4. Germanic Law in the Roman Empire

4.
Germanic Law in the Roman Empire

The Burgundian Code (c. 475–525 C.E.)

The migration of Germanic tribes into the West changed imperial politics and society just as profoundly as Christianity did. Members of these tribes gradually formed independent kingdoms based on a mixture of their own and Roman traditions, which soon superseded Roman provincial government. Law codes established by Germanic leaders from the fifth century on were a crucial component of their state-building efforts. Rome provided a powerful precedent in this regard, with its emphasis on written law as both the basis of social order and a manifestation of state authority. These excerpts are drawn from one of the most comprehensive early Germanic law codes, the Burgundian Code, compiled by the kings of the Burgundians, an East Germanic tribe, in the late fifth and early sixth centuries. At this time, they ruled over a large kingdom encompassing much of the former Roman province of Gaul. Early Frankish and Anglo-Saxon societies that were developing during this period were plagued by feuds that undermined political authority and perpetuated increasing cycles of violence. In an effort to curb personal vendettas and increase stability, many rulers established law codes based on wergeld (“man money”) that set fines based on the type of crime and a person’s value in that society.

From The Burgundian Code, trans. Katherine Fischer Drew (Philadelphia: University of Pennsylvania Press, 1972), 17–24, 30–33, 40–47.

First Constitution

In the name of God in the second year of the reign of our lord the most glorious king Gundobad, this book concerning laws past and present, and to be preserved throughout all future time, has been issued on the fourth day before the Kalends of April (March 29) at Lyons. . . .

For the love of justice, through which God is pleased and the power of earthly kingdoms acquired, we have obtained the consent of our counts (comites) and leaders (proceres), and have desired to establish such laws that the integrity and equity of those judging may exclude all rewards and corruptions from themselves.

Therefore all administrators (administrantes) and judges must judge from the present time on between Burgundians and Romans according to our laws which have been set forth and corrected by a common method, to the end that no one may hope or presume to receive anything by way of reward or emolument from any party as the result of the suits or decisions; but let him whose case is deserving obtain justice and let the integrity of the judge alone suffice to accomplish this. . . .

Therefore let all nobles (obtimates), counsellors (consiliarii), bailiffs (domestici), mayors of our palace (maiores domus nostrae), chancellors (cancellarii), counts (comites) of the cities or villages, Burgundian as well as Roman, and all appointed judges and military judges (judices militantes) know that nothing can be accepted in connection with those suits which have been acted upon or decided, and that nothing can be sought in the name of promise or reward from those litigating; nor can the parties (to the suit) be compelled by the judge to make a payment in order that they may receive anything (from their suit). . . .

Indeed if any judge, barbarian as well as Roman, shall not render decisions according to those provisions which the laws contain because he has been prevented by ignorance or negligence, and he has been diverted from justice for this reason, let him know that he must pay thirty solidi1 and that the case must be judged again on behalf of the aggrieved parties. . . .

Of Murders

If anyone presumes with boldness or rashness bent on injury to kill a native freeman of our people of any nation or a servant of the king, in any case a man of barbarian tribe, let him make restitution for the committed crime not otherwise than by the shedding of his own blood.

We decree that this rule be added to the law by a reasonable provision, that if violence shall have been done by anyone to any person, so that he is injured by blows of lashes or by wounds, and if he pursues his persecutor and overcome by grief and indignation kills him, proof of the deed shall be afforded by the act itself or by suitable witnesses who can be believed. Then the guilty party shall be compelled to pay to the relatives of the person killed half his wergeld according to the status of the person: that is, if he shall have killed a noble of the highest class (optimas nobilis), we decree that the payment be set at one hundred fifty solidi, i.e., half his wergeld; if a person of middle class (mediocris), one hundred solidi; if a person of the lowest class (minor persona), seventy-five solidi.

If a slave unknown to his master presumes to kill a native freeman, let the slave be handed over to death, and let the master not be made liable for damages.

If the master knows of the deed, let both be handed over to death.

If the slave himself flees (defuerit) after the deed, let his master be compelled to pay thirty solidi to the relatives of the man killed for the value (wergeld) of the slave.

Similarly in the case of royal slaves, in accordance with the status of such persons, let the same condition about murderers be observed.

In such cases let all know this must be observed carefully, that the relatives of the man killed must recognize that no one can be pursued except the killer; because just as we have ordered the criminals to be destroyed, so we will suffer the innocent to sustain no injury. . . .

