The Burgundian Code - Outline
The recent civil war had shown that Franks and Romans of the senatorial class had been fighting alongside Godegisel, and, Gundobad reasoned that he had to address their concerns. For this reason, he used Roman consults to help him frame his law code. Writing of one such Roman, Sidonius said of his friend Syagrius, the “Solon of the Burgundians,” that he educated the Burgundians in Latin and Roman laws and society in general and was thus he able “to implant a ‘Latin heart’ in the Burgundians.”
As Katherine Fischer-Drew explained:
Customary law is a body of moral practices established by the immemorial customs of a people and having a binding moral force rather than the arbitrarily enforced power of statutory law....[Statutory law] is a body of specific statures supported by a positive legal authority and guaranteed and enforced by political power.
Though customary law may seem less defined and less structured, it is generally more respected because of the moral force behind it and thereby more likely to be obeyed than statutory law. This moral force is buttressed by cultural or traditional expectations and is not as easily ignored as statutory law, which requires some authority to enforce its tenets. The Burgundians brought their customary law with them into the Empire while the Romans who found themselves under the rule of the Burgundians maintained their statutory laws.
During the time spanning A.D. 474-516, Gundobad undertook the task of codifying both sets of laws. The Burgundian laws are known under many names--Lex Burgundionum, Liber Legum Gundobadi, Lex Gundobada, la Loi Gombette, and Gombata--while the laws of the Romans are simply known as the Lex Romana Burgundionum. Gundobad’s son Sigismund continued his father’s work after A.D. 516 and his brother Godomar also made some contributions during the waning days of the kingdom.
The Lex Gundobada was a very influential law code and an example of a key transitional stage of law that combined Germanic and Roman laws. The Burgundians had long been exposed to Roman laws and earlier attempts at codifying laws were probably made prior to the Lex Gundoba. Allusions to such laws are located throughout the code.
The Burgundians were also assisted more directly in the composition of the laws by Gallo-Roman assistants. As David Dumville noted, these men had both “ideological as well as practical” reasons for offering their assistance.
Romans were used to thinking of their ruler as a source of judgements; it is easy to see why they should have wished barbarian kings to issue written regulations covering disputes between their Roman subjects and their own people, and this helps to account for much of the character of early Visigothic and Burgundian legislation.
All of the Burgundian laws set the parameters of personal relationships between individuals; no public law was defined. The Lex Gundobada was a trend away from customary law supported by moral ideals toward statutory law based on the political power of a lawgiver, in this case the king.
The Preface of the code stated that the laws were intended to establish standards for the fair treatment of all classes of subjects. The object throughout is to protect both the rights of the Burgundian settlers and the Romans against further encroachments while promoting peace between the two factions. In order to avoid quarrels, amounts of compensation, called a wergild, were set in advance to serve as redemption in lieu of physical acts of vengeance. (A note: Summerfield Baldwin proposed that the wergild fines given throughout the Code were not meant to be a concrete fine structure. Instead, they were provided as a reference for relative worth, in an attempt to set some value that Romans within Burgundy would understand).
For example, the Burgundian law said that the life of a freeman was worth 300, 200, or 150 solidi. A small pig, still sucking, 3 solidi, a small pig already weaned, 1 solidus, for a pig two years old, 15 solidi plus the payment for the capital and interest. As Louis Halphen explained, these different amounts were called “compositions” and the “payment of this sum did not take the place of public punishment . . . but it cut short all later claims from the parties involved and stopped the exercise of private vengeance.”
The class divisions of the Romans and Burgundians in the Burgundian kingdom are not clear, but the Lex Gundobada does provide some hints. There were two general divisions of free and unfree with coloni or originarii in between. The four classes of free men appear to have been the highest, middle and lowest of free men (who were free from birth) and the freedmen, or slaves who had earned their freedom or had been freed by their masters. The freedmen were the lowest of the free class, but their children were considered to be freemen and a freedman could be considered a freeman following the death of his former master.
The nobles (optimates) were the highest class of free men, these were royal servants and officials, but there was no real basis for distinguishing between the middle and lower in the Lex Gundobada. Certain characteristics of the laws indicate that the middle class was closer in standing to the upper than the lower class. Intermarriage among the classes of freemen appears to have been common, though the social standing of the offspring of these unions is unknown. Thus, the main distinction between the classes is indicated by the difference in the amount of wergild assigned to the life of each man.
The coloni were lower than freemen, though they were freeborn and recognized as such before the law. They held land, but they couldn’t be removed from it nor leave it of their own free will, thus their freedom was limited. Burgundian law didn’t recognize social distinctions in the application of penalties, with the exception of differentiating between free and slave. For slaves, the Burgundians were like the Romans whereby they outlined penalties such as lashes of the whip or death whereas they rarely prescribed physical punishment for freemen.
