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Reading between the lines: Old Germanic and early Christian views on abortion
Elsakkers, M.J.
Publication date
2010
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Citation for published version (APA):
Elsakkers, M. J. (2010). Reading between the lines: Old Germanic and early Christian views
on abortion.
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Chapter 1
OLD GERMANIC LAW ON ABORTION:
An Overview
1ROMAN HERITAGE
The Germanic tribes that founded kingdoms in the former Roman Empire and in regions to the north and east of the Roman limes brought along their own customs, traditions and laws. They gradually all converted to Christi-anity, and were certainly not immune to Roman culture and society. Germanic kings recognized the significance and the authority of written Roman law, and this prompted them to have law codes of their own drawn up in Latin - the language of literacy. The Old Germanic law codes or leges barbarorum were probably based on age-old laws that had been transmitted orally from generation to generation in the various Germanic vernaculars. However, many of the written codifications were influenced by current Roman law.2 Roman jurists were pro-bably involved in the codification of some of the Old Germanic laws, especially the laws of the tribes that set-tled in the southern parts of western Europe, the heart of the former Roman Empire (Leges Visigothorum, Lex
Burgundionum, the Ostrogothic Edictum Theoderici, and the somewhat younger Leges Langobardorum). The
Visigothic and Burgundian kings also had their lawyers compile separate compendia of Roman law or leges
ro-manae (Lex Romana Visigothorum or Breviarium Alarici and the Lex Romana Burgundionum) for their Italo-,
Hispano- and Gallo-Roman subjects.3 In other Germanic kingdoms the Breviarium Alarici (506) and/or the
Codex Theodosianus (438) were used as compendia of Roman law.4
Roman law does not prohibit abortion; it condemns poisoning and endangering another person’s life.5 Roman and Jewish law both regard the fetus as a part of the mother’s body, pars viscerum matris.6 In Roman law the fetus is not a person or a separate human being that can be murdered or avenged. Only killing or injuring the mother is punished. The Roman law on poisoning, the Lex Cornelia de Sicariis et Veneficis (LCSV), forbids selling, supplying, preparing and possessing poison.The Breviarium Alarici (BA) contains the late Roman jurist Paul’s commentary on the LCSV.
1 Many thanks are due to Erika Langbroek, Bert Okken, Sandor Chardonnens, Rolf Bremmer, Liduine Smit-Verheij, Bertine Bouwman, Marjon Deegens, Fabiola van Dam, Aad Quak, Thea van der Linden, and Han Nijdam for help in various ways. 2 For a short overview of Old Germanic law, see: Elsakkers 2006. On the history of late antiquity, the influence of Roman law on the ‘barbarian’ codes, and (the history of) late antique and early medieval Germanic law, see, for instance: Vino-gradoff 1929, Levy 1951, Levy 1951a, Schott 1979, James 1982, 1988, Niederhellmann 1983, Wood 1986, 1990, 1993, 1994, 1998, Drew 1988, Geary 1988, Wolfram & Pohl 1990, Reuter 1991, Schmidt-Wiegand 1991, Cameron 1993, Harries & Wood 1993, Matthews 1993, 2000, 2006, Harries 1993, Wolfram 1997, Wormald 1999a, Wormald 1999, Charles-Edwards 2000, Wickham 2005, Smith 2005, and the articles on Old Germanic law in the Handwörterbuch zur deutschen
Rechtsgeschichte (HRG). The Monumenta editions of the Old Germanic laws are available on the internet thanks to the
courtesy of the MGH and the Bayerische Staatsbibliothek: http://bsbdmgh.bsb.lrzmuenchen.de/dmgh_new/ (last accessed December 5, 2009).
3 For an edition of the Breviarium Alarici cf. Haenel 1849; for the Lex Romana Burgundionum, see below.
4 For an edition of the Codex Theodosianus (CTh), cf. Mommsen 1904, Pharr 1952 (English translation), and http://www.-thelatinlibrary.com/theodosius.html (last accessed December 5, 2009). See also: Matthews 2000, Harries & Wood 1993, and especially Sirks 1993 and Wood 1993.
5 On Roman law, abortion and the fetus, cf. appendix 1.
6 On Jewish law, cf. Mendelsohn 1891, Feldman 1968, pp. 251-268, Jakobovits 1975, pp. 190-191, Rosner 1976, p. 218, and Silber 1980, p. 236. In Jewish law the fetus is considered ‘potential life’. “The special set of laws governing the abortion question begins with an examination of the foetus’s legal status. For this the Talmud has a phrase, ubar yerekh imo, which is a counterpart of the Latin pars viscerum matris. The foetus, that is, is to be deemed a ‘part of its mother’ rather than an independent entity” (Feldman 1968, p. 253). On the Old Testament law on abortion and the Hebrew and Septuagint version of Exodus 21: 22-23, cf. Te Lindert 1998 and Elsakkers 2005. [article III].
Pauli Sententiae
PS 5.23.1 (BA PS 5.25.1) Lex Cornelia poenam deportationis infligit ei, qui hominem occiderit eiusve rei causa furtive faciendi cum telo fuerit et qui venenum hominis necandi causa habuerit, vendiderit, paraverit, falsum testimonium dixerit, quo quis periret, mortisve causam praestiterit. Ob quae omnia facinora in honestiores poena capitis vindicari placuit, humiliores vero aut in crucem tolluntur aut bestiis obiciuntur.7
According to the Pauli Sententiae the poisons that are forbidden in the LCSV include abortifacients and aphro-disiacs:
Pauli Sententiae
PS 5.23.14 (BA PS 5.25.8). Qui abortionis aut amatorium poculum dant, etsi id dolo non faciant, tamen, quia mali exempli res est, humiliores in metallum, honestiores in insulam amissa parte bonorum relegantur; quod si ex hoc mulier aut homo perierit, summo supplicio afficiuntur.8
Roman law forbids giving someone an abortifacient or a love potion, because these concoctions were known to be poisonous and potentially lethal.9 The punishment for poisoners, including those who provide others with abortifacients or aphrodisiacs, is severe - even when no harm was meant or when done in good faith: it entails forfeit of property, banishment to an island or deportation to the mines.10 If the person who is poisoned dies, the punishment is death. Abortion in itself is not punished, nor is the death of the fetus treated as murder. It is poi-soning and jeopardizing another person’s life that is punished. The LCSV influenced the early medieval legis-lators who compiled the Germanic law codes through the Codex Theodosianus and the Breviarium Alarici (506), both of which were well-known and influential throughout the Middle Ages.11
We must not forget that Roman law did not suddenly become obsolete, when the Germanic tribes began putting down their roots down in Western Europe. Written and unwritten Roman law and Roman vulgar law remained in force as the law of the Romans living under Germanic rule, as did provincial law and (oral) customary law, so that many different laws were current in the early medieval West, besides the ‘new’ barbarian laws. Although Germanic law is usually defined as ‘personal law’, it is well to remember that it was not always easy to define a person’s ethnicity.12 This and the abundance of laws could lead to awkward situations, as noted by Agobard (769-840) in his Adversus legem Gundobadi:
It often happens that five men are travelling or sitting together, and none of them shares a common law with the others in transitory matters as regards things of the body, although all are bound together with regard to the soul in matters that are eternal, by the one law of Christ. And it may be that all are true christians, loving the truth of the faith, and believing themselves to be the dearest of friends, and none rejects the testimony of any other while they edify each other with good speeches. If it suddenly happens that one of them is involved in a legal dispute, he cannot call a witness from among his
7 Vanzetti 1995, p. 134; Pauli Sententiae, ‘PS 5.23.1 (BA PS 5.25.1) Die Lex Cornelia legt die Strafe der Deportation den-jenigen auf, welche einen Menschen getötet oder dieserhalb, bez. um ein Furtum zu verüben, einer Waffe sich bedient haben werden, und die Gift behufs Beiseiteschaffung eines Menschen gehabt, verkauft, zubereitet, oder ein falsches Zeugnis abge-legt haben werden, damit Jemand zu Grunde gehe, oder die Veranlassung zum Tode eines Menschen gegeben haben werden. Man war dahin einig, dass wegen aller dieser Missethaten gegen Vornehmere mit Kapitalstrafe eingeschritten werde; hin-gegen werden Personen niederen Standes entweder an das Kreuz geschlagen oder den wilden Tieren vorgeworfen’ (Conrat 1903, p. 531).
