ITALY AND HER INVADERS.

BOOK VII. THE LOMBARD KINGDOM, A.D. 600-744

CHAPTER V.

THE LEGISLATION OF ROTHARI

 

In the last chapter we were concerned with the external events of the reign of Rothari, who for sixteen years (636-652) wore the Lombard crown. Our information as to those events is certainly meagre and unsatisfactory enough, but the main interest of the reign for us is derived from a feature of its internal politics, the fact, namely, that Rothari was the first great legislator of his people.

The Lombards had now been for two generations encamped on the soil of Italy, yet during all that time, as Paulus tells us, their laws had lived but in the memory of unlettered judges, who remembered only so much as frequent practice rendered familiar; and this, in a country which had been subject to the most scientific system of jurisprudence that the world has ever seen, and had witnessed its gradual development from the Laws of the Twelve Tables to the Code, the Institutes, and the Digest of Justinian. It was time that this reproach should be in some measure removed from the Lombard nation, and accordingly on November 22, 643, King Rothari published to the world his “Code” in 388 chapters, written by the hand of the notary Answald. The Prologue of this monument of barbarian jurisprudence is worth quoting:

“In the name of our Lord Jesus Christ begins the Edict which with God's help the most excellent man Rothari, king of the Lombards, hath renewed, with the nobles who are his judges. In the name of Almighty God, I, Rothari, most excellent man and king; and seventeenth king of the nation of the Langobardi; by the blessing of God in the eighth year of ray reign, and the thirty-eighth of my age, in the second Indiction; and in the seventy-sixth year after the Langobardi marching under Alboin, at that time their king, were brought by divine power into the province of Italy; prosperously given forth in my palace at Ticinum:

“How great has been our care and anxiety for the welfare of our subjects, the tenor of the following Edict will declare: both on account of the constant oppressions of the poor, and also on account of the extravagant exactions from those who are known to have larger property, but how they suffer violence we well know. Therefore, considering the compassion of Almighty God, we have thought it necessary to correct the present law, [inviting] our chief men to renew and amend it, adding that which is lacking, and removing that which is superfluous. And we have provided that it shall be all embraced in one volume, that each one may have permission to live quietly, according to law and justice, to labour against his enemies on behalf of his own opinion and to defend himself and his borders.

“Therefore, since these things are so, we have judged it useful to preserve to future ages the memory of the names of the kings our predecessors, from the time when kings first began to be named in the Lombard nation, as far as we have been able to learn them from ancient men, and we have ordered the Notary to affix them to this parchment”.

Then follow the names of sixteen kings, with the families from which they sprang.

1.   AGILMUND, of the family Regugiutus (Gugingus).

2.  LAAJIISIO (LAJAMICHO).

3.  LETH (LETHUC).

4.  HILDEOCH (ALDIHOC).

5.  GUDEOGH (GODEHOC).

6.  CLAFFO.

7.  TATO.

8.  WACHO.

9.  WALTHARI (WALTARI), son of WACHO.

10. AUTHARI or AUDOIN, of the family of Gaisus (Gausus).

11. ALBOIN, son of AUDOIN, who, as aforesaid, led the army into Italy.

12. GLEPH, of the family Beleos.

13. AUTHARI.

14. AGILULPH(ACQUO): a Thuringian of the family of Anawas.

15.ADALWALD.

16. HARIWALD (AROAL), of the family of Caupus.

In the seventeenth place he names himself, “I, who as aforesaid am in God's name King Rothari”, and he recounts the uncouth names of his progenitors belonging to the family Harodos through twelve generations.

USTBORA

MAMMO

FRANCHONO

WEO

WEHILO

HILTZO

ALAMAN

ADHAMUND

NOCTZO

NANDINIG

ROTHARI

He then proceeds :

“And this general order we give lest any fraud creep into this Edict through the carelessness of copyists. But it is our intention that no such copies be received or have any credit except such as are written or certified (?) on request by the hand of Arswald, the notary who has written it by our orders”.

The reader will not expect nor desire that in this book, which is not a law-book but a history, I should give a complete analysis of the 388 chapters, short as they are, which make up the Code of Rothari. I will only notice those provisions of the Code which illustrate the condition of Lombard society, will quote some of the curious words which the barbarians from beyond the Danube added to the vocabulary of Latium, and above all will notice any provision—if such is to be found in the Code—which illustrates in the most remote manner the condition of the conquered Romans under their Lombard lords. The importance of calling attention to this point (which is connected with one of the most difficult questions in the whole history of the Middle Ages) will abundantly appear in a later chapter. The reader must not look for anything like orderly arrangement or scientific division of the field of law. It would not be the Lombard Code if it possessed either of these qualities.

The Code begins with offences against the person of the king and the peace of the state. The conspirator against his life, the inviter of his enemies into the kingdom, the harbourer of brigands, the exciter of the soldiers to mutiny, the treacherous officer who deserts his comrades on the field of battle, are all to be punished with death.

But on the other hand, the man who takes counsel with the king himself concerning the death of one of his subjects, or who actually slays a man by the royal order, is to be held guiltless, and neither he nor his heirs are to suffer any disquietude by reason of the murder, “because the king's heart is in the hand of God, and it is not possible for a man to escape whom he has ordered to be slain”. If one man accuses another of a capital offence, the accused may appeal to the camfio or wager of battle. If he fail his life may be forfeited, but if his accuser fail he must pay the guidrigild, or price of blood, of which half shall go to the king, and half to the man whom he has slandered This word guidrigild is explained shortly after. If two free men without the king's order have plotted together as to the death of a third, and have carried their intention into effect, he who was the actual murderer shall compound for the dead man according to the price fixed, “that is to say, his guidrigild”. If many persons of honourable birth have conspired together to kill a man, they shall be punished in angargathungi. This barbarous word is explained as meaning that they shall compound for the murder according to the rank of the person slain. If they have carried off plunder from the dead man's body, that is a plain case of ploderaub, or robbing the dead, and must be atoned for by a payment of 80 solidi.

“If any of our barons”, says Rothari, “wishes to come to us let him come and go in safety and unharmed. Anyone doing him any injury on the road shall pay a composition according to the terms set forth below in this Edict”. We note this early appearance of the word “barons” without venturing to define its exact value.

Laws 26-28 provide for the security of travellers by the highway, under the strange title, “De Wegworin id est horhitariam”. The German word (derived from wec = way, and werran = to block or hinder) explains itself pretty easily as an obstruction of the high road. Its Latin equivalent is the aspirated form of the word which we use for the orbit of a planet. As to those sturdy rogues who do violence to travellers on the highway, the law is that “if any one shall place himself in the way before a free woman or girl, or do her any injury, he shall pay 900 solidi, half to the king, and half to her to whom the injury shall have been done, or to the person to whom the right of protecting her (mundium) belongs”. This mundium, or claim to represent the rights of a female relative, is a word which we shall meet with again later on.

“If any one shall place himself in the way before a free man, he shall pay him 20 solidi, always supposing that he has not done him any bodily injury. If he have, he shall pay for the wounds or blows which he has inflicted according to the rate to be hereafter mentioned, and shall also pay the 20 solidi for stopping him on the highway”.

“If any one shall place himself in the way before another man's slave or handmaid, or Aldius, or freed-man, he shall pay 20 solidi to his lord”.

This word Aldius, which we shall meet with again in the laws of Rothari, might introduce us to a long and difficult controversy, which I shall not enter upon at this time. It is clear that the Aldius was in a state of imperfect freedom. He is named between the slave and the freedman, and his claim for damages from the highway robber is not paid to himself, but handed over to his lord. It is suggested that the vast mass, of formerly free Romans, or non­Lombard inhabitants of Italy, were reduced by the conquest to this condition of Aldionate, a suggestion which for the present shall neither be accepted nor rejected, but which I will ask the reader to bear in mind when next the word Aldius meets him in Rothari’s Code.

Law 31 is headed De Walapauz: “If any man shall unjustly do violence to a free man by way of walapauz, he shall pay him 80 solidi. Walapauz is the act of one who stealthily clothes himself in the garments of another, or changes the appearance of his head or face with the intention of thieving”. Apparently the modern burglar, who with blackened face breaks into a house by night, is guilty, though he knows it not, of the crime of Walapauz.

And this leads us to a curious custom which prevailed when a man was found, with however innocent intentions, by night in another man's courtyard. “If a free man shall be found by night in the courtyard of another, and shall not give his hands to be tied—if he be killed, no claim for compensation shall be made by his relations. And if he shall give his hands to be tied, and shall be bound, he shall pay for himself 80 solidi: because it is not according to reason that a man should enter in the night-time silently or stealthily into another man's courtyard; but if he have any useful purpose or need of his own, let him cry out before he enters”.

