PHYSICIANS , PATIENTS AND TREATMENTS IN EARLY MEDIEVAL GERMAN ( ESPECIALLY BAVARIAN ) LEGISLATION

This study analyses the provisions of some early medieval “German” legislation concerning medical issues, such as healing, diseases and injuries. After a brief introduction, the study discusses the sedes materiae and the issue of dating those German codes (Volksrechte) that constitute the basis of comparison here, namely Bavarian, Visigothic, Langobardic and Alemannian law. Within the context of medical treatment during the early Middle Ages, a brief description is given of early medieval medicine and the physician’s legal status as set out in legal and non-legal sources. This is followed by the analysis of the regulation of diseases, miscarriage, bodily injury and other injuries in the lex Baiuvariorum, that is then compared with the provisions of the above mentioned German codes. The study thereafter examines the legal consequences of diseases that influenced the legal capacity and the capability to participate in legal proceedings as well as the position with regard to abortion, the involvement of the physician and the treatment applied by him within the context of the law and folk language terminology regarding bodily injury and injuries. * Senior Research Fellow of the Institute for Legal Studies of the Centre for Social Sciences of the Hungarian Academy of Sciences; Associate Professor of the Sapientia Hungarian University of


Introduction
It should be stated at the outset that in the light of German folk laws as sedes materiae, all the questions that have primary importance concerning either modern or Roman medical law -more specifically the aspects regarding the physician's liability -are addressed in these laws.Knowing the conditions of law in this period, it cannot be expected from these laws, and such an approach would be considered highly unhistorical.On the other hand, owing to the fact that the medical law aspect cannot be grasped in its complexity, it is not possible for the legal historian/philologist to exclude the analysis of folk laws when studying legal history.In addition, the legal nature of the source base clearly makes it the task of the legal historian to carry out extensive research of these leges, making use of the results of the history of language as well as public and social history (in our case, the history of medicine) in order to make these findings available to the aforesaid sciences (the auxiliary sciences for the legal historian).
It is necessary to outline the applied philological method.The objective of the study is primarily legal historical in nature; however, regarding the applied method, philology stricto sensu appears with at least as much weight."Alle mittelalterliche Forschung ist Philologie", Hermann Heimpel wrote in his foreword to Heinz Quirin's manual, 1 and we tried to focus on this basic principle, namely the criteria of source analysis and respect for sources. 2 German folk laws abounded in both anatomical terms and phrases that denoted injuries, their consequences and concomitant symptoms as well as terms that specified diseases, medical equipment and therapeutic methods.Yet the relation between the physician and the patient in ex asse legal aspects was thematised only by Visigothic laws that showed a strong Roman law influence.In the analysis of medical law texts of folk laws, priority should be given to pregnancy and abortion since these texts devoted ample space to the issues that cannot be neglected in terms of law and medicine.Although codes of law provide relatively little information on pathographies themselves, it provides ample details on surgical intervention and damage to health that might have influenced the patient's capability of working, fighting and participation in legal processes.

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The sedes materiae The date of creation of the lex Baiuvariorum 12 between 737 and 743 -as suggested by Heinz Löwe and Peter Landau -is supported by ecclesiastical influence far exceeding the impact of German folk laws.It is quite clear from the text of the law that its compiler set out from a knowledge of canon law rules and a clearly circumscribed church organisation.Furthermore, the fact that the compilers of the lex Baiuvariorum also used the lex Alamannorum, 13 further supports the dating to be between 737 and 743. 14Regarding the place of creation of the lex Baiuvariorum, we can accept Peter Landau's hypothesis that this work relation between the monks and the duke's court must have been much closer if we accept that the compilers of the lex Baiuvariorum were the monks of the St Emmeram monastery located at the duke's seat in Regensburg. 15eges Visigothorum is a general name for records of Visigothic law that have survived in various forms.The oldest source left to us is the Visigothic Codex Euricianus, which is attributed by tradition to king Eurich and was created sometime between 469 and 476. 16It survived in a sixth century palimpsest codex from Paris in fragments from caput 276 to caput 336.The Codex Euricianus was strongly influenced by Roman law as well, and would arguably later have the greatest impact on other German folk laws.King Leovigild supplemented/corrected the Codex Euricianus at several points, which was then renamed the Codex revisus.This source has, however, not survived. 17One of the successors of Leovigild, namely King Reccesvind, published two legal compilations in 654, in which he marked three hundred and nineteen provisions as antiqua and traced them back to Leovigild. 18

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Reccesvind's compilation is referred to in the literature under different names: Lex Visigothorum, 19 Lex Visigothorum Reccesvindiana, 20 Forum Iudicum 21 and Liber Iudiciorum. 22egarding the Langobardic law material it should be noted that, contrary to most of the German folk laws that grouped rules in terms of subject, Langobardic laws sequenced legal rules in the chronological order of their rulers. 23In Langobardic laws -which were created with the assistance of a popular assembly 24 -several German legal terms enriched the Latin text.Although the Langobards had already been in Italy for seventy-five years, their customary law was only recorded by King Rothari in 643. 25 This code, the Edictus Rothari, was confirmed by him 26 with the consent of his peers and the people in a symbolic form of contract (speergedinge per gairethinx). 27The Edictus Rothari consisted of short provisions, which can be understood with the help of Langobardic folk language terms.Contrary to Visigothic, Ostrogothic and Burgundian law material, the Edictus Rothari to a lesser extent shows a close relation with Roman law. 28We can agree with Babják 29 that a part of the Edictus Rothari expressly contained old Longobardic customary law and that the remaining part summarised the king's legal reforms.
