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Lombard Law-giving

The Edictus Rothari, is the first written phase of the Lombard laws, which was issued from the Lombard palace on the 22 November 643 CE. In the prologue to the Edictus, King Rothari is introduced as vir excelentissimus [most-excellent man], as rex gentis langobardorum [king of the Lombard people] and as a law-giver. This narrative prologue outlines the social, legal and religious motivations for emending older customs and issuing the law. It also situates the law-giving in the history of the Lombard people and kingship, stating that the laws were issued in the seventy-sixth year after the entry of the Lombards into the provincia Italia [land of Italy] under King Alboin. The coming of the Lombards into Italy is reiterated at the end of the prologue in the regnal list, naming the  previous Lombard kings with Rothari as the seventeenth king and stretching back into the depths of a mythical Lombard past, and giving Alboin as the eleventh king. Again, the list tells us that it was Alboin who had led the exercitus [nation] into Italia - thus making explicit the connection between the law-code, the Lombard people, Lombard kingship and the geograpahical territory of Italy.

Later Lombard kings augmented the laws, beginning with King Grimwald in 668 CE, and followed by numerous phases throughout the first two and a half decades of King Liutprand’s reign, with laws having been issued in his name at fifteen or sixteen different legislative sessions in 713, 717, 720, 721, possibly 722, and in 723, 724, 725, 726, 727, 728, 729, 731, 733, 734 and 735 CE. King Ratchis issued laws in three legislative sessions, one in 745 or 746, and twice more in 746 CE, and finally King Aistulf issued laws twice, in 750 and 755 CE. These later laws rarely replace the previous legislation, completely, but rather can be seen as forming an amalgmated text, in which the new laws emend and supplement the old legislation. Likewise, many - burt not all - of these laws and law-giving sessions have their own narrative prologues, in which the law-giving and reputation of previous kings are reiterated, thereby tying the new laws into the written tradition of the already extant Lombard laws and customs. 

Locations - Centres and Peripheries

The location that these varies sets of laws were issued from is not usually named in their prologues, with the exception of the Edictus Rothari, that specifically states the palace in Ticinum, modern day Pavia, Italy, and those of Aistulf issued in 750, again stating the palace in Ticinum. While nonne fo the prologues to Liutprand's many phases of legislation mention the location where the laws were issued, he does name the sagro palatio [sacred palace] – the Lombard palace in the capital of Pavia – in Liutprand, §84 issued in 727, as the location to which composition for a crime should be paid. The law, which gives an evocative view of lingering cult practices in the early medieval Lombard kingdom, details that the composition owed by people who consult an ariolus or ariola [soothsayer] or engage in the rustic worship of trees or fountains was to be paid directly to the king, instead of to a local representative at a local royal court. By making the payment be owed to the sagro palatio, a point that is made twice in the law, the importance given to this matter by the king and his advisors is made clear – but at the same time it also allows us to see the sacred palace as the centre-point for Liutprand’s law-giving.

Many other prologues situate the laws more broadly within the Lombard regnum [kingdom], specifically noting that when the content was being discussed and approved, it had been undertaken with the participation and consent of iudices [judges] coming from the three main regions of the northern parts of the regnum , Austria, Neustria and Tuscia. This phrasing is found four times in the laws of Liutprand, where it is used in the prologues to the laws from 713, 717, 720 and 729 CE, and once more in Ratchis legislation issued in 746 CE. The prologue to Liutprand’s laws from 726 CE names Austria and Neustria, but here omits Tuscia.

[$$Map of duchies here $$]

In both of Aistulf’s prologues the specific regions are not named, but a general allusion to locations is made instead, with the prologue to his laws of 750 CE stating that the iudices [judges] and Langobards had come (this time to approve the laws, but not explicitly contribute to the content) from all the provincia [provinces], and in 755 CE from all parts of the regnum [kingdom]. The prologues to most of the other laws and legislative sessions, conversely, do not refer to the regions, but for the most part state that the iudices had been involved in preparing the legal content: Grimwald’s prologue, Liutprand’s prologues for the laws issued in 721, 724, 725, 727, 728, 731, 735 CE, and Ratchis’ prologue for his laws issued in 745/746 CE. In each of these, of course, it is possible that the judges who attended and contributed only came from the immediate locality, rather than further afield, but there is no evidence to confirm that either way. The one remaining prologue, to Liutprand’s laws issued in 723 CE, mentions that iudices had been involved in his four previous law-giving sessions, but without referring to where they had come from, but then does not state whether or not any judges had been involved in this particular session. The mention of multiple judges being involved in preparing the laws, then is sometimes only suggestive of the relationship between the centre where the laws were negotiated and issued and the broader regions of the Lombard regnum.

