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Edictum Rothari — Edict of Rothari
English Translation
of the
Edictum Rothari - 643 A.D. - Edict of Rothari
Researched, assembled, and translated by Bro. Vincent Lombardoin cooperation withBro. Jacob van Rooijen (Belgium) and Bro. Giovanni Lombardo (Italy)
From the Translator: "By way of introduction."
This reproduction and translation of the ancient set of laws of the Langobards — The Edictum Rothari (Edict of Rothari), has been added to the "Hidden Mysteries of Nature and Science" section of this virtual Library to complement the collection of ancient manuscripts so far published for the enlightenment of our reader in search of that "Light" (knowledge) the initiated into Freemasonry were promised at their initiation.
The Edictum Rothari was the first written compilation of Lombard law, codified and promulgated on 22 November 643 by King Rothari. According to Paul the Deacon, the 8th century Lombard historian, the custom law of the Lombards (Lombardic: cawarfidae) had been held in memory before this. The Edict, recorded in Vulgar Latin, comprised primarily the Germanic custom law of the Lombards, with some modifications to limit the power of feudal rulers and strengthen the authority of the king. Although the edict has been drafted in Latin, few lombard words were untranslatable, as "grabworfin, arga, sculdhais, morgingab, metfio, federfio, mahrworfin, launegild, thinx, waregang, gastald, mundius, angargathung, fara, walupaus, gairethinx, aldius, actugild or, wegworin". [Text copied from Wikipedia]
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Ego in dei nomine rotari, vir excellentissimus, et septimo decimum rex gentis langobardorum, anno deo propitiante regni mei octabo, aetatisque tricesimo octabo, indictione secunda, et post adventum in provincia italiae langobardorum, ex quo alboin tunc temporis regem precedentem divina potentia adducti sunt, anno septuagesimo sexto feliciter. Dato ticino in palatio. |
In the name of the Lord, I Rothair, most excellent and seventeenth king of the lineage of the Lombards, in the eighth year of my reign with God's favor, in the thirty-eighth year of age, in the second indiction and in the seventy-sixth year after the coming to Italy of the Lombards,1) where they were successfully led by divine power by Alboin [my] predecessor being king at that time. Issued from the palace of in Pavia. |
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HIC LEGES INCIPIUNT
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HERE BEGIN THE LAWS
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Here begins the part about legitimate children 65)
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[See here notes 154 to 162] |
Notes*
1) Year 643.
2) In the entire prologue are found traces of motifs, formulas, and technical terms taken from the Justinian legal language, and sometimes also used improperly. In particular, is taken from Novellae, VII, praef. (a. 535) the passage from "quae priores omnes" to "quod superfluum est abscidat": Calasso p. 247. The literary meaning of this passage would suggest that Rothari intervenes to renew and amend a previous body of laws, while we know, and the legislator himself states this explicitly at chapter 386 - that the laws of the Lombards "scriptae non erant" [were not written] .
3) At this point in the prologue are inserted two lists, compendium of traditional songs among the Lombards, one containing the list of kings, the other the genealogy of Rothari himself, who capable of going back eleven generations, up to a progenitor, Ustbora, which is lost in the myth. The rhythmic genealogy transmitted orally, in which the alliteration underlines the link between ancestor and descendant, is characteristic not only of aristocratic lineages but also of all the people as a whole and represents "the only means of tradition and history existing among the Germans," as Tacitus already attests: Restelli p. 85. In the prologue of the Edict the two lists have a legitimizing function, inserting the body of the laws in the wake of the tradition of lineage; a function that will be later carried out, in a more extended form, by the Origins and the History of the Code of Rothari.
4) According to Schneider p. 18, the reference to the Gausian dynasty, as well as to the Nandinig's Harodians and to Rothari, should be interpreted as a memory of alien races united in the past to the Lombards. It should be remembered that the latter, at the time of their descent into Italy, did not constitute an ethnically homogeneous group, a phenomenon which after all, is typical of the age of migrations.
5) Exercitus here indicates the totality of the Lombard people, the gens Langobardorum, understood as a group of free-warrior men; it is still a perception closely linked to a tribal organizational stage. In the Edict, the same term is also found in the sense of a mobilized army, engaged in war operations under the command of a duke or others (see for example Roth. 6, 21, 22, 25); in Roth. 19, it can be found in the particular meaning of "armed group" (for which Bertolini 1968 pp. 449-450, points out analogies with the ancient Scandinavian law and with the laws of the Bavarians). *
6) That is, he is sentenced to death. Alternating with "animae suae incurrat periculum [his soul shall be endangered]," other similar formulas occur in the Edict, which have the same meaning: see eg. "morti incurrat periculum" [he shall incur the danger of death] (Roth. 3), "sanguinis sui incurrat periculum"[his blood (family) shall be endangered] (Roth. 6).
7) It is a scriptural formula, referring to Solomon, also present in Liutprand's Prologue, (Calasso p. 220) underlines the profound difference between the use of this formula in the two aforementioned contexts: it would be concrete proof of the influence of Christian teachings in Liutprand, while in Rothari it would rather be a proud affirmation of the indisputability of the king's actions.
8) Province in Rotari probably indicates the territory of the kingdom: Gasparri 1990 II p. 274; the word, however, seems to derive from Justinian legislation (Digest, 49,16,12), where it is used in the sense of "territory": Bognetti 1948 p. 446, note 164.
9) For the vestiges of Justinian legislation and Roman military regulations in this chapter, see Bognetti 1948 p. 446.