Similarly a slave found at night in the courtyard of a householder, and not giving his hands to be tied, if he be slain shall furnish no claim for compensation to his lord : and if he give his hands, and is bound, shall be set free on payment of 40 solidi.

Scandalum, that is, an act of violence committed in a church, was to be atoned for by a special fine of 40 solidi, laid on the altar of the church. Within the king's palace it was a capital offence, unless the culprit could move the king's soul to mercy. Scandalum committed by a free man in the city where the king was abiding, required a fine of 12 solidi, even if no blow were struck ; of 24 solidi in addition to the ordinary tariff for wounds if the brawler had struck a blow. In the case of a slave these fines were diminished one half. One half again all round was the abatement, if the city in which the brawl took place were not one in which the king was residing .

We now come to the laws fixing the fines that were to be paid for all sorts of bodily injuries, and these will be best exhibited in tabular form. We begin with the cases in which the injured person is a free man :

Blows struck in sudden quarrel causing a wound or bruise . . 3 solidi apiece up to 12 solidi. “If more blows are inflicted they are not to be counted, but let the wounded man rest content with himself”.

Blow with the fist... 3 solidi.

Blow with the palm of the hand ... 6 solidi

Blows on the head, only breaking the skin . 6 solidi up to 18.

Blows on the head, breaking bones: (per bone) 12 solidi (no count to be taken above 36 solidi). “But the broken bones are to be counted on this principle, that one bone shall be found large enough to make an audible sound when thrown against a shield at 12 feet distance on the road. The said feet to be measured from the foot of a man of moderate stature, not the hand”.

The deprivation of an eye is to be atoned for by the payment of half the fine due for actual homicide, “according to the quality of the person injured”.

The cutting off of the nose to be atoned for by half the fine for homicide.

Cutting the lip . 13 solidi.

If so cut that one, two, or three teeth appear . 20 solidi.

Knocking out the front teeth . 16 solidi per tooth.

Knocking out the grinders . 8 solidi per tooth

Cutting off an ear—a quarter of the fine for homicide.

Wound on the face . 16 solidi.

Wound on the nose, causing a scar . 16 solidi.

Similar wound on the ear . 16 solidi.

Fracture of the arm . 16 solid'.

Wounding without breaking the arm . 8 solidi.

Blow on the chest . 20 solidi.

Piercing the rib . 8 solidi.

Cutting off a hand—half the fine for homicide; if so stricken as to cause paralysis, but not cut off— a quarter of the full fine.

Cutting off a thumb—a sixth part of the fine for homicide.

Cutting off the second finger . 17 solidi.

Cutting off the third finger (which is the middle one) . 6 solidi.

Cutting off the fourth finger . 8 solidi.

Cutting off the fifth finger .16 solidi.

Cutting off a foot—half the fine for homicide.

Cutting off the great toe ... 6 solidi.

Cutting off the second toe ... 6 solidi.

Cutting off the third toe ... 3 solidi.

Cutting off the fourth toe ... 3 solidi.

Cutting off the fifth toe . . . . 2 solidi.

At the end of this curiously minute tariff of penalties for injuries to the person, we have the following interesting exposition of the motive of the law :

“For all the wounds and blows above mentioned, which may pass between free men, we have purposely ordained a larger composition than was in use among our ancestors, in order that the faida (feud), which is enmity, may be postponed after the receipt of the above­mentioned composition, and that more may not be required, nor any thought of guile be harboured in the heart; but let the cause be finished between the parties, and friendship remain. And should it happen that within the space of a year he who was wounded dies of the wounds themselves, then let the striker pay an angargathungi, that is [the full fine for homicide] according to the quality of the person injured, what he was worth”.

The Increased wealth of the Lombards after the settlements in Italy evidently had made them able to pay a higher sum for the luxury of vengeance on an enemy, and justified the sufferer in demanding an ampler compensation for his wounds. At the same time, the motive of the royal legislator in lightening his penal code is clearly apparent. As the Lombard nation was putting off a little of its old savagery in the light of Roman civilization, it was becoming more and more necessary that feuds should cease, and that the old right of private war and the notion of vengeance as the inalienable right of the kinsmen of a murdered man should be restricted within the narrowest limits, and if possible should vanish out of the nation's life. A provision follows for the case of a man who has unintentionally caused the death of an unborn child. It is said that if the mother of the child is free, and has herself escaped death, her price shall be fixed as that of a free woman according to her rank in life, and the half of that price shall be paid for her dead child. If she dies, her composition is paid apparently without any compensation for the death of her offspring. And as before, let the feud cease because the injury was done unwittingly. This provision, that the composition shall be paid according to the mother's rank in life, seems again to point to a table of compositions graduated according to the sufferer's place in the social hierarchy, which appendix to the laws of Rothari we no longer possess.

The twenty-six laws which next follow deal with household injuries inflicted on another man's Aldius, or household slave At first sight we might think that Aldius and Servus Ministerialis were equivalent terms: but remembering the way in which Aldius was used in a previous law along with “slave” and “freedman”, cannot doubt that we have here to deal with two classes of men differing in their degree of dependence, whose services, generally speaking, were of the same value to their lord. The one is the Aldius, the client or serf, generally perhaps a member of the vanquished Roman population; the other is the household slave, who may belong to any nationality whatever, who by the fortune of war or the stress of pestilence or famine has lost his liberty, and like our countrymen the boys from Deira who excited the compassion of Gregory, has been brought to Italy by the slave-dealer, and sold to a Lombard master.

For a member of either of these two classes, the composition for wounds and bruises (paid doubtless to his master, not to himself) was generally about a third of that which was payable for a similar injury to a free man. In the case of the loss of an eye, a hand or a foot, the fine was half of that for homicide, the same proportion but not the same amounts as in the case of the corresponding injury to a free man. And for many of the more important injuries it is provided that the culprit shall pay to the lord not only the fixed composition, but an allowance for the loss of the man's labour and the doctor's fees.

The next section, containing twenty-three laws, deals with injuries inflicted on a yet lower class—servi rusticani, the “plantation hands” of whom we used to hear in the days of American slavery. Here again the same general principle prevails : for serious injuries, the loss of an eye or a hand, half the fine for homicide : for others a composition which is generally about a sixth or an eighth of that which is paid for a free man, and in many cases compensation for loss of labour and the doctor's charges.

Any blow on hand or foot to either Aldius or slave which results in paralysis of the stricken member is to be atoned for as if it had been cut off.

All wounds and blows inflicted on the Aldius, the household slave or rustic slave, as also on the Aldia and the servant-maid, are to be atoned for according to the tenor of this decree. But if any doubt arise either as to the survival or the speedy cure of the injured person, let the lord receive at once half of the composition for the wound: the remainder being kept in suspense till the event be ascertained.

Within a year's space, if the man recover, the balance unpaid for the wounds themselves shall be handed over to the lord; but if he dies the lord shall receive the whole composition for the dead man, allowing for that which has already been paid for the wounds.

The man who has inflicted a wound is himself to go and seek a physician. If he fail, then the wounded man or his lord is to seek the physician, and the other shall pay for loss of labour and doctor's fees as much as shall be adjudged by learned men.

Now at length, after all these minute details as to minor injuries inflicted on men of less than free condition, we come to the full composition to be paid in event of their actual murder:

He who kills another man's Aldius must pay (doubtless to the lord, though this is not expressly stated) 60 solidi.

He who kills another man's household slave “approved and trained” ... 50 solidi.

He who kills a household slave of secondary importance to the foregoing, who bears nevertheless the name of household slave . 25 solidi.

He who kills a foreman swineherd who has two or three or more men in training under him .50 solidi. For an inferior swineherd ........ 25 solidi.

He who kills a farm servant, a cowherd, a shepherd, goatherd or other herdsman, if a foreman .20 solidi.

If one of his under-men . 16 solidi.

He who kills a rustic slave under the farm-labourer 16 solidi.

Anyone who by accident kills the infant child of a slave or farm-labourer shall be assessed by the judge according to the age of the child, and the money which it was able to earn, and shall pay accordingly.

The provision as to accidents connected with the craft of the forester has an interesting bearing on the current legal doctrine of “common employment”. If two or more men are felling a tree which falls upon a passer-by and kills or injures him, they shall pay the composition for homicide or maiming in equal proportions. If the like accident befall one of the workers, they shall reckon one portion for the dead man, and pay the rest in equal shares. Thus, if two men were felling the tree and one were killed, the survivor would pay half the composition for his comrade; if three, each survivor would pay a third, and so on. And the feud shall cease inasmuch as the injury was accidental. In a later law (152) it is expressly enacted that if a man hires workmen, one of whom is drowned or struck by lightning, or crushed by a blown-down tree, his composition shall not be claimed from the hirer of his labor, provided the death was not directly caused by the hirer or his men.

