June 01, 2019 | Thom Gobbitt | HI Research Blog |
A number of clauses addressing or related to arson and fire damage appear throughout the Edictus Rothari (643 CE) and again in some of the later phases of Lombard legislation. The main set of clauses (Nos 146-159) adress, respectively, the wilful burning of another’s casam [house], negligent damage and injuries, fires left burning by the wayside, and then wilfully burning another’s mill (see also Storti, 2013). Here I wish to examine the first of these clauses, Rothari No. 146, on burning another’s house, with emphasis on how repeated phrasing in the clause focuses the reader’s attention to two specific elements: firstly the burners intent and the restitution due, and secondly how these relate to a moral interpretation of arson is a specifically evil act.
The clause is ripe for analysis, hinting at numerous elements of Lombard social and legal life. That arson was considered a crime in Lombard law is apparent from its inclusion in the law-code, located towards the end of a larger thematic section in the code that includes death and injury by poisoning, falling masonry and other such means. However, unlike the Lombard laws on poisoning, which I have recently discussed elsewhere (Gobbitt, 2018), there is perhaps a moralizing element in the final phrase of the clause, which describes the act of burning as ‘mali’ [evil, bad, wicked]. This would appear to underscore the relative severity of the crime in the legal imagination of Rothari and his advisors. But despite this moralising pronouncement, when the details of the crime and restitution are considered in a broader comparative context within the framework of the Lombard laws, the moral standing of the crimes seems less clear.
The main body of the clause outlines how the value of the destroyed property was to be determined, that is through the testimony of local men of good standing, and if there was any controversy through the oath of the house’s former owner. At the same time, this material is introduced and concluded with an underscoring of the arsonists deliberate intent, and the threefold value for restitution. Interestingly, both of these points are made three times in the short clause, causing the deliberate verbal repetition to focus the reader’s attention on the subject matter and how it differs from other related clauses and crimes within the Edictus as a whole.
De Incendio
Si quis casam alienam asto animo, quod est voluntarie, incenderit, in
treblum restituat ea, quod est sibi tertia, sub extimatione pretii cum
omnem intrinsecus, quidquid intus crematus fuerit, que vicini bone
fidei homines adpraetiaverint, restauret. Et si aliqua de intrinsicus
domui orta fuerit intentio, tunc ille qui damnum pertulit, iuratus dicat,
quantum in eadam casa perdidit: omnia, ut dictum est, in treblum ei
restiuatur ab illo, qui volontariae huius mali penetravit.
(Bluhme, ed., 1868: 33-34)
On Arson.
He who deliberately and with evil intent burns another man’s house
shall pay as composition a sum three times the value of the house
and all its contents. Let restoration be made according to the value of
the burned house and its contents as determined by men of good faith
from the vicinity. And if any controversy arises over what was burned
up inside the house, the man who suffered the loss shall state under
oath what it was he lost: All these things shall be restored threefold by
him who deliberately committed this evil deed.
(Fischer-Drew, trans., 1973: 75-76)
That the burning of the house must be a deliberate action for the legal content to be applicable is stated at the outset of the clause, in a phrasing that mixes Langobardic and Latin ‘in asto animo’ [with evil intent]. Michael Johannes Pils reads a somewhat romantic tone into this phrase, suggesting that it implies the crime was seen as being particularly ignoble (2010: 89-103). However, this reading seems less appropriate as the next words in the clause clarify the meaning with an entirely Latin phrasing: ‘quod est voluntarie’ [that is voluntarily/deliberately]. In Fischer-Drew’s translation these two parts are united into a single cumulative statement, that the burning was done ‘deliberately and with evil intent’ [my emphasis], so that the clause appears to have two dependent requirements, each of which must be fulfilled. In the Latin, however, it is apparent that the latter phrase glosses the first, presumably for the convenience of those who did not understand Langobardic, especially as a legal language.
Indeed, this strategy is found throughout the Edictus Rothari when Langobardic terms are used. The same glossing of ‘in asto animo’ recurs a few clauses later, in Rothari No. 149, when the wilful burning of another person’s mill is addressed. Other running translations of Langobardic into Latin can also be found in the Edictus, for instance Rothari No. 31 defines the walopaus as a person who disguises their identity through concealing their head or face, or by secretly wearing another’s clothes. The reiteration at this part of the clause on arson, then, makes sense within the approach taken more broadly throughout the EdictusRothari. Despite this point having been clarified, and consequently emphasised, it is reiterated – again as ‘volontarie’ – a third time at the end of the clause. The moral reading of the crime as being specifically evil, does not seem to apply to the phrasing here.
In the case of the amount of composition due, Rothari No. 146 first states ‘in treblum restituet’ [triple restitution], which is then immediately clarified in the text as ‘quod est sibi tertia’ [that is three times to him]. In this case, to the best of my knowledge, both phrasings ‘treblum’ (or ‘triplum’ in some versions of the clause) and ‘tertia’ are both Latin. So rather than elucidating a Langobardic term, the clause here appears to be directly reiterating the amount of composition required from the arsonist. Fischer-Drew’s translation again unites the reiteration into a single phrase here, stating only once that a sum ‘three times the value’ is owed. While this makes for a clearer reading of the intention, it does negate the impact of the reiteration present in the clause. The question then becomes, what role would this stressed repetition have had? Repetition generally serves to underscore a point for the reader or listener.