A small number of the laws make specific reference to geographical locations, both within and beyond the Lombard regnum. The (northern) Lombard regions of Austria, Neustria and/or Tuscia appear in three of the laws of Liutprand, and a further two of Ratchis:

• In Liutprand, §61, issued in 724 CE, the situation is addressed when a person’s sacramentalem [oathhelper] withdraws from the oath. While Edictus Rothari, No. 363 had originally established that the oath was considered to be broken should one of the oathhelpers withdraw from the oath, Liutprand’s emendation to the legal process now offered a time limit to find a replacement for them. Interestingly, the law does not look at the Lombard regnum as a homogenous location, in which a causa [case] could be pursued anywhere under the auspices of the local iudex [judge] or gastald. Instead, however, the law presents different parts of the regnum as being either near or far: Should the person who is to swear be nearby, which presumably means in Neustria, although the law is not specific,  then he has twelve nights to find a replacement, but should they be further away, in Austria or Tuscia, then they are granted a longer period of twenty-four nights. The southern Lombard duchies of Benevento and Spoleti are not mentioned in this law.
• The next law to give varying time limits to conduct a legal action depending on distance away from a perceived centre is Liutprand, §88 issued in 727 CE. The law gives various time limits for a dominus [lord] to pursue his enslaved person who has run away, depending on where they have fled to. Again, the distance is not given in relation to the starting land from which they had fled. The dominus has three months to pursue the enslaved person if they have fled to the southern Lombard duchies of Spoleti or Benevento, two months if they have fled to Tuscia, and only one month if they are on “this side of the alpes”. The latter statement does not name Austria and/or Neustria directly, and groups them together as a larger location. By the alpes, it would appear that the law-givers either meant the Appenines, as the barrier separating the named provinces to the south, from the nearby centre of the Lombard law-giving, or it referred more broadly to both the Alps and the Appenines, as the geographical boundary encircling most of the region in question.
• The third of Liutprand’s laws to set a variant time limits for conducting a legal action depending on the distance away is Liutprand, §108, issued in 729 CE. The law addresses the time limit within which either a person or their representative fedeuissore [surety] should come and reclaim the property given as a pignus [pledge] after being notified by the person who was holding it that it had not yet been retrieved. The law sets a period of thirty days should the pignus be held in Austria or Neustria – which this time are explicitly named in the law – or sixty days should it be further afield in Tuscany. As with the first law of Liutprand discussed previously, Beneventum and Spoleti are not named here.

In each of these laws, then, movement across the Lombard regnum in the pursuit of legal activities is imagined, with extended time being offered the further the case or legal actors are from Neustria and/or Austria. This could simply denote that regardless of where the person lived and the socio-legal events they were contesting had taken place, they had to first go to Neustria and, presumably, the palace to pursue the case and, following the stated time limit, resolve it. But this seems unlikely: iudices [judges], gastalds and other legal officials are present across the Lombard regnum, and cases could surely be pursued locally – especially when the subject is seemingly an everyday matter like in the laws outlined above. A more likely interpretation, therefore, is that the law-givers simply presented the view from the centre, without considering if or how it would make sense in the case of other locations where law and justice were enacted.

A further geographical, or rather geo-political connection, can be found in Liutprand, §33, issued in 723 CE. This law forbids a man from marrying the widow of his cousin on either his mother’s or father’s side, and states that any children from such a union cannot be legitimate heirs. The main point of interest for us here, however, is that Liutprand states that he was exhorted to issue the law via a letter from the pope in Rome (that is, by Pope Gregory II).

Two of the laws of Ratchis from 746 CE also draw geographical connections with the city of Roma [Rome] and other locations that are (mostly) outside the Lombard kingdom:

• In Ratchis, §9, the law sets a death penalty for any Iudex [judge] or other person who dares to send an envoy without royal permission to Rome or Ravenna or any of the surrounding regna to the north and west, listed in the law in clockwise order, that is Francia, Bavaria, Alamannia Raetia or Avaria. The law also includes the Lombard duchies of Beneventum and Spoleti in the listing, perhaps therefore treating them therefore as independent and external locations.

