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Book IV
Chapter 8

This webpage reproduces a note in
Italy and Her Invaders

by
Thomas Hodgkin


2nd edition
Oxford University Press
London
1896

The text, and illustrations except as noted,
are in the public domain.

This page has been carefully proofread
and I believe it to be free of errors.
If you find a mistake though,
please let me know!

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Book IV
Note F

Book 4 (continued)

Vol. III
p309
Note E

The Edictum Theodorici Regis

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.'

Then follows the Edictum in 154 sections.

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.'

 p312  Analysis of the Edictum

Thayer's Note: In the following table, each of the section numbers is linked to its text as found at Lassard and Koptev's Roman Law Library.
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


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