Lecture 15

LECTURE XV

THE LOMBARD LAW

THE ADMINISTRATIVE SYSTEM OF THE LOMBARDS---THE CODE OF ROTHARI---THE LAWS OF LIUTPRAN

THE ADMINISTRATIVE SYSTEM OF THE LOMBARDS

The Lombard kingdom, like the Ostrogothic kingdom, in Italy was governed by a common and uniform administration, and it was subject to a territorial law which applied to all subjects, Roman and Lombard alike; the great distinction being that in the case of the Ostrogoths the territorial law and the administrative institutions were Roman, in the case of the Lombards the territorial law and the administrative machinery were Lombard. The independence of the Lombards from Roman influence is manifested conspicuously in the fact that they had no general system of taxes on imports. The absence of direct taxation was a characteristic of the Lombard regime. There was no staff for collecting taxes, and our authorities give no indication of any administrative difficulties connected with taxation, no complaints, no laws, such as are frequent under both the imperial and the Ostrogothic rule.

THE CODE OF ROTHARI

The first law code of the Lombards, the Edict of Rothari, exhibits no sign of Roman influence. Issued in A.D. 643---seventy-six years after the conquest of Italy---its general spirit and character seem to take us back into the forests of Germany. We have here largely the same laws and customs which must have regulated the Lombard folk when it dwelled by the banks of the Elbe, modified at one or two points by the fact that they had embraced the Christian faith. The document itself opens with In nomine Domini. "In the name of the Lord beginneth the Edict which the Lord Rothari, King of the race of the Lombards, hath renewed, in conjunction with the chief men who are his judges."

The preface of the Edict goes on to say: "How great has been, and is, our care and solicitude for the weal of our subjects, the tenor of the following Code shows. We have been especially affected by the constant oppression of the poor and by the excessive extortions from those who are known to have larger property, having discovered that they are exposed to violence. So considering the mercy of Almighty God, we have seen the necessity of issuing the present improved law, which corrects and renews former laws, adding what is necessary and cutting out what is superfluous. We have embraced in one volume all that is required for providing that each man may live quietly, according to law and justice, and defend himself and his borders".

The first sections of the Code are devoted to offences against the king's peace. They deal with conspiracy against the king's life, with harbouring brigands, with exciting soldiers to mutiny, with the case of an officer who deserts his soldiers in a battle: all these acts are punishable with death. "If any man take counsel with the king concerning the death of another or kill a man by the king's authority, he shall not be held guilty, either he or his heirs; because since we believe the hearts of kings to be in the hand of God, it is not possible for a man to escape whom a king shall have ordered to be slain." This important law, strengthening the royal power, basing it on a sort of divine right, is of course not ancient, but due to the recent growth of the royal power in Italy. The Edict goes on to enumerate various cases of life-taking: all of which are made good by the payment of a guidrigild, which is the Lombard name for weregild. Further laws provide for cases of annoyance or obstruction on the king's highway. Then we meet the crime of walapauz----that is of the thief who stealthily clothes himself in the dress of another man or disguises his face or head for the purpose of committing a theft.

It was dangerous to found in another man's courtyard at night. "If a free man be found there and do not give his hands to be tied, and if he be killed, no compensation shall be claimed by his kinsfolk. And if he give his hands to be tied and be bound, then let him pay on his own behalf 80 solidi: because it is not reasonable that a man should enter another's yard at night in silence of secretly; but if he has any proper business, let him shout before he enters." This law strikes us as remarkable because the fine is so heavy: 80 solidi means 48 pounds, a sum which represented of course a much higher value then. A slave found in the same situation paid only half the amount.