There were only three circumstances in which a freeman or woman was subject to a physical form of punishment. First was a sentence of slavery if a woman was convicted of incest, relations with a slave, or found guilty of complicity if her husband was convicted of stealing horses or cows. Second was the cutting off of the hand if found guilty of forgery or destroying property markers. The third was death in serious cases such as premeditated murder, armed robbery, the venality of judges, or the theft of a slave, horse, ox or cow. Usually, though, the Burgundian offender could pay a set fine (usually 3, 6, or 12 solidi) in addition to any other damages awarded.
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Gregory of Tours, History of the Franks.
Sidonius Apollinaris, Carmina. ed. and trans. Christian Luetjohann, MGH Auctores antiquissimi 8: 173 ff. 1887, in Sidonius, ed. and trans. W.B. Anderson, Loeb Classical Library, 1936.
Wolfram, Germanic Peoples.
Mathisen, Roman Aristocrats.
Dill, Roman Society.
Drew, Burgundian Code.
Bamwell, Emperor, Prefects & Kings.
David N. Dumville, “Kingship, Genealogies and Regnal Lists,” in Early Medieval Kingship, ed. Sawyer and Wood, 126-27.
Halphen, “Germanic Society,” in Drew, Barbarian Invasions.
The Lex Burgundionum (Latin for Burgundian Laws, also Lex Gundobada) refers to the law code of the Burgundians, probably issued by king Gundobad. It is influenced by Roman law and deals with domestic laws concerning marriage and inheritance as well as regulating weregild and other penalties. Interaction between Burgundians is treated separately from interaction between Burgundians and Gallo-Romans. The oldest of the 14 surviving manuscripts of the text dates to the 9th century, but the code's institution is ascribed to king Gundobad (died 516), with a possible revision by his successor Sigismund (died 523). The Lex Romana Burgundionum is a separate code, containing various laws taken from Roman sources, probably intended to apply to the Burgundians' Gallo-Roman subjects. The oldest copy of this text dates to the 7th century.
The Lex Burgundionum code was compiled by King Gundobad (474-516), very probably after his defeat by Clovis I in 500. Some additamenta were subsequently introduced, either by Gundobad himself or by his son Sigismund. This law bears the title of Liber Constitutionum, indicating that it emanated from the king; it is also known as the Lex Gundobada or Lex Gombata. It was used for cases between Burgundians, and was also applicable to cases between Burgundians and Romans. For cases between Romans, however, Gundobad compiled the Lex Romana Burgundionum, called sometimes, through a misreading of the manuscript, the Liber Papiani, or simply Papianus.
The Burgundian kingdom is one of the early Germanic kingdoms that existed within the Roman Empire. In the late fifth and early sixth centuries, the Burgundian kings Gundobad and Sigismund compiled and codified laws to govern the members of their Barbarian tribe, as well as Romans living amongst them. Those laws governing the Burgundians themselves are called collectively the Lex Burgundionum, while the laws governing the Romans are known collectively as the Lex Romana Burgundionum. Both are extant. The laws codified in the Burgundian Code reflect the earliest fusion of German tribal culture with the Roman system of government. It promoted and helped maintain harmonious relations between such widely different people who had been previous enemies. More devotion has been given to other Germanic tribes of this time and little is known about the culture and way of life of the Burgundians beyond what can be inferred from their legal code. Dr. Katherine Fischer Drew claims that it is the most influential of all barbarian law codes because of its survival, even after Frankish conquest, until the ninth century.
The Romans consistently allied themselves with certain barbarian groups outside the Empire, playing them out against rival barbarian tribes as a policy of divide and rule, the barbarian allies being known as foederati. Sometimes these groups were allowed to live within the Empire. Barbarians could also be settled within the Empire as dediticii or laeti. The Romans could henceforth rely on these groups for military support or even as legionary recruits. One such group were the Burgundians, whom the Roman Emperor Honorius in 406 had invited to join the Roman Empire as foederati with a capital at Worms . The Burgundians were soon defeated by the Huns, but once again given land near Lake Geneva for Gundioc (r. 443-474) to establish a second federate kingdom within the Roman Empire in 443. This alliance was a contractual agreement between the two peoples. Gundioc’s people were given one-third of Roman slaves and two-thirds of the land within Roman territory. The Burgundians were allowed to establish an independent federate kingdom within the Empire and received the nominal protection of Rome for their agreement to defend their territories from other outsiders. This contractual relationship between the guests, Burgundians, and hosts, Romans, supposedly provided legal and social equality. However, Drew argues that the property rights and social status of the guests may have given them disproportionate leverage over their hosts. More recently, Henry Sumner Maine argues that the Burgundians exercised "tribe-sovereignty" rather than complete territorial sovereignty.