Alemannian folk law has been left to us in two versions: Among scholars the older version is generally referred to as the Pactus Alamannorum (hereafter Pactus) and the more recent one is known as the lex Alamannorum.The introductory sentence of the Pactus (left to us only fragmentary in one single manuscript) mentions King Chlothar from the Merovingian dynasty 30 as lawmaker.Opinions in literature are, however, divided on whether this ruler refers to King Chlothar I (511-561), II (584-629) or IV (717-719).Most probably King Chlothar II was the author of the Pactus, because the language of this law is similar to that of the lex Ribuaria and the later versions of the lex Salica, whereas the lex Alamannorum may be attributed to Lantfrid's lawmaking activity. 31The authorship of King Chlothar II also seems to be supported by the fact that in September 626 or 627 forty bishops, one abbot and one deacon (the latter as agent) were also present at the Council of Clichy, and this number of participants showed a similar order of magnitude to the description provided in the Pactus. 32The lex Alamannorum makes it clear that compilers further developed the rules of the Pactus in content as well. 33This version was probably created sometime between 712 and 725.

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Medicine and the physician in the early Middle Ages 3 1 Early medieval medicine In the early medieval art of therapeutics we can distinguish two main branches, namely (i) the medicine exercised at royal (ducal) courts and monasteries, considerably influenced by the ancient traditions of Hippocrates and Galenos and the reception of their texts, and (ii) folk medicine fundamentally based on oral tradition and related to German traditions. 34n the therapeutics of the period, the centres of the Mediterranean, more specifically that of the Byzantine Empire, were considered the best developed because ancient tradition had survived most strongly in Alexandria.From among the persons who mastered scholarly medicine the names of Oreibasiois, 35 Aetios of Amida, 36 Alexandros of Tralles and Paulus of Aigina 37 should be highlighted, since they saved this body of knowledge by making abstracts of ancient works of medical science for the Middle Ages. 38Several of their compilations were translated into Latin quite early, and these Latin translations later constituted the basis of scholarly medicine in the western part of Europe.These works showed little originality compared to ancient sources and may mostly be considered as simplified abstracts of the ancient tradition. 39(Later, these compilations were also translated into Arabic and thus became the basis of Arabic medicine, which began to develop significantly from the eighth century and produced an impact from the eleventh century in southern Europe, primarily in Hispania and later also in southern Italy. 40) Folk medicine was originally based on German religious concepts, and in time the effect of classical (ancient) therapeutics could be observed in this branch of medicine.For example, in Gaul medical prescription books were written as early as in the fifth and sixth centuries.Amongst these the work of Marcellus Empiricus is worth highlighting. 41However, the following prescription collections should also be mentioned: the Codex Sangallensis (nr 44) (containing scattered German terms) and the eighth/ninth century Codex Bambergensis. 42The Old English Leechbooks created from the ninth century onwards were considerably affected by the approach of folk medicine influenced by German religious concepts. 43As a result of the Catholic Church doctrine that tried to take firm action against such so-called heathen religious notions, it is hard to find any text in these sources that communicate exclusively German folk belief and folk medicine to us. 44Despite these notions magical rites survived in Christianised form in folk medicine and were included in prescription books. 45hurch doctrine was greatly influenced by medical thinking and terminology, especially in the works of the early church fathers.For example, Tertullianus called baptismal water aqua medicinalis, that is "medicinal water" or "water restoring health". 46Other old Christian authors, such as Irnaerius, Ignatius and Iustinus referred to repentance as vera de satisfactione medicina and to the Eucharist as the pharmakon of immortality. 47In line with Christian dogma church medicine often considered to be the cause of disease, and so considered repentance as a kind of cure; the ecclesiastic person carrying out the healing imitating Christ as the Redeemer and physician of the soul. 48In contrast to early Christian thinking, a viewpoint less refusing of the body and its diseases became observable in the Catholic Church from the fourth to the fifth centuries. 49he scenes of so-called scientific healing -which was, first of all, based on the simplified teaching of Hippocrates and Galenos -were primarily monasteries where monks were provided with medical training within the framework of quadrivium. 50s, in theory, the works of ancient medical science were available to these clerics, they often used a peculiar mixture of scientific and theurgical methods.In Vivarium in southern Italy -founded by Cassiodorus (485-580), the Chancellor of Theoderich -copies and translations of several works of ancient medical science were made. 51sidorus Hispalensis (570-636) devoted two of the twenty books of Etymologiae to medicine. 52Walahfridus Strabo, who wrote his works at the monastery of Reichenau, in his instructive poem entitled De cultura hortorum consisting of four hundred and forty-four hexameters, wrote at length on the curative effect of twenty-three plants and the ground-plan of the latter monastery reveals that the building included an infirmarium consisting of a pharmacy as well as medical, patient and treatment rooms. 53Our sources on physicians who lived in non-ecclesiastical or rulers's courts -and who were sometimes granted the title comes archiatorum, that is "head physician" -are highly imperfect, and we know almost nothing of simple medici attending the common people. 54Physicians who attended the ruling class often made a fortune.However, if the treatment applied by them brought no result, inefficiency quite frequently cost them their lives. 55On the other hand, surgery was not included in scientific works of that period since it was literally considered to be kheir-ourgia, namely "handi-craft", and as such did not belong to the field of medicine considered as ars or scientia. 562 Legal status of physicians in the early Middle Ages Unfortunately the lex Baiuvariorum did not contain any reference to physicians' legal standing and social status.Nevertheless, physicians enjoyed great social prestige, as is clear from the Alemannian law when compared to the Bavarian lex. 57Accordingly, a physician, whose oath was worth as much as the oath of three laymen, had to take his oath on his medical instruments which symbolised his vocation and high position in society.The quoted text determined the process of deciding disputes concerning the conpositio to be paid for the injury caused; in other words, in this case the physician acted as an expert. 58he following Alemannian locus also informs us about the fact that the testimony of physicians was of greater weight than that of common people. 59The source stated that if a physician had lost the piece of bone from the skull/calvarium that would serve as proof before court, the physician either had to take an oath that he had lost it, or two eyewitnesses had to take an oath that it was really a piece of bone that was "knocked out" of the calvarium when committing bodily injury -it is difficult to explain or identify the phrase medically.Here the therapeutist therefore acted also as an expert in court.We can only presume that becoming an expert was subject to complying with specific conditions, determined at least by customary law.In other words, a physician probably had to prove his expertise, as is clear from the Old Norse Manhaelingsbalker 60 which stated that persons who proved that they were able to heal wounds, bone fractures, injuries in the chest and abdomen caused by weapons, the stump of cut-off limbs and stab wounds could become "forensic medical experts". 61isigothic law devoted an independent titulus to the regulation of the legal position of physicians and patients (De medicis et egrotis), 62 which sufficiently proves the important social role of physicians. 63In Visigothic law, the relation between a physician and a patient was regulated by a contract guaranteeing mutual security (placitum). 64On the basis of the contract entered into between the physician and the patient, the physician was obliged to heal the patient -that is, quite peculiarly, the physician contracted for an obligation of result rather than an obligation of care -and the patient was obliged to pay the fee for healing by giving security (cautio) for it when concluding the contract.The law also regulated the case of unsuccessful treatment. 65If the patient died while being treated, that meant that the physician could not heal him or her, or, put differently, he was unable to fulfil his obligation assumed in the contract; as a result he could not lay claim to the fee agreed upon.The patient's family, however, could not lay a charge of homicide against the physician. 66 However, to ensure the safety of the physician, Visigothic law provided the physician-patient relationship with further guarantees. 67Accordingly, (also indicating physicians' high social standing) physicians could not be taken into custody without interrogation, except in the case of homicide.Here homicide referred to voluntary homicide and not exitus that could not be imputed to the physician -in this case he had to provide a guarantor to the value of the compositio to be paid for homicidium.The relationship between physicians and their students was also regulated by law. 68In return for training -carried out not in an organised form but in terms of an individually concluded contract within the framework of the master/student relationship based on personal trust -a physician could claim payment of twelve solidi from his student.