• In Ratchis, §13 the subject of pilgrims passing through the Lombard kingdom on their way to Rome is raised, with instructions being given that the marcas [boundaries] and clusas [borders] should be protected, and that travellers should be questioned to make sure they are genuine pilgrims rather than spies or fugitives, whether coming or going. The exact locations of the borders are not defined. In addition to the efforts that are to be made at the borders, the law also specifically addresses the judges within Tuscia that they should ensure that travellers on the way to Rome are who they say they are and that they have the letter with royal approval.

In the latter of the two laws of Ratchis just cited, the legislation also mentions the iudicaria [judicial districts] of the collected judges – without giving any specific details to the locations of each, whether in relation to the centre at which the judge was located, or the boundaries between adjacent iudicaria. This lack of detail is not surprising: law, after all, addresses the world in categorical terms, by using general, abstracted terms and there is no need to specify each example being addressed. Arguably, by doing so, the law would have been less useful! Such locations are nevertheless clearly geographical, and yet they cannot be delineated on a map in absolute terms.

The fines [borders] of the Lombard regnum are also mentioned in Edictus Rothari, §367, in specific relation to waregang, that is migrants. The law establishes that, should a person come into the regnum to live, then he should live according to “legibus nostri langobardorum” [the laws of our Lombards], unless the king grants him permission to live according to another law. The law also states that his children, if he has any, should inherit according to Lombard law, but if he no legitimate heirs, then he can only thingare [transfer] or otherwise alienate his property with royal permission.

Langobards and Romans

The ethnonym Langobard appears at numerous points throughout the laws, referring to the Lombard people in various ways. The prologues to the various laws in particular, tend to stress the role of the Lombard fedeles [faithful followers] in confirming the legal content, and the position of the law-giver as the rex gentis langobardorum [king of the peoples of the Lombards]. The act of law-giving, then, are explicitly and repeatedly tied to the Lombard gens, and as just seen in Edictus Rothari, §367 the law can be explicitly named also as being that of the Lombards. Law, king and peoples are closely tied together, then, in the naming of the Langobards throughout the law-codes.

The Lombard lex, leges [law, laws] are directly named on a number of other occasions: In Edictus Rothari, §204 it is explicitly stated that a free woman living under legis langobardorum cannot have selpmundia [legal competency], but must instead always be under the legal jurisdiction of a man or the royal court. The law of the Lombards appears twice more in the laws on manumission, the first time stating that a freedman could make provisions according to legem langobardorum for the disposal of his personal property after death, if he does not have heirs (Edictus Rothari, §225), while the next law indicates the Lombard law somewhat indirectly, by stating that a freedman should live according to the law of the Lombard lord who had freed him (Edictus Rothari, §226). In the first law from the effective epilogue to Rothari's laws, Edictus Rothari, §386, he refers to the antiquis legis langobardorum [the ancient laws of Lombards], and how they had been gathered and updated.

Later Lombard law-givers also refer to the Lombard laws, with Liutprand including in the prologue to the laws issued in his first year, 713 CE, a direct reference back to Rothari’s issuing of the Edictus for the Langobards, and the prologue to Aistulf’s laws from 750 CE makes a similar call back to the body of laws issued by former kings. Liutprand, §78 refers to the langobardorum legem [laws of the Lombards] in relation to how a person can claim ownership of previously royal lands, if he has held them without dispute for a period of sixty years.

Liutprand, §127 refers to the legem of the child’s patris romani [law of their Roman father], in a discussion of the situation when a woman born into a Lombard family married a Roman man, and then after he died married a Lombard man. If she had children with her former Roman husband, then those children remain subject to the Roman law of their father. The law likewise states that when she married a Roman man she had herself become a Roman – as ethnicity, then, is transferred father to child, husband to wife, from lord and manumitter to the formerly enslaved person – but as Edictus Rothari, §367 discussed previously had shown, a Lombard legal identity could also be conferred to a waregang [migrant, foreigner] who moved within the borders of the Lombard regnum. Liutprand, §91 contrasts the law of the Lombards with the law of the Romans, stating that charters should be prepared according to one or the other, and setting composition equal to the scribe of the charter’s wergild should it not be written according to law. Even more interesting than that reference to Lombard and Roman multi-legalism within the regnum, however, is the observation in the same law that the legem langobardorum is open and available to all.

