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Book VII
Note C

This webpage reproduces a chapter of
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 VII
Note D

Book VII (continued)

Vol. VI
p389
Chapter X

The Laws of Liutprand

Authorities

Sources: —

Leges Liutprandi as given in the third volume of Troya's 'Codice Diplomatico Longobardo.' Unfortunately the numbering of the laws varies slightly in the different editions. I have generally followed Troya's numbering.

Guides: —

Davoud Oghlou's excellent 'Histoire de la Législation des Anciens Germains' (vol. II), and Carl Meyer's 'Sprache und Sprachdenkmäler der Langobarden' (1877).

From the story of the subordinate duchies, and the disputes of Popes and Emperors, we return to the main stream of Lombard history.

Death of Ansprand, June 13, 712. The wise and loyal Ansprand survived his return from exile and his elevation to the throne only three months. When he was upon his deathbed, Elevation of Liutprand. the people of the Lombards raised his son Liutprand to the throne as his partner while life still remained to him, his successor when death supervened; and the tidings of this event, which apparently was the result rather of popular enthusiasm than of any deep-laid political scheme, brought great joy to the heart of the dying king.1 For we must always remember that Liutprand,  p390 though the greatest and most powerful of Lombard sovereigns, and though no other king so nearly succeeded in welding the state into one homogeneous monarchy, had only the slenderest of hereditary claims to occupy the palace of Pavia. To talk of usurpation would be altogether out of place, since the element of popular election common to most of the Teutonic royalties was still strong in the Lombard kingship; but for more than a century all the wearers of the Iron Crown, with one exception,2 had been connected by blood or marriage with the family of the revered, almost sainted Queen Theudelinda, and to the glory of this descent the son of the Milanese noble Ansprand could lay no claim.

Apprentice and character of Liutprand. Of the year of Liutprand's birth we have no precise information, but as in 701 he was still a very young man, contemptuously allowed to live by the jealous tyrant Aripert II, when he mutilated or put to death all the rest of Ansprand's family, we can hardly suppose him to have been more than twenty-eight years when, eleven years afterwards, he mounted the throne. He was a man of great personal strength and courage, and in his reign of thirty‑one years he had the opportunity of displaying on a wide, one might almost say on a European theatre, the large gifts of statesmanship with which nature had endowed him. In these early centuries, after the disruption of  p391 the Roman Empire, no other ruler save Theodoric the Ostrogoth came so near to founding a real kingdom of Italy: but like Theodoric, his work perished because he had no son to succeed him.

Conspiracy of Rothari. At the very outset of his reign he narrowly escaped death by domestic treason. For some reason or other, his cousin Rothari3 conspired against his life, and invited him to a feast, at which he was to have been slain by armed men concealed in the banqueting-hall. Being warned of the plot, Liutprand summoned his cousin to the palace. He came, wearing a coat of mail under his mantle, which the king's hand discovered in the act of exchanging salutations. The tragedy of Grimwald and Godipert was again performed, with slightly different circumstances. When Rothari saw that he was discovered, he drew his sword and rushed at the king. Liutprand drew his too, but before either could strike, one of the king's lifeguards, named Subo, attacked Rothari from behind. He turned round and wounded his assailant in the forehead, but the interruption probably saved the king's life. The other bystanders fell at once upon Rothari, and slew him. His four sons, whose disappearance from the capital caused them to be suspected of complicity in their father's designs, when discovered were put to death.

Liutprand's courage. As an illustration of the personal courage of the new king, Paulus tells us another story, which probably belongs to a later period of his reign. Being told that two squires had plotted his death, he ordered their attendance upon him, and rode with them and with no other escort into the densest part of the  p392 forest.4 Then, drawing his sword and pointing it towards them, he upbraided them with their murderous designs, and called upon them, if they were men, to come on and slay him then and there. Stricken by 'the divinity which doth hedge a king,' the caitiffs fell at his feet and implored his pardon, which was granted to them as to many others who at different times conspired against him, for great was this king's clemency.

The year 726 a turning point in the reign of Liutprand. The reign of Liutprand naturally divides itself into two parts. The first fourteen years of that reign (712‑726) are almost bare of events. Doubtless he was, during all that time, consolidating the forces of his kingdom; and the numerous laws which, during this period, were passed at the yearly assemblies of his armed fellow-countrymen, show his anxious care for the good government of his people. In 726, with the outbreak of the great Iconoclastic controversy, the scene changes, and an almost bewildering succession of wars, alliances, conquests, restorations of territory, interviews with Popes, and negotiations with Exarchs, fills up the remaining seventeen years of his reign.