10) Scamarae has the double meaning of thief, plunderer, therefore "bandit" (eg. in Eugippo, Giordane) and explorator, that is "spy," from the middle Greek scamareis; this second meaning, which seems preferable in our context, is also adopted for Rothari by Bognetti 1948 p. 446.
11) Annona is a term proper to the late imperial military language; for Bognetti 1948 p. 129, its adoption by the Lombards can be traced back to the experiences they gained as federates in the Byzantine army.
12) 12. The ducal institution, which appears as a fundamental element of the political and administrative structure of the Lombard Kingdom, has always aroused vast historiographical interest. Two lines of interpretation have long opposed each other (with a whole series of intermediate gradations) which alternatively placed the duke of historical age in direct relationship with the ancient Germanic aristocracy, described by Tacitus, endowed with an autonomous and hereditary power, pre-existing to that of the monarchy itself and independent of it; or otherwise they have traced the ducal institute to the Lombards under the influence of late Roman and Byzantine models, with connotations of a royal official with a military character. Recently the problem has been globally reconsidered by Gasparri 1978/11, who emphasized the need to overcome the approach linked to the "origins that explain," to evaluate the ducal institute in its evolution along two hundred years of Lombard history. in Italy. According to Gasparri, in the phase of the military conquest of the peninsula we must speak of a ducal figure understood as a military commander and royal official at the same time (Amtsherzog), an instrument with which the king tries to counterbalance the autonomous charisma of the nobility of blood, favoring the ascent of men more firmly linked to him. In the immediately following period, the duke then comes to acquire broader functions, taking to exercise power over a well-defined territorial area (civitas). This reconstruction, which brings back the same ducal office, while recognizing its genetic and functional peculiarities, to the realm of royal authority, consequently brings down the classic contrast between the duke, rooted dynastically in the fara [military families], and the gastaldius, not removable royal official (for which see note 23). It should be noted that this chapter places the alternative between the duke and "the one who has been placed by the king al command of the army, "suggesting the sovereign's ability to limit the ducal power in the military sphere by appointing his own officers: see Delogu p. 58 and, in general, Diurni 1981.
13) For the subject of this chapter, Bognetti 1957 II p., 594 note e, refers to the Byzantine military regulations and, in particular, to Modestine and Menander.
14) The Latin word scandalum generically indicates "tumult," "brawl," "combat," "struggle," "violent act." In this meaning it is found, for example, in Roth. 378, where it simply indicates a fight between two or more men (while in Roth. 43 is used rexa) [brawl], but it should be noted that in other chapters of the Edict (Roth. 8, 35-38, 273) it seems to take on the more strongly connotation as a "violent act that disturbs the peace of a place of special peace, of strengthened peace," be it the assembly, a church, the king's palace or the city in which the king resides, or the court of a free man, thus taking on a peculiar ethical value. In the translation, with "tumult," however, it was preferred to respect the generic nature of the Latin word.
15) See Bognetti 1957 II p. 599.
16) In the Germanic trial the burden of proof rests on the accused, who can either accept responsibility for what is charged to him or oppose his word to that of the accuser; in this second case, depending on the gravity of the accusation made against him, he can exonerate himself either by an oath taken on arms or on the Gospels alone or with other free men sworn with him, or by means of a judicial duel, in which victory does neither provide the proof as to reveal the truth of the fact, nor as to indicate whom is to be believed. The legislator seems to prefer the first way, and tries to exclude the duel, at least for some cases: see Roth. 164 - 166. This capacity is not recognized to the non-free men, for whose action is responsible the freeman on whom they depend.
17) The guidrigild (wergild) is the "sum to be paid for the offenses caused to a person or for the killing of a man" (Restellip. 103), the quantification of the economic value attributed to each free individual, according to his rank: see Roth. 11. The perception that the social value of an individual can be expressed by a monetary equivalent is a phenomenon peculiar to barbarian legislations. Those who are not free also have a quantifiable personal value, which is calculated on the basis of objective criteria (the degree of servitude, work skills).
18) Crimen is intended here for "accusation"; see also Rhodes. 164, 166, 179, 196, 197, 198, 213. See Bognetti 1940 pp, 287-288, which gives as possible translations "accusation of a crime," "incrimination," "insult," "defamation." Only in c. 195 seems to be intended rather as an equivalent of raptus [rape], so in that context it is to be translated as "crime," "murder." *
19) Plaga and ferita have almost synonymous value; it was decided to render them with slightly different terms ("wound and lesion"), although it must be noted that throughout the Edict their use is not always strictly defined.
20) Culpa usually indicates in the Edict objective transgression, conceptually distinct from "damage," which leads to the identification of diversified amounts in the composition [settlement or agreement of compensation]: see Delogu p. 56.
21) Morth [Mord in German]: indicates the murder carried out "in absconse, that is, of hiding, in secret.
22) The angargathungi is the qualification of the social relevance of the free man on the basis of which his guidrigild,, that is, his monetary value, is established.
23) The gastaldi, a unique figure of court officials, are royal officer in charge of the administration of fiscal assets (curtes regis) located in the various duchies (civitates) of the Kingdom. Their existence is testified by sources only from the seventh century (the first known to us is that Immone, gastaldius of Piacenza between 616 and 626). For a long time the gastaldi were considered as instruments of royal power explicitly opposed to the dukes; in reality, while recognizing that their action somehow limited the power of the dukes in whose districts the curtes they administered were located, they must rather be thought of as integrative, not alternative, figures of the ducal office: see Gasparri 1978 II pp. 21-22 and Diurni 1981; see also note 31 and Roth. 271 and 375. The sculdhais is a lower grade royal officer, subordinate to the gastaldius. The curtis regia indicates both the king's fiscal assets and the individual territorial units of the tax authorities, entrusted to the gastaldi; it also occasionally indicates as a patrimonial reality identified by a precise boundary, in analogy with the curtis of the single free man. The curtis regia is proposed as the basic structure of public power in the kingdom. See Gasparri 1990 II pp. 254 - 255.