A curious little group of laws on poisoning next comes before us. The free man or woman who mixed a cup of poison for another, but never found an opportunity to administer the fatal dose, was fined 20 solidi. If the poison were administered, but without a fatal result, the fine was half the composition for homicide. If death ensued, of course the whole composition was paid.

So, too, if a slave presented the poisoned cup, but failed to kill his victim, the master of the slave must pay half the composition which would have been due in case of death; and the whole composition if death ensued. In either event, however, the slave was to be handed over to be put to death, and the master had a right to deduct his market value from the penalty which he paid for the slave's crime.

But all this machinery of the quidriqild, however carefully worked, would sometimes fail to efface from the mind of the sufferer the memory of his wrongs. The retaliatory blow would after all be struck, and the terrible faida would begin once more. In order to guard against this recrudescence of the blood-feud, it was enacted that anyone who, after he had received the composition for a slaughtered relative, and after accustomed oaths of mutual amity had been sworn, took vengeance with his own right hand and slew the murderer, should, besides paying the ordinary composition for the new homicide repay twice the composition which he had received; and similarly, if it were only a wound or a bruise which had been inflicted upon him, he should repay double the composition paid him for that injury.

Again, we are brought by the next pair of laws face to face with one of the most difficult questions of modern legislation, that of “employers' liability”. If we rightly interpret the words of the code there was a guild of master masons who took their name from the town of Como, the headquarters of the building trade of that day. According to Muratori, even down to the middle of last century troops of masons from the Italian lakes used to roam over the other provinces of Italy, seeking employment as builders. Possibly the fact previously noticed that the Lake of Como was for so many years a stronghold of the dying Imperial cause in Upper Italy, may have had something to do with this continued existence of an active building trade in the hands of the Magistri Comacini. However this may be, it was enacted that if in the course of their building operations the fall of material caused a fatal accident either to one of the workmen, or to a passer-by, the composition should not be payable by the owner of the house, but by the Comacine Master. For after by the contract he has received good money for his hire, it is not unreasonable that he should bear the loss.

Laws as to fire-raising follow. The man who has intentionally and with evil mind kindled a fire in his neighbour’s house must repay the damage threefold; the value of the burnt property to be assessed by “neighbouring men of good faith”. An accidental fire caused by a man carrying burning coals nine feet or more away from his own hearth was to be compounded for by a payment merely equivalent to the value of the things destroyed.

From fire the legislator passes to mills, probably water-mills. Any one breaking down another man's mill was to pay 12 solidi to the injured miller. For some reason or other, judicial fairness was more than usually doubtful in cases of this kind, and accordingly a judge who delayed his decision, or wrongfully gave leave for the destruction of a mill, was to pay 20 solidi to the king's palace. On the other hand, wrong might be done by building as well as by destroying a mill. There were men who did illegally what the “free selectors” of Australia do in virtue of the laws of the colony—who settled themselves down on another man's land and built a mill beside his stream. In such a case, unless the intruder could prove his right, the mill and all the labor that he had expended upon it went to the rightful owner of the soil.

We now come to the section of the Code which deals with the laws of inheritance. The feature which to our ideas seems the most extraordinary, and which is, I believe, peculiar to the Lombard laws, is the provision which is made for illegitimate alongside of legitimate children. If a Lombard left one legitimate and any number of illegitimate sons, the former took two- thirds of his property at his death, the latter all together one-third.

If he left two sons born in wedlock, they inherited each two-fifths, the collective bastards one-fifth. If there were three of the former class, they took each two-sevenths, and one-seventh was divided among the bastards.

If there were four, the bastards took a ninth; if five, an eleventh; if six, a thirteenth; if seven, a fifteenth. Beyond this point apparently the law-giver would not go in providing for the division of the inheritance.

In all cases where there was legitimate male issue, the daughters took nothing; but if a man left one daughter born in wedlock, and a number of illegitimate sons, the former took one- third of the inheritance, the latter one-third, and the remaining third went to the other next of kin. If the daughters were two or more in number they took a half, the bastards a third, and the next of kin a sixth.

Where there was no next of kin to claim under these provisions, the king's court claimed the vacant inheritance. As relationship did not count beyond the seventh generation we may believe that in that barbarous age, and with a roving population, the king's court was not seldom a successful claimant.

No man might declare his illegitimate sons legitimate, or put them on an equality with the sons born in wedlock, except with the consent of the latter given after they had attained “the legitimate age”. This was reached, however, at the early period of twelve years. As with the Romans, so with the Lombards, a father had not absolute power over the disposal of his property. Except in the case of certain grievous crimes against filial duty (if a son had purposely struck his father, or plotted his death, or committed adultery with his stepmother), no father might disinherit his son, nor even thing away to another in his lifetime the property that should rightly devolve upon him. And the obligation was a mutual one : except to his own offspring, the son might not thing away his property to prevent it from being inherited by his father. The Latinized German word thingare, which meets us in this and many other Lombard laws, gives us an interesting glimpse into the political life or primeval Germany. In an earlier chapter of this work a slight sketch was attempted of the Folks-Thing, or national assembly of the Germans. Referring to that chapter for a fuller discussion of the subject, I may add that not many miles from the place where I am now writing there was discovered about ten years ago an altar which bore the inscription DEO MARTI THINGSO, and which, in the opinion of some of the best German archaeologists, was dedicated to Mars, the god of the assembly, in whose name the priests commanded silence and punished the offenders who were brought up for judgment Thus from a bare hillside in Northumberland has come in recent years a testimony to the widespread institution of the Thing among our Teutonic forefathers. Before such an assembly it was the custom of the Lombards that all transactions connected with property (especially perhaps property in land) should take place, and it was for this reason that a too generous (or perhaps spiteful) father was forbidden thingare his property to the detriment of his natural heirs.

From this custom of making every donation of property in the presence of the Thing, the donation itself came to be called Thinx or Gairethinx. As ger in the Old High-German language signifies a spear, and as we know that the Germans always came armed to their assemblies, it is suggested that the gairethinx or spear-donation may have been an especially solemn form of transfer of property. One of the laws of Rothari said, “If any man wishes to thing away his property to another, let him make the gairethinx itself not secretly, but before free men, inasmuch as both he who things and he who is the receiver are free men, that no contention may arise in future”.

Now however solemnly a childless man might have tinged away his property, when for any cause he despaired of having issue of his own, if he afterwards begat legitimate sons, the previous thinx was utterly null and void, and the sons succeeded to the property as if it had never taken place. And even daughters and illegitimate children ousted the claim of the receiver of the thinx to all but a fraction of the inheritance

On the other hand, a childless man who at the solemn thing should pronounce the word lidinlaib, thereby expressing that the donee was to enter upon the property at his death, incurred obligations which, if he continued childless, he could not lightly set aside. He became in fact, what our lawyers call “tenant for life”, and not “without impeachment of waste”, for he must thenceforward confine himself to the reasonable use of the property, and must in no wise fraudulently dissipate the same. If, however, necessity came upon him, and he found himself compelled to sell or mortgage the property with the slaves upon it, he might appeal to the receiver of his thinx : “You behold under what compulsion I am about to part with that property which I gave to you at my death. If it seem good to you, help me now and I will preserve this property for your benefit”. If the donee of the thinx thus called upon refused to help his benefactor, then any alienation or encumbrance of the estate made by the latter remained valid in spite of the donation.

We now come to the marriage laws of Rothari, an interesting section of the Code. But before entering upon it we must notice one important law which governs the whole relations of Lombard womanhood, whether married or single : “It shall not be lawful for any free woman, living according to the law of the to Lombards under our sway, to live under the power of mundium her own free will, or as it is called to be selpmundia, but she must always remain under the power of men, if not a husband or relative under that of the king's court, nor shall she have the power of giving or alienating any property, moveable or immoveable, without the consent of him in whose mundium she is living”. The principle here laid down was recognized by most, if not all the German tribes whose laws have come down to us, though none deals quite so minutely with this question of the guardianship of women as the Lombard Code. The wording of the law may seem at first sight inconsistent with that high honour in which the Germans from the time of Tacitus downward are said to have held their women. But on reflection we perceive that the institution of this mundium or guardianship is chiefly intended for the woman’s protection, and is a necessary consequence of the barbaric character of the rest of the Code. In a state of society where the faida or blood-feud was still a recognized principle, slowly and with difficulty giving way to the scarcely less barbarous guidrigild; under a system of laws which, as we shall see, tolerated the camfio, or wager of battle, as the test of right and wrong, what chance would a poor weak woman, if self-championed (selpmundia), have had of maintaining her rights? It was evidently necessary that she should have some male protector and representative, who if he had to assume responsibility for her acts, must have the deciding voice in the disposition of her property: and accordingly under the mundium of some man the Lombard woman lived from her cradle to her grave; if not under the mundium of a father, under that of a husband or a brother; if all these failed her, then under the mundium of the king's court. At the same time, though the institution of the mundium may have been originally designed for the woman’s protection, it was undoubtedly sometimes a coveted prize. The regulations in the Lombard Code as to the division of the mundium among the brothers, even the illegitimate brothers, of the daughters of the house show that this view was taken of the guardian’s position : and when the king's court came in and claimed the mundium of a wealthy heiress, we can. well believe that some of the abuses of the right of wardship and marriage which prevailed in feudal times may have been in measure anticipated by the Lombard rulers. This, however, is a mere conjecture, not supported so far as I know by anything that is to be found in the scanty documents that have come down to us.