8 Vanzetti 1995, p. 136; ‘Paul’s Sentences, PS 5.23.14 (BA PS 5.25.8) Those who give an abortifacient or a love potion, and do not do this deceitfully, nevertheless, [because] this sets a bad example, the humiliores will be banned to a mine, and the
honestiores will be banned to an island after having forfeited (part of) their property, and if on account of that a woman or
man perishes, then they [Pharr: the giver] will receive the death penalty’ (Pharr 1932, p. 289; emended translation).
9 By implication we can assume that other substances and remedies, such as contraceptives, fertility drugs and menstrual regulators, were also banned, if they were known to be poisonous. Medical treatises, herbaria, and recipe books often in-dicate that remedies were poisonous; sometimes a remedy for a certain complaint includes a warning that it can cause an abortion a pregnant woman. See also: chapter 4.
10 The LCSV was enacted in order to prevent intentional poisoning. It was common knowledge that poisoning was a favorite method of political murderers in Roman Empire; it was used to eliminate enemies and political adversaries, cf. Rutten 1997. The LCSV also aimed to protect citizens from being poisoned accidentally through injudicious use of poisonous drugs. 11 Cf. Wood 1993 and Matthews 2000.
dearest friends, with whom he had been out walking, because the testimony of a particular man is not valid against a Gundobadus [Burgundian law], and likewise with the others.13
An important difference between Roman and Germanic law is that the latter does not usually sentence a person to death for murder. Instead, the murdered person’s life must be compensated with the wergeld, that is, the price for a man’s life. Injuries are also compensated with a fine. The fines for injuries are determined by means of injury tariffs, that is, detailed lists of the compensations to be paid to the victim. These tariff lists are characteris-tic of Old Germanic law.
In Old Germanic law we find provisions on abortion in the titles on poisoning and magic, and in the titles on injuries and homicide. The former are concerned with intentional abortion, and the latter with violent abortion or abortion by assault.14
VISIGOTHIC LAW ON ABORTION
The six Visigothic antiquae leges on abortion in the Leges Visigothorum (LV) were promulgated in the fifth or sixth century, and are probably the oldest set of medieval laws on abortion.15 They discuss abortifacients, in-tentional abortion and violent abortion. The first article (LV 6.3.1) was probably based on the Roman jurist Paul’s interpretation of the LCSV quoted above (PS 5.23.14 - BA PS 5.25.8), and it is older than the Visigothic law on poisoning that was also derived from Roman law.16
LV 6.3.1. Antiqua. De his, qui potionem ad aborsum dederint. Si quis mulieri pregnanti potionem ad avorsum aut pro necando infante dederit, occidatur; et mulier, que potionem ad aborsum facere quesibit, si ancilla est, CC flagella suscipiat; si ingenua est, careat dignitate persone et cui iusserimus servitura tradatur.17
LV 6.3.1 punishes suppliers of abortifacient potions with the death penalty, whether or not the person who took the abortifacient died, a punishment that is much harsher than its source. At first sight LV 6.3.1 is a prohibition
13 Wood 1990, p. 53; for the Latin text, see: CLCLT: Agobardus Lugdunensis, Aduersus legem Gundobadi, cap. : 4, linea : 11-15 (CCCM 52) (Cetedoc last accessed January 17, 2010). See also: Wood 1990, passim and Wood 1986, pp. 20-21. 14 Note that Roman law does not explicitly punish violent or involuntary abortion. Aggression or violence that caused a woman to abortion could be punished under the laws on injuries and homicide.
15 The Leges Visigothorum were edited by Zeumer in 1902; cf. also: http://bsbdmgh.bsb.lrz-muenchen.de/dmgh_new/ (last accessed December 5, 2009). The seven Visigothic laws on abortion are in title three De executientibus hominum partum, ‘concerning abortion’, of book six De sceleribus et tormentis, ‘concerning crimes and tortures’. The antiquae leges are ‘old laws’ promulgated by the Visigothic kings Euric (466-484), Alaric II (484-507), Leovigild (568-586) and Reccared I (586-601), or the Ostrogothic king Theoderic (493-526); the younger laws usually mention the king that issued the law. Six of the Visigothic abortion laws are antiquae; the seventh was issued by king Chindasvinth (642-653).
Only a few fragments of private law from the fifth-century Codex Euricianus (CE), a code probably promulgated under the Visigothic king Euric in 475, survive in the palimpsest MS Paris. Lat. 12161 (De Commendatis vel Commodatis, De
Vendi-tionibus, De DonaVendi-tionibus, De Successionibus), cf. d’Ors 1960, Zeumer 1902, pp. 1-27, and http://bsbdmgh.bsb.lrz-muenchen.de/dmgh_new/ (last accessed December 5, 2009). Zeumer construed a reconstruction of Eurician law using younger Bavarian law (Zeumer 1902, pp. 28-32). His abortion law (CE 3) is a reconstruction based on LV 6.3.1 plus LV 6.3.2 (CE 3, Zeumer 1902, p. 29). Because we have no way of knowing if Euric ever issued a law on abortion, Zeumer’s reconstruction is best ignored.
On Visigothic law and Visigothic society, see, for instance: Thompson 1966, 1969, King 1972, 1980a, 1980b, Nehlsen 1978c, James 1980, Collins 1983, Wolfram 1988, 1990, Heather & Matthews 1991, Heather 1991, 1992, 1996, 1998, 1999, Nixon 1992 and Ferreira 1999. On Visigothic abortion law, cf. Amundsen 1971, Niederhellmann 1983, Elsakkers 2003a and Elsakkers 2005. [articles II and III]
16 A separate law on poisoning that was clearly based on the LCSV was issued in the seventh century during king Chinda-svind’s reign: LV 6.2.2 (6.2.3). The laws on poisoning are in the preceding title of the same book 6: 6.2. De maleficis et
con-sulentibus eos adque veneficis, ‘6.2. Concerning malefactors and their advisors, and poisoners’. If the poisoner’s (veneficus)
victim dies after drinking the poisonous potion (venenatam potionem), the poisoner must be tortured and then put to death. If the victum lives, the poisoner must be ‘given up into his power, to be disposed of absolutely as he may desire’.
17 Zeumer 1902, p. 260; ‘LV 6.3.1. Old law. Concerning those who give a potion to induce abortion. If anyone gives a potion to a pregnant woman for abortion or for the purpose of killing a[n unborn] child, let this person be put to death; and let the woman who asked [this person] for a potion to commit abortion (or: asked [this person] to concoct a potion for abortion), if she is a slave, receive 200 lashes; if she is a free woman, let her be deprived of the dignity of a persona and be handed over as a slave to whom we order’ (Amundsen 1971, p. 567; slightly emended translation).
of poison like the LCSV, but, if we look closer, we see that the Visigothic lawgiver added a provision that pun-ishes the woman who is contemplating deliberate abortion. A free woman who asks for an abortifacient potion is punished with loss of freedom or enslavement, and an ancilla, slave woman, who does the same, should receive 200 lashes.
The following five Visigothic antiquae on abortion (LV 6.3.2 - 6.3.6) condemn violent abortion, that is, invol-untary abortion brought onby a third party.18
LV 6.3.2. Antiqua. Si ingenuus ingenuam abortare fecerit. Si quis mulierem gravidam percusserit quocumque hictu aut per aliquam occasionem mulierem ingenuam abortare fecerit, et exinde mortua fuerit, pro homicidio puniatur. Si autem tantumodo partus excutiatur, et mulier in nullo debilitata fuerit, et ingenuus ingenue hoc intulisse cognoscitur, si formatum infantem extincxit, CL solidos reddat; si vero informem, C solidos pro facto restituat.19
LV 6.3.2 - LV 6.3.6 explain that causing a spontaneous miscarriage in a woman was considered an act of vio-lence, whatever the circumstances or the method used. If read together, these five Visigothic articles on violent abortion offer a comprehensive list of all possible contingencies, and of the fines due in each case.20 If the preg-nant woman dies, the guilty party is punished for homicide.
Visigothic abortion law is innovative in that it differentiates the punishment for violent abortion according to the stage of development of the fetus. Early term abortion is a less serious offense than late term abortion. The pen-alty for the former is 100 solidi; for the latter 150 solidi must be paid. Both sums are fines for serious injuries to the pregnant woman.21In Visigothic law the Aristotelian criterion ‘formed’ - ‘unformed’ is used to distinguish between early term and late term abortion. This criterion was introduced into medieval secular law by the law-yers who incorporated the Greek Septuagint-based version of the biblical law on abortion into Visigothic law. Note, however, that these Visigothic laws punish violent abortion (percusserit quocumque hictu), including domestic violence, and that the biblical law deals with accidental abortion (‘If two men fight and strike a woman who is pregnant …’).22 The Visigothic choice of the Septuagint-based version of Exodus 21: 22-23 and not the Hebrew version seems logical, because the Greek Septuagint was probably the Bible version used for the Gothic translation of the Bible.23
Later in the seventh century, the tide in Visigothic Spain seems to have changed. King Chindasvind (642-653) issued the new law on abortion (LV 6.3.7) that is harsh and uncompromising in its condemnation of voluntary and by implication also involuntary abortion as murder. It punishes abortion with the death penalty or blinding - both are ‘Roman’ and not ‘Germanic’ forms of punishment.