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Regulation and terminology of diseases, miscarriage and injury in the lex Baiuvariorum 4 1 Diseases influencing legal capacity and capability of proceeding under the law in the lex Baiuvariorum How did the terms "patient" and "disease" appear in the Bavarian Volksrecht?As these were legal texts, diseases were mentioned only when they influenced a person's capability of participating in legal processes changing his legal status (specifically leprosy and mental illness) or when they had an effect on the person's capacity to work (such as blindness and hernia, namely an inguinal hernia).Before analysing loci of the lex Baiuvariorum, it is worth surveying the relevant passage of the Edictus Rothari which provided a broader view of social judgement and legal regulation of diseases influencing the capability of proceeding under the law and status than the Bavarian source.
According to the Edictus Rothari, the cause of mental illness should be looked for in sin. 69The Edictus Rothari clearly fits in with the Christian tradition stating that mental illness is a consequence of sin -even if this thought was not alien to the notions of other religions. 70Although the basis of this thought cannot be found in either the Old or New Testament of the Bible, the church fathers derived it from a passage in the gospel according to John, where Christ warned people to avoid sin in order to avoid greater trouble. 71Congenital and hereditary diseases were attributed to original sin, and this notion was strangely mixed with a belief in demons at the time of early Christianity. 72Origenes connected specific illnesses with particular demons, whilst Augustinus, Tertullianus, Minucius Felix and Cyprianus formulated similar ideas. 73ccordingly, the quoted locus of the Edictus Rothari called the patient a rabiosus or demoniacus.It should be added that in Middle Latin rabies denoted rabies spread by the bite of infected animals. 74This was mostly considered a synonym of hydrophobia, 75 which could be regarded as a typical symptom of rabies since a strong sense of thirst, accompanied by difficulties in swallowing and dread of fluids, appeared in the patient. 76Other symptoms of this illness included rage, somnipathy and foam at the mouth.However, in Langobardic texts "rabies" was set out arguably as the general name of all diseases involving fits of rage. 77The phrase demoniacus most certainly can be traced back to the notion that the patient was possessed by demonsalthough, in Middle Latin this term (even if not as an exclusive phrase) was reserved for epilepsy, which is mentioned in the Hippocratic works as a sacred disease. 78ippocratic doctrine, however, expounded that the opinion on the supernatural cause of this illness was untenable. 79At the same time, several sources gave evidence that in the Middle Ages epilepsy was no longer traced back to supernatural causes in every case, but that changes in the brain were suspected.
One of these sources is the lex Baiuvariorum which was recorded a century after the Edictus Rothari.It is worth quoting its locus -without discussing here its aspects of implied warranty -together with the glosses of the eleventh century manuscript marked by Gw. 80 It is quite clear that in the twelfth century manuscript the glosses replaced the two phrases to be explained, namely that the term "hirniuuotic" must belong to "cadivus", that is, epileptic, and the term "holoht" should belong to herniosus, namely "person suffering from inguinal hernia". 81The etymology of the term "hirniuuotic" to be examined here is sufficiently clear: it was generated as the compositum of the Old High German and Middle High German phrase hirn(i) having the meaning "brain" and the Old High German wuotîg and Middle High German wuotic -arising from the Indo-European root *uāt, *uōt -meaning "furious, raging". 82This phrase showed close relation with the Old Irish word "faith", meaning "seer", the Gothic word wōde, meaning "possessed" and the Old English word wōd, meaning "insane". 83This etymological reasoning makes it obvious that in case of epilepsy the cause of illness was presumed to be changes in the brain as nothing implied a supernatural cause in the term hirniuuotic. 84he provision of the Edictus Rothari unambiguously stated that the capacity to participate in the legal processes of persons suffering from this illness was limited: they lacked criminal capacity.As a result, culpability lacked in damages caused by rabiosus and demoniacus, and crimes committed by them shall not be punished, meaning that they did not have to pay compositio usually required.The patient's relatives could not be held responsible for their acts and no compensation could be claimed from them.At the same time, the relatives could not claim compositio if somebody killed the patient by negligence (sine culpa).In other words, the 77 Niederhellmann 1983: 49.78  patient was governed by the same rules that exempted the keeper of an animal from compensation for damages caused by a rabid animal and deprived him from the right to claim compensation. 85(With regard to mentally retarded and insane persons, the Visigothic law applied the rule of Roman law: only statements made in their own cases and during possible periods of their lucida intervalla were valid, otherwise their manifestations of will were invalid.Furthermore they could not act as witnesses in court, and if they had nevertheless furnished evidence, their testimony could not be taken into account. 86) According to the Edictus Rothari, when a buyer noticedafter having entered into a contract of purchase and sale -that the slave was a leper or an epileptic, he could reclaim the purchase price while returning the slave; the seller could defend by a cleansing oath that he had not known of the slave's illness at the time of delivery. 87This provision was basically in line with the above-quoted Bavarian passage which in turn was most probably influenced by the Langobardic law. 88ursuant to the Edictus Rothari, a concluded engagement could be contested, in other words, the fiancé could reclaim the wedding present and could not be obliged to enter into marriage if it appeared later that the fiancée was a leper, blind in both eyes or an epileptic. 89In addition to the above two cases (purchase and sale and contesting an engagement), in the case of leprosy, the law also linked further legal consequences to concealing the illnesses. 90The law considered leprous patients to be legally dead and expelled them from the community.If the fact of the illness was unambiguously proved to the judge and the people, the patient had to leave his house in the city and had to live alone outside the community; he could not sell or pledge his assets; he lost his right of inheritance; and could not use legal assistance.At the same time, the relatives were obliged to care for the outcast from the assets left behind by him.This latter provision was not free from contradiction since the lawmaker imposed on the bereaved the obligation to care for a de jure dead person.The only novelty in Langobardic legislation was that it qualified the leprous patient as dead and a legal outcast since persons suffering from this infectious, incurable disease involving frightening symptoms had already de facto been separated in antiquity. 91Nevertheless, the question now is what illnesses were considered as leprosy in early medieval sources?Most probably not only illnesses that can be diagnosed as leprosy today (although modern medical science describes three types of it), but also numerous other skin diseases, including, for example, certain kinds of psoriasis or pellagra.