24) Also the journey that the freeman makes to go to his king, as well as the village mentioned in Roth. 19, are configured as places, figurative or physical, protected by a special, enforced peace: see note 14.
25) The reference should be to the block of chapters that prescribe the punishments for those who cause any damage to another who is a freeman, that is, from Roth. 41 to Roth. 74.
26) See note 24.
27) Exercitales is a term widely present in the Edict (see Roth. 23. 24, 373 and Liutp. 62) and, in the documents, indicates the Lombard liber homo [freeman] tsaken in his capacity as a member of the populus-exercitus and therefore himself a full-fledged political subject: see Bognetti 1957 I p. 121, and also Bertolini 1968 pp. 452-453, which proposes a different reading. See below note 39 to Liutprand.
28) On the function of judge of his own exercitales [men of the army] performed by the duke, see the bibliography cited in note 12. On the problematic nature of the meaning of the composition formula in this chapter and in Roth. 21 and 22 (Beyerle translates "an der Konig oder an seinen Herzog" [to the King or to his duke]) Bognetti 1957 II pp. 605-606.*
29) Sculca is a term of Germanic origin (then passed into the late imperial-military language: see the Greek skoulkan, present in the Strategicon of Pseudo-Maurizio), which indicates the soldier on guard or reconnaissance duty: see Fasoli p. 51; Frau pp. 175-176, ("scouting patrol, lookout post"), Bertolini 196 8 pp. 494-496, (''scouting, surveillance, lookout service").
30) This chapter and the following one allow us to glimpse the military functions of the gastald (for which see note 23) which appear difficult to define: perhaps we can think that it was his duty to guide contingents of men normally employed in the maintenance and in the protection of fiscal assets: see Gasparri 197811 p. 22.
31) Iudex is a term that, already present in some chapters of Rothari (in addition to the present, see also Roth. 244 and 264), finds wider diffusion during the seventh century, where for iudices is meant all the dukes and gastaldi "unified by point of view of the fundamental function exercised by them in peacetime, namely the judicial one as representatives of the king": Gasparri 1978 II p. 28. In legislative sources, the term retains an ambiguous character, also indicating minor officials; in its narrowest sense, dux designates the duke or gastald with ducal powers who has the task of maintaining order and administering justice within his own civitas [city] or iudicaria [judicial district] and leading the Arimanni [army-men] of his district in case of war. The laws of the eighth century tend to guarantee the absolute control of the kings over these offices and at the same time the utmost respect for the authority of the iudex on the part of his subjects: see Liutp. 25, 26, 27, 35, 44, 59, 78, 80, 83, 85, 96; Notes 2, 5; Ratch. I. 2, 4, 13, 14; Ahist. 7, 9. At the time of Rothari not all duces appear to belong to the iudices class: Gasparri 1978 II pp. 25-28.
32) Locus seems to be understood as "place," meaning accepted also by Bognetti 1957 II p. 605, and Bertolini 1968 p. 438, but the term could also mean "position" and in this case the passage should be translated "which was placed by the king to hold that office." On the problems of correct interpretation of the composition formula expressed here, see Bognetti, Frammenti, pp. 605 -606.
33) Mundium is a concept of Germanic law which can be translated as "protective power" (comparable to the Roman concept of potestas del pater familias). The Lombard woman cannot live suis iuris (selpmundia), but she must always be under the mundium of a man (husband, father, brothers) or of the king's court.
34) Roth. 43-74. See also Roth. 128.
35) The aldius is a semi-freed, capable of possessing things and taking economic initiatives, but obliged to live under the patronage of a freeman: see Roth. 235. The freedman is the servant [slave] who has been freed. For the various types of manumission see Roth. 224.
36) See note 34.*
37) The court is the farm, surrounded by hedges or moats, in which the freeman resides and which constitutes the center of its properties; inside, owners and workers live together and there are all the tools and services necessary for agricultural and pastoral activity. The court is protected by a very strong legal immunity, for which its violation constitutes a crime of particular gravity: see Roth. 34 and note 39.
38) Persolvere is a verb used in Justinian legislation, referring to the field of obligations; in the Edict it is found in dyad with componere also in c. 259, where there is a subtle conceptual distinction: componere is used for the private composition to be paid [to settle with] the victim, persolvere for the sum to be paid to the king: Moschetti p. 117.
39) See note 34. The crime in question here is that of the breaking of domestic peace, rooted in Germanic juridical culture (and not only in that); the enclosure that delimits the court preserves an ancient aura of sacredness, it circumscribes the area of peace of the house, as already expressed in Tacitus: see Moschetti p. 153, which underlines the tangential anachronism of this Germanic housing model in Italy, in contact with the Roman building organization.
40) Palatium stands here to indicate the building proper, the physical place where the king resides; elsewhere in the Edict, is given from Roth. 37, palatium regis (where it is prescribed that the compositions must be paid) appears to be used in a figurative sense as an equivalent of publicus, that is, in the words of Bognetti 1961, p. 382, "royal and state thing."