LV 6.3.7. Flavius Chindasvindus Rex. De his, qui filios suos aut natos aut in utero necant.
Nihil est eorum pravitate deterius, qui, pietatis inmemores, filiorum suorum necatores existunt. Quorum quia vitium per provincias regni nostri sic inolevisse narratur, ut tam viri quam femine sceleris huius auctores esse repperiantur, ideo
18 Zeumer 1902, pp. 261-262.
19 Zeumer 1902, p. 261; ‘LV 6.3.2. Old law. If a free man causes a free woman to abort. If anyone strikes a pregnant woman by any blow whatever or through any circumstance causes a free woman to abort, and from this she dies, let him be punished for homicide. If, however, only the partus is expelled, and the woman is in no way debilitated, and a free man is recognized as having inflicted this to a free woman, if he has killed a formed fetus, let him pay 150 solidi; if it is actually an unformed fetus, let him pay 100 solidi in restitution for the deed’ (Amundsen 1971, p. 567; slightly emended translation).
20 For a discussion of LV 6.3.2 - LV 6.3.6, see: Elsakkers 2003a. The careful structure of these laws and the discussion of each contingency seem to be reminiscent of Roman law. [article II]
21 The fines for killing a formed and an unformed fetus are comparable to the fines imposed for amputation and causing a person to become seriously disabled. Cutting off a hand or a foot is fined with 100 solidi, cf. the injury tariffs in Book 6, title 4, especially LV 6.4.1 and LV 6.4.3, cf. Elsakkers 2003a, p. 61, note 20. [article II]
Wergeld is not mentioned explicitly in Visigothic law; one of Reccesvinth’s laws states that the compensation due for
homi-cide is 500 solidi (LV 6.5.14). However, other laws demand the death penalty for homihomi-cide (see, for instance, LV 6.5.12). See also: Elsakkers 2003a, p. 57, note 7. [article II]
22 Cf. chapter 2.
hanc licentiam proibentes decernimus, ut, seu libera seu ancilla natum filium filiamve necaverit, sive adhuc in utero habens, aut potionem ad avorsum acceperit, aut alio quocumque modo extinguere partum suum presumserit, mox pro-vincie iudex aut territorii talem factum reppererit, non solum operatricem criminis huius publica morte condemnet, aut si vite reservare voluerit, omnem visionem oculorum eius non moretur extinguere, sed etiam si maritum eius talia iussisse vel permisisse patuerit, eundem etiam vindicte simili subdere non recuset.24
This law betrays clerical influence, because it reads like a vehement sermon. Perhaps it was influenced by the sermons of bishop Caesarius of Arles (469–543) who was also a fierce opponent of abortion (cf. 2.2.1). In Chin-dasvind’s law abortion is equated with parricide; the fetus is spoken of as filius or filia, a son or a daughter:
Nihil est eorum pravitate deterius, qui, pietatis inmemores, filiorum suorum necatores existunt, ‘There is
noth-ing worse than the depravity of those who, disregardnoth-ing piety, become murderers of their own children’ and
[mulier] natum filium filiamve necaverit, sive adhuc in utero habens, ‘[a woman who] murders a son or a
daughter which has been born, or, while having it still in utero.’ Chindasvind also punishes the husband for murder, if he is involved in any way: sed etiam si maritum eius talia iussisse vel permisisse patuerit, ‘if it is evident that the woman’s husband ordered or permitted such things’.
Visigothic law is the first medieval law to employ the abortion criterion ‘formed’ - ‘unformed’. From Visigothic law we learn that there were women who asked for abortive potions, and that besides violent and involuntary abortion, intentional abortion apparently also occurred. We also learn that the abortifacient potion was probably the most frequently used method, even though the drugs involved were known to be dangerous, and that various other unspecified abortion methods and techniques could also be used. Involuntary abortion as a result of vio-lence is punished as a serious injury to the mother. Intentional abortion is punished severely in the ‘old laws’. Aiding and abetting, that is, supplying poisonous substances is regarded as attempted murder, and punished with the death penalty, even if the victim lives. Chindasvind’s seventh-century law punishes those who commit inten-tional abortion, and anyone else involved with the death penalty.
BURGUNDIAN AND OSTROGOTHIC LAW ON ABORTION
The early sixth-century laws of the Burgundians and Ostrogoths - Lex Burgundionum (LB), Lex Romana
Bur-gundionum (LRB) and Edictum Theoderici (ETh) - applied to the Roman and Germanic population alike, and
were greatly influenced by Roman law.25 They were probably intended for the elite and issued as part of the romanization of the Burgundians and Ostrogoths. It is not likely that many of the ancient oral laws of the Bur-gundians and Ostrogoths were incorporated into these laws. The man in the street probably continued to live by
24 Zeumer, Leges Visigothorum, p. 262; ‘6.3.7. King Chindasvind. Concerning those who kill their own children, either al-ready having been born or in utero.There is nothing worse than the depravity of those who, disregarding piety, become mur-derers of their own children. In as much as it is said that the crime of these has grown to such a degree throughout the pro-vinces of our land that men as well as women are found to be the performers of this heinous action, we therefore, forbidding this dissoluteness, decree that, if a free woman or a female slave murders a son or a daughter which has been born, or, while having it still in utero, either takes a potion to induce abortion, or by any other means whatsoever presumes to destroy her own fetus, after the judge of the province or of the territory learns of such a deed, let him not only sentence the performer of this crime to public execution, or if he wishes to preserve her life, let him not hesitate to destroy the vision of her eyes, but also, if it is evident that the woman’s husband ordered or permitted such things, let him not be reluctant to subject the same to a similar punishment’ (Amundsen 1971, pp. 568–569).
25 For editions and translations of the Burgundian laws, cf. Von Salis 1892 [1973], Beyerle 1936, Drew 1949, Roels 1958. See also: Nehlsen 1978a and Nehlsen 1978b.
The first edition of the Ostrogothic Edictum Theoderici was printed by Pierre Pithou in Paris in 1579; this edition was based on two manuscripts which are now lost. More modern editions are Bluhme 1875-1889, pp.145-179, and Bavieri 1968, pp. 681-710. See also: Becker 1971.
unwritten Germanic tribal law or the Roman vulgar or customary law of the provinces, neither of which sur-vived the ravages of time.26
Neither Burgundian law (issued between 483-532) nor Ostrogothic law (c. 520) contains provisions on violent abortion; presumably all injuries caused by violence including causing a miscarriage were covered by the laws on injuries. Nor are there any articles on deliberate abortion or poisoning in LB, LRB or ETh. In all probability Roman law (LCSV, BA) was still considered applicable in these kingdoms that were founded in the center of the former Roman Empire (southeastern Gaul and northern Italy).27 However, the Burgundian and Ostrogothic divorce laws may contain an indirect allusion to the use of anti-fertility agents, contraception and intentional abortion. These laws were modelled on the late Roman divorce law issued by Emperor Constantine in 331 (CTh 3.16.1) that is also included in the Breviarium Alarici (BA 3.16.1).28 Accusing one’s spouse of being a
medica-mentarius, -a (CTh, BA), veneficus, -a (LRB) or maleficus, -a (LB, ETh), that is, a ‘poisoner’ or ‘magician’,
was a grounds for divorce.29 It is possible that the grounds for divorcing a person’s wife in Romano-Germanic divorce law implicitly also refers to preparing, supplying and using contraceptives and abortifacients.30 Al-though there is no actual proof that these laws considered anti-fertility drugs to be poisons, there is supporting evidence in the Pauli Sententiae on poisoning and abortifacients (BA PS 5.25.1; BA PS 5.25.8), in the first Visigothic law on abortion (LV 6.3.1), and in the Salic laws on poisoning and abortifacients discussed below.
