Damages and Punishments for Offences against the Person in Pactus Legis Salicae and the Law for Judging People

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Contribution selected by Filodiritto among those published in the Proceedings “Southeast Europe: Hystory, Culture, Politics and Economy 2018”

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Abstract

By applying the comparative research method, the present paper aims to investigate texts from Pactus Legis Salicae (PLS) and the Law for Judging People (LJP) regarding cases of violation of the physical integrity, derogation of the dignity, and encroachment of the freedom of a person. Grounds for such a research on two legal codes created in different centuries and in different parts of Europe, give not their essence and the way they were compiled but the specific character of the historical realities in which they functioned.

The comparative analysis leads to the conclusion that both codes aimed, first of all, to protect virgin free girls from sexual assaults and that on the whole, the sanctions for raping in LJP are more severe than those in PLS. The absence of a section about violations of the physical integrity of a person in LJP was probably due to the fact, that only the cases relevant to the morality imposed by the recently adopted Christian religion needed new legislative regulation.

 

Introduction

The first version of the Code of the Salian Franks, the so-called Pactus Legis Salicae (PLS), was committed to writing between 507 and 511, during the last years of the reign of the Frankish King Clovis [1]. The text has not reached us in its original. Later, shortened or enlarged versions of the code are preserved in more than 80 manuscripts. PLS is exceptionally worth for historians because it is a record of ancient Germanic customs and norms almost unaffected by Roman law.

For its most part PLS deals with the determination of monetary compensations and punishments for various acts of causing damages, offenses and crimes as well as with the regularizing of legal procedure rules applying the casuistic approach. The code pays almost no attention to such important sections of private law as marriage and family, contract relations, the clergy and the Church institution. 

In the compiled probably in the second half of the 9th century Law for Judging People (LJP)[2], the greater part of the texts of title XVII of the Byzantine Eclogue was adopted but with a number of modifications conformable to the realities in early medieval Bulgaria. This is a casuistic code, which consists of penal, procedure, and civil law sections but does not develop comprehensively by its texts neither of them. 

Actually, only one limited circle of problems of medieval law is settled in LJP – problems, which up to the time of the compiling of the code, were unknown to the early medieval Bulgarian society or had been solved but already stood in another way [3].

PLS and LJP were created in different centuries and in different parts of Europe. The code of the Salian Franks was put in writing in the opening stage of the development of the Frankish Kingdom when the state was still in process of formation on the basis of the experience of the former Gallo-Roman administration [4]. In PLS, there are almost no borrowings from Roman codes but the Roman legal tradition is categorically present in the capitularies of the Frankish kings who added them in the years of their reigns to the initial main text of the code and in this way complemented it or, in some cases, totally changed the content of its titles and sections. On the other hand, the code compiled in Bulgaria, came into being in the conditions of an established state tradition and at the opportunity, in the province of law, to draw on the Byzantine codes. This became noticeable from a certain point in the history of the Second Bulgarian Kingdom onwards and particularly in the compilation of LJP.

However, in spite of the differences, grounds for a comparative research on the two codes with relation to cases of violation of the physical integrity, derogation of the dignity, and encroachment of the freedom of a person, which is the purpose of the present paper, give not their essence of legal codes and the way they were compiled but the specific character of the historical realities in which they functioned.  Both codes proved to be needed in early medieval societies in which at least part of the population had recently converted to Christianity. These were societies with a mixed ethnic composition in which common law tradition still functioned vigorously in spite of the influence respectively of the Roman and the Byzantine law. As G. Vladimirov notes, being written sources, law codes contain information of great value regarding social norms, habits, and the principles of the functioning archia and could be a landmark of use in the culturological reconstructions of every spiritual reality chronologically distant from us [5].

