accomplice, must pay composition along with the thief for whatever goods were taken, and in addition must pay a further fee of twenty solidi to the king’s treasury. The fees and compositions due within the Lombard laws vary greatly, sometimes being as small as half a solidi, sometimes rising as high as twelve-hundred solidi. Twenty solidi, however, has been suggested to be the uppermost cut offline between the less and more serious cases, based on the understanding that if a person could not pay the fine, then they became a debt slave until they had worked off what they owed in the lesser cases, but a permanent slave if the value was more than twenty solidi (See Fischer-Drew: 28).

Rothari No. 267 examines the other half of that equation, wherein a ferryman knowingly transports a fugitive slave. Here, in addition to a fee of twenty solidi to the king’s treasury, the ferryman was obliged to search out and capture the fugitive, and then return them (with the property they were carrying, stolen or personal?) to their owner, or else to compensate the owner the value of the slave and said property.

When the fugitive in question is a freeman, however, and the ferryman knowingly transports him, then the stakes increase significantly. Rothari No. 268 states that here the ferryman must either pay a fine equal to his own wergild, or failing that lose his life. The clause, perhaps recognising that a fugitive freeman may be in a better position to put up a struggle than a fugitive slave (better health? better weapons? better training in combat?) and putting greater significance on the social value of a freeman than a slave, points out that even if the ferryman could not hold the fugitive, they should at least have run on ahead proclaiming the guilt so that others could intervene.

To my knowledge, Rothari’s Edictus does not make further comment on one other than a ferryman who knowingly aids a fugitive freeman. No. 276, however, addresses giving shelter or help in the form of directions or provisions, to a fleeing slave. As with No. 267, the person is obliged to hunt down the slave. If they succeed in catching the fugitive, they must return them and pay their owner for the lost labour, and if unable to catch the fugitive they instead repay the value of the slave and the property they had taken with them. In this instance, then, there is no fee made to the royal treasury.

Whenever a specific occupation or social class is addressed in the laws, there is normally a reason. The subtle variations between the laws are revealing when examined closely. That is to say: that a ferryman accomplice to a fugitive slave or thief pays a fee to the royal treasury; that a ferryman can prove that they did not know their passenger was on the run can prove their innocence with an ‘oath alone’; and that in the case of aiding fugitive freemen, only ferryman are addressed in specific detail. The question I am mulling now, then, is what do these laws imply for the social and legal context of Lombard Italy? It is not a question I can answer fully here yet, but I have a few thoughts fermenting.

The ability to move around the kingdom must have been vital, and with the many rivers bisecting the land ferries and their operators must have played a significant role. A fugitive, or any person, might be able to move relatively freely across open land, but when crossing a river they would need a bridge or ferry. The ferryman might be expected to know the goings on of the local area, to recognise well enough if a person was likely to be a fugitive slave. Conversely, for a freeman, clause No. 268 almost implies that the ferryman should be able to recognise that he is now a fugitive, as if some outwardly obvious change would occur between an honest and dishonest freeman.

As a nexus point in the transport routes of the kingdom, the actions of the ferryman are of importance to the kingdom as a whole. It may be for this reason that the twenty solidi fine for aiding a thief or fugitive slave goes to the king, not to their owner, that willingly, or at least knowingly, aiding them was an action against the king and the broader interests of society as a whole, as much as it was opposing the financial and labour interests of the slave in question’s owner. Returning to clause No. 265, the broader interests of society and infrastructure can again be seen where the fugitive or thief is unknowingly assisted, and the law falls very much in favour of the ferryman. Clearing themselves of guilt by ‘oath alone’ resonates with significance, and here the implications seem more obvious. The laws balance private interests with societal good: if ferrymen were worried that for every person of unknown or even apparently good-standing they let cross, they might later find themselves having to pay a fee, try and track them down and then return them or their value to their owner, would they take any passengers at all?

Edictus Langobardorum’, ed. by Frederick Bluhme; ‘Liber Papiensis’, ed. by Alfred Boratius, in Legum, iv, ed. by Georg Heinrich Pertz (Monumenta Germaniae Historica: 1868)

The Lombard Laws, ed. and trans. by Katherine Fischer-Drew (University of Pennsylvania Press: 1973)