Table 1.1:
Terms for poisoners, magicians and ‘poison’ - ‘magic’ in Roman and Romano-Germanic divorce law
Codex Theodosianus (438) CTh 3.16.1 medicamentarius, -a
Breviarium Alarici (LRV) (506) BA 3.16.1 medicamentarius, -a
Breviarium, interpretatio (6th c.) BA 3.16.1 maleficus, -a
Breviarium, epitomes (7th-8th c.) BA 3.16.1 maleficus, -a; maleficium
Lex Burgundionum (c. 500) LB 34.3 maleficium
Lex Romana Burgundionum (c. 520) LRB 21.1-LRB 21.3 veneficus, -a
Edictum Theoderici (c. 520) ETh 54 maleficus, -a
LOMBARD LAW ON ABORTION
After the demise of the Ostrogothic kingdom (552) the Lombards or Langobards settled in northern and central Italy; they, too, were ‘Rome-orientated’. The laws of the Lombards, the Leges Langobardorum (LLa), were pro-mulgated between 643 and 866.31 The oldest set of Lombard laws, the Edictum Rothari (ER), has four articles
26 On Roman vulgar law, cf. Levy 1942/1943, Levy 1951, and Vinogradoff 1929.
27 The Edictum Theoderici has an article on malae artes, ‘black magic’ (ETh 108), cf. Bluhme 1875-1889, p. 164.
28 A wife was allowed to divorce her husband if homicidam vel medicamentarium vel sepulchrorum dissolutorem maritum
suum esse probaverit, i.e. ‘if she should prove that her husband is a homicide, a sorcerer, or a destroyer of tombs’. A
hus-band was permitted to do the same si moecham vel medicamentariam vel conciliatricem repudiare voluerint, ‘if he wishes to divorce her as an adulteress, a sorceress, or a procuress’, cf. Mommsen, Meyer & Krüger 1905, Bd. 1.2, pp. 155-156, http://www.thelatinlibrary.com/theodosius.html; (last accessed January 17, 2010) Pharr 1952, pp. 76-77 (CTh 3.16.1), Haenel 1849, pp. 92-95 (BA 3.16.1). Using poison or magic to kill someone, adultery, destroying tombs, matchmaking, and murder were all non-pardonable crimes meriting capital punishment according to late Roman law. On late Roman divorce law, cf. Grubbs 1993, Grubbs 1995, pp. 225-242, Grubbs 2002, pp. 202 ff.; Treggiari 1991a and 1991b, Arjava 1988, Arjava 1996, p. 178.
29 For the Romano-Germanic laws on divorce, cf. Von Salis 1892 [1973], p. 68 (LB 34.3), Von Salis 1892 [1973], pp. 143- 144 (LRB 21.1-LRB 21.3) and Bluhme 1875-1889, p. 157 (ETh 54),
30 Judith Evans Grubbs quotes Plutarch on divorce who intimates that “administering poison or drugs to the children
(phar-makeia)” was a grounds for divorce. She notes that pharmakeia may perhaps be a reference to “procured abortion’” (Grubbs
1995, p. 226).
31 For editions and translations of the Lombard laws, cf. Bluhme 1868, Beyerle 1962, Beyerle 1962-1963, and Drew 1973. See also: Christie 1995, Dilcher 1978, Pohl & Erhart 2005.
on poisoning that read like an expanded version of the Roman LCSV (LLa-ER 139 - LLa-ER 142).32 The pun-ishment for murder by poisoning is no longer the death penalty as in the LCSV and Visigothic law, but it now consists of the payment of the wergeld (LLa-ER 141).33 For a failed attempt at poisoning half the wergeld is due (LLa-ER 140), and for plotting to kill someone, that is, mixing a poisonous drink (venenum ad bibendum) twenty solidi must be paid (LLa-ER 139). Because the Lombard prohibition of poisoning was derived from Roman law, it probably also punishes preparing, supplying, selling, and administering anti-fertility drugs and love potions.
Unintentionally causing a free woman to miscarry is punished in article LLa-ER 75.
LLa-ER 75. De infante, si in utero matris occisus fuerit. Si infans in utero matris suae nolendo ab aliquem occisus fuerit: si ipsa mulier libera est et evaserit, adpretietur ut libera secundum nobilitatem suam, et medietatem quod ipsa valuerit, infans ipse conponatur. Nam si mortua fuerit, conponat eam secundum generositatem suam, excepto quod in utero eius mortuum fuerit, ut supra, cessante faida, eo quod nolendo fecit.34
The miscarriage seems to be the result of some sort of accident or violent incident, because LLa-ER 75 says that it happened nolendo, ‘not willingly’, ‘involuntarily’. The circumstances are not explained, and it is not clear whether we are dealing with (domestic) violence, a fight that got out of hand, and/or the kind of accidental abor-tion described in Exodus 21: 22-23. LLa-ER 75 awards half the mother’s wergeld as compensaabor-tion for invol-untary abortion. The compensation due is linked to the mother’s wergeld, and this indicates that causing a mis-carriage is treated as murder.35 If the mother dies, her wergeld must be paid as well. The article concludes with a warning to the families involved that payment of compensation means that the feud should stop - cessante faida. LLa-ER 75 does not tell us exactly how the miscarriage happened. However, a second article on abortion in Lombard law that punishes causing a pregnant ancilla or servant girl to miscarry uses the verb percutere, ‘to strike, hit, beat’, thus clearly indicating that the miscarriage was caused by some sort of (domestic) violence (LLa-ER 334).
LLa-ER 334. De ancilla praegnante. Si quis percusserit ancilla[m] gravida[m] et avortum fecirit, conponat solidos tres. Si autem ex ipsa percussura mortua fuerit, conponat eam, simul et quod in utero eius mortuum est.36
32 LLa-ER 139 fines preparing a poisonous drink (uenenum ad bivendum dare) in order to poison another person with 20
solidi. LLg-ER 140 punishes giving a poisonous drink (uenenum ad bivendum) to someone that turns out not to be fatal with
half the person’s wergeld. LLg-ER 141 punishes poisoning (venenum ad bivendum dederit ) with fatal results with the full
wergeld. LLg-ER 142 punishes poisoning by a slave (cf. Bluhme 1868, p. 32 and Drew 1973, p. 74).
Twenty solidi is the fine for a moderately serious injury or crime. It is more than fine for a minor injury, but less than the fine for a serious, debilitating or permanent injury; see, for instance, LLa-ER 59, which punishes striking someone on the chest, or LLa-ER 188-189 on consensual intercourse outside marriage (Bluhme 1868, pp. 22, 45; Drew 1973, pp. 63, 87).Cf. also Drew 1973, p. 28: “The composition of twenty solidi seems to mark a division between what might be called the more and less serious cases.”
33 The Edictum Rothari does not give a list of the various amounts of wergeld. In the younger Laws issued by King Liut-prand (713-735) article 62 informs us that the wergeld for a free landowner is 300 solidi and that for a free, landless man it is 150 solidi (Bluhme, p. 132; Drew 1973, p. 170). In the ER secretly killing a free man is punished with 900 solidi, that is, three times the wergeld (LLa-ER 14), cf. Bluhme 1868, p. 15;Drew 1973, p. 55.
Twelve hundred solidi is awarded for killing a free woman in LLa-ER 200 and LLa-ER 201 (Bluhme 1868, pp. 49-50;Drew 1973, p. 91). The amount of compensation awarded is high, possibly because these articles deal with exceptional murder cases; in LLa-ER 200 a husband has killed his innocent wife and in LLa-ER 201 a free woman was killed deliberately. 34 Bluhme 1868, p. 24. ‘LLa-ER 75. On the death of a child in its mother’s womb. If a child is accidentally killed while still in its mother’s womb, and if the woman is free and lives, then her value shall be measured in accordance with her rank, and composition for the child shall be paid at half the sum at which the mother is valued. But if the mother dies, then composi-tion must be paid for her according to her rank in addicomposi-tion to the payment of composicomposi-tion for the child killed in her womb. But thereafter the feud shall cease since the deed was done unintentionally’ (Drew 1973, p. 65).
35 Note that the fetus is called infans not partus in Lombard law, which is also an indication that the death of the fetus was regarded as murder.
36 Bluhme 1868, p. 76. ‘LLa-ER 334. On pregnant woman slaves. He who strikes a woman slave large with child and causes a miscarriage shall pay three solidi as composition. If, moreover, she dies from the blow, he shall pay composition for her and likewise for the child who died in her womb’ (Drew 1973, p. 117).
LLa-ER 334 awards three solidi for the miscarriage, and if the slave is killed, her life must also be compensated. The fine in LLa-ER 334 should probably be explained as compensation for damages to the master’s property.37 Both Lombard articles punish violent abortion, and treat causing a miscarriage as a serious injury to the mother or the master’s property. Additional injuries to the woman were covered by the injury tariffs. Supplying and administering abortifacient potions is probably forbidden by the Lombard law on poisoning, even though neither abortifacients or deliberate abortion at the request of the mother are mentioned.