Gundioc’s son, Gundobad (r. 474-516), began commission for his kingdom’s legal codification in 483, which his son and successor, Sigismund (r. 516-532) completed. The laws deal mostly with inheritance and monetary compensation for physical injury. The earlier work, antiquae, and the later additions, novellae, together make the whole Burgundian Code. The Franks began attacking the Burgundians in 523 and completely defeated them by 534, when Sigismund’s brother, Godomar (r. 532-534), fled and left the kingdom to be divided amongst Frankish rulers. However, the Franks kept Burgundian law in practice.
Contents of the Lex
The Burgundian Code consists of two sets of laws, the earlier Book of Constitutions or Law of Gundobad, or Liber Constitutionum sive Lex Gundobada, and Additional Enactments, or Constitutiones Extravagantes. The laws of both parts are intended to govern the personal relations between individuals. The Law of Gundobad (Titles II-XLI) is a compilation of existing customary laws. These laws are mostly a codification of customs that had been accepted as law throughout the tribe through common practice. Drew describes Gundobad’s work "as a recording of the customs of his people issued with the consent of the people". The later additions (Titles LXXXVIII-CV and Constitutiones Extravagantes), which are believed to have been issued primarily by Sigismund, are more rhetorical. They begin with general legal principles and dictate from the judgment of the king how a disputed situation may be handled.
It is this conflict between customary and statutory law that one sees the blending of Burgundian and Roman laws. Roman influence is apparent in the very act of writing down Germanic customary law. According to Edward Peters in his foreword to Drew’s translation of the Burgundian Code, Roman ideals triumphed when King Gundobad began organizing his people’s customary laws in order for their codification. King Gundobad’s singular action to codify laws can also be seen as a major change in Germanic culture as reflecting the emergence of the king as supreme judge and lawmaker. The Burgundians already had traditions and laws for arbitrating disputes among its people, but Romans brought with them organizational structure for a more centralized government.
A great number of laws deal specifically with Germanic-style monetary retribution for intentional physical harm on one another. Punitive fines, rather than further physical injury or capital punishment, were used to regulate physical injury to prevent blood feud between two members of a tribal kinship. Along with money payments in compensation for physical injuries, the Burgundian Code also incorporates the wergeld, another Germanic institution. Drew defines wergelds as "the sum at which a man was valued and by the payment of which his death could be compensated". The wergeld of the upper class of freemen was worth a payment of 300 solidi, the underclass freeman worth 200 solidi, and the lowest class of freeman was 150 solidi. Drew believes that the family was the absolute most important social institution in Germanic tribes.
Additionally, its inheritance laws were based on Germanic custom. Land was passed down through a strict law of familial succession, which differs greatly from Roman laws on property that allow property to be acquired through ways other than hereditary inheritance, such as buying and selling or testimonial succession. Among other features, a widow was entitled to a life interest in a third of her husband's landed property: this may have been the prototype of the analogous institution of dower in early English law.
If a man betrothed a young woman and her parents later refused, they were liable to return four-fold the bride-price. But if she refused of her own accord, or if the wedding was not celebrated within two years, she could be re-engaged without penalty. If the man broke off the engagement, he got no refund. (§27)
The laws of the Burgundians show strong traces of Roman influence. It recognizes the will and attaches great importance to written deeds, but on the other hand, sanctions the judicial duel and the cojuratores (sworn witnesses). The vehement protest made in the 9th century by Agobard, bishop of Lyon, against the Lex Gundobada shows that it was still in use at that period. So late as the 10th and even the 11th centuries we find the law of the Burgundians invoked as personal law in Cluny charters, but doubtless these passages refer to accretions of local customs, rather than to actual paragraphs of the ancient code.
- ^Drew (1972:7)
- ^Halsall (2007: 52-53)
- ^Drew (1972:1)
- ^ abDrew (1972:14)
- ^Drew 11
- ^Drew (1972:10)
- ^Hoyt (1967:9-12)
- ^ abDrew (1972:9)
- ^Hoyt (1967:18)
- ^Drew (1972:v)
- ^Drew (1988b:19)
- ^Hoyt (1967:7-20)
- ^ abDrew (1988b:18)
- ^Drew, (1988a:6)
- ^Drew, (1988a:7)
- Guy Halsall (2007) "Barbarian Migrations and the Roman West 376-568" Cambridge University Press
- Hoyt (1967) Life and Thought in Early Middle Ages The University of Minnesota Press
- Katherine Fisher Drew (trans.) (1972) The Burgundian code: book of constitutions or law of Gundobad University of Pennsylvania Press
- Katherine Fisher Drew (1988a) "The Germanic Family of the Leges Burgundionum," in Drew, Law and Society in Early Medieval Europe Variorum Reprints
- Katherine Fisher Drew (1988b) "The Barbarian Kings as Lawgivers and Judges," in Drew, Law and Society in Early Medieval Europe Variorum Reprints