Reserving for the next chapter the intricate, but momentous history of those eventful years, I propose now to summarise those additions to the Statute Book which attest Liutprand's activity as a legislator, and which were made in great measure, though not entirely, before the Iconoclastic controversy set Italy in a flame.

Yearly assemblies of the Lombards. On the 1st of March,5 for fifteen out of the thirty‑one years of his reign, Liutprand, 'the Christian and  p393 Catholic' King, by the advice and with the consent of the 'Judges' of his realm and of the rest of his faithful Lombards, put forth his little volume of laws 'for the settlement of any points of controversy which had arisen between his subjects, and which seemed to be insufficiently provided for by his most robust and most eminent predecessor Rothari,' or by the 'most glorious' Grimwald.6

Divine right of kings. At the very outset of his reign the young king claims high authority for his utterances as a legislator.

'He has conceived the idea of framing these laws, not by his own foresight, but by the will and inspiration of God: because the king's heart is in the hand of God, as is witnessed by the wisdom of Solomon, who said, "As the rush of water, so is the heart of the king in God's hand: if He shall keep it back, everything will be dried up, but if He in His mercy gives it free course, everything is watered, and filled with healthfulness." So too the Apostle James in his Epistle says, "Every good gift and every perfect gift is from above, and cometh down from the Father of lights." '

 p394  This highly theological statement of the king's functions is no doubt due to the ecclesiastic employed by him to express his thoughts in that which was supposed to be the Latin language, and it is probably to the same official that we owe the following strong statement of the supremacy of the Roman Church, which is contained in the law against marriage with a first cousin's widow.

Glorification of the Papal power. After enacting that any man offending against this law shall forfeit all his property, and his children shall be treated as illegitimate, the royal legislator adds, 'This ordinance have we made because, as God is our witness, the Pope of the City of Rome, who is the head of the Churches of God and of the priests in the whole world, has exhorted us by his epistles in no wise to allow such marriage to take place.'7 But notwithstanding these expressions, and though the prologues to these laws lay a strong emphasis on the now Catholic character of the Lombard nation, it cannot be said that they exhibit any trace of that obsequious servility towards the Church which is characteristic of the laws of the Visigothic kings a little before this date, nor is there any vestige in them of that furious persecution of the Jews which was the especial disgrace of Spanish Christianity, and which paved the way for the Moorish conquest of Spain.

It must be noticed in passing that the Latin in which King Liutprand's statutes are clothed is barbarous often to the verge of incomprehensibility,  p395 more barbarous than that of Gregory of Tours, more barbarous even (and this is worth noticing) than the laws of Rothari. Evidently during the seventy or eighty years that had elapsed since that king's accession, the light shed by the torch of learning had been growing dimmer and dimmer, and the Church had been losing even the feeble hold which she once had upon the wisdom and the culture of buried Paganism.

Liutprand's laws compared with Rothari's. Taking a general survey of the laws of Liutprand and comparing them with those of Rothari, we see CHECK:among other things that the Lombards have entered upon a new phase of social life. The laws of the later legislator breathe far less than those of his predecessor the atmosphere of the forest and the moorland. The laws about falcons, and stags, and swarms of bees, have disappeared from the statute book, or at least require no fresh additions to be made to them, but instead thereof we have elaborate provisions for the enforcement of contracts and the foreclosure of mortgages.

Penalty for murder increased. One great and striking change made by King Liutprand shows the increasing value set upon human life, as the Lombards were putting off their barbarous customs and settling down into a well-ordered commonwealth. This was the virtual abolition of the guidrigild, and the substitution of absolute confiscation of the offender's property, in cases of murder. It will be remembered that, under the earlier legislation, the shedder of blood, according to a common custom among the Teutonic nations, had to pay to the representatives of the murdered man a compensation, which varied according to his rank of life, and which (though our information on the subject is not so precise as we could desire) was probably  p396 small when the victim was a man of low social position. Now, however, the king ordained that in all cases where one free man killed another, not in self-defence, but of malice aforethought, he should lose his whole property. The heirs of the murdered man took only his old guidrigild, and the balance left over went to 'the King's Court,' the residuary legatee of all fines and compositions. If, on the other hand, the murderer's property was insufficient to pay even the old guidrigild, he was handed over to the heirs of the murdered man, apparently not to be put to death by them, but worked as a slave.8