SALIC LAW ON ABORTION
The laws of the Salian Franks were the most popular and the most influential of the Germanic law codes. They were issued between 507/511 and 830. The sixth-century Merovingian redactions are called Pactus Legis
Sali-cae (PLS) and the eighth- and ninth-century redactions are collectively called Lex Salica (LS).38 The oldest re-dactions are contemporary with the Visigothic antiquae and the Breviarium Alarici, and it is very likely that the compilers of the Salic laws were acquainted with either or both of these laws. Salic law contains articles on poi-soning, anti-fertility agents and violent abortion.
The oldest recensions of the Pactus Legis Salicae (PLS) have two articles on poisoning in the title De Maleficiis, ‘on poison (magic)’ (PLS 19.1 - PLS 19.2).39 They punish fatal poisoning as murder, and demand 200 solidi, the
wergeld for a free man. If the victim survives the poisonous herbal drink or maleficium (‘poisonous or magical
drug’), 62 ½ solidi (about a third of the wergeld for a man) is due for attempted murder, that is, inflicting a seri-ous injury.40 We find the same articles in the younger redactions: the eighth-century Lex Salica (LS 24.1 - LS 24.2), and the ninth-century Lex Salica Karolina (K 19.1 - K 19.2). Mid- to late sixth-century Pactus redactions add two articles to the title De Maleficiis which provide examples of the kind of poisoning that was prohibited; these articles are also in the younger Lex Salica and Lex Salica Karolina redactions. The second supplementary article forbids women to prepare anti-fertility drugs for other women (PLS 19.4; LS 24.3; K 19.4).41
PLS 19.4.Si que mulier, alteri mulieri maleficium fecerit, ut infantem habere non possit, MMD denar. qui faciunt sol. LXII cum dimidio culpabilis iudicetur.42
The phrase ut infantem habere non possit, ‘so she cannot have a/the child’, is ambiguous, and can be explained as a reference to and prohibition of contraceptives and/or abortifacients.43 The Pactus apparently associates
37 LLa-ER 334 is preceded by articles that punish hitting farm animals and causing them to abort (cf. LLa-ER 332 - LLa-ER 333). The value of the unborn child of a slave - three solidi - is slightly higher than that of a foal - which is worth one
solidus. In the injury tariffs three solidi is the fine for a minor injury to a free man, for example, cutting off a toe (cf. LLa-ER
69-73; LLa-ER 96-100; LLa-ER 120-124). The value of a slave varies between 20 and 60 solidi (LLa-ER 129 ff.); LLa-ER 137 states that the value of a slave’s child is usually determined by the judge.
38 The standard edition of Salic law is Eckhardt’s two volume Monumenta edition: Eckhardt 1962 and Eckhardt 1969. For other editions and translations by Eckhardt, see: Eckhardt 1935, 1953a, 1953b, 1954, 1955, 1956 and 1957. There are two English translations: Rivers 1986 and Drew 1991. On the manuscripts and the various redactions, cf. Eckhardt 1962, pp. ix-xxvii.
On Salic law and society, see, for instance: Wallace-Hadrill 1962, McKitterick, 1977, Schmidt-Wiegand 1978e, 1991, Wemple 1981, James 1982, 1988, Murray 1983, King 1987, Drew 1988, Geary 1988, 1989, 1990, 1994a, 1994b, 2001, 2004, Reuter 1991, Wood 1994, Wormald 1999, Smith 2005, Wickham 2005, Noble 2006.
On abortion and poisoning in Salic law, see: Niederhellmann 1983 and Elsakkers 2003b. [article IV] 39 Eckhardt 1962, pp. 80-83.
40 Other Salic laws also require payment of 62 ½ solidi for attempted murder, cf. PLS 16.1 (arson), PLS 17.1 (attempted murder) and PLS 17.2 (attempted murder by poisoned arrow). For the Salic articles on wergeld, cf. note 42.
41 The third article (PLS 19.3) punishes casting a spell over another person; this article probably forbids giving another per-son hallucinatory drugs.
42 Eckhardt 1962, p. 82-83; ‘PLS 19.4. If a woman makes a maleficium for another woman, so she cannot have the/a child, she shall be liable to pay 62½ solidi’. We find this version of PLS 19.4 in recensions H (22.2) and E 16. H refers to Herold’s early printed edition, which probably incorporated early B and C manuscript versions of the Pactus.
soning with anti-fertility drugs, just as in Roman (LCSV) and Visigothic law (LV 6.3.1). The fine of 62 ½ solidi for attempted murder or failed poisoning indicates that the Salians knew that these dangerous, and potentially lethal drugs could cause a woman’s death. Note, however, that, unlike Visigothic law, Salic law does not punish the woman who asked for the potion; as in Roman law only the supplier of the drugs is punished. This means that fertility management was not in itself prohibited.Usage of the word maleficium, a word notorious for its double meaning ‘poison’ - ‘magic’, to denote anti-fertility drugs in PLS 19.4 is interesting, because it seems to explicitize the association of maleficia with poison and anti-fertility drugs suggested above in the discussion of the late Roman, Ostrogothic and Burgundian divorce laws. The word herba, ‘herbs’, is regularly used as a syno-nym of maleficium in the various versions of the Salic laws on poisoning, thus explaining that herbs were the ingredients of the poisonous (antifertility) concoctions. The repeated use of the verb bibere in the various arti-cles and recensions indicates that the drugs were administered in potions.
Salic law has two articles on violent abortion that are comparable to Visigothic law (LV 6.3.2 - LV 6.3.6). The first article punishes assaulting a pregnant woman and causing her death.
PLS 24.5. Si quis femina[m] ingenua[m] et grauida[m] trabaterit si moritur, XXVIIIM din. qui f. sol. DCCC culp. iud.44 The woman’s murder must be compensated with her wergeld (600 solidi) plus one hundred (or two hundred)
solidi for violently causing a miscarriage and loss of the fetus.45 Most versions use the verb trabattere, ‘to hit, beat, batter, whip’, instead of occidere or interficere, thus suggesting (domestic) violence (a ‘battered wife’). The companion article awards a compensation of 100 solidi for killing an infans in utero and for early infanti-cide, the same amount that was added to the woman’s wergeld in most versions of PLS 24.5.46
PLS 24.6. Si uero infantem in utero matris suae occiderit [aut] ante quod nomen habeat cui fuerit adprobatum, IIIIM din. qui f. sol. C culp. iudic.47
The fine of 100 solidi in PLS 24.5 - PLS 24.6, that is, half the wergild for a free man, indicates that causing a woman to involuntarily miscarry is a serious crime, albeit not as serious as homicide, because 100 solidi is the compensation for an amputation, or a serious, debilitating injury. It is less than the wergeld for a young child. 43 The ambiguity of ut infantem habere non possit can be explained by the fact that early term abortion and contraception were not and could not always be clearly distinguished. The version in recensions C5 and K has infantes instead of infantem, thus only prohibiting contraception:PLS 19.4. Si quis mulier altera mulieri maleficium fecerit unde infantes non potuerit
habere, sol. LXIIς cul. iud., ‘If a woman makes a maleficium for another woman, so she cannot have children, she shall be
liable to pay 62½ solidi’. Cf. Elsakkers 2003b, pp. 257-260. [article IV]
44 Eckhardt 1962, pp. 90-91; ‘PLS 24.5. He who strikes a pregnant free woman, and if she dies, shall be liable to pay twenty-eight thousand denarii, that is, twenty-eight hundred solidi’ (Drew 1991, p. 86, emended translation). The version quoted here is in manuscript A1 (PLS 24.3). The compensation required in the majority of the other versions is 700 solidi (600 + 100), not 600 plus 200 solidi as in the version quoted above. See also: PLS 41.19 and LS 31.2.
45 The wergeld for a free woman of the child-bearing age in the Pactus is 600 solidi, cf. PLS 24.8, PLS 41.16, PLS 65e.3. The wergeld for a young girl is 200 solidi (PLS 41.15; PLS 65e.2), and the same amount must be paid for killing a woman over forty (past the child-bearing age), cf. PLS 24.9, PLS 41.17, PLS 65e.4. The wergeld for a boy under twelve and for a ‘long-haired’ boy is 600 solidi (PLS 24.1, PLS 24.4, PLS 41.18), and the wergeld for a free Frankish man is 200 solidi (PLS 41.1). The amounts are practically the same in the Lex Salica.