I must direct the reader's attention to one clause in the sentence above quoted from the 204th law of Rothari : “Any free woman living under our sway according to the law of the Lombards”. This passage clearly implies that King Rothari had subjects who were not living according to the law of the Lombards. This has a bearing on a very wide and important controversy which will be referred to in a subsequent chapter.

Meanwhile our business is with the Lombard law alone, and we may now trace by such indications as that law affords us the history of the courtship and marriage of a Lombard woman. We must not, however, expect that the Code will reveal to us the sentimental aspect of a Lombard marriage : on the contrary, some of the provisions will remind us of the discussions which take place in many a French farmhouse at the present day concerning the precise amount of the dot of the daughter of a thrifty proprietaire.

When a Lombard suitor asked for the hand of a woman in marriage, if her guardian accepted him, a ceremony of betrothal was solemnized, and a written contract (fabula) was drawn up between the parties. The suitor covenanted to give a price which was called the meta; and some substantial guarantor joined in the covenant with him. If all went well, and the course of the matrimonial negotiations flowed smoothly, the father or brother in whose mundium the bride had hitherto been gave, probably on the eve of the wedding, a certain dowry to the bride which was called her faderfio (father’s money) To this was added on the morning after the marriage a substantial present from the newly-wedded husband to his wife, according to the universal custom of the German tribes; and this present, which was called the morgangebe by the Alamanni, and the morgengifa among our Anglo-Saxon ancestors, was modified into morgincap among the sharp-speaking Lombards. But if the progress of the suit were not prosperous, and if the solemn betrothal did not ripen into marriage, the laws of Rothari had much to say about that contingency. If for two years after the betrothal the suitor kept on delaying the fulfilment of his promise,       the father or brother, or he who had the mundium of the affianced woman, might exact from the guarantor the payment of the meta, and might then give the damsel in marriage to another. But perhaps the reluctant suitor alleged as a reason for his refusal that the woman had lost her chastity. In that case her parents must get twelve neighbours or kinsfolk to swear with them that the accusation was false. If they could do this the woman's reputation was considered to be cleared, and the suitor must either take her to wife, or pay a double meta as a penalty for the wrongful accusation.

If, however, for her sins it should happen that a woman was sorely afflicted after her betrothal, if she became a leper or a demoniac, or lost the sight of both eyes, then the suitor might reclaim his meta, and was not bound to take her in marriage. If, on the other hand, the guardian of a woman, after solemnly betrothing her to one man, connived at her marriage to another, he had to pay twice the meta to the injured suitor.

Once married, the woman passed under the mundium of her husband, and if she survived him remained under the mundium of his representative. If she had a son grown to adolescence it seems probable that he would be her guardian, but of course this would often not be the case, and she would then be under the mundium of some brother or kinsman of her late husband, who might be indisposed to relinquish the profitable trust. The royal legislator therefore clearly stated that the widow had the right to betake herself to another husband if he was a free man. In this case the second husband was bound to repay to the heir of the first, half of the meta which had been paid on the first espousals, and if the latter refused to accept this, then the wife might claim her whole faderfio and morgincap and she returned under the mundium of her parents, who might give her in marriage to whom they would.

We have several indications that this enforced mundium of the widow under her late husband's heir led sometimes to strained and painful relations. Anyone having the mundium of a free wife or maiden who falsely accused her of adultery, or called her a witch or conspired against her life, lost the mundium unless he were the father or the brother of the injured woman; and in this and several other cases the mundium went, in default of relations, to the king's court. Lastly, to end the story of the matrimonial life of the Lombard woman, if a man slew his wife for any cause which was not sufficient in law to justify her death, the murderous husband had to pay 1200 solidi, half to her parents or relations, and half to the king. If the murdered woman had left sons, these inherited the morgincap and faderfio : if not, they went to her parents, or failing them, to the king's court. But if the wife plotted against her husband's life, she was at his mercy and he might do to her whatsoever he would. If she slew him, she was herself to be put to death, and her property, if she left no children, went to the husband's heirs. Always, even in presence of the ghastliest domestic tragedies, the Lombard legislator keeps a cool head, and remembers to say what shall be the destination of the faderfio and the morgincaq.

Interspersed with the marriage laws of which I have spoken are some which deal somewhat more with the moral side of the relation between the sexes. Thus the seduction of a free woman was punished by a fine of 20 solidi, which was increased to 100 solidi if the seducer refused to marry his victim. If a man persuaded the betrothed bride of another to marry him he had to pay 20 solidi to the parents as penalty for seducing their daughter from her duty and 20 more in order to end the feud (faida) caused by his misconduct. Moreover he had to pay to the injured affianced suitor twice his meta. These comparatively light punishments fell on him who had by gentle means won the forbidden prize. Crimes of violence were rightly punished much more severely. Forcible compulsion of a woman to marry subjected the offender to a fine of 900 solidi, half of which went to the parents of the damsel, and half to the king's court. The injured wife was at liberty to go forth from the offender's house with all her possessions, and might place herself under the mundium of a father, a brother, an uncle, or the king, as she might choose.

In this connection we meet with a law which has given rise to much discussion : “ If any man shall commit fornication with a female slave belonging to the nations, he shall pay to her lord 20 solidi. If with a Roman, 12 solidi”.

It Is only in this casual reference to an act of immorality that we find in all the laws of Rothari the slightest express reference (doubtless there are many implied references) to the great mass of the subject population of Italy who called themselves, and were called by their conquerors, by the once proud name of Roman. And this reference carries us but a little way. The poor bondwoman of Roman extraction is evidently compared unfavourably with her fellow slave of “Gentile”, that is of Teutonic or Slavonic origin, the kinswoman it might be of the Anglian lads whom Gregory saw in the market-place. But, after all, it is not her wrong, but the injury done to her master, that is in the mind of the legislator. It is to him that the fine is paid, and all that we learn from this passage is that the stout, strong “gentile” woman who had come across the seas or from the countries beyond the Alps was a more valuable possession to her master than one of the oppressed, emaciated, famine-wasted daughters of Italy.

Acts of immorality committed chiefly against women of servile condition are dealt with in laws 205-214, and we then come to the interesting subject of marriages contracted between persons of unequal status, one free, the other unfree.

In these marriages the general rule seems to have been that which also prevailed in the Roman law, that the issue of the marriage shared the condition of the mother. Thus if an Aldius married a free woman, on his death she and her sons might go forth from his house free, but on condition of renouncing the morgincap which her late husband had given her, and giving back to his lord the sum which he had once paid to her parents for her mundium. If a slave married a freed woman or an Aldia she lost the qualified freedom which she had possessed, during the marriage, but might reclaim it on her husband's death, and go forth free with her children. If an Aldius married an Aldia or a freed woman the sons became Aldii on the estate of their father's lord. If he married a female slave, the children of the marriage were slaves of their mother’s master. But if he ventured to lift his eyes to a free woman, and make her his wife, he ran the risk of hearing sentence of death pronounced upon him. The relations of the woman who thus demeaned herself had the right to slay her, or to sell her for a slave into foreign parts, and divide her substance among themselves. If they failed to do this, the king's officers might lead her away to the king's court, and set her to work among: the female slaves at the loom. So jealous was the Lombard law of the honor and reputation of the free woman.

But, lastly, there was the possible alternative case, that a free man might wish to marry one of his own female slaves. For such a union the law had no such terrors as those inflicted in the converse case of the marriage of a free woman with a slave. But he might only marry her on condition of first enfranchising her, which he must do in a solemn manner by way of gairethinx before the assembly of the people. The enfranchised slave, who was now declared to be wurdi-bora, might now become her late master's lawfully-wedded wife, and could bear him legitimate sons, with full claim to succeed to his inheritance.

From this subject, by a natural transition, the legislator passes to that of the manumission of slaves.

Of this manumission, as he informs us, there were four kinds.