Of course, even this punishment falls far short of those which our modern civilisation assigns to the crime of murder. Still we can see that, especially in the case of the rich and powerful, the effect of the new punishment would be far more deterrent than the old. Probably under the code of Rothari a Lombard noble might have killed a dozen free men of inferior position without seriously impairing his fortune, whereas now, after the first such deed of violence, he found himself stripped of everything. And thus the change introduced by Liutprand tended towards the equality of all men before the law, and was in the best sense of the word democratic. Guidrigild now used as a tariff of punishments. At the same time, while the guidrigild lost some of its significance on one hand, it gained it on the other. If it was less important as a protection against violence, it became more important as a penalty for crime. In the case of a nun's guardian who consented to her marriage;9 of men who aided and abetted an insurrection;10 of forgery of a document;11 of the preparation of a legal instrument by  p397 a scribe ignorant of the law;12 of breaking troth-plight, and giving to one man the affianced bride of another,13 the offender was bound to 'pay his own guidrigild,' which went in some cases to the King's Court, in others to the person injured by his offence. So, too, the officer of the crown who molested men in the enjoyment of their just right,14 the master of a fugitive slave who presumed to drag him away from the altar of a church,15 the man who committed an indecent assault upon a woman or who stole her clothes while she was bathing,16 the man who dared to marry the wife of another still living husband,17 each had to pay the full guidrigild which, under the old law, would have been payable by his murderer. There seems to be a certain sense of justice, rough perhaps, but still justice, in this provision of the Lombard legislator, who says in effect to the wealthy and noble members of the community, 'We will protect your persons by inflicting a heavier fine on him who assaults or molests you than on the assailant of a person of lesser rank: but on the other hand, if you transgress our laws, the penalty which you must pay shall be in the same proportion heavier.'

Liutprand gives us the missing table of guidrigilds. In the laws of Rothari we had to regret the absence of any clear indication of the amount of guidrigild payable for the violent death of a member of each of the various classes of the community. King Liutprand gives us this missing detail, and as he does not profess to abrogate the law of his predecessor, he perhaps only re‑states the previously existing custom. The law18 is so important that it will be well to quote it entire: —

 p398  'We remember that we have already ordained that he who [of malice prepense] kills a free man shall lose the whole of his property; and that he who kills in self-defence shall pay according to the rank of the person slain.19 We now wish to ordain how that rank is to be estimated.

'The custom is, that if the slain man is a person of the lowest rank, who is proved to be a member of the [Lombard] army,20 the manslayer shall pay 150 solidi: for an officer,21 300 solidi. As concerning our followers,22 let him who is lowest in that rank be paid for, when slain, at the rate of 200 solidi, simply because he is our servant; and those of higher position, according to the dignity of their office, in an ascending scale up to 300 solidi.23

From this law we can at last form some idea of the estimation in which the lives of the different members of the Lombard community were held. We can hardly be wrong, however, in supposing that the 'army man' of King Liutprand's edict is necessarily a member of the conquering nation: and thus we get  p399 no nearer to the solution of the old question, 'What guidrigild, if any, was paid by the murderer or the unintentional slayer of a free Roman?'

Non‑Lombard population alluded to in these laws. But though on this point the laws of Liutprand fail to give us the desired information, they do not so entirely ignore the existence of a non‑Lombard population as was the case with those of Rothari. In the first place, it is noteworthy that nearly all the laws which relate to inheritance begin with the words, 'Si quis Langobardus,' evidently implying that there were other persons than Lombards in the country to whom these laws did not apply, and we naturally conjecture that these persons are the old Roman population, still working, as far as their own internal affairs are concerned, by the laws of Theodosius and Justinian.