Cases of sacrilege in churches next claim the attention of the legislator: then he goes on to enumerate, in a long list, all sorts of bodily injuries, in which the compensations are carefully assessed to the supposed gravity of the damage. This is one of the most primitive parts of the Code. If a man knocks out his neighbour's front teeth, he has to pay twice as much as if he knocked out his grinders. If you wished to cut off somebody's finger or toe, it would have been well for you first to refer to Rothari's list of fines; for if you cut off a great toe or a second, you would have to pay about 3 pounds: 12 solidi, whereas if you contented yourself with the third or fourth you would get off with 1 pound, 16 solidi; and, if you only cut off a little toe, you would not have to pay more than 24 shillings. But, as a matter of fact, Rothari had introduced a change in this tariff. In old days, the compositions were not so high. Rothari raised them; in order, he says, "that the feud may be postponed after the payment of these compositions, and more may not be required, but let the cause be ended between the parties, and friendship remain". Such were the means which Rothari adopted to attempt to mitigate feuds and private war. The next matters considered are injuries done to aldii or serfs, to household slaves, and to rural slaves. In all these cases the composition was paid to the lord of the injured dependent; and it is interesting to observe that in the case of some serious wounds the offender has to pay not only the fixed composition, but also a compensation for the loss which the master sustained by the man's labour, and the doctor's fee (mercedes medici). The treatment of accidents in the felling of trees is interesting. If several men are felling a tree and if it falls upon a passer-by and kills or hurts him, the men have to pay the composition in equal proportion. But if it fall upon one of the tree-cutters themselves and kill him, then one portion is reckoned for the dead man, and the others pay the rest in equal proportion. Thus if there are three men and one is killed, he is supposed to bear himself one-third of the responsibility, and the two others are only liable for two-thirds of the composition, i.e. each pays one-third. There is special legislation for poisoning cases. A free man or free woman who mixes a cup of poison, but has not been able to administer it, is liable for a composition of 20 solidi. If the poison is administered but is not fatal, the culprit must pay half the compensation that would have been due if fatal consequences had ensued. If a slave adminster the poison, he is to be put to death, his master to pay the composition in money, but minus the market value of the slave.

Passing from criminal law, we come to the law of inheritance. The general principle was that of equal division among sons. So long as there was legitimate male issue, the daughters inherited nothing. But the peculiar feature of the legislation is the provision made for male children born out of wedlock. If there was one legitimate son, and also illegitimate sons, then the legitimate son inherited two-thirds, and the illegitimate sons, irrespective of number, inherited one-third. If there were two legitimate sons, they inherited four-fifths, and the natural sons got one-fifth. If there were three legitimate sons, the natural sons got one-seventh and so fourth. But suppose there were illegitimate sons, and the only legitimate child was a girl, then the inheritance was divided into three parts; the daughter got one part, the natural sons one, and the remaining third went to the next of kin.

No man could disinherit his son except for certain crimes of a heinous kind, nor could any man convey his property to another if he had a son to inherit it. The laws about the donation of property are interesting. They take us into the ancient popular assembly, or thing: for the gathering of the people, which the Saxons called gemot and the Franks mallus, was known to the Lombards, just as to the Norsemen, by the name thing. Every donation of property had to be made in the assembled thing, and the Lombards in Italy coined the hybrid Latin verb thingare to denote the act of making a donation. The donation itself was called gaire-thinx. Gaire means a spear and must refer to some solemn form, in which a spear was used, for this mode of transferring property. A law of Rothari says: "If any man wishes to transfer his property to another (res suas alii thingare) let him not do it secretly, but let him make the donation---gaire-thinx---in the presence of free men, that no difficulty may afterwards arise." It was only men who had no legitimate sons who could thing their property. If such a childless man then wished to leave his property away from his next of kin, to an outsider, his only plan under the Lombard law (as there was no such thing as testamentary disposition) was to convey it in the form of a donation or gaire-thinx, with the specific condition that it was not to be actually transferred till the day of his death. There was no special form provided for this case: the donor had to pronounce the obscure word lidin laib. But the worst of it was that by this donation made publicly in the thing he limited his own power over his property for the rest of his life. He was bound for the future to enjoy his property reasonably, not to waste it or to dissipate it. Only if, being childless at the time of the thingatia, he had sons afterwards, then the act of transfer became thereby null and void.

We next come to the laws about marriage. Rothari formulates a general statement respecting the position of women in the following law: "No free woman, living in our kingdom under the lex Langobardorum, shall live selpmundia, i.e. according to her own freewill: she must remain always under the power of men, and if of no one else, under the power of the king: Nor shall she have the power of transferring or granting any movable or immovable property without the consent of him in whose mundium or guardianship she is". [I may remark on the incidental importance of this law, in its special reference to a lex Langobardorum, which implies that there were free women in Lombard territory living according to other laws.]