 

Violation of the Physical Integrity of a Person 

In PLS, considerable attention is spared to various cases of physical injuries and the damages, which the perpetrators had to pay to the claimants varied according to the gravity of the harm done to the individual. Thus, for striking a blow on a free man, provision is made in the code for the compensation of 15 solidi [6] if the sufferer is a man and of 45 solidi if it is a free girl or a woman [7]. But if a free pregnant woman has been stricken then the sum of the compensation grows up to 700 solidi [8]. If a knock on the head has caused bleeding the culprit has to pay 15 solidi to the victim, and if after the blow the three bones that cover the brain have fallen, the damages amount to 30 solidi [9]. A provision is made in PLS, considering a case of injury inflicted in the region of the ribs or the abdomen, which penetrates to the internal organs, and the sum to be paid then is 30 solidi. But if the wound has festered and does not heal the compensation grows up to 62½ solidi, and for cure the law provides for additional 9 solidi [10].

The compensation for three strikes with a stick, which have not caused bleeding, is 9 solidi. But if blood has started running from the stricken area the sum to be paid has to be 15 solidi [11]. For three punches, provision is made in the code for the compensation of 9 solidi [12].

PLS provides significant compensations for causing permanent bodily harm. For example, the sum to be paid for a cut-off leg is 62½ solidi [13], but if the leg continues to hang on its place, the compensation drops to 45 solidi [14]. On the other hand, for a cut-off arm, no matter whether it has been entirely severed from the body or not, according to the law 62½ solidi have to be paid [15]. The compensation for a cut-off thumb or a big toe is 50 solidi [16] (but if the finger remains hanging - 30 solidi [17]), for the second finger - 35 solidi, for the middle finger - 15 solidi, for the fourth finger - 9 solidi, and for the little finger - 15 solidi [18]; but if all the fingers except the thumb have been cut - 45 solidi [19]. For a knocked-out eye the perpetrator has to pay 62½ solidi; for a cut-off nose - 45 solidi; for a cut-off ear - 15 solidi; for a cut-off tongue, provided that the capacity of speaking has been lost - 100 solidi; and for a knocked-out tooth - 15 solidi [20].

The sum of hundred solidi is due as compensation to a man whose penis has been pierced through in a way that has made it useless; but if the penis has been cut off, then the compensation is 200 solidi - a sum equivalent to the blood money (wergeld) payable for the murder of a free Frank, and 9 solidi are added for treatment [21]. The law also provides for the compensation of 62½ solidi for a woman who has been bewitched by another woman and has lost her capability of bearing children because of that [22].

In case slaves are sufferers the due compensations are payable to their masters. For example, whoever has beaten up someone else’s slave and as a result of this the slave has not been able to do his work for more than 40 days, has to pay 1 solidus and 1 triens [23].

The above mentioned high financial compensations for inflicting bodily injuries and harms of various character and degree are an attempt to prevent bloodshed in a society in which all individuals of the male sex who have come of age were armed and participated in the Frankish volunteer force.

There is no such section in LJP and historians do not have at their disposal detailed information about how such violations were punished. The Byzantine Eclogue also does not treat such cases with the exception of injuring a man with a sword for which the perpetrator is punished by cutting off their hand (title XVII.46). In fact, a number of crimes as for example the attempt upon someone’s life (the various types of murder), robbery and so on are not considered in LJP although it is done in title XVII of the Eclogue. Beyond doubt, these crimes were familiar to the Bulgarian society of that time but probably the compiler of the code did not want to make changes in the existing well-known punitive measures against them enforced by the courts and did not regard it necessary to include texts, which to treat them [24].

 

Violations of the Sexual Integrity, Derogation of the Dignity and Encroachment upon the Freedom of a Person

In both codes, provisions for considerable punishments and substantial compensations are made for violations of the sexual integrity of individuals of the female sex with the purpose to protect the dignity of the victims, of their families, fiancés or husbands.

According to LJP [25], the raping of a virgin girl is a serious crime and the man who has committed it, should be severely punished: if the victim has not turned 20 yet, no matter whether she has been betrothed or not, she has the right to get the equivalence of all the possessions of the man, after their sale [26]. In this case, aggravating circumstance is the fact that the violator has availed himself of the victim’s inexperience. But if raping has taken place in a deserted place where no one could help the girl, the violator has to lose not only his possessions (in favour of the sufferer) but his freedom as well since according to LJP he is to be sold into bondage [27].