The compensation for causing a serious, disabling injury is 100 solidi, for instance, striking out an eye, cutting off a nose, an ear, a hand or a foot or castrating someone (cf. PLS 29.1 ff.). The injury tariffs indicate that loss of the fetus must be re-garded as a form of amputation.
46 Early infanticide is defined as ‘before the child has a name’ in this version; variant versions have ‘within nine days (or nights) after birth’. Apparently, a fetus and a newborn child without a name had the same status: neither was considered a separate individual with a right to its own wergeld yet until it had lived for nine days or had been given a name. On early infanticide, cf. Niederhellmann 1983, pp. 122 ff. and chapter 1, note 99.See also: Elsakkers 2003b, p. 242-243. [article IV] 47 Eckhardt 1962, pp. 90-91; ‘PLS 24.6. If a person kills an infant in its mothers’s womb [or] before it has a name, and if it is proved against him, he shall be liable to pay four thousand denarii, that is, one hundred solidi’ (Drew, p. 86, emended trans-lation). The version quoted here is in manuscript A1 (PLS 24.4). Some manuscripts have ‘within nine nights’ instead of ‘be-fore it has a name’ (C5 and C6). See also: PLS 41.20 and LS 31.3.
The fine of 100 solidi should be interpreted as compensation for loss of the fetus, for the violence done to the pregnant woman, and, if she lives, also for injuries she sustained as a result of the miscarriage.
Articles III.104.4 - III.104.8 in the Third Merovingian Capitulary indicate that violent abortion was considered such a serious crime in the late sixth century that it was punished as murder.
Third Merovingian Capitulary
III.104.4. Si quis mulierem ingenuam pregnantem in uentre aut in renis percusserit pugno aut calce et ei pecus non excutiat et illa propter hoc grauata fuerit quasi usque ad mortem, CC solidos culpabilis iudicetur.
III.104.5. Si quis uero pecus mortuum excusserit <ei> et ipsa euaserit, DC solidos culpabilis iudicetur. III.104.6. Si uero ipsa mulier propterea mortua fuerit, DCCCC solidos culpabilis iudicetur.
III.104.7. Si uero mulier, qui mortua est, pro aliqua causa in uerbum regis missa est, MCC solidos culpabilis iudicetur. III.104.8 Si uero infans puella est, qui excutetur, MMCCCC solidos conponat.48
These articles punish violently causing a miscarriage, and none of the Old Germanic laws on abortion describes the (domestic) violence done to the woman as bluntly as article III.104.4: ‘hits (…) in the stomach or in the kid-ney with fist or foot’. If the pregnant woman dies 900 solidi must be paid, that is, her wergeld plus 300 solidi for the violence that led to her death - more than in PLS 24.5. The Third Merovingian Capitulary compensates loss of the fetus in articles III.104.5 and III.104.8. It differentiates between early term and late term abortion, and de-mands compensation for murder, if the sex of the aborted fetus is recognizable, that is, if the fetus is formed: si
uero infans puella est (III.104.8). A fine of 2400 solidi, that is, twelve times (!) the wergeld for a young girl
(200 solidi), must be paid for a female fetus, and 600 solidi (the wergeld for a young boy) must be paid for an unformed fetus (pecus), and by implication also for a male fetus (III.104.5). The Aristotelian criterion we en-countered in Visigothic law is now defined in terms of sex distinction.49 The Merovingian capitulary is much stricter than the other Salic laws, but its influence seems to have been short-lived, because the younger articles in the Lex Salica (LS 31.2 - LS 31.3) and the Lex Salica Karolina (K 26.1 - K.26.5) all follow the Pactus, which punishes violent abortion as a serious injury or amputation, but not as murder.
The laws of the Salian Franks punish violent abortion, but they do not punish intentional abortion or asking for an abortifacient. The Salic laws on poisoning punish supplying poisonous anti-fertility drugs, and they seem to have been influenced by the Roman LCSV tradition. It is clear that contraceptives and abortifacients were known to be dangerous herbal concoctions and that women were the ones who supplied other women with these drugs.
RIPUARIAN LAW ON ABORTION
The Lex Ribuaria (LRib) contains the laws of the Ripuarian Franks - a tribe living under Salian Frankish rule in northern Gaul (Austrasia) in the neighborhood of Cologne.50 It was probably promulgated during the reign of King Dagobert I (623-639), and its direct source is the Pactus Legis Salicae. Ripuarian law - also called the Lex
Salica Revisa - is a condensed version of Salic law, but not a carbon copy of it.
48 Eckhardt 1962, p. 260 (reconstructed version); Third Merovingian Capitulary ‘III.104.4. He who strikes a pregnant free woman in the stomach or in the kidney with fist or foot, and she does not lose her fetus but she is weighed down almost to death on account of this, shall be liable to pay two hundred solidi’; ‘III.104.5. If the fetus emerges [is expelled] dead but she herself lives, he [who struck her] shall be liable to pay six hundred solidi; III.104.6. But if the woman dies because of this, he shall be liable to pay nine hundred solidi; III.104.7. If the woman who died had been placed under the protection of the king for any reason, he [who struck her] shall be liable to pay twelve hundred solidi; III.104.8. If the child which was aborted was a girl, he shall pay twenty-four hundred solidi’ (Drew 1991, pp.147-148).
49 See also: PLS 65e.1, which is only found in Herold’s edition, cf. Elsakkers 2003b, pp. 242-243 plus table 7. [article IV] 50 For editions and translations of the Lex Ribuaria, cf. Sohm 1875-1889, Eckhardt 1934a, 1959, 1966, Beyerle 1940, Beyerle & Buchner 1954 (standard edition), Rivers 1986. See also: Buchner 1940, Wormald 1977, Schmidt-Wiegand 1978a, James 1982, Reuter 1991, 2001, Wood 1994. Rivers’s English translation (Rivers 1986) was based on Eckhardt 1934a, which also contains a German translation.
The articles on poisoning (LRib 86.1 - LRib 86.2) are in the title De Maleficio, ‘on poison - magic’, and were derived from PLS 19.1 - PLS 19.2.
LRib 86 (83). [De maleficio]
LRib 86.1. Si quis baro seu mulier Ribvaria per maleficium aliquem perdiderit, wirigeldum conponat.
LRib 86.2. Sin [Si] autem mortuus non fuerit, et varietatem seu debilitatem probabile ex hoc in corpus habuerit, 100 sol. culpabilis iudicetur, aut cum sex iuret.51
Murder by poisoning must be compensated with the wergeld.52 The punishment for a failed attempt at poisoning is 100 solidi, half the wergeld for a man, a sum comparable to the 62 ½ solidi Salic law awards to victims of at-tempted murder.53 LRib 86.1 states that a poisoner or magician can be either a man or a woman, and LRib 86.2 adds an interesting clause on the injuries that can be sustained by the victim: et varietatem seu debilitatem
pro-babile ex hoc in corpus habuerit, ‘and if, presumably due to this [i.e., the poison], he (or she) has become
physi-cally ill or invalided’. This clause shows us that people knew that maleficia could seriously impair a person’s health.54 One of the variant versions of LRib 86.1 has: per venenum seu per aliquod maleficium, ‘by means of poison or any other kind of maleficium’ instead of per maleficium, thus showing us that one of the meanings of the word maleficium is ‘poison’ (venenum), and that the word maleficium can also refer to other devious meth-ods of murder.55 Even though neither contraceptives nor abortifacients are mentioned in the Lex Ribuaria, sup-plying a woman with anti-fertility drugs was probably regarded as poisoning, because these drugs were known to be potentially lethal (cf. PLS 19.4).
In the Lex Ribuaria the Pactus articles on killing a pregnant woman (PLS 24.5), a fetus in utero and early infanticide (PLS 24.6) were combined into one article:
LRib 40.10. Si quis partum in feminam interfecerit seu natum, priusquam nomen habeat bis quinquagenos solid. culpabilis iudicetur. Quod si matrem cum partu interfecerit, septingentos solid. multetur.56
The LRib 40.10 chose the more neutral verb interficere instead of trabattere (PLS 24.5), so that the association with (domestic) violence is less obvious. The compensation for miscarriage and early infanticide is the same as for attempted poisoning: 100 solidi, and must be interpreted as a fine for loss of the fetus and seriously injurying the mother.57 The compensation due if both the pregnant woman and her unborn child die is 700 solidi, that is, 100 solidi for causing a miscarriage plus 600 solidi, the wergeld for a woman of the child-bearing age.58 As in
51 Beyerle & Buchner 1954, p. 131; ‘LRib 86. Concerning magic - poison. 86.1. If a man or Ripuarian woman kills anyone through a maleficium [Rivers: ‘a magic potion’], let him compensate with the wergeld. 86.2. But if [the victim] does not die, and if, presumably due to this [i.e., the poison], he (or she) has become physically ill or invalided, let [the perpetrator] be held liable for 100 solidi, or let him swear with six [oathtakers]’ (Rivers 1986, pp. 210-211, emended translation).