Law of the Lombards; law of the Romans. This conjecture becomes almost certainty when we read in Liutprand's law De Scribis,24

'We have ordained that they who write deeds,25 whether according to the law of the Lombards (since that is most open, and known by nearly all men), or according to the law of the Romans, shall not prepare them otherwise than according to the contents of those laws themselves. For let them not write contrary to the law of the Lombards or that of the Romans. If they do not know the provisions of those laws, let them ask others who do, and if they cannot fully learn the laws, let them not write the deeds. Let any one who presumes to act otherwise pay his own guidrigild, unless there is some express understanding [of an opposite kind] arrived at by the parties.'26

 p400  Marriage of a Roman man and a Lombard woman. It is quite in accordance with the indications thus furnished us, that we find it provided27 that if any Roman married a Lombard woman, and acquired the mundium over her, she thereby lost the status of a Lombard woman. The sons born of such a union were Romans like their father, and had to 'live by his law'; and in case of her marrying a second husband without the consent of the heirs of the first husband, they had no right to claim damages (anagriph), nor to start a feud (faida) with the presuming consort.28

We thus see that, under the Lombard kings, a beginning at any rate was made of the system of 'personal law,' a system which attained its full development under the Carolingian kings, under whom the various members of the same community, Franks, Lombards, Romans, each had the right of living under their own ancestral code of laws.

Signs of increased civilisation in the laws. Lombard jurisprudence, though still crude, and in some respects barbarous, had evidently some germs of progress and improvement. We can perceive on the part of Liutprand an anxious desire to govern his subjects justly, and to carry their reason along with him in his various decisions. We see with satisfaction  p401 that he is prepared to accept for himself the same measure which he metes out to others. Thus, having ordained that a lad under the age of eighteen cannot, except under certain special circumstances,29 make a valid alienation of his property to another man, he passes a special law30 enacting that not even to the king shall such a donation be valid.

Exaction by royal officers. As the power of the king had increased, that of his representatives had increased also, and with their power, the temptations to corruption, the vices of civilization beginning to take the place of the vices of barbarism. There are many laws against oppression and exaction by the king's stewards (actores); The law's delays. and the penalties on the judge who merely delays the administration of justice are exceedingly severe.31 Two classes of judges are enumerated, the sculdahis, and above him the judex. If a sculdahis delayed for four days to administer justice when called upon to do, he had to pay 6 solidi to the plaintiff, and 6 to the judex above him. If the cause was too high for the sculdahis, and was brought before the judex, he had six days' grace given him, and at the end of that time, if he had not pronounced judgment, he had to pay 15 solidi to the plaintiff. Or, if it was a case which  p402 ought to be transferred to the King's Court, and the judex delayed doing so for twelve days, he had to pay 12 solidi to the plaintiff, and 20 to the king. Even the vast fortune of Lord Chancellor Eldon would scarcely have been sufficient to meet the continual levy of fines like these.

Wager of battle. The old barbarous wager of battle ('pugna per camfiones') still existed, but was viewed with suspicion and dislike by Liutprand. He does not scruple to imagine and provide for a case in which a man accused of theft has been vanquished in single combat, but stricter enquiry afterwards made by the king's representative (publicus) has established his innocence.32 He declares that wicked persons would sometimes challenge a man to the combat in order to annoy and worry him, and therefore prescribes the form of oath which the challenger might be forced to take, and which was to the effect that he had reasonable grounds of suspicion, and did not give the challenge in malice, in order to weary him by the battle.33 And in a very curious law34 about accusations of poisoning he expresses himself even more strongly, saying in substance,

'We have now ordained that the punishment for the murder of a free man shall be the loss of the whole of the murderer's property: but certain men, perhaps through hardness of heart, have accused the relations of a man who has died in his bed of having poisoned him, and have therefore, according to the old  p403 custom, challenged them to single combat. It seems to us a serious matter that the loss of a man's whole property should be caused by the weakness of a single shield: and we therefore ordain that in case any accusation of this kind should be brought in future, the accuser shall swear on the gospels that he does not bring it in malice, but has good grounds for his suspicion. Then he may proceed to battle according to the old custom, but if the accused person or his hired champion is defeated, let him pay, not his whole fortune, but a composition, as under the whole law, according to the rank of the murdered man: — For we are uncertain about the judgment of God, and we have heard of many persons unjustly losing their cause by wager of battle. But on account of the custom of our nation of the Lombards we cannot change the law itself.'35

The old unwritten law (cadarfida). In connexion with these allusions by Liutprand to the decaying jurisprudence of his ancestors, it will be well to notice one passage in which he quotes the ancient customs of his nation. Law lxxvii enacts, 'If two brothers, or a father and son, have divided their estate by solemn thinx,36 and one of them shall die without sons or daughters, let the King's Court  p404 succeed to him. We have ordained this because, though it be not precisely so set down in the edict [of Rothari], nevertheless all our judges and faithful subjects have declared that so the ancient cadarfida has ever been, down to our own time.'37 The passage is interesting, because we have here a glimpse of that unwritten common law of the Lombards, known by this strange and somewhat mysterious name cadarfida, by which, according to the Chronicon Gothanum,38 legal disputes were generally decided until Rothari arose, the first codifier of Lombard law.