The most severe punishment - maiming - is provided by LJP in the case of sexual assault against a betrothed girl. It is specified that even if it has happened with her consent, the violator’s nose ought to be cut off [28]. The same severe punishment according to the code has to be inflicted in only two more cases: fornication committed by a monk and marriage between a man and the woman who has stood sponsor at his previous wedding, i.e. for very serious breaches of Christian morality and violation of Church canon.

Provision is made in LJP for the possibility the two sides - the family of the victim of raping and the perpetrator himself - to be reconciled and a wedding to follow. But if later it happens that the man changes his mind and refuses to marry the girl, her disgrace should be recompensed with 72 gold pieces or half of his possessions. But if he is poor, he has to be beaten (the form and the size of the punishment are not specified) and to be banished from the region. This punishment adjudged by a secular court could be substituted for a church punishment, namely the perpetrator has to observe strict fast for 7 years (which meant to live only on bread and water) and is forbidden to receive Holy Communion [29].

LJP provides for the punishment of a bachelor who has raped someone else’s female slave: he has to pay 30 gold pieces to the master of the woman and to observe fast for 7 years. But if the perpetrator is poor, then against his will his possessions are to be given to the master of the woman slave while he has to subject himself to the abovementioned church punishment [30].

In PLS, provisions are made for particularly severe punishments for perpetrators of sexual assaults against girls and women and the law considers various circumstances. The code provides for serious compensations even in cases when there is no actual raping but only a physical contact, which could be interpreted just as the beginning of an act of violation. Thus, for example, a man who has touched the wrist, the arm or the finger of a woman has to pay 15 solidi; if he has touched her arm under the elbow the sum to be paid is 30 solidi, and if he has touched her arm above the elbow - 35 solidi; and if he has touched or injured her breast, the compensation grows to 45 solidi [31].

A compensation of 200 solidi is provisioned in PLS in case a betrothed girl has been assaulted and raped while she has been taken to her husband’s home accompanied by a procession of relatives [32]. A man who has raped a free girl, who has not been betrothed yet, is sentenced to pay to the claimant 62½ solidi, which is the equivalent to the dot that a free Frankish woman would receive from her future husband [33]. This is the compensation for the girl’s lost virginity and for the considerable lessening of her possibilities to contract a marriage advantageous for her and her family.PLS also treats cases of sexual assault upon unfree women. If a free man has raped a female slave belonging to somebody else or to the king, he has to pay 15 or 30 solidi respectively [34]. In this case, the code does not defend the dignity of the woman slave but precautions are taken against encroachments upon someone’s property. But if a male slave has raped a female slave, the code provides for two opportunities: if as a consequence of what she has suffered the woman slave has died, her violator has to pay to her master 6 solidi while his master owes the equivalent of her cost. If the slave cannot pay the 6 solidi due, he has to be castrated [35]. If the woman slave has survived the assault her rapist has to pay to her master 3 solidi or to endure 300 lashes [36]. 

By this title, the lawgiver has demonstrated certain condescension to the perpetrator giving him the opportunity to evade the severe corporal punishment. It has to be noted that, although no provision is made in PLS for compensation due to a raped female slave, the measures enacted by the code as for example the relatively great sum, which the culprit has to pay as a punishment, the laying of the slave’s master under the obligation to compensate the owner of the dead female slave, as well as the severe corporal punishment provided in the code in case the rapist finds it impossible to pay off what is due according to the law, probably provided good prevention against sexual assaults upon slave women in the Frankish society, at least regarding its unfree members of the male sex.

There are also provisions in PLS for compensations for derogating someone's dignity by words and actions. For example, the cutting off the hair (a symbol of one's status of a free person) of a free boy or girl without the permission of his/her relatives has to be compensated by 45 solidi [37]. The sum to be paid for calling someone a “sodomite”, “talebearer” or “liar” is 15 solidi [38]. The person, who asserts that a free woman or a free man behaves like a prostitute, but cannot prove it, has to pay 45 solidi [39]. The use of insulting by names as “fox” and “hare” is punished with 3 solidi [40]. Particularly rigorous is the law in the case when a free man has been charged with practicing wizardry or a free woman has been called a “witch” and the accuser cannot prove his affirmation. The individual that has ventured to hurl such accusations has to pay respectively 62½ and 187½ solidi [41].