Let Burgundians and Romans Be Held under the Same Condition in the Matter of Killing Slaves

If anyone kills a slave, barbarian by birth, a trained (select) house servant or messenger, let him compound sixty solidi; moreover, let the amount of the fine be twelve solidi. If anyone kills another’s slave, Roman or barbarian, either ploughman or swineherd, let him pay thirty solidi.

Whoever kills a skilled goldsmith, let him pay two hundred solidi.

Whoever kills a silversmith, let him pay one hundred solidi.

Whoever kills a blacksmith, let him pay fifty solidi.

Whoever kills a carpenter, let him pay forty solidi. . . .

Of the Stealing of Girls

If anyone shall steal a girl, let him be compelled to pay the price set for such a girl ninefold, and let him pay a fine to the amount of twelve solidi.

If a girl who has been seized returns uncorrupted to her parents, let the abductor compound six times the wergeld of the girl; moreover, let the fine be set at twelve solidi.

But if the abductor does not have the means to make the above-mentioned payment, let him be given over to the parents of the girl that they may have the power of doing to him whatever they choose.

If indeed, the girl seeks the man of her own will and comes to his house, and he has intercourse with her, let him pay her marriage price threefold; if moreover, she returns uncorrupted to her home, let her return with all blame removed from him.

If indeed a Roman girl, without the consent or knowledge of her parents, unites in marriage with a Burgundian, let her know she will have none of the property of her parents. . . .

Of Succession

Among Burgundians we wish it to be observed that if anyone does not leave a son, let a daughter succeed to the inheritance of the father and mother in place of the son.

If by chance the dead leave neither son nor daughter, let the inheritance go to the sisters or nearest relatives.

It is pleasing that it be contained in the present law that if a woman having a husband dies without children, the husband of the dead wife may not demand back the marriage price (pretium) which had been given for her.

Likewise, let neither the woman nor the relatives of the woman seek back that which a woman pays when she comes to her husband if the husband dies without children.

Concerning those women who are vowed to God and remain in chastity, we order that if they have two brothers they receive a third portion of the inheritance of the father, that is, of that land which the father, possessing by the right of sors (allotment), left at the time of his death. Likewise, if she has four or five brothers, let her receive the portion due to her.

If moreover she has but one brother, let not a half, but a third part go to her on the condition that, after the death of her who is a woman and a nun, whatever she possesses in usufruct from her father’s property shall go to the nearest relatives, and she will have no power of transferring anything therefrom, unless perhaps from her mother’s goods, that is, from her clothing or things of the cell (rescellulae), or what she has acquired by her own labor.

We decree that this should be observed only by those whose fathers have not given them portions; but if they shall have received from their father a place where they can live, let them have full freedom of disposing of it at their will. . . .

Of Burgundian Women Entering a Second or Third Marriage

If any Burgundian woman, as is the custom, enters a second or third marriage after the death of her husband, and she has children by each husband, let her possess the marriage gift (donatio nuptialis) in usufruct while she lives; after her death, let what his father gave her be given to each son, with the further provision that the mother has the power neither of giving, selling, or transferring any of the things which she received in the marriage gift.

If by chance the woman has no children, after her death let her relatives receive half of whatever has come to her by way of marriage gift, and let the relatives of the dead husband who was the donor receive half.

But if perchance children shall have been born and they shall have died after the death of their father, we command that the inheritance of the husband or children belong wholly to the mother. Moreover, after the death of the mother, we decree that what she holds in usufruct by inheritance from her children shall belong to the legal heirs of her children. Also we command that she protect the property of her children dying intestate.

If any son has given his mother something by will or by gift, let the mother have the power of doing whatever she wishes therewith; if she dies intestate, let the relatives of the woman claim the inheritance as their possession.

If any Burgundian has sons (children?) to whom he has given their portions, let him have the power of giving or selling that which he has reserved for himself to whomever he wishes. . . .

Of Knocking Out Teeth

If anyone by chance strikes out the teeth of a Burgundian of the highest class, or of a Roman noble, let him be compelled to pay fifteen solidi.

For middle-class freeborn people, either Burgundian or Roman, if a tooth is knocked out, let composition be made in the sum of ten solidi.

For persons of the lowest class, five solidi.

If a slave voluntarily strikes out the tooth of a native freeman, let him be condemned to have a hand cut off; if the loss which has been set forth above has been committed by accident, let him pay the price for the tooth according to the status of the person.