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The viewpoint of the Church played an important part in the legal judgement of leprosy.On the one hand it was of the view that several loci in the Bible proved that leprosy was a punishment inflicted for breaching divine law, and further instructed people to expel the patient from the community. 92On the other hand, the Church strove to care for lepers.For example, Gregorius Turonensis asserted that bishop Agricola of Châlon (535-580) set up an exsinodochium leprososrum outside the city; 93 the Fifth Council of Orleans in 549 obliged bishops to care for lepers; 94 and the Third Council of Lyon in 583 imposed the obligation on bishops to comply with the provision that forbade lepers to go to the territory of other bishoprics in order to prevent the illness from spreading. 95(It may be deduced from this latter source that lepers wandered about in groups in the province to beg for money and food necessary for subsistence. 96) The biography written by Walahfridus Strabo, abbot of Reichenau, on Otmar, the abbot of St Gallen, states that Otmar had set up a hospitium for lepers not far from the monastery but outside its walls. 97However, since leprosy was incurable in those days, the purpose of this institute most probably was the separation of patients only and it is unlikely that any healing was done there. 98he prohibition against lepers wandering around could not have been effective since Charlemagne ordered in his edictum of 789 that lepers should be separated. 99lthough efforts were taken to separate lepers and expel them from the community even prior to Langobardic legislation, the Edictus Rothari was the first legal source that enacted their separation and de jure death. 100

2 Aspects of abortion in the lex Baiuvariorum
With regard to the crime of abortion the lex Baiuvariorum provided as follows: If a female slave administered medicine that served or caused a pregnant woman to abort, she would be whipped two hundred times, and if the perpetrator was a woman in free status, she would lose her freedom and would become the slave of the person to whom the duke assigned her. 101Compared to the rules of the lex Visigothorum (discussed below) it becomes clear that whereas Visigothic law involved the pregnant woman in the scope of perpetrators and provided that the person who administered or delivered the medicine could be a man or a woman, Bavarian law did not state whether the woman taking the medicine was required to have intended to cause abortion or was merely unaware of the effect of the medicine taken or administered.The similarity of the sanction -namely being whipped two hundred times and the loss of free status -and the punishment differentiated in terms of personal status allow us to regard it as probable that the two laws may be traced back to the same source, namely the Codex Euricianus. 102illing a pregnant woman by beating was punished by death in terms of the lex Baiuvariorum.However, if only the foetus died, the perpetrator had to pay twenty solidi conpositio, but if the foetus had already "lived", in other words if pregnancy had reached a more developed stage, the conpositio rose to one hundred and sixty solidi. 103Visigothic law required payment of one hundred solidi conpositio in the case of causing death of the foetus and one hundred and fifty solidi conpositio in the case of causing the death of a foetus that "has assumed human form". 104It may be deduced from the sanction differentiated in accordance with the development of the foetus that in this case the source of both laws had again been the Codex Euricianus. 105he viewpoint of the Church is reflected in two passages in the lex Baiuvariorum. 106In the case of abortion, in addition to conpositio to be paid in one amount, the perpetrator and his descendants were obliged to pay one solidus annually to the seventh generation.The law justified this highly stringent rule by stating that the soul deprived of the possibility of birth also "suffers long-lasting punishment" since it descended to hell without the sacrament of baptism.It is remarkable that this passage begins with the same words as another passage preceding it, where the same facts and sanction were discussed.It is absolutely clear that whereas the other abortionrelated loci in the lex Baiuvariorum reflects the German legal approach, these two show the impact of Christianity, which proves -when analysed with regard to the creation and editing of the lex Baiuvariorum -the joint existence of different layers of the text. 107he crime of abortion carried out by a woman on herself and abortion carried out at the woman's request cannot be found in Frisian, Salian Frankish, Ripuarian Frankish and Langobardic law or in the Pactus legis Alamannorum. 108The Saxon, Thuringian and Burgundian law do not discuss abortion in any form whatsoever, that is, they do not even consider the case where abortion is caused by a violent act of the perpetrator as an independent crime.This suggests that, in contrast to the Frisian, Salian Frankish, Ripuarian Frankish and Langobardic laws as well as the Pactus legis Alamannorum, where abortion carried out by somebody else at the woman's request  Schwind 1908: 634; Morsak 1977: 201; Niederhellmann 1983: 137.108 Niederhellmann 1983: 129.  or by the woman herself, these peoples (under ecclesiastical influence) considered any form of killing of the foetus as homicide and sanctioned it as such. 109isigothic law, greatly influenced by Christian doctrine, discussed the issue of abortion/pregnancy at length under the title De excutientibus hominum partum. 110First, the law regulated abortion carried out by an abortive drug. 111When the punishment of the person who had administered/delivered the abortive drug was dead and it was the woman who had requested an abortive drug and the administration thereof, the regulation included the woman as a perpetrator: If she was a slave, her punishment was to be whipped two hundred times and if she was a person of free status, she lost her freedom.Furthermore, the law determined the sanction for miscarriage caused by a free man assaulting a pregnant woman of free status. 112Accordingly, if a free man had caused a miscarriage by assaulting a free woman and the woman died, he would be punished on the basis of homicide; however, in the case of causing the death of the foetus only, one hundred, and in case of a foetus that "had assumed human form" one hundred and fifty solidi conpositio were to be paid.
