Lecture 15

The method of Lombard litigation is thoroughly Germanic. When a dispute arose between two free men, there were two recognised ways of deciding it, viz. the very ancient method by wager of battle which still survived, and the peaceable method of the oath, which is called in the Lombard Code the sacramentum. The mode of legal procedure was as follows. The plaintiff asked the defendant to give security for his claim, if it could be made good. The defendant gave a pledge, and also found a friend to act as a surety. Twelve nights were then allowed him within which to appear and repudiate the claim by oath. If illness or any other impediment occured, twelve more nights were allowed. He might go on alleging excuses and postponing for a whole year, but at the end of a year, judgement would be made against him by default. The plaintiff on his part had within twelve days to choose six men from among the kindred of the defendant; but he must not choose any man who was known to be an enemy of the defendant. These seven, namely the defendant himself and his six kinsmen whom the plaintiff selected, chose five other free men, thus making twelve; and these twelve men were the oath-takers or sacramentales. They took an oath either on consecrated arms or on the Gospel---here Christianity introduces a modification of ancient forms---as to the rights of the case, and this oath was considered decisive.

This was the ordinary way of deciding disputes. But wager of battle, called camfio, still existed. The kings, however, tried to restrict it. It is enacted that such questions as the murder of a wife by her husband, the legitimacy of a son, the right to be guardian of a married woman are to be decided by the oath of sacramentales, because these matters are too important to be entrusted to one man's shield. But a man who calls a woman a witch or a vampire has to prove it by wager of battle. I may mention that there is an interesting law bearing on vampires, which shows Christian influence. "Let no man (it is enacted) take upon himself to slay another man's aldia (female serf) or maidservant, on the ground that she is a witch such as they call masca; for Christian minds cannot believe or conceive it to be possible that a woman could eat a living man from inside him."

THE LAWS OF LIUTPRAND

The next great Lombard lawgiver after Rothari was King Liutprand in the eighth century. His laws were issued in successive years between 713 and 735, and are preserved in a collected form. Their great interest lies in the indications they give us of the advance which the Lombards had made in civilisation during the two intervening generations, a period of seventy years. In the first place it may be remarked that the Christian religion of the nation is more clearly and emphatically reflected in the laws of Liutprand than in the laws of Rothari. It is expressed in the king's own title Liutprand excellentissimus Christianus Langobardorum rex, and in his prologue, which is marked by scriptural quotations. In one ordinance he acknowledges the direct influence of the bishop of Rome: having forbidden marriage between first cousins with the extraordinary heavy penalty of confiscation of property, he states that he does so on the injunction of the pope of the city of Rome "qui in omni mundo caput ecclesiarum dei et sacerdotum est."

The stringent laws against soothsayers and idolaters---laws which may seem to us quite disproportionally severe---are doubtless also due to ecclesiastical influence. The unfortunate man who is foolish enought to consult a male or female soothsayer has to pay a fine of half his own guidrigild, i.e., half the sum which would be due to his relatives in the event of his being slain. And if any governor or officer fails to discover and arrest soothsayers who are living in his district, he is liable to a fine of the same amount. When a soothsayer is arrested, he is to be sold as a slave.

Laws respecting homicide and murder are generally supposed to be a good test of a people's civilisation. In this matter, the laws of Liutprand show a remarkable advance on the Edict of Rothari in the direction of severity. According to the old laws, a murderer had only to pay the guidrigild to the kinsfolk of the victim. On that system a wealthy man might murder seventy-four men without seriously diminishing his fortune. Liutprand enacted that in the case of murder (as distinguished from homicide, accidental or in self-defence) the culprit should be punished by confiscation of his whole property. If his property exceeded the amount of the guidrigild of the murdered man, the guidrigild should be subtracted and paid to the kinsfolk; the rest should go to the king's treasury. If the property was less than the guidrigild, then the murderer should be handed over to the kinsfolk to be used as a slave.

Liutprand applied the system of guidrigilds in a new and quite artificial way. He fixed it as a penalty for a number of miscellaneous offences; such as when a scribe ignorant of law presumed to draw up a legal document; the crime of forgery; the giving to one man of a bride betrothed to another; or if a guardian consented to his ward's marriage in case she were a nun; or if a man married a woman whose husband was alive; in these and other cases the guilty person had to pay as a penalty the amount of his own guidrigild, whether to the king's court or to someone whom his offence had injured. You see that this is a completely artificial and unnatural system. There is no natural connexion between such offences and the sum at which the perpetrator's own life was valued supposing he were slain. The justification of it in the eyes of the legislator was no doubt that it visited these offences more severely on members of the higher classes, who had higher guidrigilds.

