To the modern mind poisoning appears to be an intrinsically nefarious means of killing or inflicting injury on another person. The brief snippet of a scene alluded to in Liutprand, No. 118, as quoted above, certainly suggest nefarious intentions, but on the behalf of the bereaved family accusing a – presumably wealthy – neighbour of having caused the illness and death of their departed family member by means of some unknown poison. Liutprand, No. 118 was issued in the law-giving session held in the nineteenth year of his reign, 731 CE, (Bluhme 1868, 156). Within this law, a number of points of socio-legal practice are addressed, and the legal contents are embedded within a network of cross-references to the body of previous Lombard laws, and includes a musing on the uncertainty of the scuto ad pugnam [ordeal by combat, judicial duel] and the tension between law-giving and the longstanding custom of the Lombard gens. As such, a full and critical study of this law would undoubtedly reveal numerous elements of the legal imagination and literate strategies employed by Liutprand and his circle of advisors. Liutprand’s laws and the prologues to the respective legislative sessions, frequently hint towards how the laws were implemented in society, and reflect on the – sometimes unintended – consequences arising from “loopholes” having been found in previous laws by sharp-thinking Lombards pressing legal causa [cases] for their own gain, whether founded or not. Here, I shall focus on just one specific aspect of Liutprand, No. 118: how the law effectively, if perhaps inadvertently, introduces a “two-tier” differentiation into the Lombard legal framework, differentiating between killing with ordinary means versus killing by poison. In order to understand this, we need first to consider some of the older legislation and legal framework.
The fundamental framing of killing with poison in the Roman law had been that it was substantively different from killing by other means. Justinian’s Codex compiled in the sixth century, brought together various Roman laws and legal commentaries and arranged them in thematic titles according to legal subject. Laws addressing poisoning are included in the ninth book of the Codex, title 18, under the heading “de maleficis et mathematicis et ceteris similibus” [concerning poisoners, diviners and other criminals of the same description] (Krüger 1906, 2:379; Scott 1932). This, in itself, already makes a statement about how poisoning was understood, by positioning the crime and the poisoner alongside other nefarious magics and magical practitioners. The first item under this heading, Codex §9.18.1, is Emperor Antoninus (86-161 CE) statement on poisoning, that “plus est hominem veneno extinguere quam occidere gladio” [it is more serious to kill a man by poison, than to kill him a sword] (Krüger 1906, 2:379; translation emended from: Scott 1932). In Roman law, then, a differentiation was drawn between the means used to kills, not just the intention, and with poisoning being framed as a fundamentally worse crime.
In the earliest written Lombard laws, the Edictus Rothari, issued in 643 CE, poisoning is also addressed separately from the more general laws on killing by ordinary means. However, as I have argued elsewhere (Gobbitt 2018), the reason for this separation are not to present poisoning as a distinct and morally nefarious crime, as there is no moralising language used in the law; conversely, moralising is a frequently used framing strategy throughout the law-code for other criminal activities that the lawgivers deem to be immoral. Moreover, the restitution for a free man killing another person with poison is set as secundum qualitatem personae [according to the quality of the person], that is to say as a payment of their wergild according to their position in Lombard society (Edictus Rothari, No. 141: Bluhme 1868, 32). At the same time, the composition owed for killing by ordinary means is again set at their praetium [worth] or wergild (Edictus Rothari, Nos. 11 & 12: Bluhme 1868, 14). This can be contrasted with the law on morth [secret killing, murder], that is a killing where the perpetrator makes some effort to conceal either their identity or the victim, rather than openly acknowledging the act. The means used to commit morth is not stated in the law, but the greater significance attached to it is apparent from the weighty composition of nine-hundred solidi (equal in value to a little over four kilograms of gold) that is established for this crime. As the composition for poisoning is not automatically valued the same as for morth, I argue that Lombard law-givers did not consider it to be an inherently stealthy or even nefarious crime (Gobbitt 2018, 339–41). The reason for making poisoning a distinct crime from killing with weapons in the legal framing of the Edictus Rothari, is that the law-givers could only imagine free men killing with weapons, while poisoning was a crime that could be committed by man or woman, enslaved or free (Gobbitt 2018, 346–49).