(1) The fullest and most complete was that which was practiced when a man wished to give his male or female slave absolute freedom to go where he pleased, and dispose of his property as he would. To accomplish this, he first handed over the slave by solemn gairethinx to another free owner; that second owner to a third, and the third to a fourth. This last owner led the slave to a place where four roads met, handed him in the presence of witnesses an arrow the free man's weapon, murmuring a certain form of words which had been handed down from dim antiquity, and then pointing to the crossroads, said, “You have unfettered power of walking whither you will”.

A slave or Aldius thus enfranchised became folk-free (that is, a sharer in the freedom of the Lombard people), and entirely out of his late master’s mundium. If he died without natural heirs, neither his patron nor his patron's heirs succeeded to his property, but it went to the king's court.

(2) The second form of manumission was that of the slave who was remitted impans, that is, “to the king’s wish”. This passage remains hopelessly dark to us, but we are told that the slave thus liberated was amund (perhaps, however, not folk-free).

(3) The third form of manumission made its subject folk-free, but not amund. He lived like a free Lombard in the family of his late master, and under his mundium. He had received the “liberty of the four ways”, and could go where he willed, and do what he pleased, but his property, in default of natural heirs, went to his late master.

(4) The fourth form of manumission, an incomplete and partial affair, not accompanied with “the liberty of the four ways”, left its subject only an Aldius, that is, as we have seen, it left him in a semi-servile condition, not folk-free on the one hand, but on the other able to contract a valid marriage with a free woman, and probably not liable to the indignity of personal chastisement

The section on manumission ends with the following law, which has an important bearing on the question hereafter to be discussed, of the condition of the subject Romans under the Lombards :

“All freedmen who shall have received their liberty from Lombard lords ought to live under the laws of their lords, and for their benefactors, according to the concession which shall have been made to them by their own lords”.

This provision certainly looks as if for some persons, and at some times, the living according to the law of the Lombards was not a privilege to be sighed for, but a duty, to be if possible evaded. But more of this hereafter.

The law of vendors and purchasers comes next in order but there is not much here that need claim our attention, except that we notice that the period required to give a prescriptive title to property is very short, only five years. So short a prescription perhaps points to a semi- barbarous state of society still existing among the Lombards, and to frequent changes of ownership by violence. If a man had been left as long as five years in undisturbed possession of land, or slaves, or jewels, it might be presumed that he was the rightful owner.

Also we observe that no slave, and even no Aldius, could sell property of any kind without the consent of his master or patron. An exception was necessarily made in the case of a slave who had charge of a farm (servus massarius), whose business it was to sell off the young stock, and who did not require the formal consent of his master for each transaction of this kind.

Six laws follow concerning the removal of boundaries the usual punishment for which offence was a fine of 80 solidi in the case of a free man; a fine of half that amount or death in the case of a slave. It is interesting to observe that a frequent method of marking the boundaries was by notching the forest trees.

The slave who thus falsified the markings on the forest trees was punished by amputation of his right hand; and here, with that delightful discursiveness which characterizes the Lombard code, we learn that the same punishment was inflicted on anyone who, without the king's order, stamped gold or coined money, and also on any one who forged a charter or other document.

A measure of police, for the peace and good order of the cities, follows. “If any free man enters any city or village by the wall, or leaves it in the same manner, without the cognizance of his magistrate he shall pay the king's court a fine of 20 solidi. An Aldius or slave committing the same offence is to pay a fine of 10 solidi. If he commits a robbery he shall pay the fine for such robbery imposed by this edict in addition.

Then follow some obscure and difficult laws which I will not presume to interpret, as to the custom of pignoratio, which was a sort of distraint upon the goods of a debtor executed by a creditor on his own responsibility. He was not allowed to resort to this process of self-­compensation till after he had on three successive days called upon the debtor to pay his debt, and if he made any mistake in executing it (for instance, if he took the slave of A as security for the payment of the debt of B), he might have to restore eight times the value of the pledge so taken, unless he could swear that he had done it inadvertently. So too the man who had given a pledge (wadia) for the maintenance of an action and failed to redeem it within six days was fined 12 solidi.

The section of the edict which deals with theft contains eleven short and simple laws; the next section, that which is concerned with the case of fugitive slaves, is about twice as long, though it contributes only thirteen laws to the collection. Evidently under the Lombard kings, as under the Presidents of the United States who reigned before Abraham Lincoln, the recapture of fugitive slaves was a matter which occupied a considerable part of the thoughts of the local magistrates.

As for theft, if the article stolen was of the value of 10 siliquae, the thief, if a free man, had to restore the value of the object ninefold, and to pay a fine of 80 solidi . He might, it is true, escape from this heavy fine by accepting the penalty of death. For the slave the fine was 40 solidi, the rest of the punishment was the same. The free woman (if folk- free) arrested in the act of theft was only called upon to pay the ninefold value. No other fine was to be exacted from her, but she was to go back to her home and muse on the injury which she had done to her reputation by attempting so indecent an action. Any one finding gold or an article of raiment on the highway, and raising it higher than his knee, if he did not declare what he had discovered to the magistrate was to restore ninefold.

We pass to the laws which deal with the case of slaves escaping from their masters. If such a slave or a free man escaping from justice were caught, it was the duty of the magistrate of the place where the capture occurred to hand over two solidi as a reward to the captor, and keep the slave that he might restore him to his master, or the fugitive that he might restore him to his pursuers. Did such a fugitive, having once been caught, escape, his keeper must swear that he had not intentionally released him, but had guarded him to the utmost of his power. Otherwise (apparently) he made himself responsible for the consequences of his escape. If the fugitive, when challenged and summoned to surrender, did not give his hands to be tied, the pursuer slaying him was not to be held answerable for his death.

All men were bound to hinder the slave in his flight, and to assist in detaining him. If a ferryman rowed him across a stream he was put on his defence, and unless he could swear a solemn oath that he was ignorant of the fugitive slave's condition, he was compelled to join in the quest, and if that were unsuccessful, to pay to the owner a sum equal to the slave's value, and a fine moreover of 20 solidi to the king's court. If the slave took refuge in a private house, the owner was justified in breaking into it, the fury of the pursuing master being deemed sufficient justification for the technical offence against the rights of property. If anyone knowingly harboured a fugitive slave, or supplied him with food, or showed him the way, or gave him a lift on his journey, the man who had thus helped the fugitive was bound first of all to go forth and find him, and if he failed to do that must pay the value of the slave; and of any property which he might have carried off with him, together with compensation for the work which had been damaged by the slave’s flight.

As a rule, any one in whose house a slave sought shelter was bound to send a message to the master announcing the fact. If he failed to do so, and kept the slave more than nine nights he was responsible for any injury that the slave might commit, or for the loss to the owner caused by his death.

These rules applied to all classes. Even the officers of the king's court, the Gastaldius, or Actor Regis, the dignitaries of the Church, a priest or a bishop might not permanently shelter a fugitive slave, but having been summoned three times were bound to surrender him to his lord. If it happened, however (as seems often to have been the case), that the householder with whom the slave had taken refuge came forth and made peace between the slave and his master, persuading the latter to receive him back in favour and peace, and if afterwards the master, breaking his promise, avenged himself on his slave for his flight, he must for such violation of his plighted word pay to an ordinary householder 20 solidi, or twice that amount to one of the king's officers, or to a dignitary of the Church, if it was one of these whose intercession had thus been rendered of no avail. In the last case, that of broken faith with a bishop or priest, the forty solidi were to be deposited on the sacred altar where the injury had been done.

The general tenor of these laws seems to show that the sympathy of the whole community, not of the semi-servile rustics only, but also of the rich and powerful, was wont to be on the side of an escaping slave, and that the royal legislator must raise his voice loudly to secure a hearing for the rights of property in human flesh as then recognized by the law.

We come to a short section of the Code which deals with offences against the public peace. To enter another man's house in wrath and passion was such an offence, and was called hoveros, a word which perhaps signifies “house-storming”. The penalty for such an offence, if committed by a man, was 20 solidi, but a woman cannot commit the offence of breach of the house-peace, which is hoveros: because it seems to be absurd that a woman, whether free or bond, should be able, like a man, to do violence with arms.

The next two laws point to the danger to the State arising from the oppressed condition of the slaves or coloni.

“If the slaves, by the advice of the country-folk (rusticani), shall enter a village with an armed band wretched to do mischief, any free man under the sway of our kingdom who shall put himself at their head shall run the risk of losing his life, and shall at all events pay 900 solidi, half to the king, and half to him to whom the injury was done. If the leader be a slave, and not a free man, let him be put to death. The slaves are to pay 40 solidi, to be divided as aforesaid”.

The second law deals with something like a resisted eviction. Here the rusticani, whom I take to be equivalent to coloni, are the movers in the tumult, and their punishment is less heavy than that of slaves.