The custom of wager of battle had not yet disappeared. We saw that in the Edict of Rothari there were some signs of distrust of this method of settling a suit. The distrust is greater, and is more emphatically uttered in Liutprand's laws. He says that evilminded persons would sometimes challenge a man in order to vex him, and he considers cases where a man who was defeated in the battle is afterwards proved innocent of the charge. His attitude to the wager of battle is most clearly expressed in a law about the charge of poisoning. "Certain men have charged the relatives of a man who has died in his bed of poisoning him, and have, according to the old custom, challenged them to single combat. As the punishment of the murder of a free man is now, according to our law, the loss of the whole of the murderer's property, it seems to us a grave thing that a man should lose the whole of his property sub uno scuto through the weakness of one shield. We therefore provide that in such a case the accuser shall swear by the Gospels that he does not bring the charge in malice. On this condition he may proceed in his cause by battle. But if defeat shall befall him against whom the charge is made or his hired champion, then he is not to forfeit his whole property, but only to pay the appropriate composition according to the old law. For we are uncertain concering the judgement of God, and we have heard of a man losing his suit by combat unjustly; but we cannot forbid the custom of combat, because it is an old custom of our Lombard race."

To show further how things were tending, it may be noticed that the position of women was improving, as shown by the law which gave a daughter the whole of her father's property when she had no legitimate brother, and by the enactments for protecting women against oppression and injuries from their mandvalds or guardians.

Also in regard to slaves, we find that a new and simpler method of manumission has been introduced, in addition to the old cumbrous process of repeated thingations. If the owner gives the slave into the hands of the king, and the king bids a priest take him round an altar, then the slave shall be free, just as if he had been made folkfree by the old process.

I may quote one curious case which came before King Liutprand, to illustrate what might happen in a Lombard village. "It has been brought in notice," he says, "that some treacherous and malicious men, who would not venture themselves to enter with violence into a strange village or a strange house, through fear of having to pay the compositions which are imposed by the law, these men got together all the women over whom they had power, both slave and free, and sent them to a village to attack men who were a much weaker body. And the women attacking the men of that place beat them, and inflicted violent injuries upon them with far more cruelty than men would have used. But when the matter was investigated, the men who were attacked had to answer for their violent resistance to the women. Accordingly we lay down that those men shall not have to pay any composition to the women or their male guardians, in case they have injured or killed any of them. Moreover, the public officer of the place shall arrest the women, and shave their heads, and distribute them among the neighbouring villages that in future women may not venture to commit such wickedness. And whatever injuries the women have inflicted on the men whom they assaulted, their husbands or guardians shall pay the legal composition. We have made this special judgement as to the punishment of the women and as to the composition, because we cannot bring the occurence under the heading of an arascild or party fight, nor yet a sedition of peasants, because such things are done not by women but by men."

You may be interested by the following decision of Liutprand. "It has been reported to us that a certain man lent his mare to another man to draw a wagon, and the man had an untamed colt which followed its mother. As the man who borrowed it was driving through a village, some small children were standing in the street, and the colt kicked one of them with its heel and killed it. The parents of the child sued for compensation for its death, and the case was referred to us. Consulting with our judges, we gave judgement that the owner of the foal should pay two-thirds of the guidrigild of the infant, and that the man who borrowed the mare should pay one-third. We know of course that in the Edict of Rothari it is laid down: "If a horse shall cause injury by its heel, his owner shall pay for the injury": but seeing that in this case the horse was borrowed, and the man who borrowed it was a reasonable being and might have called out to the child to mind itself and avoid the danger, we have decided that on account of this negligence he should pay the third part."

I do not know whether you will think that pure justice was done by this decision, but you may observe how the king acts here as a court of equity, modifying the operation of the law when justice seems to require it.

I may point out an important contrast between the state of the Lombards in Italy and the Anglo-Saxons in England. We find that the Lombard people had no influence in political affairs; the power of the popular assembly had entirely disappeared; but this is not all; the people had no influence even in local matters, and hardly any part in the administration of justice. The thing might assemble for the purely formal purposes of witnessing donations of property, but beyond such formalities no influence lay with the people. Justice was administered by the officers of the king. This is a very instructive fact, showing how far a German folk could travel from their old Germanic constitution, thought they were not affected by the institutions of the Roman Empire, which in the case of the Franks and the Visigoths had a direct tendency in promoting centralisation, and diminishing the political rights of the people. It is contrasted, as I say, with the case of the German invaders of Britian, among whom local institutions were so important and so tenacious.