Rivers’s translation of varietatem seu debilitatem probabile ex hoc in corpus habuerit, ‘but undergoes some change or injury to his body, probably from this influence’, must be rejected.
52 The wergeld for a woman capable of bearing children (under forty) is 600 solidi (LRib 12.1). As in Salic law a woman in her prime is worth three times the wergeld of a man, which is 200 solidi (LRib 7). The wergeld for a young boy is not men-tioned in Ripuarian law; in the PLS it is 600 solidi. The wergeld for a young girl (LRib 13) and a woman over forty (LRib 13a) is 200 solidi.
53 There are no separate articles on attempted murder in the Lex Ribuaria. One hundred solidi is the compensation for a seri-ous injury or amputation, such as cutting off an ear and causing deafness (LRib 5.1), knocking out an eye (LRib 5.3), and cutting off a hand (LRib 5.4) or a foot (LRib 5.8).
54 An early redaction of the PLS must have been used, because the Lex Ribuaria does not include the article on anti-fertility drugs in the Pactus (PLS 19.4).
55 This variant is found in MSS A8, A10 and the B recensions, cf. Beyerle & Buchner 1954, p. 131.
56 Beyerle & Buchner 1954, p. 94; ‘LRib 40.10. If anyone kills the fetus within a woman or a newborn before he has a name, let him be held liable for twice fifty solidi. If he kills the mother along with the fetus, let him be fined 700 solidi’ (Rivers 1986, p. 185). LRib 40.10 is in the title called De diversis interfectionibus, ‘Concerning different (categories of) homicide’. Early infanticide is defined as ‘before the newborn has a name’, and, as in Salic law, causing the death of a fetus or a new-born baby is not yet compensated with the wergeld. See also: chapter 1, note 99.
57 See: chapter 1, note 52. 58 Cf. chapter 1, notes 51 and 52.
the PLS and the LS no distinction is made between early term and late term abortion. The fetus is not considered to be a person in its own right, because killing it does not require payment of the wergeld.
Like many of the other laws issued for the Germanic tribes living within the Frankish kingdom, Ripuarian law is derived from and dependent on Salic law. The fines are sometimes slightly higher, but this may be due to a dif-ference in money standard. The laws on poisoning and violent abortion are both concise versions of the corres-ponding Salic laws. An interesting point in the Lex Ribuaria is the fact that LRib 86.2 mentions the effects poi-soning can have on a person’s health. Supplying or administering anti-fertility drugs can be punished under the law on poisoning, and violent abortion is punished as a serious injury to the mother that is comparable to an amputation. Family planning is not mentioned or hinted at.
ALAMANNIC LAW ON ABORTION
Two recensions of the Leges Alamannorum, the laws of the Alamans (eastern Rhine, southwestern Germany, Alsace, Switzerland), have come down to us.59 The early seventh-century (c. 613) Pactus Legis Alamannorum (PLA) is slightly older than the Lex Ribuaria. It was probably promulgated under Merovingian auspices, when Chlotar II (584-629) was king of Gaul, and this is probably the reason that, like the laws of the Ripuarian Franks, Alamannic law reads like a supplementary law, in this case a law issued especially for the Alamans, and meant to be used in conjunction with the overlord’s Salic laws.The younger redaction, the Lex Alamannorum (LA), was probably issued by the Alamannic duke Lantfrid in the early eighth century (c. 720). 60
The Alamannic law codes do not have any laws that specifically prohibit intentional abortion, poisoning,
male-ficia or anti-fertility drugs. Salic law was probably applicable. The Pactus Legis Alamannorum contains a few
articles that may indirectly be concerned with poisoning or magic. PLA 13.1 and and PLA 14.1 - PLA 14.11 suggest that (h)erbaria, ‘female herbalist’ (‘poisoner’?) and stria ( = striga), ‘witch’, were terms of abuse for women, and PLA 13.1 indicates that women used these pejorative terms among themselves.61 These Alamannic laws seem to be deficient without provisions that explain whether, why, if and how herbalists, poisoners, magicians and witches were punished. If read in conjunction with the Salic laws that punish poisoners (PLS 19.1
59 The standard edition of the laws of the Alamans is Lehmann & Eckhardt 1966. For translations, cf. Eckhardt 1958, 1934b and Rivers 1977. On Alamannic law and the history of the Alamans, see: Geary 1988, Reuter 1991, Wood 1994, Wormald 1977, e.a. The two redactions of the Leges Alamannorum are designated by an ‘A’ and a ‘B’ in the articles quoted below, cf. Lehmann and Eckhardt 1966, pp. 11-18.
60 “The Alamans had been subject to the Franks since the reign of Clovis.” (…) “The region, nevertheless, retained its own identity, with its own duces, and its own law code, perhaps issued by Chlothar II” (Wood 1994, pp. 285, 161). On the Lex
Alamannorum Wood says: “Apparently, in the early eighth century Lantfrid usurped the right to issue a law code.” (…)
“There could be no clearer way for a dux to assert independence than that he should issue his own version of his people’s law code” (Wood 1994, pp. 118, 285).
61 PLA 13.1. Si femina aliam stria aut erbaria clamaverit sive rixam, sive absente hoc dixit, solvat sol. 12 (Lehmann & Eck-hardt 1966, p. 24); ‘PLA 13.1. If a woman calls another [woman] a witch or a herbaria, whether it is said in a dispute [in the presence of the accused] or in her absence, let her pay twelve solidi (Rivers 1977, p. 50; emended translation).
PLA 14.1. Si quis alterius ingenuam de crimina seu stria aut herbaria sisit et eam priserit et ipsam in clita miserit, et ipsam
cum 12 medicus [medios] electus aut cum spata tracta quilibet de parentes adunaverit, LXXX solid. componat (Lehmann &
Eckhardt 1966, p. 24); ‘PLA 14.1. If anyone accuses another’s freewoman of the crime of being either a witch or a herbaria, and seizes her and puts her into a clita (‘hurdle’), let him compensate eighty solidi, and let her be defended by her relatives with twelve men, half of whom are chosen, or with a drawn sword (Rivers 1977, p. 50; emended translation). Eckhardt translates as follows: ‘14.1. Wenn einer eines andern Freien des Verbrechens einer Hexe oder Giftmischerin beschuldigt und sie ergreift und sie auf die Hürde legt und irgendwelcher von den Verwandten sie mit 12 zur Hälfte Ausgewählten oder mit gezogenem Schwert reinigt, büβe er 80 Schillinge’ (Eckhardt 1958, p. 111). Eckhardt explains the difficult passage clita
miserit in note 1: “zwecks Erzielung eines Geständnisses (Merkel, Lehmann), nicht: um verbrannt zu werden (Franz
Beyerle). Die den Verwandten offengehaltene Art des Eingreifens zeigt eindeutig, daβ es sich um ein Beweismittel handelt”. Another translation suggested for sisit is ‘grabs’. PLA 14.2 - PLA 14.11 discuss the same subject with different actors. On terms of abuse for women that are associated with magic and poisoning, cf. Niederhellmann 1983, pp. 106-119.
- PLS 19.4) these articles may make somewhat more sense.62 Even though PLA 13.1 and PLA 14.1 - PLA 14.11 do not seem to have anything to do with abortion, they are interesting. They show us that herbcraft and witchcraft were associated with women, and that the word for ‘a woman knowledgeable about herbs and herbal remedies’ seems to have (or have acquired) a negative connotation in Alamannic society. This probably means that female herbalists were able to mix the poisons, maleficia, and anti-fertility potions mentioned in PLS 19.1-19.4.