“If for any cause the country-folk shall collect together to make a conspiracy and a sedition, and shall threaten any one or forcibly carry off a slave or a beast which the lord may have wished to remove from the house of his slave, then he who has put himself at the head of the rustics shall die, or redeem his life according to his fixed price, and all who have run into that sedition to do evil shall pay 12 solidi, half to the king, and half to him who has suffered from the act of violence”. Assaults committed by the rustics on the lord attempting to recover his property are to be compounded for according to the before-mentioned tariff. If any of the rustics be killed, no claim for compensation is to arise.

These two laws are of considerable importance for their bearing on the question hereafter to be discussed as to the extent of the application of these laws of Rothari; whether meant for Lombards alone, or for Lombards and Romans equally. It will be noticed that the words of the first law are very general—“any free man under the sway of our kingdom”. These words should certainly cover the case of a free but subject Roman as well as of a Lombard. But then it is enacted that he shall be put to death, or shall at least pay a fine of 900 solidi. It may be argued that while the free Roman was to be put to death without question, the free Lombard was to have the chance of redeeming himself by a fine. A somewhat similar alternative is offered in the next law to the ringleader of the rustics, perhaps in view of the same difference of nationality.

The seventy-three laws which follow take us over a wide field, and I regret that the space at my disposal does not allow me to copy in detail the picture which they give us of the economic and social condition of the Lombards. More than we might have expected from the inhabitants of a land so rich in cities as Italy, these laws seem to bring before us a population of country-dwellers, I had almost said of country-squires, who still, like their ancestors in the first century, “shun the continuous row of houses, and settle, scattered over their various homes, as the fountain, the moor or the grove may have caught the fancy of each”. We see them fencing round their meadows with planks or quickset hedges, and often trying to claim more than they can thus encompass. One lawless neighbour breaks down the fence entirely, and is fined 6 solidi : or he pulls out one plank or one bough, and has to pay 2 solidi; or whole squares of lattice­work and pays 3 solidi. Another with unjust mind hacks to pieces the woodwork of a plough (which our Lombard kinsmen called plovum), or steals the bell from a horse's neck, or the yoke or the harness-thongs from the patient ox. The fine for the first of these misdeeds is 4 solidi; for the other acts, and for most of those offences against rural peace which are about to be enumerated, the fine is 6 solidi.

The elaborate laws for the protection of vines show that the Lombards appreciated that slender and delicate tree which is married so happily to the elm everywhere in the rich plain of Lombardy, and by the fame of whose joyous fruitage they themselves, according to the Saga, had been tempted into Italy. But we read with astonishment that though the wayfarer might help himself to three grapes without offence, for any taken above that number he must pay the regulation fine of 6 solidi.

The announcement that the maker of a hedge by which man or beast is injured or slain will be held responsible for the injury, or even for the homicide, strangely reminds us of modern controversies about barbed wire-fencing; but he who digs a ditch round his plot of land is liable to no claim for compensation for man or beast injured by falling into it, “because he did it for the safety of his field, and not with guile”; and the same exception applies to the digger of a well, “because the well-water is a common gift for the benefit of all”

We find a similar allusion to natural right in the laws relating to the taking of honey. If a man steal a bee-hive with the bees inside it he pays 12 solidi; if he find a swarm of bees on a tree on which the owner has set his mark, he pays 6 solidi; but if there be no mark on the tree he may take the honey and keep it “by the law of nature”. Only this “law of nature” does not apply to the gahagia or game-coverts of the king; and even in other forests, if the lord chances to come riding by, the finder of the honey must give it up to him, but shall not be liable to any further blame for taking it.

A similar rule applies to the finding of young falcons on an unmarked tree. Here, too, the finder may keep them unless the lord of the forest comes upon the scene. But if on any pretence, from trees marked or unmarked, he takes young falcons from the nest in the king’s gahagium, he must pay a fine of 12 solidi.

The Lombards were apparently a nation of horsemen, and many laws are devoted to questions connected with matters equestrian. To knock out a horse's eye, or cut off its ear, or do it any other bodily injury, subjected the offender to the penalty of restoring another horse of equal value to that which he had maimed. To cut off the hairs of its tail was punished with a fine of 6 solidi. To make any disfiguring marks upon it, whereby the owner might be prevented from knowing his own, was so obviously the next step to theft that it was punished accordingly by a fine of ninefold the horse's value. To mount another man's horse and ride it about in the neighbourhood was an offence punishable with a fine of 2 solidi; but to take it off on a journey without the owner's leave was virtual theft, and punished by the ninefold fine. But sometimes a man would find himself quite innocently in possession of a horse that did not belong to him. It had come straying into his courtyard, and was doing damage there. What must an honest Lombard do in such a case? He must take the horse to the local magistrate or to the congregation assembling at the church door four or five times, and must make proclamation to all men by the voice of the crier : “I have found a horse and I know not whose it is”. Having done this, if no owner appeared, he might safely keep it and ride it as his own; but when the horse died he must keep a note of the markings on its skin, that he might have somewhat to show to the owner should he at last make his appearance. If he complied with these regulations he was free from all further responsibility; if he failed in any of them he was liable to the ninefold fine.

Perhaps a man who had lost his horse would entrust the quest for it to a servant, telling him the marks by which to know the missing animal, and the searcher would in his ignorance lay hands upon the wrong horse and ride it off to his master's stable. Thereupon the real owner of the second horse appears upon the scene and brings a charge of horse-stealing. Then let him in whose keeping the horse is make solemn oath that the mistake was involuntary, and if he have treated the horse well while it was in his stables he shall be subject to no further action.

The laws respecting the pursuit of game are numerous, but except for those previously quoted, which imply that the king's own gahagium was strictly preserved, they do not seem to indicate that jealous monopoly of the pleasures of the chase which was characteristic of feudal times. If a stag or any other wild creature has been shot by a man it becomes his, but the right of property in it lasts for only twenty-four hours. If a passer-by finds a wild beast wounded by a hunter or caught in his snares, it is his duty to carry the prize to the hunter, for which he shall be rewarded by the right shoulder and seven ribs. If he conceals the capture, he shall pay the hunter a fine of 6 solidi. If he be injured by a wild beast which has been caught in a snare, he has a right to compensation from the setter of the snare. But if of his own free-will and out of desire of gain he goes to such a wild beast, either ensnared or surrounded by dogs, and tries to make it his prey, then the consequences are on his own head, and he has no redress against the first huntsman

If a beast being wounded by the hunter meets a man, and slays him in its fury, the hunter will be held answerable for homicide. But this holds good only so long as the hunter is actually pursuing his quest with his dogs and his artillery. When he has given it up, and turned homewards, he ceases to be liable for the consequences of the rage of the wounded animal.

This whole section with which we are now dealing is concerned mainly with laws relating to animals, but after reading that he who strikes a cow in calf, and causes her to miscarry, must pay one tremissis (the third part of a solidus), and he who does a similar injury to a mare in foal shall pay one solidus, we are shocked to find that he who strikes another man's female slave, thereby causing abortion, pays only 3 solidi, only half the fine for stealing a horse's baiter, or pulling the hairs out of its tail. There is nothing in the Code of this strange semi-barbarous people which goes so far to justify St. Gregory's phrase “nefandissimi Langobardi” as this.

Incidentally to the discussion of injuries wrought by animals (which must, as a rule, be compounded for by their masters) we learn that “if, as a punishment for his sins, a man becomes rabid or demoniac, and does damage to man or beast, compensation shall not be claimed from his heirs”, and conversely, if he himself be killed while in that state of frenzy, his heirs shall not be entitled to claim guidrigild on his behalf.

The various laws about swine and swineherds show that the unclean creature which Virgil does not condescend to notice in the Georgics played an important part in the husbandry of the Lombards. If a man found a herd of swine rooting about in his meadow, he might kill one, and not be asked to compensate the owner. If not in a meadow, but still feeding on land which was not their owner's, he might keep one as a hostage, and claim compensation for the rest at the rate of 3 siliquae (amounting to the eighth of a solidus) per pig. The champion boar of one of these great herds of swine was a valuable animal and went among the Lombards by the name of sonorpair and the theft of this hero among swine was punished by a fine of 12 solidi. But it was ordained that unless the herd consisted of at least 30 swine, its champion should not be considered to have attained to the dignity of a sonorpair. The swineherds (porcarii) were evidently a quarrelsome class of men, themselves often the slaves of serfs, and two laws are devoted to the special question of the quarrels with “assault and battery” which arose among them.