Laws about women. Space fails me to enumerate all the interesting particulars as to the social and domestic life of the Lombards, which may be gleaned from the laws of Liutprand. In particular, the numerous edicts relating to women would be well worthy of special study, showing us as they do a decided upward tendency in the estimation in which they were held.39

 p405  Slaves. Another proof of increasing softness of manners is afforded by the laws about slaves. Of course, the unfree condition of the slave and the Aldius still continues, but Manumission by king and priest. a new and effectual form of manumission is introduced, according to which the owner gives the slave into the hands of the king. The slave by the intervention of the priest is then 'led round the sacred altar,' and after that dismissed free. This solemn act of manumission, in which king and priest were associated on behalf of freedom, was to have as great efficacy as if the slave had been declared 'folk-free' by a regular thingation.40 The slave who, after he had in this or any other way received his 'full freedom,' continued to serve his old master (out of gratitude or for wages), was warned that he would do well to make frequent opportunities for showing forth his freedom to the judge and to his neighbours, lest in time to come the fact of his emancipation should be called in question.41 And if the owner of married slaves wronged the husband by committing adultery with the wife, he thereby emancipated both, as fully as if he had by solemn thinx given them their freedom. But in order that there might be no doubt of their emancipation, they were desired to come to the palace, prove their case, and receive their freedom at the hand of the king.42

Horses. Though, as I have said, we have far fewer laws relating to the forest and the farm-stead than in the code of Rothari, it is evident that horses were a valued possession, and their ownership, as in all civilised  p406 communities, was a frequent cause of litigation.

'If a man wishes to buy a horse, he ought to do it in the presence of two or three men, and not secretly. Then, if afterwards any one should claim that horse, he will have these witnesses to appeal to, and shall not be liable to a charge of horse-stealing. But if the claimant of the horse does not believe such witnesses, let the defendant confirm his case by putting them on their oath, unless they be that kind of men whom the king or the judex would believe even without an oath. But if he cannot produce any witnesses in whose presence the transaction took place, and can but repeat simply "I bought it," or if he says that he bought it from some Frank, or nobody knows whom' he will have to pay the fine for horse-stealing.'43

Religion. We find in the code of Liutprand one or two interesting indications of the religious condition of the Lombards. Soothsayers. Especially we have some almost savage legislation against soothsayers (arioli), whether male or female. Any one who himself consults such persons, or sends his slave to receive their answers, is to pay half of his own guidrigild to the king. The same heavy fine shall be paid by any judex or sculdahis or inferior functionary in whose district these soothsayers shall be lurking, if for three months he fail to discover and punish them. And if, when they have been detected and denounced, such functionary, either for a bribe, or out of pity, or for any other reason, lets them go, he shall pay not the half, but the whole of his guidrigild to the king. As a further incentive to  p407 diligence, the judex is ordered to sell the convicted soothsayer out of the province as a slave, and allowed to put the proceeds of the sale into his own pocket.

Idolaters. In the course of this legislation we are informed that (as at Benevento in the time of St. Barbatus) there were still some country folk who worshipped a tree or a fountain, calling it their sacramentum; and the punishment for these superstitious rites was the same as that for consulting soothsayers, the payment of half a man's guidrigild 'to the sacred palace.'44

It is time to draw this slight and imperfect sketch of Liutprand's legislation to a close, but the reader may be interested by three or four of the most characteristic laws, which seem to show us the great king sitting in council with his judges, and hearing and resolving the harder cases which were brought before him.

Inciting a slave to murder his master. Law cxxxviii. Incitement to murder by a slave. — 'We have been truly informed that a certain man, by the instigation of the devil, said to another man's slave, "Come and kill thy lord, and I have it in my power to grant thee whatsoever favour thou shalt desire." Persuaded by him, the lad entered into the evil design, and the tempter was wicked enough to say in the very presence of the victim, "Strike thy lord." For his sins the slave struck the blow, and the other said, "Strike him again. If thou dost not, I will strike thee." Then the lad turned round and  p408 struck another blow, whereupon the master died. In the requisition for blood, it was argued [on behalf of the tempter] that he ought to pay only the composition for conspiring against life [consilium mortis, the fine for which was 20 solidi], but we and our judges were not at all satisfied with this argument, reflecting that conspiracy is a hidden thing, which sometimes attains its end, and sometimes misses it. But this murder was instigated in the actual presence of the victim, and we do not call it 'consilium' when a man points to another, present before him, and says in so many words, "Strike that man." Therefore the instigator of the crime shall be punished, not for consilium mortis, but for murder itself; and, according to our recent edict, shall forfeit the whole of his property, of which half shall go to the heirs of the murdered man, and half to the King's Court.'