In these provisions, German and Roman law elements are intermingled in an interesting form since amounts of conpositio may be traced back to the impact of the German law elements, whereas other punishments, such as whipping, the death sentence or loss of free status, may be tracked back to Roman law elements. 113It is worth mentioning that the sanction for miscarriage caused by an abortive drug was more stringent than the sanction for miscarriage caused by bodily injury; the reason for this may probably be found in the fact that abortive drugs were classified as "magic potions" and that medicines of magic were considered to be highly dangerous. 114This seems to be supported by the fact that even Burchard of Worms viewed the interruption of pregnancy by abortive drugs as witchcraft. 115his viewpoint somewhat corresponds to the Roman law regulation that punished the use of abortive drugs similarly to the use of aphrodisiacs. 116The oldest layer of Visigothic regulations most probably borrowed from Sulla's regulations 117 which did not punish the woman who had carried out an abortion on herself, but punished the person who had administered the abortive drug. 118(Roman law sanctioned abortion only from the period of the Severi.Women were punished not simply for killing the foetus, but also for depriving the father from a child who would be under his power in the future -this is illustrated by the fact that only married and divorced women were threatened by this sanction, whilst unmarried mothers were not. 119We may presume that the mentality of Visigothic regulations was rooted in canon law rather than in Roman law. 120) King Chindasvint made the sanctions for abortion even more stringent. 121He regarded abortion and attempted abortion as a crime against pietas and ordered perpetrators to be punished by death or blinding, even in the case where a woman did it with the consent of or on the orders of her husband -in the latter case, the husband was to be punished as well.
The lex Alamannorum determined the sanction for abortion according to the gender of the foetus. 122The conpositio of a foetus showing female attributes was double that of the conpositio of a male foetus; however, if it was not yet possible to determine its gender, that is if the human form had not yet developed, the required conpositio was similar to that of the male foetus.
It is clear that the leges differentiated in determining the rate of conpositio for causing miscarriage in terms of the gender of the foetus and -as the provisions of the lex Visigothorum and the lex Baiuvariorum show -the stage of development and whether the foetus was alive.This differentiation may be traced back to several ancient and early Christian authors.Aristotle dated commencement of the motion of a male foetus to the fortieth day, and of the female foetus to the ninetieth day after conception.Following the Hippocratic tradition, which Galénos joined as well, a male foetus assumed its human form after the third month and a female foetus only after the fourth month. 123Contrary to the views of antiquity, Christian tradition took the date of the soul moving in rather than the date of assuming human form as the basis of its stance on abortion.This tradition can be traced back to an erroneous Septuaginta translation of a locus of the book of Exodus, 124 which speaks about the soul moving into the body of the foetus, and was not included in the Vulgata translation, but -influenced by the thoughts of Aristotle and Hippocrates -returned repeatedly in the works of the church fathers.The basic question concerned which date following conception abortion was to be considered homicide.Quite interestingly, certain councils did not pay regard to the issue of the date at all. 125However, certain authoritative authors such as Augustinus and Hieronymus considered abortion to be homicide only from a given point of time.They argued that the soul could only move into the body once the body reached a certain level of development; they did not view abortion before this level of development as homicide. 126AMáS NóTáRI

3 Involvement of the physician and treatment in the lex Baiuvariorum
Although folk laws determined different conpositio for various forms of bodily injury, they set conpositio for certain injuries, although subject to the need for and the type of medical help.When involvement of the physician was necessary, the lex Baiuvariorum raised the amount of conpositio to one and a half solidi if hitting or stabbing resulted in the injuring of a vein or exposing the bone of the skull. 127The regulation of the Edictus Rothari usually made it possible to claim the physician's fee, in addition to the amount of conpositio, from the perpetrator. 128Furthermore, a general rule pronounced that the perpetrator was obliged to arrange for a physician for the injured party -failing which, the injured party or, in the case of slaves, their owner could call a doctor -and pay his fee as determined by experts. 129e may learn much about surgical treatment applied in the case of skull injuries from two passages of the lex Alamannorum.One of the loci described the case where the brain became visible as a result of skull injury. 130Regarding its treatment the text described that the physician touched the brain with an instrument called pinn(a) or fano(ne).In terms of the history of language, the word pinn declined in a Latin form may probably be related to the Old English word pinn, meaning "small piece of wood/metal ending in a cylinder"; to the Old High German and Middle High German word pin(ne), meaning "little arrow"; or possibly to the Latin word penna, meaning stalk (of straw) or to the Middle Latin word pen, meaning "arrow stem" Anyway, it denoted a pointed probelike instrument, 131 which was also suitable for removing bone chips.The term fano indicates a relation to the Old High German and Old Saxon word fano as well as the Anglo-Saxon and Gothic word fana meaning "scarf", 132 and it probably denoted the bandage put on the wounds. 133he other locus discussed the case where the cerebrum became not only visible, but partly protruded from the skull cavity. 