Lastly, to close this agricultural section of the Code, it is ordained that “no one shall have liberty to deny to travellers the right of grazing their horses, except it be in a meadow at haytime, or in a harvest-field. But after the hay or other crops have been gathered in, let the owner of land only vindicate the possession of so much of it as he can surround by a fence. For if he shall presume to remove the horses of travellers from the stubbles or from the pastures where other cattle are feeding, he shall pay the ninefold fine for these horses because he has dared to remove them from the open field which is fornaccar (land that has yielded its crop). We ask ourselves here what it was that the churlish Lombard landowner had to repay in ahtugild. It seems hardly credible that it can have been the actual value of the horse to which he had denied a meal. Was it the computed value of the horse's grazing?

From these pastoral and agricultural provisions we pass to the laws which regulate the judicial procedure of the Lombards. A rude and primitive kind of procedure it was, one from which the barbarous “wager of battle” was not yet entirely eliminated, but in which that appeal to brute force was being gradually superseded by a rough, but generally effective appeal to the conscience of the accused person and his friends. For we have now to deal with that system of combined swearing to the truth of a fact, or the falsehood of an accusation, which is generally called compurgation, and out of which probably sprang the Anglo-Saxon jury. But as the word “compurgation” is a term of later introduction—unknown, I believe, to any of the barbaric codes—and as the functions of a modern jury are altogether unlike, almost opposed to those of the fellow-swearers of the Lombard law, we shall do well to avoid the use of either term, and confine ourselves to the word sacramentales, which is that always used in the Codes not only of the Lombards, but of the Alamanni, the Frisians, and the Bavarians. The Lombard name for these persons seems to have been Aidos, a word obviously connected with the Gothic Aiths, the German Eid, and the English Oath, and meaning swearers; but the Lombard legislator writing in Latin prefers to use the words sacramentum and sacramentalis, connected of course with the modern French serment. The principle involved in this judicial process, so unlike our modern ideal of judicial investigation, but so widely spread through all the Teutonic nations, was evidently this :

One free German warrior accuses another of a certain offence, say of having stolen his horse, or murdered his slave. The accused man denies the fact; a multitude of his friends gather round him, and echo his denial; it seems as if there would be a bloody quarrel between the two parties. In earlier centuries the matter would have been thus settled by the strong hand, but now in the age of the migration of the peoples, a somewhat clearer vision of a possible “Reign of Law” has dawned upon the Teutonic mind. In order to prevent the interminable faida (blood­feud) from breaking out upon this trivial occasion, it is ordained that a given number of the friends of each disputant shall by solemn oath, either upon the Holy Gospels or upon their weapons of war consecrated by a Christian priest, assert their belief in the truth of the statements made by him whose cause they favor. It may be said, “And how much further does that process carry you? Of course each group will swear till sunset to the truth of its own side of the question”. Apparently it was not so; there was still much reverence for truth in these rough, Rome-conquering Teutons. They were not like some modern party-politicians, or like a jury of Celtic farmers. They recognized in some degree the inviolable claims of truth, and this old pagan virtue of theirs was reinforced by the awful sanctions of the Church and by the dread of endless torment awaiting him who swore falsely on the Holy Gospels or the consecrated arms. Some rough examination or discussion of the facts of the alleged offence probably took place among the sacramentales, and at length it was generally found (this must have been the case, or the practice would have fallen into disuse) that on one or other side a “swearer” yielded to the force of evidence, and admitted either that the plaintiff had failed to make good his attack, or the defendant his defence. When this was done, when either one of the litigants or any of his supporters said “I no longer dare to swear to the truth of our cause”, then the sacramentum was said to be broken, and the beaten party must pay his guidrigild if defendant, or if plaintiff must renounce his claim.

These appear to be the general principles which governed the trial by sacramentum. It has been already remarked how utterly it differed from the trial by jury, which is in a sense its offspring. The modern juror is chosen expressly as a disinterested and impartial person : the sacramentales were chosen because they were friends and relatives of one or other of the litigants. The modern juror is exhorted to dismiss from his mind all previous knowledge that he may have acquired of the case, and to judge only on the evidence before him. The sacramentalis judged from his previous knowledge, and almost from that alone. Unanimity is required of a modern English jury, and one obstinate juror who holds out against the remaining eleven is an object of general dislike, and is labored with till he can be brought to a better mind. The one sacramentalis who yielded to conviction, and declared that he durst not swear to the truth of his principal's assertion, was in the teutonic institution the hero of the day, and it was his act of “breaking the sacramentum” which decided the right and wrong of the dispute.

Having thus described the general principle of trial by sacramentum, let us briefly consider the manner in which such a trial was conducted according to the legislation of Rothari.

As soon as a matter of dispute arose between two free Lombards, the plaintiff (who was called ille qui pulsat) called upon the defendant (ille qui pulsatur) to furnish security for the satisfaction of his claim. The defendant then gave some material pledge (wadia), probably of no great value, and “found bail”, as we should say, or in other words prevailed on some one of his friends to act as guarantor (fidejussor) that the plaintiff's claim should be duly met. Twelve nights (in Teutonic phrase) were allowed him in which to appear and rebut the claim by his oath, and if, by reason of illness or for any other cause, he failed to do so, twelve more nights were allowed, and so on as excuse was pleaded. But if, on one pretext or other, he evaded his obligation for a whole year, judgment went against him by default. And similarly, he who made the claim, if he delayed for a whole year to establish it by means of sacramentales, lost all right to speak of the claim thereafter, and presumably had to restore the wadia. For the rule was, “Let him who is prepared to give the sacramentum have firm possession of the matter in dispute”. If neither party thus made delay, and the cause came on for trial, it was the duty of the plaintift (if the case were a grave one, affecting values of 20 solidi or upwards) to nominate six sacramentales from among the near kindred of the defendant. In thus nominating, however, he might not choose any man who was known to be at enmity with his kinsman—for instance, any one who had struck him a blow, or conspired for his death, or who had tinged away property to another to which that kinsman had a claim. The defendant associated himself with these six men, and then apparently these seven chose five others, of whom it is only enacted that they should be free men. We should have expected to find that these last five were to be all kinsmen of the plaintiff, to match the six kinsmen of the defendant, but the law is not so written. The group of twelve sacramentales thus collected then proceeded to swear as to the rights of the case on the Holy Gospels, and it would seem that they must have gone on swearing until the strain upon the conscience became too great to be borne, and the sacramentum was broken by the defendant or one of his kinsmen refusing to swear any longer. If this did not happen, we must suppose that judgment was given for the defendant. Truly a strange way of arriving at truth in litigation, and one which seems unduly to favour the defendant, but in practice it cannot have been a complete failure, or men would not have continued to use it for centuries. If the cause were less important, represented by a value between 12 and 20 solidi, there were only six sacramentales, three chosen by the plaintiff, and two by the defendant, who himself became the sixth. And the whole number swore, not on the Gospels, but on the consecrated arms If the matter in dispute were of less value than 12 solidi there were only three sacramentales, the defendant, the nominee of the plaintiff, and a third chosen by both. They swore simply ad arma, apparently without any special religious rite. There are various provisions with which I need not now weary the reader, for the case of the death of a litigant or a sacramentalis before the cause was decided, but the following law is worth quoting entire : “If a man be attacked (pulsatus) by another on account of any fault, and denies it, let it be lawful for him to justify himself (se idoniare) according to the law and the gravity of the accusation (qualitatem causae). But if he shall openly proclaim that he committed it, let him pay composition according to that which is set down in this Edict; for it shall not be allowable for any man after he has openly confessed, afterwards to deny by sacramentum the guilt which he has once admitted. Because we have known many in our kingdom who have set up such wicked contentions. These things have moved us to correct them by the present law and bring them to a better state of mind”.

Besides this system of trial by sacramentales, there evidently still survived the older and yet more barbarous system of the camfio, the warrior who offered what our forefathers called “wager of battle”. As to this practice the laws unfortunately give us scarcely any information. We are told, however, that certain questions, such as the legitimacy of a son, the murder of a wife by her husband, the right to the mundium of a married woman, were to be decided by free sacramentales, because it appears to us unjust that so grave a matter should be disposed of in battle by the resisting power of one man's shield. On the other hand, the man who has in anger called a free woman (in another man’s mundium) a harlot or a witch, if he repeats the charge in cold blood and maintains its truth, must prove it by a camfio. The woman accused of plotting the death of her husband may prove her innocence either by the sacramentum or by persuading some camfio to fight in her behalf.

It was ordained that no camfio in going forth to the judicial combat should presume to carry upon his person magical spells or anything of that kind. “Let him bring only the stipulated arms, and if any suspicion arise that he is privily wearing articles of magic, let enquiry be made by the judge; and if any such be found upon him, let them be torn out and cast away. And after these enquiries let the camfio himself lay his hand in the hand of his comrade in the presence of the judge, and declare in a satisfactory manner that he has nothing pertaining to enchantment on his person. Then let him go to the encounter”.