The Edictus Rothari does make a distinction between whether the killing was deliberate or accidental, but with the difference being only that in the latter case there is to be no faida [feud], while the composition remains the same in both cases (Edictus Rothari, No. 387: Bluhme 1868, 90; Gobbitt 2018, 343–44). In the law-giving session held in the ninth year of Liutprand’s reign (721), Liutprand added a further distinction to the intention behind the killing and the composition due: Should the killing be in self-defence, then the restitution previously outlined in the Edictus Rothari remained in force, but if the perpetrator had deliberately attacked his victim (a premeditated killing, as it were), then the restitution now owed was equal to all the property of the killer. The heirs of the deceased person were still to receive composition according to their social status, while all property in excess now went to the royal court (Liutprand, No. 20: Bluhme 1868, 117). A few years later, in 724 CE, Liutprand reiterated this legal distinction between self-defence and deliberate attack, while also establishing specific wergilds for lesser free men (those who did not own land) at one-hundred-and-fifty solidi, or greater freemen (landholders) at three-hundred solidi (Liutprand, No. 62: Bluhme 1868, 132).
Consequently, at the time that Liutprand issued his law on false accusations of poisoning, the collected Lombard laws already recognised four broad levels of the intent of the perpetrator, that were differentiated according to the restitution owed, as summarised in Table 1.
|Intent of Killer||Resitution Due||Law|
|Accidental/Negligent||Praetium [worth], No faida [feud]||Edictus Rothari, No. 387|
|Self-defence||Praetium [worth]||Liutprand, Nos. 20 & 62|
|Deliberate attack||All property||Liutprand, Nos. 20 & 62|
|Morth [secret killing]||Nine-Hundred solidi||Edictus Rothari, No. 14|
Table 1: Intent of Killer and Restitution Owed in the Lombard Laws
This, then brings us to Liutprand, No. 118 and the heirs of a person who has just died ill and in bed, wondering whether the deceased had been poisoned. Here we see the potential of poisoning to be a secretive crime alluded to, and this invisible activity is one of the main elements that Liutprand and his circle of advisors seek to address. The law establishes that such accusations of poisoning were being made in asto animo [with evil intent] and as a result of Liutprand’s previous legislation that had emended the restitution due for an intentional killing to all the property of the perpetrator. It seems difficult to see how the new legislation could have caused this situation directly, as any property in excess of the praetium owed to the heirs of the deceased freeman would go to the royal court. Consequently, those pressing the case would not receive any greater amount of composition than they would have done previously, although we can perhaps speculate that with the accused now losing all his property the heirs may have had more scope to choose exactly which parts they wanted for themselves?
What matters here, though, is the strategy employed by Liutprand to stamp out the false accusations. He makes a call back to a previous law, issued in 726 CE, on false accusations, that if a person demanded a camfio or scuto ad pugnam [ordeal by combat] to resolve a case, he should first confirm by swearing an oath that the accusation was not made with evil intent (Liutprand, No. 71: Bluhme 1868, 136). This is further emphasised in Liutprand, No. 118 with the reiteration of the need for an oath to be sworn, and the requirement that it be specifically made on the gospels. The oath is used to confirm that the accusers have “certe […] suspectio” that is that they have strong grounds to suspect that the deceased was deliberately poisoned and had not simply died of illness. With such an oath having been sworn, the law states that the accusation can then go to the ordeal by combat. It should be noted that Liutprand also raises doubts here about how the intention of God should be interpreted in relation of the outcome of the duel, noting that many innocent people have unjustly lost their cases (for further discussion of this scepticism against the ordeal in the law, see: Bartlett 1986, 72). The law-giver also adds that, however, he is unable to remove the judicial duel as an element of the legal process, as it is a part of the customs of the Lombard people – which is probably more than just an observation, and strongly suggests that any discussion of removing the ordeal by combat were met with resistance.
The outcome of the scuto ad pugnam [judicial duel] is only addressed in Liutprand, No. 118 if the accuser is successful and inflicts the feritas [blow, wound] – should the accused have won the duel, then the accusation has been proven false and no composition need be made. However, as can be seen in the cited part of the law, should the accuser be successful then the composition owed is no equal only to the worth of the person who was killed, not the entire substance of the accused killer. The law makes it clear that the reason for this change is Liutprand’s uncertainty about the judicial duel as a means of determining guilt, and that it seems to serious a thing for a person to lose all their property over the outcome of a duel – even if the accuser had sworn on the gospels they had certain suspicions of the accused’s guilt! We may perhaps assume here that Liutprand and his circle thought it very unlikely that one Lombard would actually poison another – or at least if they did so, that it would have been secretively and the poisoner not claiming responsibility for the killing. What matter here though is that, in emending the composition owed for being proven to have deliberately killed a person with poison to an amount equal in worth to the social standing of the person, Liutprand has effectively introduced a two-tier differentiation into the Lombard laws between killing by poison and killing by ordinary means. In the legal framework of Roman law, it was the killing by poison that was seen as the more severe and nefarious crime. Conversely – and acknowledging that this was an indirect consequence of uncertainties arising around the ordeal – by setting a lower composition for poisoning, Liutprand, No. 118 at least implies that poisoning was now the lesser of these two means of killing.