The Invasion of Europe
by the Barbarians
The Lombard Law
The first law code of the Lombards, the Edict of Rothari, exhibits no sign of Roman influence. Issued  in A.D. 643—seventy-six years after the conquest of Italy—its general spirit and character seem to take us back into the forests of Germany. We have here largely the same laws and customs which must have regulated the Lombard folk when it dwelled by the banks of the Elbe, modified at one or two points by the fact that they had embraced the Christian faith. The document itself opens with In nomine Domini. "In the name of the Lord beginneth the Edict which the Lord Rothari, King of the race of the Lombards, hath renewed, in conjunction with the chief men who are his judges."
The preface of the Edict goes on to say: "How great has been, and is, our care and solicitude for the weal of our subjects, the tenor of the following Code shows. We have been especially affected by the constant oppression of the poor and by the excessive extortions from those who are known to have larger property, having discovered that they are exposed to violence. So considering the mercy of Almighty God, we have seen the necessity of issuing the present improved law, which corrects and renews former laws, adding what is necessary and cutting out what is superfluous. We have embraced in one volume all that is required for providing that each man may live quietly, according to law and justice, and defend himself and his borders".
The first sections of the Code are devoted to offences against the king's peace. They deal with conspiracy against the king's life, with harbouring brigands, with exciting soldiers to mutiny, with the case of an officer who deserts his soldiers in a battle: all these acts are punished with death. "If any man take counsel with the king concerning the death of another  or kill a man by the king's authority, he shall not be held guilty, either he or his heirs; because since we believe the hearts of kings to be in the hand of God, it is not possible for a man to escape whom a king shall have ordered to be slain." This important law, strengthening the royal power, basing it on a sort of divine right, is of course not ancient, but due to the recent growth of the royal power in Italy. The Edict goes on to enumerate various cases of life-taking: all of which are made good by the payment of a guidrigild, which is the Lombard name for weregild. Further laws provide for cases of annoyance or obstruction on the king's highway. Then we meet the crime of walapauz—that is of the thief who stealthily clothes himself in the dress of another man or disguises his face or head for the purpose of committing a theft.
It was dangerous to be found in another man's courtyard at night. "If a free man be found there and do not give his hands to be tied, and if he be killed, no compensation shall be claimed by his kinsfolk. And if he give his hands to be tied and be bound, then let him pay on his own behalf 80 solidi: because it is not reasonable that a man should enter another's yard at night in silence or secretly; but if he has any proper business, let him shout before he enters." This law strikes us as remarkable because the fine is so heavy: 80 solidi means £48, a sum which represented of course a much higher value then. A slave found in the same situation paid only half the amount.
Cases of sacrilege in churches next claim the attention of the legislator: then he goes on to enumerate, in a long list, all sorts of bodily injuries, in which the compensations are carefully assessed to  the supposed gravity of the damage. This is one of the most primitive parts of the Code. If a man knocks out his neighbour's front teeth, he has to pay twice as much as if he knocked out his grinders. If you wished to cut off somebody's finger or toe, it would have been well for you first to refer to Rothari's list of fines; for if you cut off a great toe or a second toe, you would have to pay about £3: 12s., whereas if you contented yourself with the third or fourth you would get off with £l: 16s.; and, if you only cut off a little toe, you would not have to pay more than 24 shillings. But, as a matter of fact, Rothari had introduced a change in this tariff. In old days, the compositions were not so high. Rothari raised them; in order, he says, "that the feud may be postponed after the payment of these compositions, and more may not be required, but let the cause be ended between the parties, and friendship remain". Such were the means which Rothari adopted to attempt to mitigate feuds and private war. The next matters considered are injuries done to aldii or serfs, to household slaves, and to rural slaves. In all these cases the composition was paid to the lord of the injured dependent; and it is interesting to observe that in the case of some serious wounds the offender has to pay not only the fixed composition, but also a compensation for the loss which the master sustained by the man's labour, and the doctor's fee (mercedes medici). The treatment of accidents in the felling of trees is interesting. If several men are felling a tree and if it falls upon a passer-by and kills or hurts him, the men have to pay the composition in equal proportion. But if it fall upon one of the tree-cutters themselves and kill him, then one portion is reckoned  for the dead man, and the others pay the rest in equal proportion. Thus if there are three men and one is killed, he is supposed to bear himself one-third of the responsibility, and the two others are only liable for two-thirds of the composition, i.e. each pays one-third. There is special legislation for poisoning cases. A free man or free woman who mixes a cup of poison, but has not been able to administer it, is liable for a composition of 20 solidi. If the poison is administered but is not fatal, the culprit must pay half the compensation that would have been due if fatal consequences had ensued. If a slave administer the poison, he is to be put to death, his master to pay the composition in money, but minus the market value of the slave.
Passing from criminal law, we come to the law of inheritance. The general principle was that of equal division among sons. So long as there was legitimate male issue, the daughters inherited nothing. But the peculiar feature of the legislation is the provision made for male children born out of wedlock. If there was one legitimate son, and also illegitimate sons, then the legitimate son inherited two-thirds, and the illegitimate sons, irrespective of number, inherited one-third. If there were two legitimate sons, they inherited four-fifths, and the natural sons got one-fifth. If there were three legitimate sons, the natural sons got one-seventh and so forth. But suppose there were illegitimate sons, and the only legitimate child was a girl, then the inheritance was divided into three parts; the daughter got one part, the natural sons one, and the remaining third went to the next of kin.
