Tag Archives: shame

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.

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.

“Let Shame be Reflected on Her”: Imputing and Negating Shame in the Lombard Laws

I’m currently working on the first wave of corrections for an article on poisoning in the Lombard laws. One thread of my argument revolves around the detail that, while the laws address both male and female poisoners equally, there is no shame imputed in the laws against them. This may not seem surprising when considered within the scope of the barbarian laws in general. Many of the clauses provide a means of limiting feuds by letting perpetrators make redress to their victims through monetary payment without, importantly, either side damaging their honour. Male violence, that is.

The laws also address violence perpetrated by women, and here the situation is very much reversed: violence, the laws note, is a thing ‘that men do, not women’ (Liutprand, No. 141, 734 CE) and when faced with women who transgress this boundary the laws seek to curtail it with a combination of shaming their involvement in such unwomanly behaviour and defeminising them in the eyes of the law. If a woman wades into a brawl and gets injured or killed, then her family are compensated as if the injury had happened to one of her brothers. Where the modern woman may face ‘bodyshaming’ or ‘slutshaming’, the Lombard woman it seemed had ‘killshaming’ and ‘brawlshaming’ to contend with.

My intentions here are not to explore the interesting relationship between female poisoning and female violence, as regards the imputing of shame. Instead, I wish to gather together some of the instances in the Lombard law where shame and dishonour are employed – whether that be where shame is imputed for someone’s behaviour, or where compensation is awarded on account of the shame inflicted upon them. This is very much a ‘work-in-progress’ sort of post, while I feel out the (to me) unknown territories lying beyond the article I am currently working on. Hopefully I won’t come out of this adventure red-faced.

A quick glance through the index of Katherine Fischer-Drew’s translation of The  Lombard Laws (University of Pennsylvania Press, 1973), which I will be drawing on for this post, reveals no entries for ‘disgrace’, ‘embarrassment’, ‘honour’, ‘humiliation’, ‘reputation’, ‘scorn’ or ‘shame’. Not a promising start, but perhaps indicative of the ways in which the legal themes of the laws have been studied and understood. Because a deed is seen as shameful it is given as a reason to legislate against it, and shame is, perhaps, understood more as a tool to enforce a law and denounce a practice or perpetrator, rather than as a legal theme in its own right.

Looking through the 388 clauses of King Rothari’s Edictus, the first written version of the Lombard laws, promulgated in 643 CE, the better part of a century before King Liutprand’s additions, the following examples jump out:

The first direct mention of shame is Rothari No. 41, which addresses a situation when a freeman is taken unawares and beaten. Seizing the unsuspecting man (without the king’s permission) is described as a ‘disgraceful’ act, and a weighty composition of half the affronted man’s worth (his praetium, or wergild), calculated according to his position in society, is owed to him in redress for the attackers having ‘treated the man shamefully and with derision’. This in addition to the fines accrued for any specific injuries to his body they may inflicted, as per the long tariff of injury fines given in the laws. The injury to honour itself may be unquantifiable and difficult to show to the outside world, but the awarded price of half his worth reflect the seriousness with which Lombard legislators and society judged the affront.

Rothari No. 181 takes shame in a very different direction, by addressing indirectly a woman who becomes a leper, mad or blind in both eyes after becoming betrothed. The underlying mechanisms to which this change in her mental or physical health is attributed is to her ‘weighty sins’, which I would consider a clear imputation of shame. The logic of shame places the fault directly on the woman, and the law then allows the man to break of the betrothal and receive the property he had given her as dowry back rather than finding him forced to still marry her against his will.

Rothari No. 190 addresses the man who marries or has intercourse with a woman, and with her consent, who is already betrothed. The law includes three payments, twenty solidi to the woman in question’s family for the ‘illegal intercourse’, and another twenty solidi to them to avert the feud. Meanwhile, he must also return double the marriage portion to the man who was originally betrothed to her, on account of the disgraceful way in which he acted. Rothari No. 191 adds a more nefarious version of this situation, in which the already betrothed woman is abducted by another man. although the abductor can again by his way out, at least in theory, as the composition is set at 900 solidi – one of the highest fines in the Lombard laws and an amount which must have been un-payable by most people. In addition to this, the originally betrothed man is considered to have been treated with ‘disgrace and scorn’, and the abducter must again pay to him double the marriage portion in redress. Sex and marriage outside the legal structures imposed on the woman (by her family) result in the honour of that family being disgraced, and shame is once more another injury which can be bought off.

Women again appear in Rothari No. 257, with strident tones demanding that for a folk-free woman caught stealing, the person who holds her mundium (that is the man who has legal responsibility for her, be it father, brother, husband or son) must return the value of the goods ninefold. This is the same as for any theft in the Lombard laws, however, the laws also take on a strongly moralising tone here that is not applied to male thieves, and the clause concludes by stating “let shame be reflected on her who did this disgraceful deed”.

The violent women mentioned by Liutprand at the outset of this post, have their origins in Rothari No. 378. In this clause it is argued that the redress for a woman who participates in a brawl and gets killed should be the same as if it had been one of her brothers who was killed: that is to say a value equal to her worth according to her social rank. This defeminising removes the ordinary protection on killing a free woman, an immense sum of 1200 solidi, on the basis that by participating in the brawl she had behaved in a manner dishonourable for women’.

This quick survey has not covered every instance in the laws. Some of the instances are not immediately apparent in any given clause but the suggestion comes to mind when the specifics of a law are read in conjunction with the entire law-code. I have omitted these here today, they will need a deeper layer of thought and study before I am willing to venture concrete opinions on them. Still, I cannot help think that clauses like Rothari No. 9 which includes redress to a value of half their worth for a person who has been falsely accused before the king, echo the similarly-valued redress for the unquantifiable damage to honour outlined in Rothari No. 41, when an unsuspecting man is attacked and beaten. A similar situation can be seen in Rothari No. 198, where a woman is falsely accused of being either ‘a harlot or a witch’. Although shame or disgrace are not directly referred to in the clause, the perpetrator must pay composition equal to her worth for the false accusation.

One of the most immediately apparent details that arises from the clauses from Rothari’s Edictus that I have included here is the difference in the treatment of shame as relates to men and women. With the exception of the indirect references to shame in the false accusations, shame is something that is imputed to women for (some) crimes that they commit or participate in, or else as the cause of the crime. Conversely, shame when imputed to men is something that must be redeemed through either the feud or the payment of composition. The role of shame in the Lombard laws, as noted at the outset of this post, is not limited to Rothari’s Edictus of 643, but can be seen still to be employed and developed in the laws of Liutprand through the first decades of the eight century. Indeed, even after the Lombard kingdom was conquered and subsumed into first the Carolingian hegemony and later the Holy Roman Empire of the Saxons and well into the thirteenth century and even beyond, the Lombard laws continued to be copied, updated and valid in northern Italy. Likewise, along with the laws, shame continued to be imputed, redressed and wielded as a moralising tool in the motivations of the laws throughout that time.