Italy and Her Invaders • Book IV Note E

The literary history of this Edict is rather curious. It was printed in Nivellius' edition of the works of Cassiodorus (Paris, 1579), and, according to a letter inserted in that volume, was copied from a MS. supplied to the publisher by Peter Pithoeus (Pierre Pithou), a well-known scholar of that day. Another MS. was also forwarded to the same publisher by Edouard Molé. Both these MSS. have since disappeared, and only the printed transcripts in Nivellius' book and in Lindenbrog's 'Codex Legum Antiquarum' (Frankfurt, 1607) remain, as evidences that they ever existed. In these circumstances, some critics have hinted at a possible forgery; but the Edictum corresponds far too closely with the facts of Theodoric's position, and the knowledge of those facts by the scholars of the seventeenth century was far too slight, to make such a suspicion reasonable. Every student knows that some MSS., which were in existence at the time of the revival of letters, have since disappeared in an unaccountable way.

As for the date of the Edictum, since the theory that it must have been promulgated in 500 was abandoned, some enquirers have tried to prove that it must have been composed after 506, thinking that it shows signs of copying from the Breviarium Alarici promulgated in that year by Alaric II, the Visigothic king, for his Roman subjects. But, as Dahn very clearly shows, there is no such close correspondence between the two codes as this theory alleges, and if there had been, it was more likely that Alaric should copy from Theodoric than vice versa.

Upon the whole I think that Dahn's arguments, while good against the assertion that the Edict was promulgated in 500, during Theodoric's visit to Rome, contain nothing against the conjecture that such was the fact, a conjecture which seems to me eminently probable and reasonable.

p310 Dahn has subjected the text of the Edictum, which he has published in the fourth section of his 'Könige der Germanen,' to a very searching, almost microscopical, examination, in order to ascertain of what elements it is composed; and finds that it comes almost exclusively from Roman sources, especially the Theodosian Code and the Sentences of Paulus. In some cases Theodoric has modified the provisions of the Roman law, generally in the direction of greater mildness, but not always. Thus in § 107 he ordains that the stirrer‑up of sedition in the people or the army, shall be burnt, a provision unknown to the Lex Julia Majestatis. By § 32, the right of bequeathing property by will, a right unknown to the ancient Germans, is conceded, in remarkable terms, to the barbarians who were serving in the army; yet is this right not limited to the time of their actual residence in camp, but may be exercised also at home: 'Barbaris, quos certum est reipublicae militare, quomodo voluerint, faciendi damus licentiam testamenti, sive domi, sive in castris fuerint constituti.'

The Edict, as will be seen from the analysis of its contents given below, is almost entirely devoid of methodical arrangement. Dahn conjectures that it never professed to be an exhaustive code, but was a mere collection of cases, chiefly between Barbarians and Romans, which had arisen for decision since the accession of Theodoric, the sections of the code being arranged pretty nearly in the same order in which the cases had occurred, though a slight attempt to group them in order of subject is observable. This may perhaps account for the large proportion of sections of the Edict which relate to the law of Master and Slave. In the circumstances of the Gothic settlement in Italy, the slaves, speaking the same language as the provincials, yet belonging many of them to the new barbarian lords, might easily be a frequent source of bickerings.

It will be well to translate the Prologue and Epilogue, as these throw considerable light on the conditions out of which the necessity for the Edict arose.

Prologus

'Many complaints have reached our ears that some persons in the provinces trample the precepts of the laws under foot. And though no one can possibly claim the authority of the laws to p311 defend any unjust deed, yet we, having a regard to the quiet of the community and having before our eyes those events which may frequently occur, do, in order to terminate cases of this kind, decree these presents: in order that reverence for public right being kept intact, and the laws being observed with the utmost devotion by all; both Barbarians and Romans may know from the present edicts what course they ought to pursue in respect of the several articles here set forth.'