134Medical intervention, namely placing 127 Lex Baiuvariorum 5 3: Si manus inicerit et ita plagaverit, ut medicum inquirat, vel si venam percusserit.Si in eum contra legem manus iniecerit, quod infanc dicitur, vel si in eum plagaverit, ut propter hoc medicum inquirat, vel sic ut in capite testa appareat vel vena percussa fuerit, cum solido et semi conponat.128 Edictus Rothari 78-79; 82-84; 87; 89; 94; 96; 101-103; 107; 110-112; 118; 125.129  the brain back into the skull cavity was denoted by the word virscoppot in the text.Etymologically, this phrase may be explained as follows: The Old High German verb stopfōn/scoppon means "patching"; 135 the prefix is related to the Old High German prefix far-, fir-(cf New High German ver-) and the suffix -ot added to verbs ending in ōn making the phrase a noun. 136The circumstances of the intervention described in folk language by the text makes it probable that it was applied not only by physicians who studied at monasteries and pursued medicine on a scientific basis, but also by people who practised folk medicine.In the text, siricum, meaning "silk", was used for the sewing up of wounds, and was used in Old Norse therapeutics (silkipraeđi) for this purpose. 137The Old English Leechbooks provided more extensive information on how to carry out the operation, such as what material the support bandage should be made of and how bone chips may be successfully removed from the brain. 138The interventions described here and similar ones have been proved by archaeological finds, like the graves explored in Allach, Chamünster, Greding and Aidenbach.From these finds it may be deduced that in certain cases the operation was performed successfully since fractures of the skull were found to have healed apparently as a result of a medical intervention. 139auterisatio, meaning "burning of the wound" and thus closing of the veins in order to stop bleeding, is evident from a locus in the lex Baiuvariorum. 140The lex Alamannorum also contains two passages on a similar procedure. 141In the text of the lex Alamannorum, the folk language phrase zi virstreddene may be connected with the Old High German verb stredan meaning "to glow" or "to become hot" -the gloss attached to the Alemannian law already shows signs of the Middle High German "Lautverschiebung" 142 -and is used as the gloss for fervere in the Murbach Hymns, which were also, like the lex Alamannorum, recorded on the Isle of Reichenau. 143The form used here is a praesens participium, to which the above-mentioned Old High German praefixum vir-(cf New High German ver-) was added, 144 and was preceded by the praepositio zi (cf New High German zu), and could therefore be rendered most aptly by the translation zu verglühende. 145Burning the wound to stop bleeding had been a basic duty of a surgeon since antiquity, and it is not by chance that the phrase cauterio aut ferro is included as a closely related term in the text of the Council of Châlon in 813. 146The Old English Leechbooks and the Old Norse sagas reveal that burning was also used to remove a tumor growing out of the wound after the operation. 1474 4 German terminology of injury in the lex Baiuvariorum As the terminus technicus used by the Bavarian lex for various forms of bodily injury and injuries is always defined in folk language as well, we shall discuss these phrases below.
The word hrevavunt occurs three times in the text of the lex Baiuvariorum. 148he lex Alamannorum uses the term hrevovunt to denote (probably less serious 149 ) injuries to internal organs. 150In contrast, the lex Baiuvariorum uses the phrase hrevavunt not only for injuries to internal organs, but also for head injuries where the brain was exposed and for bodily injuries leaving the injured party in a halfdead state.The lex Baiuvariorum imposes the same compositio as for hrevavunt in the narrower sense in accordance with the Alemannian law. 151Etymologically, the first morpheme does not derive from the Old High German word hrêo, namely "dead body" (cadaver), but instead is related to the Old High German word href or ref, the Anglo-Saxon word hrif and the Old Frisian word (med)ref meaning "body" or "lower parts of the body", 152 which are etymologically related to the Latin word corpus. 153It is possible to draw this conclusion from copying errors of certain manuscripts.Some of the medieval copiers associated the Bavarian phrase with the word cadaver, as implied by the Middle High German phrase ferchwunt (todtund). 154he error might have occurred because they transcribed the last letter of the Old High German href with an "u" or "v". 155Similarly, in certain manuscripts the way of writing of refvunt and refauunt clearly shows the proper etymology of the word since interiora membra in the text may be taken as the equivalent of the meaning of the word href (corpus) rather than that of hrêo (cadaver). 156It is worth comparing the relevant loci of the lex Baiuvariorum with the loci of the Pactus Alamannorum where the word revo was used in the text, in addition to latus (meaning "side"), when referring to placatus in revo (meaning "internal part" in the sense of "injury to internal organs"). 157Here placatus in revo cannot mean "mortal injury" related to the word hrêo as its etymological base since the amount to be paid for it should be much higher.The second morpheme of the word, namely vunt (uunt) should be interpreted as participium, that is, in the sense of being "injured in his internal parts". 158The word hrevavunti is closely related to this phrase, which also occurs three times in the legal text. 159Contrary to the above-mentioned form, hrevavunti is the dativus of the feminine noun, its formation corresponding to the name of several scenarios in the lex Baiuvariorum (cf lidiscarti, adarcrati); in other words, it denoted "injury to internal parts". 160he term lidiscart(i) appears in the lex Baiuvariorum in connection with the cutting off of the ear as mutilation, distorting the outward appearance. 161The lex Alamannorum uses the phrase (or)scardi with regard to cutting off one of the ears. 162he regulations of the Bavarian lex differentiate varieties of injuries caused to the ears: It imposes different conpositio for piercing the ear and cutting off the auricle of the ear and for where the latter injury resulted in complete deafness. 163Lidiscart(i) is typically a South-German legal term 164 which occurred in the Middle High German period in numerous legal texts in the form lideschart, liderscharte or lideschertic, meaning "to partially mutilate". 165Etymologically, the first morpheme of the phrase is connected with the Old High German noun gilid, the Old English liþ, the Gothic liþus and the Indo-European root *elēi, *lēi, meaning "member" or "part of the body". 166he second morpheme of the compound is related to the Middle High German verb schart(e), the Old English sceard and the Old Norse skarđ, meaning "to cut" or "to hit.The latter derived from the Indo-European root *(s)krē where the word-form itself was created by the formative -i affixed to the relevant adjective (cf Old High German scart, Middle High German schart, Old English sceard). 