Tag Archives: theft

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.

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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.