41) Civitas indicates the inseparable link between city and territory, that is, the urban nucleus with the district belonging to it. The model towards which it tends and which will have more organic application in the course of the eighth century, provides for the subdivision of the territory of the kingdom into districts, precisely called civitates or iudicariae, each of which is headed by a iudex: see Gasparri 1990 II p. 274-277. In the Edict, civitas is also used in practice as a synonym for urbs, a word that never appears: therefore it was chosen to translate it with "city."
42) See note 34
43) See note 34
44) See note 34*
45) It should be noted that the slap is perceived as a more outrageous offense than the fist towards a man and is therefore punished with a greater composition; it relates to what was said in Roth. 41 and what is implied by Roth. 42, where the crime of binding a free man, even though it is dishonorable towards the victim, is punished with a very high composition, equal to two thirds of the angargathungi. This kind of offense, which damages the victim's personal dignity, is prosecuted only when it strikes free subjects, the only ones considered to be the custodians of ethical values and dignity: see Delogu pp. 62-63.
46) The faida [feud], a private revenge, blood revenge, in which the whole family group participates to avenge an offense suffered by one of its members, constitutes one of the most typical institutions of ancient Germanic law. Palpable, since this chapter, is the effort expressed throughout the Edict to oppose it, replacing it with the composition in money: Roth's statement is exemplary in this regard. 74. *
47) Coxa indicates the thigh, as in this case, but in other contexts it should be understood rather as the thighbone [femur]: see eg. Roth. 94. *
48) See Roth. 43.
49) See note 46. *
50) The concepts of nobilitas, generositas expressed here, criteria on the basis of which the value of the woman is to be calculated, should be compared to those of qualitas by Roth. 141 and a natio of Roth. 198; see also note 22.
51) The chapter, devoid of a dispositive part, seems to constitute almost a title for the block of immediately following chapters. The mass of the non-freemen appears strongly stratified: the ministerial servants, who had to be the most capable and the most reliable, employed directly in the main house (domui), are homologated to the aldi in the calculation of the compositions, which are in almost all cases sensibly higher than those provided for rustic servants [farmhands slave] (of which by Roth. 103). Further distinctions emerge within the various groups: see eg. Roth. 130 and 131. *
52) Roth. 77-126.
53) Roth. 129-137.
54) See Roth. 76.
55) That is to a servant, ministerial of the type expressed at Roth. 130.
56) Sala indicates many and different things, which must be understood from time to time according to the context. The term originally indicates a "building with only one large room" and therefore the "country house''; subsequently it goes on to indicate - and this is its main meaning in the Lombard period - the ''house for the manor house in the curtis or for the collection of the commodities owed to the owner "(Frau pp. 174-175), in opposition to the massaricia house, only to be reduced to indicating the "stately room" or the "central room of the Lombard home" (Bognetti 1948 p. 147 and Bognetti 1959 p. 249).
57) It seems that this translation can be used by analogy with Roth. 133 and on the basis of the meaning of sala (for which see note 56). *
58) On the maestri commacini, master masons who moved around the Kingdom taking contracts for the construction or restoration of buildings, see under the Memoratoiro. There has been a long critical discussion on the origin of the term commacini (which in the codes is alternatively present with one or two "m"); by some interpreters it has been traced back to a Como-based matrix of these craftsmen, at least originally, while for others it is rather to be connected to their work "with machinery," "cum macina" (i.e., "with scaffolding"). See Salmi.
59) The type of service proposed here indicates that the maestro commacino, as well as an entrepreneur, as he appears in Roth. 144, he can also operate as a construction manager, as was customary in the 7th century: see Moschetti p. 157.
60) The dyad "domus aut casa" proposed here reflects the distinction between the traditional Roman house (domus) and the one, totally or partially in wood, of Germanic origin (house), destined to prevail in the early Middle Ages. In classical Latin casa indicated the agreste habitaculum, the farmhouse. In the Lombard laws the two words are used alternately (more frequent is casa), as synonyms, in the same common meaning also proper to the Italian term. Only in Roth. 76 domus seems to refer specifically to the main house and this has determined our choice of translation in this context, in which the two terms are placed side by side. For the progressive identification of domus with the stately home and with the "house of God," that is the church, in the Middle Ages see Moschetti pp. 156-157.
61) Only with the proposed integration does it seem to be able to make the text intelligible, since it is not otherwise seen how the one who caused damage to someone through the fire left on could not be held responsible if the fire spreads beyond causing damage.
62) Cappellare is used in the Edict with the breast to "destroy", "break down"; only in Mem. 4, is it found in the more technical meaning of "squaring" a beam.
63) The districtio of the king or his officials is configured in Rothari as "an almost personal power of the king," denoting more a "private violence than the force coming from the majesty of the state" (and for this reason it is found used in the Edict alternating with constrictio: see for example Roth. 185) while only with Liutprand does it come to assume a character and a function proper to the state": Moschetti p. 177.
64) The stolesaiz is a royal official of unspecified rank, probably not very high, probably in some hierarchical relationship with the gastaldus. *
65) The title inserted here more clearly isolates this block of chapters, of considerable importance, relating to inheritances. The Lombard successor law, which proves to be one of the most closed institutions to foreign influences, presents traits of profound difference with respect to the Roman one, starting with the complete ignorance of the will. In the Germanic perception, the family patrimony is jointly owned by all the members of the family group capable of right, so that a single member cannot dispose of it; it is instead disposed of according to the natural order of kinship, for which there is only legitimate succession, with the heirs divided by lines and degrees of kinship, as expressed by Roth. 153. In Lombard legislation, the legitimate heirs are joined, in some specific cases, by the king's court: see eg. Roth. 158-160. See Calasso p. 129.