An important law defines the position of the waregango (or foreigner who has come to settle in the land under the shield of our royal power). It is declared that men of this class ought to live according to the laws of the Lombards, “unless they have obtained from our piety the right to live according to some other law. If they have legitimate sons, let them be their heirs just like the sons of the Lombards; but if they have no legitimate sons, they shall have no power to filing away their property, or to alienate it by any other form of conveyance without the king's command”. The language of this law clearly shows that there were other laws besides those of the Lombard invaders prevalent within the peninsula; but here, as in a previous enactment, “living according to the laws of the Lombards” seems to be spoken of as rather a duty than a privilege. Probably the explanation at any rate of this law is, that the king's court was determined to keep its grasp on the property of these wealthy waregangi in the event, perhaps a frequent event, of their dying without legitimate male issue.

This tendency of the king's court to enforce and exaggerate all pecuniary claims against the private individual (a tendency which may be partly excused by the fact that apparently there was no regular system of taxation in the Lombard state) is further manifested by laws 369 to 373. In all cases in which the king is interested as plaintiff, the composition payable to him is to be double that payable to a subject, the only exceptions being that of forcible abduction and marriage of a woman, or murder, in both of which the already heavy fine of 900 solidi is not to be exceeded. If a slave of the king commit murder, the king's court will pay the prescribed guidrigild, and the slave will then be hung over the dead man's grave; but in all cases involving the fine of 900 solidi the king's court is not to be called upon to pay the fine, though the slave will incur the risk of capital punishment.

Then, further, for the protection of the officers of the court who are executing the orders of their lord, it is enacted that if a sculdhaizo (which we may perhaps translate “justice of the peace”) or other agent of the king is killed or assaulted in the performance of his duty, the offender shall, over and above the ordinary guidrigild, pay a fine of 80 solidi to the king's court. But in order to guard against those abuses of official position for the sake of private gain, which in the days of the Roman Republic made the government of the provinces a byword, it was enacted that no gastaldius receiving any gift by gairethinx from a private person during his tenure of office should be allowed to retain such gift except by a special precept of the king's indulgence. Without such express sanction any property acquired by him during his administration went straight into the grasp of the king's court .

The Lombards, as may be discerned from the character of their early sagas related to us by Paulus, were a somewhat superstitious people, haunted by the fearful and shadowy forebodings of the German forest-life, and especially afraid of the mysterious might of women who were in league with the powers of darkness. Hence the words striga and masca, signifying “witch”, were terms of deadliest insult; and it was ordained (as we have seen) that any man (except a father or a brother) who had the mundium of a woman, forfeited that profitable guardianship if he called her by either of these opprobrious names. Apparently some of the strange old superstitions about blood-sucking vampires increased the horror of these words, for, says the legislator, “Let no one presume to kill another man's Aldia or female slave on the ground of her being a striga, which is commonly called masca. It is a thing not to be conceived of by Christian minds as possible that a woman can eat a living man from inside him. Therefore the penalty for any such offence shall be 60 solidi, in addition to the ordinary guidrigild; half of the fine to go to the owner, and half to the king's court. And if any judge shall have ordered the man to do that wicked deed, he shall pay the above-written penalty out of his own pocket”.

Some curious belated laws about the fines for various forms of bodily injury form the conclusion of the Code. I will not describe them here, but will end with one strange provision as to the death of a brawling woman :

“If a free woman rushes into a brawl where men are striving, and receives a wound or a blow, or is slain, she shall be paid for according to her nobility; and the composition shall be so paid as if it had been the woman's brother against whom the offence had been committed. No further blame (on account of her being a woman) shall be attached to the offender, nor shall the (regular) fine of 900 solidi be exacted, seeing that she herself rushed into the quarrel, because it is an indecent thing for a woman so to do”.

It will be seen that here the expression is used that the slain woman is to be compounded for “according to her nobility”; and in several of the laws of Rothari, especially the later laws, we have a similar expression : “let him be compounded for according to his computed price”. These words raise one of the most difficult questions in connection with Lombard jurisprudence. In most of these barbarian codes, as is well known, we have a nicely graduated table of social distinctions, with corresponding varieties in the weregild paid for each. Thus according to the Alamannic Code, the life of a member of the most noble class (Priorissimus Alamannu) is appraised at 240 solidi; of the middle class of nobility (medianus Alamannus) at 200 solidi; of the minoflidis, or simple free man, at 160 solidi. Among the Salian Franks the murderer of an antrustion or grafion (men belonging to the two highest classes of nobility) had to pay 600 solidi; of a sagiharon or legal assessor of the court 600 or 300 solidi, according to his rank; and of a Roman conviva regis (king's guest) 300 solidi. Among the Ripuarian Franks the weregild of a bishop was 900 solidi; of a priest 600; of a deacon 500; of a sub-deacon 400; and so in several other instances. Now these words, “according to her nobility”, and “as he shall have been appraised”, clearly point to some such gradations of guidrigild among the Lombards also, but it is not easy to find it in the Code. We have, it is true, the distinction between the compositions for a free man, an Aldius, and a slave, but there the differentiation apparently ends. What is the reason of this strange silence? An Italian commentator, whose main thesis is the utter subjugation and servitude of the Romans under the Lombard yoke, maintains that the silence was intentional, and veiled one of the state secrets (arcana imperii) of the conquerors. He calls that secret the variable guidrigild, and asserts that the composition to be paid for a slain Lombard noble being written down in no code, remained hidden in the breast of the governor, and might be imposed by him according to his will. This variable guidrigild he asserts to have been one of the main instruments used by the conquering tribe to “keep their vanquished neighbours in a state of semi-servitude”. This theory may be true, but I confess that I have not yet met with any adequate proof of it. To me it seems more probable, either that the tariff of composition for a slain or wounded noble has been omitted for some reason or other by the copyists of Rothari’s manuscript, or that it was never inserted in the Code because it was so well known to all men that its rehearsal seemed unnecessary.

We come now at last to the conclusion of the whole matter; to the “Peroration of King Rothari”, which, like the Prologue, shall be translated in full:

“We now confirm this Edict, which by God's grace we have composed after earnest study and long vigils. By the Divine favour we have persevered in our task, enquiring into and calling to remembrance the ancient laws of our fathers. Those which were not written we have nevertheless learned; and we have added to them those things which seemed to be expedient for the common welfare of all, and of our own race (in particular); acting herein with the advice and by the consent of the nobles, the judges, and all our most prosperous army; and we now order them to be written down on this parchment, with this one reservation, that all things which by the Divine clemency have been ascertained by our own accurate enquiry, or which old men have been able to remember concerning the ancient laws of the Lombards, are to be subjoined to this Edict. We add, moreover, hereto our confirmation by gairethinx, that this law may be firm and enduring, and that both in our own most prosperous times and in all time to come it may be kept inviolably by all our successors.

“Here ends the law which King Rothari with his noble judges has renewed”.

There is, however, appended to the Edict a provision that all causes already decided shall be left undisturbed, but that any which are still in progress on that twenty-second day of November, of the second Indiction (643), shall be decided according to the provisions of the Edict. Also that no copies of the Edict are to be deemed authentic but those which are written or attested by the hand of Answald the notary.

Thus then did King Rothari, standing on a spear, or holding a spear in his hand, in the assembly of the chiefs of his nation in the palace at Pavia, solemnly confirm by the ceremony of gairethinx the Code which contained the laws and customs of his barbaric forefathers, with such additions as the statesmen of his kingdom, after seventy-six years of residence on the soil of Italy, deemed it advisable to append thereto. But he and they were dwelling in a land which had witnessed the birth and development through nearly a thousand years of the most comprehensive and the most scientific system of jurisprudence that the world has yet seen. The Roman Law, as codified by Justinian, was then in force at Ravenna and at Naples, as it is now, with necessary modifications, in force at New Orleans and at Batavia. Yet to this Code, one of the most splendid achievements of the human intellect, King Rothari and his peers do not refer in one line of their Edict. Their only mention of the great name of Rome, as has been already pointed out, is in that passage where an injury done to a Roman female slave is assessed at a lower rate than a similar injury to her Teutonic fellow-sufferer. And so the Lombard invaders, like children, repeat the lessons which they have learned from their forefathers of the forest, and try to fit in their barbarous law terms into the stately but terribly misused language of Latium. Throughout, Roman ideas, Roman rights, the very existence of a Roman population, are not so much menaced or invaded, as calmly ignored. The Code of Rothari, promulgated on the sacred soil of Italy, in a land which had once witnessed the promulgation of the Code, the Institutes, and the Digest of Justinian, is like the black tent of the Bedouin pitched amid the colonnades of some stately Syrian temple, whose ruined glories touch no responsive chord in the soul of the swart barbarian.

 

CHAPTER VI.

GRIMWALD AND CONSTANS