Whether the use of repetition and rephrasing reflects an aural reception of the laws is a moot point. More importantly, that this point in specific needed to be reiterated must be of significance. The most logical explanation is that the threefold value for restitution given here was not what might have been expected by the audience. One reason for this might be that it reflects a point where the written content of the laws differed from the previous custom that had been employed. The prologue to the Edictus Rothari already observes that Rothari and his advisors, in compiling the lawbook, had emended ‘all earlier laws by adding that which is lacking and eliminating that which is superfluous’ (Fischer-Drew, trans., 1973: 39). However, it might be expected in such a situation that this would also be addressed directly in the clause, as for instance happens in Rothari No. 74 where it is explicitly stated that the composition due for injuries to freemen have been raised in comparison to the values used by their ancestors, so that the faida [feud] might be averted. A further explanation is required, which may be found through positioning the allotted values in relative proportion to comparable and related crimes.
It would be assumed that a comparison could be drawn between destruction of property through fire and theft, as each deprives the owner of their property. The composition due for theft, however, is proportionally higher, with nine times the value of the goods taken having to be returned, as well as an additional fine being paid depending on the social status of the perpetrator: an additional eighty solidi for a freeman (Rothari No. 253), forty solidi or death for an enslaved man (Rothari No. 254), to be paid by their enslaver; forty solidi for an enslaved or half-free woman, this time without the capital punishment alternative being named, and again to be paid by her enslaver (Rothari No. 258), or without a further fine in the case of a free woman (Rothari No. 257). Even without the additional composition due ‘pro tali culpa’ [for the guilt] for theft in the case of freemen and the enslaved, arson is valued at one third this amount. Arson, then, does not appear to be treated as a specific form of theft, and even in direct comparison it seems to be a significantly lesser crime. There is no honour payment required to alleviate the guilt for deliberately burning someone else’s house. Moreover, the reiteration of the threefold restitution emphasises that deliberate arson is, again, a substantively different way of depriving somebody of their property than theft. The loss might be broadly the same for the owner, but the socio-legal framework of the crimes are distinct.
The reiteration employed at the start and end of the clause, particularly in the case of the threefold restitution, clarifies a deliberate point within the laws on arson, with such emphasis that it must have been hard for a reader or listener to miss. At the very least, such repetition highlights and confirms that the seemingly atypical value presented here was intentional and carefully considered, and suggests for a reading of the clause that encompasses and extends far beyond the potential difficulties in assessing what had been lost to the flames.
Returning to the question of evil and honour in relation to arson once more, another clause is of relevance. A reference to burning houses is made, almost as an aside, in Rothari No. 19, which sets an immense fine of nine-hundred solidi for a person who leads a band of up to four armed men into a village, and a further eighty solidi from each freeman in the group. Such a fine is of the highest set in the Lombard laws, exceeded only by the 1200 solidi fine for killing a freewoman or girl (Rothari Nos 200-01), and is equal to fine due for crimes which were punishable by death, where the possibility to redeem oneself financially was available, such as provisioning or hiding a spay (Rothari No. 5). The fine for committing morth, that is secret killing when some attempt is made to hide the identity of the perpetrator or victim, is likewise 900 solidi. The severe and nefarious element of the crime is therefore stressed in the composition due.
Amongst other additional details, Rothari No. 19 adds that if houses are burned, composition must be paid ‘according as the damage is assessed’ (Fischer-Drew, trans., 1973: p. 56). There is no mention here of multiplying the value of the property, and it would seem then, that in this situation only singlefold composition for the burning itself was actually due. In the case of fire damage, however, singlefold composition is more usually due when the burning is negligent or accidental, as is made clear in Rothari No. 147, regarding property damage from a burning brand that had been taken more than nine feet from the hearth.
If a small band of armed men went into a village and while they were there burnt houses, then they must surely have done it deliberately. The difference seems to be between the actions of a small group as opposed to a person acting alone. The offence element of the arson committed by the group is presumably therefore already covered by the nine-hundred solidi fine due from the leader, and the eighty solidi due for each additional freeman. The value of eighty solidi given here echoes that for the guilt of theft when committed by a freeman, which frames a group attack on a village and the burning of houses as dishonourable acts on a par with theft. Rothari No. 19 has already presupposed that the attack on the village was undertaken by (free)men, so the entwined aspects of class and sex have already been accounted for (for further analysis of Lombard women and violence, see Balzaretti, 1998; Gobbitt, 2018).
Returning to Rothari No. 146, it can be argued that by not having a named composition due for the guilt itself, the implication is that an individual Lombard deliberately burning another’s house was not constituted as being inherently dishonourable. This would seem to be in contradistinction to the description of the burning at the end of the clause as being ‘mali’ [wicked, bad, evil]. How these two threads can be resolved is not immediately clear, but a possible direction for further consideration may be hinted at in the contexts of the Icelandic sagas from over half a millennium later. Lisa Bennet argues that the attitude to ‘burning in’ develops across the period following the initial settlement through the conversion to Christianity. In the earlier phases the intent to burn in is described as ill-advised but not craven, for instance in Laxdæla saga when Kjartan wants to burn the king in his house (2007: 74). By the later period it is described as an explicitly nefarious act, and Bennet argues this transition came as part of the Christianisation of Iceland (2007: 85-86). How applicable this is to the Lombard socio-legal context is another matter, nevertheless it does suggest a potential direction for speculation and continuing research. If arson in the Edictus Rothari is simultaneously not specifically dishonourable but at the same time is wicked or evil, then can we also see here the imposition of a layer of Christianising morality on an otherwise un-moralised element of burning as a violence-strategy employed in the faida?