Stealing a woman's clothes. Law cxxxv. Insult to a woman. — 'It has been reported to us that a certain perverse man, while a woman was bathing in a river, took away all the clothes which she had for the covering of her body; wherefore, as she could not remain in the river for ever, she was obliged to walk home naked. Therefore we decide that the hateful man who has been guilty of this presumptuous deed, shall pay his whole guidrigild to her whom he has offended. We do so for this reason, that if her father, or brother, or husband or other near male relative had found that man, there would undoubtedly have been a breach of the peace (scandalum), and the stronger of the two would probably have killed the other. Now it is better for the wrongdoer to live and pay his own guidrigild, than to die, and cause a faida to those who come  p409 after him, or to kill and lose the whole of his property.'45

Power to a father to prefer a faithful son. Law cxiii. Testamentary power. — 'If any Lombard46 should wish to make any special provision for a son who has served him well, he may have power to do so to the following extent. If he has two sons, he may favour the one who has shown him godly obedience by an extra third of the property; if he has three sons, by a fourth; if four, by a fifth, and so on. And if they have all served him equally well, let them partake equally of their father's substance. But if perchance the father have married a second or third wife, and have issue both by the earlier and later marriages, he shall not have the power of thus preferring any one of the children of the later marriage during their mother's lifetime, lest any should say that it is done at her instigation. But after her death he shall have power to prefer as aforesaid. For we think it is according to God's will (and to right reason), that if, even between slaves, he who serves his master well is more rewarded than he who serves him badly, the father should have a similar power of distinguishing between his son, and rewarding them according to their deserts.'

Brawling women. Law cxli. Women incited to brawling by their husbands. — 'We have been informed that some faithless and crafty men, who do not dare themselves to enter a neighbouring house or village and raise a disturbance there, for fear of the heavy composition to  p410 which they are liable for such an offense, have called together all the women over whom they had power, both free and bond, and have sent them against a weaker body of men. Then these women, attacking the men of such town or village, have inflicted blows upon them, and made greater disturbance, and done more mischief than even men would have done in their place. But when enquiry was made into the tumult, the men who were on the defensive, and could not help themselves, were called to account for their unwilling violence.

'Therefore we decree that should the women dare to act in this manner in future: (1) Those who have defended themselves against them shall not be answerable for blows or wounds, or death itself, either to the husbands or the mundwalds of the estimate.47

'(2) Let the magistrate (publicus) in whose district the tumult has happened, catch those women, and shave their heads, and distribute them among the villages round about, that henceforward women may learn not to do such presumptuous deeds.

'(3) Should the women in such a brawl inflict blows or injuries on any one, their husbands must pay for them according to the tenour of [King Rothari's] edict.

'Our reason for making this ordinance both as to the chastisement of the women as to the payment of their compositions is, that we cannot liken such a [craftily planned] assemblage of women to a faction fight, or sedition of peasants, since in those outbursts men act, not women.'48

 p411  I will end this chapter with the little incidents of village life drawn from the laws of Liutprand.

Accidental death at a well. Law cxxxvi. Death by misadventure at a well. — 'It has been told us that a certain man had a well in his courtyard; and above it (according to custom) a fork and a balance-weight49 for drawing water. Now while one man was standing under the balance-weight, another, who came to draw water, incautiously let the balance-weight go, and it came upon him who was standing there, and caused his death. When enquiry into the death took place, and a demand for composition was made, it was held by us and our judges that the man who was killed, as he was not a mere animal, but had sense and reason, ought to have considered beforehand where he would take up his station, and what was the weight which he saw over his head.50 Therefore two‑thirds must be deducted from his composition, and the third part of the sum at which he is valued, according to the tenour of the edict, shall be paid by him who drew the water carelessly, to the sons or nearest relations of the dead man: and so let the cause be finished without guile and without faida, since the deed was done unwittingly. Let there be no charge brought against the owner of the well, for if such a charge be admitted, no one hereafter will  p412 allow others to draw water from his well; in which case, since all cannot be the owners of a well, many poor persons will die, and wayfarers also will suffer great hardship."