In contrast to PLS, LJP does not treat cases of derogation of someone’s dignity but contains a provision for a severe punishment in case of encroachment upon someone's liberty.

It is said in the code that if a person has dared to abduct a free individual, to sell or enslave them, has to be “brought into the same bondage” [42].

 

Conclusions

The comparative analysis of texts from PLS and LJP concerning various violations of the physical integrity and derogation of the dignity of a person show that by the high damages and severe punishments for which provisions are made in the two codes, it was meant first of all to protect virgin free girls from sexual assaults by men who did not belong to their households. In regard to unfree women, they were also protected as far as they were their masters’ possessions, i.e. they too were protected from assaults by free and unfree men outsiders to the households to which such women belonged. On the whole, the sanctions for raping for which provisions are made in LJP are more severe than those in PLS in consideration of the possibility corporal punishments, maiming and selling into slavery to be inflicted upon free individuals.

The absence in LJP of a section treating violations of the physical integrity of a person is probably due to the circumstance that while working on the code the compiler was guided mainly by the cause for its composing, namely the conversion to Christianity and its endorsement as the religion of the First Bulgarian State. For that reason, the compiler (compilers) borrowed from the Eclogue only separate legal regulations from the province of the criminal, common, and procedure law. As M. Andreev notes, in that historical moment, legislative regulation needed only the cases relevant to the new morality imposed by Christianity as well as those, whose settling by the functioning legal system did not correspond to the stage of development of the social relations or to the canons of the newly adopted religion [43].

However, it is most likely that with still preserved clan relationships in both the Frankish and the Bulgarian societies, the cases of conflicts, violations of the physical integrity, and sexual assaults within a household were treated as family problems and were left in the hands of the heads of the households.

 

References

[1] About the dating of PLS see.: Hessels, J. H. (1880). Lex Salica: the ten texts with the glosses and the Lex Emendata. London; Stein, S. (1947). Lex Salica I; Lex Salica II. Speculum, April (XXII), pp. 113-134, 395-418; Eckhardt, K. A. (1955). Die Gesetze des Merowingerreiches. I. Pactus legis salicae. Recensiones Merovingicae. Witzenhausen; The Laws of the Salian Franks. Transl. and Introduction by K. F. Drew. Pennsylvania, 1991, p.

30; Rouche, M. (1996). Clovis. Éditions Fayard; Soleil, S. (2002). Introduction historique aux institutions – du IVe au XVIIIe siècle. Flammarion, et al.

[2] About the time and place of the compiling of LJP see in: Bobchev, S. (1998). Istoriya na starobalgarskoto pravo. Lektsii i izsledvaniya. Nova redaktsiya prof. P. Petrov. Sofiya: Albatros (in Bulgarian), pp. 110-120; Ganev, V. (1959). Zakon soudnayy lyudyma. Pravno-istoricheski i pravno-analitichni prouchvaniya. Sofiya: BAN (in Bulgarian), pp. 144-157; Andreev, M. (1957). Kam vaprosa za proizhoda i sashtnostta na Zakon soudnayy lyudyma. GSU YUF (49) (in Bulgarian), pp. 18-26, 31-32; Andreev, M., F. Milkova. (1979). Istoriya na balgarskata feodalna darzhava i pravo. Sofiya: Nauka i izkustv (in Bulgarian), p. 30 et seq.; Maksimovich, K. A. (2004). Zakon soudnayy lyudyma. Istokovedcheskiye i lingvisticheskiye aspekty issledovaniya slavyanskogo yuridicheskogo pamyatnika. Moskva (in Russian), pp. 7-129; Petrova, G. (2005). Tsarkva i tsarkovno pravo v srednovekovna Balgariya. Sofiya: Sibi (in Bulgarian), p. 49; Naydenova, D. (2005). Pravnite pametnitsi v Parvoto balgarsko tsarstvo. Istorichesko badeshte IX (1-2) (in Bulgarian), pp. 1-2, 161-163, et al.