66) Regarding this capacity for genealogical memory, cf. Rothari's genealogy in the prologue.
67) Starting from Rothari, the Longobard patrimony is divided into twelve uncias and the divisions are made on this basis. See Roth. 158.
68) In ancient Germanic law, the age of majority is not fixed at a certain age (as happens instead in this chapter), but is ascertained case by case through inspectio corporis [examination of the body] before the [tribal] assembly: cf. Galasso p. 126.
69) Thingare, here rendered as "to legally enfranchise," is also found, already in this chapter, in the meaning of "to give legally"; the root of the verb, Latinization of a Lombard word, implies the official nature of the act in question, which thus acquires legal validity, completed in antiquity before the assembly of free men (thing) and, on this date, in any case before to witnesses. The indeterminacy of meaning of the word it remains throughout the Edict and the translation must be deduced from time to time from the context.
70) "Sub uno scuto" [under a shield] is the formula referring to the judicial duel. Note in this chapter the explicit expression of distrust on the part of the legislator towards the use of the duel.
71) Bertolini 1968 p. 447, note 32, proposes the lesson "quos," indicating the alternation of the two lessons in the codes.
72) Concerning the different destination of the goods indicated here, Bertolini 1968 pp. 447-448, points out how the subdivision in common with the brothers of the substances gained in the military campaigns responds to a consolidated practice of the Germanic custom and refers to Giardina 1937, which cites a provision of the Lex Visigothorum, contrasting it with the Justinian rule.
73) Gairethinx (or thinx) is any juridical act performed in antiquity before the assembly (thing): see note 69. See Roth. 172, 174, 375, where it is valid for "legally made donation."
74) The meta is the woman's purchase price, the sum that the future husband pays to her father to receive her as a wife and acquire her mundium. It is established by convenentiam [by convention] at the time of betrothal and then given at the time of the woman's conveyance into her husband's house; the availability of the destination then remains with the woman, as an endowment in the event of widowhood.
75) See. Ro th. 168. *
76) Lex appears in the Edict in different meanings; in the most common usage it indicates the law understood as "the system of law," including what is not contained in the written codification; in the case of this chapter, "subjective law" is rather valid: see Bognetti 1940 p. 286 and under the note 69 to Liutprando. <
77) "Testimone" [witness, guarantor]: this is the only time used in the "Edict."
78) Lid in laib seems to be understood as "enters into the inheritance": Restelli p.89. In cases like this, the alliterating motif prevails over the literal meaning of the formula, residual of the chanting forms typical of oral transmission: see notes 96, 103 and 106.
79) See Roth. 169.
80) Calasso pp. 131-132, points out that at the bottom of the Germanic system of in fiduciam [pledge, bonds] there is the concept that in order to believe that an obligatory bond has arisen, on the basis of the agreement between two or more wills aimed at creating it, something external is necessary that manifests the agreement occurred, and only this external element is given juridical relevance; it is a primitive system, which contrasts strongly with the Roman nornative.
81) The launegild indicates a "cash exchange" (Restelli p. 103), which the one who receives a donation is obliged to give, upon request, to whoever makes the donation itself; over time it tends to be reduced to a "payback" of a symbolic nature: Calasso p. 186. The documents of the Lombard age testify that it may not even be in money: a paper of the year 767 speaks of a launegild consisting of a pair of gloves: Gasparri 1990 I p. 254.
82) For a long time it was considered that fara was equivalent to Sippe, the classical Greek parental group, also on the basis of a partially reductive testimony of Paolo Diacono, who explained farae as "generationes vel lineae" [ancestry or lineage]; Beyerle, and, in the Italian area, Bognetti (1948 pp. 64-65; see also 1958 I pp. 151-158) have traced the etymology to faran, fahren (Latin expeditio), to be connected therefore to the concept of ''detachment" of military in nature. According to this new interpretation, the fara must therefore be understood as a military contingent (Gefolgschaft) that detaches itself from the main body of the gens Langobardorum to participate in an expedition, a contingent formed by noble groups of warriors who subordinate themselves to a leader (who takes then in the sources the name of dux) to whom they swear fealty. These groups, constituted on the basis of parental ties, would have served for a long time as foederati [allies] of the Byzantines, further disciplining themselves and acquiring larger dimensions, and, at the time of the descent into Italy, the exercitus [army] would have been subdivided according to this criterion, now firmly adopted. *
83) The part of the Edict concerning marriage begins here. Germanic marriage appears profoundly different from the Roman one, which is based on a factual situation (the coexistence between man and woman) and a spiritual element (affectio maritalis) [marital affection], while the first has two juridical transactions at its base: the bilateral promise (convenientia, stantia) made on the day of the nuptials [betrothal] between the mundium-holder and the [promised] husband, for which the first undertakes to deliver the woman, and the second to receive her (desponsatio) [to marry her]: and the actual delivery of the woman herself, which takes place later (traditio [conveyance]; see Roth. 183). It is evident that the woman is in any case a res tradita [traded property], an object and not a subject of the trade, as she is incapable at law. Her mundium [guardianship] passes from the family of origin to her husband, who bought it with the payment of the meta. See Calasso pp. 128, 129 and 221-223, and, in general, Vaccari and Brandileone. The Lombard marriage legislation is destined to open up with Liutprand to the influence of the Church, whose attention for this institution has always been very lively: see Liutp. 30, 117 and related notes.
84) Roth. 211-212.