Death of a child from a horse's kick. Law cxxxvii. Death of a child from a horse's kick. — 'It has also been reported to us that a certain man lent his mare to another man to draw his waggon, but the mare had an unbroken colt which followed its mother along the road. While they were thus journeying, it chanced that some infants were standing in a certain village, and the colt struck one of them with his hoof, and killed it. Now when the parents brought the matter before us, and claimed compensation for the infant's death, we decided, after deliberation with our judges, that two‑thirds of the child's guidrigild51 should be paid by the owner of the colt, and the remaining third by the borrower of the mare. True it is that, in a previous edict,52 it was ordained that if a horse injures any one with his hoof, the owner shall pay the damage. But inasmuch as the horse was out on loan, and the borrower was a reasonable being, and might, if he had not been negligent, have called out to the infants to take care of themselves, — therefore, as we have said, for his negligence he shall pay the third part of the child's price.'

With this sensible decision we take leave of Liutprand the legislator and the judge, and turn to consider the events of the age in which he had to play his part as a warrior and a statesman.


The Author's Notes:

1 'Ansprand Langobardorum regnum potitus, tres solummodo menses regnavit, vir per omnia egregius et cujus sapientiae rari aequandi sunt. Cernentes Langobardi hujus interitum, Liutprandum ejus filium in regali constituunt solio: quod Ansprand dum adhuc viveret audiens, valde laetatus est' (Paulus, H. L. VI.35).

2 Rodwald, whose connection with Theudelinda's family is at least doubtful.

3 This name suggests the possibility that Liutprand himself may have been sprung from the race of King Rothari.

4 Probably the 'City' forest in the neighbourhood of Pavia, of which we have already heard. See pp306 and 308.

5 Sometimes on the preceding day.

6 The following sentence, prefixed to the laws of 713, may be taken as pretty nearly the common form for the introduction to the Statutes of all the succeeding years: — 'Ob hoc ego in Dei nomine Liutprand excellent­issimus Christianus et Catholicus Langobardorum rex, anno deo protegente regni mei primo, pridie [more often 'die'] Kalendarum Martiarum indictione undecimâ una cum omnibus judicibus tam de Austriae et Neustriae partibus, necnon et de Tusciae finibus, vel cum reliquis fidelibus meis Langobardis et cuncto populo adsistente, haec nobis commune consilio, juxta [justa] ob Dei timore atque amore ac sancta conparuerunt et placuerunt.' The years in which Liutprand's laws were published were 713, 717, 720, 721, 722, 723, 724, 725, 726, 727, 728, 729, 731, 733, 734, and 735. As the total number of 'capitula' was 155, this gives an average of about ten laws to each year of publication.

7 l. xxxiii. The first sentence of this law is, 'Hoc autem deum juvantem praevidimus ut amodo nullus homo presumat relicta de consobrino aut bisobrino suo ducere.' Does this forbid marriage even with a second cousin's widow?

8 l. xvi.

9 l. xxx.

10 l. xxxvi.

11 l. lxiii.

12 l. xci.

13 l. cxix.

14 l. cxxxix. a.

15 l. cxliii.

16 ll. cxxi, cxxxv.

17 l. cxxii.

18 l. lxii.

19 'Secundum qualitatem personae.'

20 'Minima persona qui exercitalis homo esse inveniatur.'

21 'Qui prior est.'

22 'De gasindiis nostris.' The word 'gasindius' has probably a mingled meaning, derived from the original idea of kinship with the king, blended with the usage of the comitatus (see vol. III p256),º and afterwards associated with the thought of service in the king's palace.

23 As it was a common principle in the Teutonic codes that murder with premeditation should be charged for at double the rate of manslaughter in self-defence, Davoud Oghlou suggests that we may probably obtain the full guidrigild the murder 'asto animo,' as executed in the days of Rothari, by doubling the sums mentioned in this law of Liutprand.

24 l. xci.

25 'Chartulas.'

26 This is the text of the first sentence of this important law:

'De Scribis hoc prospeximus, ut qui chartulas scribunt, sive ad legem Langobardorum, quoniam apertissima et pene omnibus nota est, sive ad Romanorum, non aliter faciant nisi quomodo in ipsis legibus continetur.'