No man could disinherit his son except for certain crimes of a heinous kind, nor could any man convey  his property to another if he had a son to inherit it. The laws about the donation of property are interesting. They take us into the ancient popular assembly, or thing: for the gathering of the people, which the Saxons called gemot and the Franks mallus, was known to the Lombards, just as to the Norsemen, by the name thing. Every donation of property had to be made in the assembled thing, and the Lombards in Italy coined the hybrid Latin verb thingare to denote the act of making a donation. The donation itself was called gaire-thinx. Gaire means a spear and must refer to some solemn form, in which a spear was used, for this mode of transferring property. A law of Rothari says: "If any man wishes to transfer his property to another (res suas alii thingare) let him not do it secretly, but let him make the donation—gaire-thinx—in the presence of free men, that no difficulty may afterwards arise". It was only men who had no legitimate sons who could thing their property. If such a childless man then wished to leave his property away from his next of kin, to an outsider, his only plan under the Lombard law (as there was no such thing as testamentary disposition) was to convey it in the form of a donation or gaire-thinx, with the specific condition that it was not to be actually transferred till the day of his death. There was a special form provided for this case: the donor had to pronounce the obscure word lidin laib. But the worst of it was that by this donation made publicly in the thing he limited his own power over his property for the rest of his life. He was bound for the future to enjoy his property reasonably, not to waste it or to dissipate it. Only if, being childless at the time of the thingatia, he had sons afterwards,  then the act of transfer became thereby null and void.
We next come to the laws about marriage. Rothari formulates a general statement respecting the position of women in the follbwing law: "No free woman, living in our kingdom under the lex Langobardorum, shall live selpmundia, i.e. according to her own freewill: she must remain always under the power of men, and if of no one else, under the power of the king: Nor shall she have the power of transferring or granting any movable or immovable property without the consent of him in whose mundium or guardianship she is" (1) [I may remark on the incidental importance of this law, in its special reference to a lex Langobardorum, which implies that there were free women in Lombard territory living according to other laws].
The principle here enounced was of course common to the ancient German peoples, but nowhere do we find it so clearly stated or its consequences so fully considered as in the Edict of Rothari. The system was of course a great advantage to the women, in days when the blood-feud was an accepted social institution; and if the mund or protector of a woman was responsible for her acts, it was only reasonable that he should also have a voice in the disposition of her property.
The marriage laws have largely to do with the money which changed hands on such occasions. There were three different sums involved—the meet, the faderfio, and the morgincap. The suitor purchased the bride from her father or guardian, and the price he promised to give was called the meed—or, for the Lombards made d into t, the meet; in making this covenant, the suitor required the assistance of a  friend who guaranteed that he would fulfil it. Then the father had to give the bride a dowry, which was called the faderfio—father's fee. Then, after the marriage, the husband gave the wife a large present known as the morgengebe or in Lombard the morgincap. The laws provide what is to happen to these different sums in all sorts of contingencies. The lawyer has then to consider the cases of unequal marriage, between free men and free women, and serfs, or slaves, and the social status of the offspring in such cases. The only unequal union which was strictly forbidden was that between a free woman and a slave. A slave who marries a free woman incurs death, and the kinsfolk of the woman have the right of killing or banishing her and seizing her property. If they do not take action, the king's officer is to take her to his court and she is to be put to work at the loom with the slave-girls. On the other hand, if a man chooses to marry one of his own slaves he may do so, but he must first enfranchise her.
This leads to the subject of the manumission of slaves, and we learn of a very interesting process which must be Old Germanic. Let us take the case I have just referred to. A man decides to marry a female slave, and must therefore make her a free woman: how is he to set about it? He must take her to the Assembly and there he must transfer her by a donation, or gaire-thinx, to some other free man. He in turn must transfer her to another, and that other to a fourth, by the same process. The fourth owner will then lead her to a place where four roads meet, and there in the presence of witnesses will give her an arrow, the sign of freedom, saying the words, "You may take whichever of these four roads you  will, you have free power". This done, the slave will be folkfree, entirely out of her master's power. In connexion with this, the question might arise whether a Roman slave of a Lombard master, thus manumitted, would live as a free man according to Roman or according to Lombard personal law. This case is dealt with by Rothari, who lays down that all freed-men who have been emancipated by Lombard masters should live according to Lombard law. This text is one of the clearest proofs that the Roman personal law existed side by side with the Lombard.
The laws dealing with fugitive slaves have considerable importance for the history of the decline of slavery. All men were bound to hinder the slave who was trying to escape. If a ferryman rowed him across a stream, being aware of his servile condition, he was required, on detection, to join in the search for the fugitive, and if the fugitive were not found he had to pay the value of the slave and any property he might have stolen to the owner, and moreover a fine of 20 solidi into the king's court. If the slave sought refuge in a private house, the owner was justified in breaking into it, in consideration of his furor in servum suum. If anyone harboured the fugitive or gave him food or showed him the way, he was when detected bound to search for him, and if he failed to find him had to pay the value of the slave and compensation for any work that had suffered through the slave's flight. Anyone to whose house the slave came was bound to give notice to his owner within nine days. The Church could afford no protection to runaway slaves. If a slave fled to a church or the house of a bishop or priest, he must be surrendered; and if he were not surrendered on the third demand, the bishop  or priest who harboured him was compelled not only to give him up, but to supply at his own expense another slave of the same value. But it is most significant of all, perhaps, that a similar law is specially directed against connivance of this kind on the part of royal officers. The general inference to be drawn from this series of stringent laws—from which I have selected only some—is that general public opinion in the Lombard kingdom sympathised with the slaves. The laws strike us as an attempt to maintain the ancient legal institution of slavery, which is threatened by a modification or revolution in the feelings of the people at large. It is significant that the ferryman has to pay, besides compensation, a fine into the king's court. This suggests the interest of the king and the state in maintaining the institution.
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 occurred, 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 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 enough 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 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 evil-minded 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 concerning 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 to our 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, 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 occurrence 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 purpose 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, though 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 Britain, among whom local institutions were so important and so tenacious.