167Regarding the phrase lidiscarti, it is possible to clearly describe how the word originally denoting TAMáS NóTáRI wounding/damage to health became a legal term.An abstraction was created from the adjective developed from the participium praeteritum of the verb denoting the conduct of committing the act in order to name the injury, which served to determine conpositio more accurately in legal texts. 168n the lex Baiuvariorum, marchzand appears as the synonym of dens maxillaris, that is "jaw tooth", and refers to a molar. 169It is referred to in the lex Alamannorum where it has the same meaning. 170In both leges this is the only tooth that is also named in folk language, and this may be attributed to the fact that, in comparison to other teeth, a higher amount of conpositio had to be paid as compensation for knocking it out or breaking it off.Two explanations present themselves for the etymology of the first morpheme of the word.The first one asserts that the morpheme marc(h) is related to the Old High German word mar(a)g, the Middle High German marc, the Anglo-Saxon marg, the German *mazga and the Indo-European *moz-g-o, *moz-gen and *mos-k-o, meaning "(bone) marrow". 171According to the other etymology, the word marc(h)a, meaning "border" appears in this word. 172It should be noted that marc(h)a is actually not a medical term, but a legal or political one.The second morpheme of the word, zand, meaning "tooth" is a generally-used word in German languages and it is the praesens participium of the Indo-European root *ed, meaning "to eat" -the Indo-European forms *(e)dont and *dņt appears in the form zand in Old High German; tand in Old Saxon and New Dutch; tōth in Old Frisian; toþ in Old English; and zan in Middle High German. 173So marc(h)zand, in literal translation, means "border tooth" or "corner tooth, 174 which corresponds with the Middle High German phrase marczan meaning "grinding tooth". 175alcprust means a "fracture of bone" that is not open and where the bone end does not injure or pierce the skin. 176The locus shows a remarkable connection with the lex Alamannorum. 177In the interpretation of the first morpheme of the phrase it is essential to take account of the Old High German word balg, meaning "skin", the Gothic word balgs and the Old English word belg, meaning "leather case". 178he second morpheme is related to the Old High German phrase brust, meaning "fracture, scission";179 the Old High German and Old Saxon verbs brestan, the Old Norse bresta and the Old English berstan all meaning "to break, to tear up" as well as the Old High German noun brestī and the Old English byrst, meaning "damage",180 which derived from the Indo-European root *bhres and have also survived in the New High German verb bersten. 181Nevertheless, it is remarkable that palcprust simply means "skin injury" (Latin: pellis fractio), whereas the Latin text specifically states that it refers to a fracture of bone that has occurred during the injury, but where the bone has not pierced the skin -in other words, not an open fracture.The locus shows an interesting analogy in its reference to hraopant: 182 in both cases the German terminus technicus accompanies the negation of the given state of facts.All this makes it probable that the Bavarians and the Alemanns defined an independent state of facts, namely a palcprust/balcbrust, which is further supported by the mention of expressis verbis in the lex Visigothorum, 183 albeit without including the folk language name of the injury.The symptoms of the injury showing capillary rupture (libor, tumor etc) can be found in the Edictus Rothari too. 184However, as the locus is somewhat confusing and difficult to interpret, it can be argued that the phrase palcprust belonged to the ancient layer of German law passed on orally and that, as a result, this passage of the lex Baiuvariorum makes a former (more archaic) formulation appear in the final version left to us. 185n the lex Baiuvariorum the word pulislac denotes the scenario where somebody hits a free man out of anger or sudden passion (here the cause or motivation of the blow is not important with respect to the content of the folk language phrase), but where the injury does not result in an open wound (the latter denoted by plotruns). 186his phrase is also found in the lex Alamannorum where it has an identical meaning. 187n the lex Ribuaria it occurs in the form bulislege where it is mentioned in the context of abusing a slave; however, in this case the hitting does not cause bleeding. 188In the Edictus Rothari the phrase also denotes the hitting of a slave, but there a wound results from it. 189Etymologically, the first morpheme of the phrase may be related to the Old High German words puilla and pûlla,190 the Middle High German biule, the Old English bŷle, the Old Saxon būlia, the Old Frisian bēl, bēle, beil and the Indo-European root *b(h)(e)u, meaning "swelling". 191The second morpheme of the phrase is associated with the Old High German word slac, the Old Saxon noun slegi, the Anglo-Saxon slag(r) and the Gothic slahs, meaning "blow", which derived from the relevant verbs (the Old High German slahan, the Old Saxon slēan, the Gothic slahan, the Old Frisian slagia and the Indo-European *slak). 192In Middle High German the word occurs in the form bûlslac, both in legal and non-legal sources. 193The injury may be defined as a blow which does not cause the handicaps or -as a general rule -bleeding, but results in swelling (cf Beulenschlag). 194he phrase taudregil (taudragil) occurs twice in the lex Baiuvariorum.In the first locus it is accompanied by a Latin explanation, namely a form of gait defect caused by bodily injury when the relevant person's "foot touches dew", meaning where "he drags his foot". 195This phrase in the same sense and with the same explanation is also found in the lex Alamannorum. 196The etymology of the first morpheme of the word is quite clear: it is connected with the Old High German word tau, meaning "dew". 197s pointed out by Grimm, the morpheme dregil/dragil may be related to the Gothic verb þragian, meaning "to run", as it has been pointed out by Grimm already. 198 However, the analysed phrase most probably contains a more ancient meaning of the verb, more closely related to the German root *þrag *þrêg 199 : "to drag" (trahere). 200he phrase adarcrati is accompanied by "dicunt" as predicate without the subject Baiuvarii, but it is quite certain that it is a Bavarian phrase. 201The locus refers to an injury (stabbing, cutting) to the vein where bleeding may be stopped only by burning. 202The first morpheme of the phrase may be connected with the Old High German word ād(a)ra or adar, the Middle High German āder(e), the Old English aedre, the Old Norse aeđr and the Indo-European root *ēter, meaning "vein" or "sinew".203However, the second morpheme cannot be compared directly with other loci, although it can certainly be stated that grammatically it is an abstract feminine noun with formation identical to the phrase marchifalli. 