27 By l. cxxvii.

28 'Si quis Romanus homo mulierem Langobardam tulerit, et mundium ex eâ fecerit, et post ejus decessum ad alium maritum ambulaverit sine voluntatem heredes prioris mariti, fahida et anagriph non requiratur, quia postquam Romano marito copulaverit et ex eâ mundium fecit, Romana effecta est. Filii qui de tale matrimonio nascuntur secundum legem patris Romani fiunt, et legem patris vivunt: ideo faida et anagriph minime componere debent qui postea eam tulit, sicut nec de aliâ Romanâ.'

29 One of these excepted cases was where the lad's father had left debts, the interest of which was eating up the estate ('ut ei major damnietas propter honorem solidorum non accrescat'; l. xv al. xix.) Another was where the lad was in danger of actually dying of hunger in a time of general famine ('de infantibus qui intra aetatem sunt . . . et a fame moriuntur . . . dum tempus famis fuerit licenciam habeant coram misso principis aut judice suo de terrâ aut de rebus suis vendere qualiter vivere possit,' &c.; l. cxlix).

30 l. xcix.

31 ll. xxi‑xxv.

32 l. lvi. In this case the composition for theft paid by the first accused had to be repaid to him, and claimed from the man who was eventually proved to be the offender.

33 'Et dicat juratus, quia non asto animo eum per pugnam fatigare quaerat' (l. lxxi).

34 l. cxviii.

35 'Quia incerti sumus de judicio Dei, et multos audivimus per pugnam sine justiciam causam suam perdere, sed propter consuetudinem gentis nostrae Langobardorum, legem ipsam mutare non possumus.' Sir W. Scott might have read this sentence when he wrote the well-known lines: —

'Say, ye who preach Heaven shall decide

When in the list the champions ride,

Where was Heaven's justice then?'

36 Apparently this must be the meaning of 'si duo fratres aut si pater et filius thingati fuerint.'

37 'Ideo autem sic scripsimus quia et si adfictum in edictum propriae non fuit, tamen omnes judices et fidelis nostri sic dixerunt quod cadarfida antiqua usque nunc sic fuisset.' The MSS. waver between 'cadarfida,' 'cawarfida,' 'quaderfia,' and other forms of the word.

38 See vol. V p148.

39 Thus the very first of Liutprand's laws gives to the daughters of a man dying without legitimate male issue, the whole of their father's inheritance; modifying so far the law of Rothari, which, in such a case, gave a third of the property to bastard sons (if any), and a sixth to the nearest male collaterals.

In law cxx, which enumerates the injuries which constituted 'mala tractatio' from the mundwald (or keeper of the mundium) towards the woman under his protection, and which were punished by the loss of the mundium, it is interesting to note that she is called his frea, the same word of course as the German frau; but also the same as the name of wife of Odin, who gave the Lombards the victory by her devices (see vol. V p92). The wife of the Teutonic Jupiter was thus The Woman.

40 l. ix.

41 l. lv.

42 l. cxl.

43 'Nisi simpliciter comparavit, et dixerit quod Franco nescio de qualem hominem comparasset, componat ipsum caballum per furtum' (l. lxxix).

44 'Simili modo et qui arborem quam rustici sacramentum suum vocant atque ad fontanam adoraverit . . . medietatem pretii sui componat in sacro palatio' (l. lxxxiv).

45 I have slightly expanded the last sentences, but the legislator's meaning is sufficiently clear.

46 The Roman would probably be governed in his testamentary dispositions by the law 'de inofficioso Testamento.'

Thayer's Note: See Smith's Dictionary of Greek and Roman Antiquities, s.v. Testamentum.

47 Repealing so far law 379 of King Rothari as to composition payable for a woman killed in a brawl.

48 'Hoc autem ideo prospeximus tam de disciplinam quam et de composicionem quia nos non potuimus mulierum collectionem ad hariscild adsimilare neque ad seditionem rusticanorum quia istâ causâ viri faciunt nam non mulieres.' Hariscild is said by Meyer to be 'Heerschild als Zeichen kriegerischen Aufgebots.'

49 'Furcam et tolinum ad hauriendam aquam.'

50 'Ita nobis et nostris judicibus rectum paruit esse, ut ipse homo qui ibi demortuus est, quia non fuit animal, sed sensum racionabilem habuit, prospicere debuit in quale locum se ponere ad standum, aut quale pondum super se videbat esse.'

51 'Precii qualiter ipse valuerit.'

52 Rothari, 325 and 326.


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