85) Notable is the juxtaposition proposed here between leprosy and diabolical possession, between aegritudo and peccatum [disease and sin]: there is an implicit idea that at the base of the disease, or at least of certain diseases, there is in always a condition of moral vice, a demonic connotation. It is expressed similarly in Roth. 230; see also Roth. 323. See Gasparri 1983 pp. 99-100.
86) Morgingab (literally "morning gift") is the gift given by the husband to his wife the morning after the wedding, as a sign of honor and satisfaction.
87) The right of the heirs of the dead husband to get back half of the meta derives, therefore, not from the praxis established at the betrothal, but from the juridical act that perfected it with the woman's traditio [conveyance]: see Moschetti p. 159.
88) For the matter of this chapter we must think of an influence of an ecclesiastical matrix; see Liutp. 32, where, in the matter of illicit marriage, explicit reference is made to the canonical provisions.
89) Moschetti p. 229 and note 300 indicates the ambiguity of the formula "celebrare nuptias" [wedding celebration], since celebrating in the classical age indicates the marriage contracted according to the solemn pagan rites and, in the patristic texts the marriage contracted according to the ecclesiastical rite for illicit marriage would have been more correct to use contrahere [to contract].
90) Potestas has the double meaning of "faculty" and "power" (and in this second case it is equivalent to mundium and corresponds to the Roman concept of potestas of the pater familias or of the magistrate: see note 33); the Lombard woman has no rights in the sense of faculty, because she is always under the mundium of a man (see Roth. 204), but only "weakened" rights granted to her by the law limited to certain legal situations (as in the case at hand), for which we should rather speak of licencia [permission, leave], a term used in this chapter; see Moschetti pp. I86. 187. It should be noted that the holder of the mundium is expected to lose the mundium over the woman in case of unworthiness or inability to defend her (this is the case in this chapter): see Roth 195 - 197. In such circumstances, tto he woman is recognized the right to freely choose to whom to entrust her mundium, either to a person of her liking, or to the king's court: see Delogu p. 81.
91) See Roth. 186.
92) Anagrip indicates the illicit sexual intercourse with a woman.
93) It has seemed necessary to translate calumnia (and calumniare) [slander] according to the technical sense of "undue accusation." Different from crimen [crime], cited in note 18. See also Roth. 190, 192, 198, 230, 265, 342, 343, 348. *
94) For the correct interpretation and translation of this chapter see Gasparri 1990 I p. 250.
95) The reference to witches [striga] in this chapter and in Roth. 198 is altogether fleeting, and in Roth. 198 the crime of witchcraft is associated with fornication, therefore with unlawful conduct pertaining to the sexual sphere. More explicitly, Roth. 376 expresses the official condemnation of the Lombard legislator for the beliefs in witchcraft. See Gasparri 1983 pp. 95-99.
96) Metfio are the goods promised by the man to the woman at the moment of the nuptials and given after the celebration of the wedding; it is a concept entirely analogous to that of meta (for which see note 74): in Ahist. 14 is called "morgincap et meta." Notable is the alliterating value of the clause "morgingab et metfio" ("metphio et morgiocap" in Liutp. 103), therefore see note 78, 103 and 106.
97) Aequa lanciae is a cultured formula, taken from Roman law: Moschetti p. 170-171. The Edict usually uses the more common adverb aequaliter [equally], see eg. Roth. 158, 160, 167.
98) See Roth. 158, 160.
99) Actor regis is a title that indicates, with a certain vagueness, minor officers of royal appointment, with administrative functions, mentioned in the Edict sometimes alone sometimes next to the gastaldius (see eg. Roth. 271). See Schupfer 1863 pp. 324-325, and Diurni. *
100) Pisele [gynueciurn] is indicated by Niermayer as a room with fire, used as a textile workshop; see note 9 to the Memoratorio.
101) Vurdibora indicates a woman of full-fledged freedom: see the glossary of the Beyerle edition: "die Trägerin der Würde (einer Freien), eine Freie." [The bearer of dignity (a freewoman)].*
102) Here begins the important legislation relating to the manumission of servants [slaves], a matter which must have been affected by the slow infiltration of the teachings of the Church: in this regard see Liutp. 9, 23. Notable is the singular scansion of the chapter, divided into paragraphs that illustrate different ways of manumission, which correspond to different degrees of freedom.
103) The formula "in gaida et gisil" seems able to be to translate "with the rod and with the arrow" (Restelli p. 89) and would mean that two characteristic objects of the freeman are given to the servant about to be freed, as a symbol of its new condition. Strong is however the alliterating element (for which see note 78, 96 and 106), which tends to prevail over the literal meaning; so, for example, the codex Vat. Lat. 5359, from the beginning of the 9th century, no longer understands the real meaning of the formula, which transcribes "grada egiseleos": see Moschetti pp. 160-161.
104) Fulcfree indicates the freeman who enjoys a condition of full freedom. The glossary of the Beyerle edition translates "Volkfrei," but perhaps one might think rather of "Vollfrei." [fully free]
105) The fact that the legislator deems it appropriate to use a document attesting the manumission for future memory, leads us to believe that the Lombard forms of manumission had begun to lose, at least in part, their meaning already at this time: Moschetti pp. 160-161.
106) Handegawerc are the "objects of use in everyday life"; harigawerc are the armaments (Restelli p. 89) also in the case of this formula, the alliterating element is very strong, so see notes 78, 96 and 103.
107) "Inter praesentes personas" is a formula of Roman law: see Schupfer 1907, II, p. 145.
108) The wording of the chapter shows that there is a clear distinction between res mobilis and res immobilis [movable and immovable property]; It should be noted that under Lombard law, unlike Roman law, servants are considered res mobilis.