Epilogus

'These things, as far as our occupations would allow of our attending to them, or as they occurred at the moment to our mind, we have ordered for the common benefit of all, whether Barbarians or Romans, and do desire that the devotion of all, whether Barbarians or Romans, will keep them inviolate. Those cases which either the brevity of the Edict or our public cares have not allowed us to comprehend in the foregoing, must be terminated when they arise, by the regular course of the laws. Nor let any person, of whatsoever dignity or substance or power or military rank or honour he may be, think that he may in any manner infringe any one of these provisions, which we have collected chiefly (pro aliqua parte) out of the Leges Novellae and the sanctions (sanctimonia) of the old law. And let all commissioners (cognitores) and all framers of decisions know that if in anything they shall violate these Edicts, they will be deservedly struck with the penalty of proscription and banishment. But if perchance any influential personage or his procurator or factor (vice-dominus) or any farmer of revenues, whether he be a Barbarian or a Roman, shall in any manner of cause not allow these Edicts to be observed, and if the judge who is trying the case shall not be able to hinder and block them, nor to vindicate the law as here laid down, if he has any care for his own safety let him lay aside every suggestion of timidity and at once bring before our notice a full report of the whole case. Only in this way will he himself be absolved from blame: inasmuch as the provisions made for the security of all the provincials ought to be carefully guarded by the zeal of the whole community.'

Bribery and extortion by a judge or the members of his staff	1‑4
Hearing, sentence, and execution	5‑9
Wrongful invasion or retention of property	10‑11, 33, 75‑77
Prescription (of thirty years)	12
Informers	13‑14, 35, 50
Homicide	15‑16
Rape and seduction	17‑22, 59‑60, 62
Successions and wills	23‑33
Adultery	36‑39
Perjury	40‑42
'Champerty and maintenance'	43‑47
Testimony of slaves	48‑49
Conveyance of property	49‑53
Divorce	54
Appeals	55
Cattle-lifting	56‑58
Immoralities and marriages of slaves	61, 63‑67
Title to slaves by prescription	68‑70
Debtors claiming privilege of sanctuary	71
Propounding wills	72
Judicial process	73‑74
Kidnapping and laws as to fugitive slaves	78‑88
Persons feigning themselves officers of Court	89
Obtaining money on false pretences and subornation of witnesses	90‑91
Betrothal and matrimony	92‑93
Children of free-born persons claimed as slaves	94‑96
Arson	97‑98
Illegal death-punishment	99
Examination of slaves by torture	100‑102
Crimes to be enquired into on the spot	103
Removing land-marks	104‑105
Settlement of law‑suits to be final	106
Sedition (punishment — burning)	107
Pagan sacrifices, soothsaying, necromancy	108
Robbery by a slave	109
Profaning sepulchres	110
Burying within the walls of Rome	111
p313 Property of condemned persons	112‑113
Rescue of offenders by clergy or others	114
Theft from the Treasury	115
Receiving stolen goods	116
Theft by slaves. Restitution by masters	117‑118, 120
Liability of innkeepers for goods stolen	119
Loans contracted by slaves	121
Irregular reclamation of debts	122‑124
Violation of right of sanctuary	125
Assignment of debts (Pittacia delegationis) by Curiales and others who have entered the Church (an obscure but important law)	126
Assignments in general	127
Procedure against persons who are in the potestas of another	128
Fraudulent gains	129
Reward for apprehension of thieves	130
Enforcement of order for payment of debt	131
Burden of proof on claimant	132
Women not bound to fulfil covenant to pay a third person's debts	133
Usury (not to exceed 12 per cent)	134
Redemption of pledges	135
Vendors and purchasers	136‑141
Serfs (originarii) may be sold apart from the soil (This provision, probably made in the interest of Gothic nobles who found themselves burdened with a number of intractable coloni, virtually turned the serf into a slave.)	142
Privileges of Jews ('Circa Judaeos privilegia legibus delata serventur: quos inter se jurgantes et suis viventes legibus, eos judices habere necesse est, quos habent observantiae praeceptores.')	143
Accurate description of property and statement of price in deeds of property sold by the Treasury	144
Barbarian refusing to answer though thrice summoned	145
Right of action for stolen crops	146
Specific performance of contract for sale	147
Slaves taken in war and recovered for owner	148
Fraudulent weights and measures	149
p314 Forced labour unjustly demanded from peasant	150
Injury to crops or trees	151
Death of a slave	152
Wife not to be sued for husband's debts	153
No suits to be prosecuted on Sunday or in Easter-week	154

Book 4 (continued)

Vol. III
p309 Note E

The Edictum Theodorici Regis

Prologus

Epilogus

p312 Analysis of the Edictum

Book 4 (continued)

Vol. IIIp309 Note E The Edictum Theodorici Regis

Prologus

Epilogus

p312 Analysis of the Edictum

Vol. III
p309 Note E

The Edictum Theodorici Regis