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.
thomgobbitt 