In some laws, the legal actor is specifically named by their ethnicity. It would appear that this phrasing positions the specific law within a broader context of early medieval multi-legalism, limiting the applicability of the law only to those who are specifically identified as Lombards - just as other laws occasionally identify the legal actor as being a Roman, such as in Edictus Rothari, §194, which sets a twelve solidi composition for having sexual intercourse with another person’s Romana ancilla [enslaved Roman woman], in contrast to a composition of twenty solidi if she is an ancilla gentile [enslaved “native” woman]. More specifically, in the previously-mentioned Liutprand, §127, the Roman man is identified with the phrasing “Si quis romanus” [if any Roman]. This naming of the Lombard, usually with the phrase Si quis langobardus… [If any Lombard…] is first introduced into the laws in Liutprand’s reign, where it is used in ten of his hundred-and-fifty-three laws, and with five of these instances being in the laws issued in his first year. The phrasing is also used in later laws, with King Ratchis using it once and King Aistulf a further nine times.

The Si quis langobardus phrasing is used to introduce laws addressing a number of different themes, the most common of which are about inheritance – and frequently female inheritance in particular: Liutprand, §1 details inheritance by daughters when the Lombard man in question has no legitimate sons; Liutprand, §2 and that the daughters should inherit regardles of whether they are married or still live at home; Liutprand, §4 extends the scope to exclude married sisters form further inheritence but include any unmarried sisters who had lived at home with him. while Liutprand, §13 provides an exception to the laws allowing daughters and unmarried sisters to inherit if there are no immediate male heirs when the deceased Lombard was killed; here it gives the grounds for the inheritence going to a more distnat male heir as being that women cannot raise the faida [feud] to pursue justice for their killed father or brother. In Liutprand, §102 the maximum amount that an (unmarried) daughter can inherit is established, when there are legitimate male co-heirs (one quarter if there is one male co-heir, one seventh if there are two, etc). A related theme seen in other laws with the Si quis langobardus phrasing is the transferal of property. This is still somewhat associated with inheritance, however, as on the one hand it reduces the amount that the other heirs will inherit, and on the other hand, in many of the laws, the actual transfer of the property only occurs at the the death of its previous owner, rather than immediately. In some cases, the property framed in this way might be transferred to an heir, singling them out for a larger proportion of the inheritance than they would have ordinarily received: Liutprand, §113 allows a portion of property to be transferred to a favoured son as a reward for their good behaviour, and Aistulf, §13 extends this to allow a daughter to also be singled out and rewarded with property. Transfers of property to people or institutions who were not already heirs was also permitted, although if such a transfer was not to be made until the death of the donor, then the heirs might try to dispute it or ignore their wishes of the deceased – a situation which Aistulf, §12 takes steps to prohibit.

Liutprand, §7 addresses the transfer of property, this time as a morgencap [morning gift] made by a man to his newly married wife on the day after their wedding, but with the main focus being on the socio-legal process and the use of written instrument and public announcement of the transfer so as to prevent later disputes and perjury. The specific naming of the Lombard in the limitation of disputes associated with property in Liutprand’s law, may have informed some of the legal theme that were addressed in Aistulf, §16, §18, §19 & §23, covering various aspects of disputed contracts, oaths and property.

The other legal theme which arises when the Si quis langobardus framing is employed is the question of to whom the law applies, or the transfer (or removal) of the legal status as a Lombard. This brings us back once more to the law discussed at the outset of this section, when a once Lombard woman marries a Roman man, and then remarries following his death, and how her legal ethnic identity changes to that of her husband. While the Langobard was named in the laws here, other instances where a Lombard might bestow his legal ethnic identity are incldued. In Aistulf, §11 the focus is on the manumission of enslaved people, specifically allowing the manumission to occur at the death of their previous Lombard enslaver rather than immediately. Another examination of the change of legal state is found in Liutprand, §153 where it is used to confirm that if a man who was once a Lombard and already had children should then becomes a clericus, his children nevertheless remain Lombards and subject to the Lombard law, rather than changing the law to which they are subject along with him.