[3] Andreev, M. (1957). Kam vaprosa za proizhoda i sashtnostta na Zakon soudny lyudyma. GSU YuF (49) (in Bulgarian), pp. 5-7.

[4] The Laws of the Salian Franks. Transl. and Introduction by K. F. Drew. Pennsylvania, 1991, p. 30.

[5] Vladimirov, G. (2001). “Eklogata” kato yuridichesko “informatsionno prostranstvo” na Vizantiya prez VІІІ v. Pravna misal (1) (in Bulgarian), p. 103.

[6] At that time, the cost of a good cow was 1 solidus.

[7] PLS, ХХХІ. 1, p. 120. The texts from PLS are cited according to: Pactus Legis Salicae. Ed. K. A. Eckhardt. – Monumenta Germaniae Historica. Legum Sectio I. Leges nationum germanicarum, t. IV, p. I. Hannoverae, 1962.

[8] PLS, ХХІV. 5, p. 91.

[9] PLS, ХVІІ. 3, 4, pp. 76-77.

[10] PLS, ХVІІ. 6, 7, pp. 77-78.

[11] PLS, ХVІІ. 8, 9, pp. 78-79.

[12] PLS, ХVІІ. 10, p. 79.

[13] PLS, ХХІХ. 11, p. 116.

[14] PLS, ХХІХ. 10, p. 115.

[15] PLS, ХХІХ. 2, pp. 112-113.

[16] PLS, ХХІХ. 3, p. 113.

[17] PLS, ХХІХ. 4, p. 113.

[18] PLS, ХХІХ. 6, 9, pp. 114-115.

[19] PLS, ХХІХ. 7, p. 114.

[20] PLS, ХХІХ. 12-16, pp. 116-117.

[21] PLS, ХХІХ. 17-18, p. 118.

[22] PLS, ХІХ. 4, p. 82.

[23] PLS, ХХХV. 4, p. 130

[24] An indirect support of such a thesis is the fact that in the answers of Pope Nicholas I to the questions of the Bulgarians there are no commentaries on similar violations with one exception – a case of castration. – See Otgovorite na papa Nikolay І po dopitvaniyata na balgarite, chapter 52. – Latinski izvori za balgarskata istoriya, t. ІІ. Sastavit. i red. I. Duychev, M. Voynov, S. Lishev, B. Primov. Sofiya: BAN, 1960 (in Bulgarian), p. 99.

[25] The texts from LJP are cited according to:  Ganev, V.  (1959).  Zakon  soudny lyudyma.  Pravno- istoricheski i pravno-analitichni prouchvaniya. Sofiya: BAN (in Bulgarian).

[26] LJP, ІХ, p. 341.

[27] LJP, ІХ, p. 341.

[28] LJP, ХІ, p. 370.

[29] LJP, VІІІ, p. 320.

[30] LJP, V, p. 241.

[31] PLS, ХХ. 1-4, pp. 83-84.

[32] PLS, XІІІ.14, p. 63.

[33] PLS, XV.2, p. 70.

[34] PLS, XХV.1-2, pp. 93-94.

[35] PLS, XХV.5, pp. 94-95.

[36] PLS, XХV.6, p. 95.

[37] PLS, ХХІV. 2, 3, pp. 89-90.

[38] PLS, ХХХ. 1, 7, pp. 118, 120.

[39] PLS, ХХХ. 3, pp. 118-119.

[40] PLS, ХХХ. 4, 5, p. 119.

[41] PLS, LХІV. 1, 2, pp. 230-231.

[42] LJP, ХХ ІХ, p. 566.

[43] Andreev, M. (1957). Kam vaprosa za proizhoda i sashtnostta na Zakon soudny lyudyma. GSU YuF (49) (in Bulgarian), pp. 6-7.