109) Actogild is a compensation equal to eight times the value of the asset in question (Restelli p. 103): that is, the value of the asset is returned once plus eight times an equal value, for a total of nine: see Roth. 341.
110) On the laudatio auctoris see Salvioli pp. 390-394. The principle behind the trade is that the seller is required to guarantee the buyer and, in the event of a dispute, he must take the place of the buyer in the trial.
111) Emere is juridical-technicalism of the classical age, soon removed from use by comparare [purchase], already present in the late imperial and then Justinian legislation: Moschetti pp. 172-174. The Edict usually uses comparare: see eg. Roth. 230, 231, 233. *
112) The snaida is an incision made on a tree to indicate a boundary, a delimitation of property: see Fasoli p. 54; Frau p. 176.
113) See Bognetti 1961 p. 385, which places this chapter in relation with the legislation of Heraclius.
114) The reference is to Roth. 253-263. For Bognetti 1958, I p. 150, the content of the chapter is taken from Byzantine texts; see note 9.
115) See Roth. 77-128.
116) The concept of tax house implies the obligation of the holder to pay
117) That is the debtor.*
118) Fegangit is a term of not immediate clarity; Calisse pp. 342-343 considers it to correspond to the Roman concept of furtum manifestum [open theft - the person is caught in the act]; from Roth's statement. 291 and 372, as well as from that of 253, also seems to have connections with the fact that the theft is of a substantial and that it is a free man committing it: it should therefore be understood as the crime of theft of goods of some value (higher to the six solidi, for Roth. 291) committed by a free man and therefore himself charged with a particular value of dishonor. Grim, 9 defines fegang as culpa [guilt] relating to a theft, not applicable in that case to a maidservant. Liutp. 147 provides that figanges can be considered servants or aldis caught stealing and not redeemed by their master or patron within thirty days: where it seems that the definition of figanges for servants [slaves] (which otherwise would not be attributable to this formula) is to be connected precisely with the failure of the owner to intervene in their favor.
119) For the double use of componat-persolvat [shall pay a settlement] see note 38. Muschetti p. 132 indicates the tautological character of "inhonestum" [dishonest] and "nulli rei convenit rationi [reason would prevent one to commit anything culpable]," since the lex, as such, is in harmony with the ratio [reason], prohibits what is neither honestum [honest] nor according to ratio [reason]. For Moschetti, the chapter would be affected by an evident ecclesiastical influence.
120) Logical explanation of the text: to be understood "together with the [husband] or the father." *
121) Portus is properly valid for "port"; here, however, it appears reduced to mean little more than a ferry, which suggests something about the decadence of certain infrastructures in the early Middle Ages: see Bognetti 1964, p. 546. Portonarius is used with the values of the classical term portitor [ferryman]: see Roth. 267.
122) In this case, a somewhat freer translation had to be adopted, due to the impossibility of respecting the incorrect alternation of the active and passive form of the Latin text.
123) See Roth. 34 and 277.
124) Fraida means escape. The Deyerle glossary edition gives: "Flüchtigkeit"; "Abtrünnigkeit." *
125) See Roth. 45-74.*
126) The scandola [shingle] is the wooden element for covering the roof; in Mem. I is mentioned the use of tegole [brick tiles]: see Bognetti 1959, p. 249.
127) See Roth. 273.
128) Plovum indicates a heavier type of plow, perhaps of Rhaetian origin, whose name (if not the instrument itself) was spread in Italy by the Lombards; in the chapter it is punctually distinguished from the aratrum [also plow]: see Pellegrinj pp. 637-638; Jones p. 1604. *
129) For a similar determination of time, connected in that case to the concept of responsibility, see Roth. 148.
130) Gahagium, ''gazzo," is the enclosed wood in which cutting is forbidden: Bognetti 1958 II, p. 75; Frau pp. 171-172 indicates it as the equivalent of "reserved land," "nature reserve."
131) See note 85.
132) See Roth. 323.
133) See Roth. 324.*
134) That is, while with the injured party.
135) See note 109.
136) For a correct translation of conventus [get-together] it seems proper to accept the objection of Bognetti 1939 p. 97: unlike the meaning given in Roth. 8, here conventus does not indicate an assembly of free men in the technical-political sense of the term, but simply the gathering of a large number of people in front of the church, so that the communication of the finding of the animal made here can enjoy the maximum publicity.
137) The signa de ipso corio" mentioned here seem to indicate the existence of real identification marks applied to livestock; the "signa" referred to in Roth. 348 should, therefore, be understood in a similar sense.
138) "Fabula quae inter vicinus est" seems to correspond to Roth's 344 consuitudo loci", which indicates "a local custom, which arises from agreements between people living in the same neighborhood"; fabula is essentially a binding agreement between liberi homines [free men] (whether they are related by kinship or as simple neighbors), indicative of the possible forms of organization within the communities of freemen: see Gasparri 1990 II p. 291. Fabula is here translated as "agreement," also on the basis of Roth. 178, 179, 191.
139) See Roth. 343.
140) See Roth. 137.
141) See Roth. 343. The literal sense of this chapter is not very clear in its final part; in order to give a plausible meaning to the mechanism of the negotiation in question, it seemed necessary to understand "de quem ipsum tulit" as "for which (ie. "on behalf of which," "at the behest of the which") he took it" and not "from whom he took it," because it is not clear how the person in charge of the recovery of the horse could return the animal taken by mistake to the one from whom he had taken it (ie., ultimately to the legitimate owner of the animal), whereas it is considering precisely the possibility that the legitimate owner does not present himself ("si non venerit proprius dominus"). It is more logical to think that, in the event of the real owner not appearing, the person in charge will still deliver the horse taken by mistake to the one who had entrusted him with the task of finding his own animal, and he will keep the beast not his own according to Roth's regulation 343.*
142) See Roth. 136.