204It cannot be ruled out that the morpheme -crati could be related to the German word *gra or *grê (sharp, rough), which can be associated with the Indo-European root *ghrē or *ghra, meaning "to rub" or "to graze heavily". 205That is where the Middle High German grât (hill, splinter), 206 and, possibly, the Old High German crâti and crâtian, meaning "pricking" and "to prick" come from; accordingly, adarcrati means venae percussio. 207he phrase kepolsceni refers to an injury where the bone of the skull becomes visible. 208The first morpheme of the phrase is probably related to the Old High German gebal/kebul 209 and the Middle High German gebel, meaning "skull. 210The second morpheme may be linked to the Old High German skînan or skein, meaning "to appear, to become visible"; 211 accordingly, the phrase may be translated as apparitio testae (Schädelschein). 212(The first morpheme of the phrase kepolsceni also appears independently in the lex Alamannorum in the locus concerning the medical instruments called pinn and fano. 213n the lex Baiuvariorum, plotruns means nothing else than "bleeding wound" or "flow of blood". 214Yet, the law separates it from deeper injury to a major bloodvessel, that is, adarcrati. 215The scenario itself is defined in almost all folk laws; 216 the lex Ribuaria, 217 the lex Alamannorum 218 and the Pactus legis Salicae 219 even emphasise that this outcome may be established when blood drips to the ground.However, the folk language term is found only in the Bavarian lex.The lex Visigothorum also distinguishes injury that results in bleeding (sanguis vel libor apparet) from injury where it does not (sine sanguine). 220Etymologically, the first morpheme of the compound is related to the Old and Middle High German word blôt or bluot,221 the Old Saxon, Old Frisian and Old English blōd, the Old Norse blōđ and the Gothic blōþ, meaning "blood". 222The second morpheme of the compound is probably taken from the Old High German, Old Saxon, Old English and Gothic verb rinnan, meaning "to flow" 223 from which the Old High German word runs(a), meaning "flow" or "stream" originated. 224In Middle High German the word appears in the form bluotruns and blôtruns. 225Furthermore, it is possible to discover connections with the Middle Dutch blotrunn/blotrenn, 226 the Old Frisian blodrene and blodrinse, 227 the Anglo-Saxon blôdryne 228 and the Old Norse blôðrâs; that is, it denotes a wound where blood flows but it does not result in a limitation of movement. 229n certain expressions in the lex Baiuvariorum the active predicate in the first person pluralis reveals that the Bavarians assisting in making the law inserted them in relevant passages as words of their own folk language.Other phrases were accompanied by the active predicate in the third person plural and the passive predicate in the third person singular or plural.These either named Bavarians as the subject or not where the text made it clear that these words were used by Bavarians to express the given meaning.We cannot find such terms among the phrases that constitute the subject of the examination of this paper.In the text of the Bavarian law it is possible to read several -not necessarily Bavarian but certainly -South German expressions as well.They may be found in identical or similar form in the lex Alamannorum and were (quoting the Bavarian form) hrevawunt, lidiscart(i), marchzand, palcprust, pulislac and taudregil.Consequently, these words were borrowed from the lex Alamannorum, more specifically its earlier version, the Chlothariana.The text of the law contains other phrases that may be only presumed to be of Bavarian origin, namely adarcrati, kepolsceni and plotruns.

Conclusion
This paper examined aspects regarding the appearance of healing, the physician, the patient as well as diseases in early medieval German legislation.The first part dwelt upon the issue of dating the sedes materiae in the German Volksrechte by comparing the Bavarian, Visigothic, Langobardic and Alemannian leges.
The second part provided a brief discussion of the issue of early medieval healing, more specifically the legal status of medicine and the physician and their appearance in legal and non-legal sources.In order to set them in the context of early medieval regulation, we had to look at how ancient medicine further developed in the Middle Ages and how healing and the medical profession were judged by the Church since the latter had a considerable influence on how the role of medicine was set out in legal sources.
The third part of the paper discussed the issue referred to in the title, namely regulation of the physician, healing, diseases, bodily injuries and injuries in general in Bavarian folk law.The sources specified four diseases that influenced capability of participating in legal proceedings and the patient's legal status in general: leprosy, various forms of mental illnesses, blindness and hernia.Here the study touched on the considerable ecclesiastical motivations for the regulation of these diseases.Similarly, in order to demonstrate the view of the various folk laws, it was unavoidable to take into account the Christian doctrine (partly rooted in ancient philosophy) regarding bodily injury causing abortion and miscarriage although these folk laws differed due to the reason for and age of their recordings.
The next part provided a brief survey of the passages of the law that (1) expressis verbis set forth the necessity of involvement of a physician in case of certain injuries, and (2) -to enable determination of the seriousness of the injury and the rate of conpositio to redress it -provide information with regard to the nature of the treatment or therapeutic method used by the physician.
Finally, using the results of German rather than Latin philology, we analysed the usual folk language, namely the German (Bavarian) names of pathographies since these terms were remains dating from a time long before the law was recorded.This analysis provided security for the application of the law in that period by imposing sanctions since the compilers deemed it safer to describe the scenarios in Latin with the addition of German terminology.This detailed microphilological analysis revealed several terms that corresponded to, overlapped with and were borrowed from scenarios in other German folk laws -primarily, but not exclusively, the lex Alamannorum, lex Visigothorum and the Edictus Rothari -and provided information on the further development of these medical legal terms.