Alamannic law has articles on injuries (PLA 2 ff., LA 57.1 ff.), on hitting women (PLA 2.7; LA 92.1 - LA 92.5), and on murdering women (PLA 15; LA 60.2).63 There is no separate law on killing a pregnant woman, as in Salic and Ripuarian law, but it is obvious that such a crime would have to be compensated with the wergeld. However, there is an Alamannic counterpart to the laws that punish causing an abortion:
PLA 12. Si quis mulier gravata fuerit, et per facto alterius infans mortuos natus fuerit, aut si vivus natus fuerit et novem noctis non vivit, cui reputatum fuerit, 40 sol. componat [aut cum 12 medios electos iuret].64
LA 70. Si qua mulier gravida fuerit, et per factum alterum infans natus mortuus fuerit, aut si vivus natus fuerit et novem noctes non vivit, cui reputatum fuerit, 40 solidos solvat aut cum 12 medios electos iuret.65
The compensation for causing a woman to miscarry, forty solidi, is demanded irrespective of whether the child is born dead (mortuus natus) or dies within the first nine nights of its life (vivus natus).66 The sum of forty solidi is the fine for causing a serious injury such as cutting off or amputating a person’s ear, hand, arm or foot.67 This means that causing a miscarriage can be interpreted as an amputation, that is, as a serious, disabling injury to the mother. Whereas other Old Germanic laws on violent abortion give us some idea of the kind of violence that caused the miscarriage by using verbs such as trabattere, occidere or interficere, Alamannic law only tells us that the abortion was involuntary and happened per facto alterius, ‘through the act of another’. No method or circumstances are mentioned. This means that PLA 12 and LA 70 can punish violent abortion, but that they could also be used to punish the supplier of a (poisonous) abortifacient.
62 It is also possible that these articles refer to issues dealt with more extensively in oral, customary law.
63 PLA 2.7 and LA 92.1 both compensate hitting a woman with two solidi, if no blood flows. The wergeld for an Alamannic woman (320 solidi) is double the amount of the wergeld for a free man (160 solidi), cf. LA 60.1 - LA 60.3; PLA 15 does not specify the amount of the wergeld. The wergeld for children is not mentioned, which implies that Salic law was probably ap-plicable.
The compensations for serious injuries indicate the relative seriousness of the injuries punished, cf. PLA 2, 5, 6, 8, 9, 10.1 ff. and LA 57.42 ff. For instance, cutting off a person’s thumb costs 12 solidi. Injuring someone’s head so that the brain pro-trudes costs 12 solidi (PLA 1.1; LA 57.6), and so does injuring a person’s leg so that he must walk with a crutch (PLA 11.3). Twelve solidi is the compensation for an injury that is slightly less serious than causing the victim to become an invalid. If someone’s arm is crippled, 20 solidi must be paid (LA 57.38). Twenty-four (or twenty-five) solidi is awarded for crippling injuries, such as for piercing a person’s chest (PLA 8.2, 11.3; LA 57.56). Cutting off a hand, arm or foot is a major ampu-tation that requires payment of 40 solidi (PLA 10.3, LA 57.39; PLA 11.1, LA 57.66), because the victim has become an invalid.
64 Lehmann & Eckhardt 1966, p. 24; ‘PLA 12. If any woman is pregnant and through the act of another the child is born dead, or if it is born alive but does not live for nine nights, let him who is accused pay forty solidi or swear with twelve men, half of whom are chosen’ (Rivers 1977, p. 50).
65 Lehmann & Eckhardt, p. 137; ‘LA 70. If any woman is pregnant and through the act of another the child is born dead, or if it is born alive but does not live for nine nights, let him who is accused pay forty solidi or swear with twelve men, half of whom are chosen’ (Rivers 1977, p. 93). Some of the manuscripts have octo noctes or octo dies instead of novem noctes. The titles in the list of chapter-titles vary considerably: [70] De mulieri prinata et partum periclitatum, [70] De eo, qui
gra-vide mulieri natum interfecerit, [70] De gravida muliere et ab alio dampnata, [70] Si quis muliere gravida instrigaverit (A
manuscripts) or [77] De eo, qui gravidae mulieri natum interficerit (B manuscripts), cf. Lehmann & Eckhardt 1966, pp. 48-49, 58-59. Rivers chose the fourth variant and translates: ‘If anyone bewitches a pregnant woman’ (Rivers 1977, pp. 64, 93). 66 On early infanticide, cf. chapter 1, note 99.
The early eighth-century Lex Alamannorum adds a second set of articles (LA 88.1 - 88.2) on involuntary abor-tion that seem to complement the articles discussed above.68 The addition of these articles is in itself significant, because it implies that supplementary legislation on abortion was apparently necessary.
LA 88.1. (A) Si quis aliquis mulierem prignantem aborsum [B: abortivum] fecerit, ita ut iam cognoscere possis, utrum vir an femina fuisset: si vir debuit esse, cum 12 solidos conponat; si autem femina, cum 24.
LA 88.2. (A) Si nec utrum cognoscere potest, et iam non fuit formatus in liniamenta corporis, 12 solidos conponat. Si amplius requiret, cum sacramentalis se edoniet.69
Again, no indication as to how the miscarriage happened is given. The articles tell us that ‘someone’, other than the mother is to blame for causing the miscarriage (aborsum facere), but that is all. The compensation demanded in LA 88.1-88.2 is differentiated according to the stage of development of the fetus. The Aristotelian distinction ‘formed’ - ‘unformed’ is used, and it is formulated in terms of sex distinction: si cognoscere possis utrum vir an
femina fuisset, ‘if you are able to recognize whether it would have been a boy or a girl’, and si nec utrum cogno-scere potest, et iam non fuit formatus in liniamenta corporis, ‘if [its sex] cannot immediately be recognized, and
[the fetus] was not yet formed in [its] bodily features’.70 For an unformed fetus and for a male fetus a fine of 12
solidi is required, and for a female fetus twice the amount, 24 solidi, must be paid.71 The sums due are for less serious injuries than a major amputation, but certainly not for negligible injuries.72
In Alamannic law the fetus’s death is not punished as murder, but as a serious injury to the mother. If we read PLA 12 - LA 70 and LA 88.1 - LA 88.2 together and add up the fines, two things are punished: seriously injury-ing (amputation) the mother (40 solidi) and loss of the fetus (12 or 24 solidi). Alamannic law punishes invol-untary abortion and employs the Aristotelian abortion criterion - here defined as gender distinction, but it gives us hardly any information about the circumstances or the method used. Nor does it contain any evidence that in-tentional abortion occurred, or that any other kind of family planning method was used. All we have is a vague suggestion that Alamannic women like Salic women were knowledgeable about herbs. There may be a connec-tion between women and anti-fertility poconnec-tions, but there is no hard proof.
BAVARIAN LAW ON ABORTION
The Lex Baiuvariorum or Lex Baiwariorum (LBai), the law book of the Bavarians (southeastern Germany, Aus-tria), was probably compiled between 740 and 748.73 Bavarian law has a series of articles on abortion that were
68 The compensations for loss of the fetus in LA 88.1 - 88.2 should probably be added to those in PLA 12 and LA 70. 69 Lehmann & Eckhardt 1966, pp. 150-151; ‘LA 88.1. If anyone causes an abortion in a pregnant woman so that you are able to immediately recognize whether [it] would have been a boy or a girl: if it was to be a boy, let him compensate with twelve
solidi; however, if a girl, [let him compensate] with twenty-four. LA 88.2. If whether [the fetus is male or female] cannot
im-mediately be recognized, and [the fetus] was not yet formed in [its] bodily features, let him compensate with twelve solidi. If [the claimant] seeks more, let him clear himself with oathtakers’ (Rivers 1977, p. 98, emended translation). Rivers’s trans-lation of non fuit formatus in liniamenta corporis, ‘[the fetus] has not changed the shape of the mother’s body’ must be re-jected, because the text of LA 88 does not refer to the mother, but to the formation of the fetus’s external genitalia.
The text of LA 88 in the B MSS has a title: LA 91 (B) De eo, qui mulieri pregnanti abortivum fecerit (Lehmann-Eckhardt, p. 150). The A manuscripts only include titles in the list of chapter headings: [88] De his, qui mulierem prignantem aborsum
fecerit; [88] De eo, qui mulieri pregnante abortivum fecerint; [88] De aborsum mulieris; [88] De eo, qui mulieri pregnante abortivum fecit (Lehmann & Eckhardt, pp. 50-51).
70 Cf. Elsakkers 2008. [article IX]
71 The wergeld for an adult woman is also double that of an adult male, cf. chapter 1, note 63. An epitome or excerpt of this article in the two younger C manuscripts awards 24 solidi for a female fetus, 12 solidi for a male fetus, and 20 solidi for an unformed fetus: LA 34. Si pregnanti mulieri aborsum fecerit, si vir debuit esse, 12 solidos; si femina 24 solidos. Si non
cognoscere possit, utrum sit, 20 solidos (Lehmann & Eckhardt 1966, p. 159).
72 Cf. chapter 1, note 63.
73 Editions and translations the Lex Baiuvariorum were published by Merkel 1863, Beyerle 1926 (based on the Ingolstadt manuscript), Eckhardt 1934b, Von Schwind 1926 (standard edition) and Rivers 1977. Rivers’s English translation was based