143) In regard to arare [plowing], used in the previous chapter, excarare indicates a deeper plowing: therefore it must be rendered in the sense of "plowing deeply," "turning over."*
144) See note 16.
145) Wadia is a pledge, "properly a movable and corporal thing, given by the debtor as a sign and guarantee of his faithfulness": Schupfer 1907, III, p. 140. In Lombard legislation, since this first chapter, the institution of the wadia and that of the fidejussion [surety] have been closely associated, so that the practice of the one seems to presuppose and requires the other: see Schupfer1907, III, pp. 144-148. For the progressive assimilation of the wadiatio to the Roman stipulatio [to stipulate] see, in addition to Schupfer 1907. III, p. 146, also Calasso, p. 186.
146) This explicit sign of intervention by the king on the law is noteworthy, to amend it on the basis of specific and concrete cases and make it more adherent to a factual situation. *
147) After the chapters concerning procedural matters (Roth. 359, 366), here begins a series of chapters of various subjects that Besta has interpreted as an addition made at a later time to remedy some forgetfulness or to better specify some previous arrangement: see Besta 1938 p. 44; Calasso p. 107; Tamassia p. 74 (which he computes from Roth. 369). Waregang is the foreigner, who immigrated to the territory of the kingdom; see Bognetti 1938 p. 29, for the comparison between the waregangus of this chapter and the concept of "guariganga."
148) This mention of the presence of magical herbs in the judicial duel is singular, which would suggest the persistence of a magical-pagan mentality precisely in relation to an institution typical of the lineage tradition: see Gasparri 1983 p. 139. For the meaning of conliberti [fellow-freedmen] see note 11 to Liutprand.
149) Notable is the reference to customs, so see the introduction.
150) See Roth. 5, 8, 13, 18, 19, 26, 186, 191, 249, 279.
151) The wording of the chapter poses problems of interpretation: it is difficult to think that "aliorum exercitaliun" [other army men] is governed by a "culpae minores" [lesser guilt], (and, therefore, it would be: "just as the minor faults of other exercitalis [army men] are settled"), since one can think of "other army men" as opposed to servants (who are not exercitales) [army men]. Bertolini 1968, pp. 457-459, rightly thinks that "servus" means both "regis" and "aliorum exercitaliun" (even if the interpretation that Bertolini himself proposes for exercitalis, which for him is not synonymous with liber homo [freeman], is not acceptable). If this construction is accepted in any case (except for the sense given ad exercitalis), the chapter would therefore indicate that the servants of the king must pay for these minor faults as well as the servants of the other freed ones; the type of comparison is similar to that proposed by Roth. 371, even if for the crimes described, of greater gravity, different punishments are envisaged. See Roth. 26 (wecvorin), 30 (marhvorf) 278, 380 (hoberus).
152) See Roth. 74.
153) See Roth. 41, 42.*
154) See Roth. 197-198 and note 95. The indication of the witch as devourer of men seems to refer to the very root of the idea of striga-strix (eater of children and corpses), even if the "intrinsecus" of the text induces to think rather of forms of demonic possession. Notable is the contrast between the explicit profession of disbelief in witchcraft phenomena by the King-legislator, motivated on Christian grounds, and the possibility that to be involved in the killing of the witch shall be a iudex [judge]: see Gasparri 1983 p. 96.
155) See Roth. 130-136.
156) See note14.
157) Haritraib indicates the gathering of a group of armed men [mob] for the purpose of carrying out some illicit action; the reference seems to be intended in Roth. 19 and 146 (where it is spoken specifically of a house fire).
158) Arga can be understood as "inept" (Delogu p. 63, which also indicates as its equivalent for the woman as regards the gravity of fornecaria or striga [fornicatrix or witch], referred to in Roth. 198) or rather with "vile," "coward"; it is understandable how the accusation of cowardice is perceived as the most infamous that can be addressed to a free man from a culture with a fundamental military connotation such as the Lombard one. See Paolo Diac., H. L., VI, 24, where Duke Ferdulfo, to make fun of the sculdhais Argait, asks with a play on words how he could ever behave like a brave man with a name deriving from arga.
159) See Roth. 112.
160) See note 2.
161) See note 5.
162) There remains some margin of uncertainty regarding the identification of the agent's complement to refer to the "requisitum" [requirement] of the text: the sentence is to be interpreted in the sense of a copy which, written and certified by Answald, was requested of him (i.e. commissioned) by the King (and in this case the final indication "per nostram iussionem" [by our order] would seem almost tautological); or rather a copy that must be requested from the notary by those who have doubts about the case and want to consult the authentic copy of the Edict?
Sources:
Documenta Catholica Omnia, 0643 - Rothari - Edictus
Wikipedia, Edict of Rothari, History
Wikipedia, Edictum Rothari, Contents
The Rice Institute Pamphlet, Volume XLIII, July 1956, No. 2,
Wikipedia, Rothari (or Rothair), King of the Lombards (c. 606 - 652), Profile
Google Books, Italy and Her Invaders: The Lombard kingdom, 600-744. 1895, By Thomas Hodgkin
THE LEGISLATION OF ROTHARI, by Bill Thayer, Oxford University Press
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