The principle here enounced was of course common to the ancient German peoples, but nowhere do we find it so clearly stated or its consequences so fully considered as in the Edict of Rothari. The system was of course a great advantage to the women, in days when the blood-feud was an accepted social institution; and if the mund or protector of a woman was responsible for her acts, it was only reasonable that he should also have a voice in the disposition of her property.

The marriage laws have largely to do with the money which changed hands on such occasions. There were three different sums involved---the meet, the faderfio, and the morgincap. The suiter purchased the bride from her father or guardian, and the price he promised to give was called the meed---or, for the Lombards made d into t, the meet; in making this convenant, the suitor required the assistance of a friend who guaranteed that he would fulfil it. Then the father had to give the bride a dowry, which was called the faderfio---father's fee. Then, after the marriage, the husband gave the wife a large present known as the morgengebe or in Lombard the morgincap. The laws provide what is to happen to these different sums in all sorts of contingencies. The lawyer has then to consider the cases of unequal marriage, between free men and free women, and serfs, or slaves, and the social status of the offspring in such cases. The only unequal union which was strictly forbidden was that between a free woman and a slave. A slave who marries a free woman incurs death, and the kinsfolk of the woman have the right of killing or banishing her and seizing her property. If they do not take action, the king's officer is to take her to his court and she is to be put to work at the loom with the slavegirls. On the other hand, if a man chooses to marry one of his own slaves he may do so, but he must first enfranchise her.

This leads to the subject of the manumission of slaves, and we learn of a very interesting process which must be Old Germanic. Let us take the case I have just referred to. A man decides to marry a female slave, and must therefore make her a free woman: how is he to set about it? He must take her to the Assembly and there he must transfer her by a donation, or gaire-thinx, to some other free man. He in turn must transfer her to another, and that other to a fourth, by the same process. The fourth owner will then lead her to a place where four roads meet, and there in the presence of witnesses will give her an arrow, the sign of freedom, saying the words, "You may take whichever of these four roads you will, you have free power". This done, the slave will be folkfree, entirely out of her master's power. In connexion with this, the question might arise whether a Roman slave of a Lombard master, thus manumitted, would live as a free man according to Roman or according to Lombard personal law. This case is dealt with by Rothari, who lays down that all freedmen who have been emancipated by Lombard masters should live according to Lombard law. This text is one of the clearest proofs that the Roman personal law existed side by side with the Lombard.

The laws dealing with fugitive slaves have considerable importance for the history of the decline of slavery. All men were bound to hinder the slave who was trying to escape. If a ferryman rowed him across a stream, being aware of his servile condition, he was required on detection, to join in the search for the fugitive, and if the fugitive were not found he had to pay the value of the slave and any property he might have stolen to the owner, and moreover a fine of 20 solidi into the king's court. If the slave sought refuge in a private house, the owner was justified in breaking into it, in consideration of his furor in servum suum. If anyone harboured the fugitive or gave him food or showed him the way, he was when detected bound to search for him, and if he failed to find him had to pay the value of the slave and compensation for any work that had suffered through the slave's flight. Anyone to whose house the slave came was bound to give notice to his owner within nine days. The Church could afford no protection to runaway slaves. If a slave fled to a church or the house of a bishop or priest, he must be surrendered; and if he were not surrendered on the third demand, the bishop or priest who harboured him was compelled not only to give him up, but to supply at his own expense another slave of the same value. But it is most significant of all, perhaps, that a similar law is specially directed against connivance of this kind on the part of royal officers. The general inference to be drawn from this series of stringent laws---from which I have selected only some---is that general public opinion in the Lombard kingdom sympathised with the slaves. The laws strike us as an attempt to maintain the ancient legal institution of slavery, which is threatened by a modification or revolution in the feelings of the people at large. It is significant that the ferryman has to pay, besides compensation, a fine into the king's court. This suggests the interest of the king and the state in maintaining the institution.