If any native freeman strikes out the tooth of a freedman, let him pay him three solidi. If he strikes out the tooth of another’s slave, let him pay two solidi to him to whom the slave belongs. . . .

Of Injuries Which Are Suffered by Women

If any native freewoman has her hair cut off and is humiliated without cause (when innocent) by any native freeman in her home or on the road, and this can be proved with witnesses, let the doer of the deed pay her twelve solidi, and let the amount of the fine be twelve solidi.

If this was done to a freedwoman, let him pay her six solidi.

If this was done to a maidservant, let him pay her three solidi, and let the amount of the fine be three solidi.

If this injury (shame, disgrace) is inflicted by a slave on a native freewoman, let him receive two hundred blows; if a freedwoman, let him receive a hundred blows; if a maidservant, let him receive seventy-five blows.

If indeed the woman whose injury we have ordered to be punished in this manner commits fornication voluntarily (i.e., if she yields), let nothing be sought for the injury suffered.

Of Divorces

If any woman leaves (puts aside) her husband to whom she is legally married, let her be smothered in mire.

If anyone wishes to put away his wife without cause, let him give her another payment such as he gave for her marriage price, and let the amount of the fine be twelve solidi.

If by chance a man wishes to put away his wife, and is able to prove one of these three crimes against her, that is, adultery, witchcraft, or violation of graves, let him have full right to put her away: and let the judge pronounce the sentence of the law against her, just as should be done against criminals.

But if she admits none of these three crimes, let no man be permitted to put away his wife for any other crime. But if he chooses, he may go away from the home, leaving all household property behind, and his wife with their children may possess the property of her husband.

Of the Punishment of Slaves Who Commit a Criminal Assault on Freeborn Women

If any slave does violence to a native freewoman, and if she complains and is clearly able to prove this, let the slave be killed for the crime committed.

If indeed a native free girl unites voluntarily with a slave, we order both to be killed.

But if the relatives of the girl do not wish to punish their own relative, let the girl be deprived of her free status and delivered into servitude to the king.

DISCUSSION QUESTIONS

  1. What do these laws reveal about the social and political structure of the Burgundian kingdom? For example, do the laws place the same value on all social groups?

    Question

    ozmwhsc1IBY/W97VfRBM9IhRnQwqh1BptCDurqWVKjyBU9QcwKH1Dq2oIIdovfMgrJ2VlOX1Anv0RPiS/wFLIMRZIZCxq8yleVhNZliOY4ry1uo3uuuEzaiochKUuhRju5nA1sl7uHEa3MJZpMY2m0D95wRS2jZXNWWuwKAmWnpaHG8qwkHMHnqDuiZFGVo2pHdBpzaSef7yPmL448Sz2Z9e2M4ltBTOLh6qtZYwBWX0stQ3rrUPim3gvthcVonHhq9J3ooEQ56kAaMX
    What do these laws reveal about the social and political structure of the Burgundian kingdom? For example, do the laws place the same value on all social groups?
  2. What does the code reveal about Burgundian women and family life?

    Question

    nl+iefjgIq9wAc5ks/QOVUGpNEw09/sndSlaGgLlVshFpuiJ5KbMY4dwIbtR1mJ9gFFaMx7QLntaBz8WzjdAI3xbbHM/VDwHZ8gB0j+Ii13ObuKtwAv82EnXvh1lAImzpnBQDPLxuhJyOVmq
    What does the code reveal about Burgundian women and family life?
  3. Historians regard the interaction between Germanic and Roman peoples as a key component of the process by which Germanic kingdoms replaced imperial government in western Europe. What evidence of such interaction can you find in this document?

    Question

    7/Mn/y50M2tvUEFNx7IHHX9uUYjOvW3S0woQoKUdujX+7RCKGMmMqdHQpji3/w4zjFQUHgLsDNjfeDSYZFqufLxZoW6U1CegM/2BH9f8TbXPtWcRBRNuO0wPZlIVdfsKxoQngmVRHC5yLsBMwRBRsU1i/PokEDdinwk4S6QOaE6zHCQgv5EYuueocrvzGTUmUYoT7xJWWnEwjXLmMXAmG1DgBIeGhsxi+UkB9/TO8RF09OqFoh8Zyw3WvnoaBxt/6gepqfrH9pUs3h71zAHbZfvVEXjF3K81nFug4nBcwI/xdGdpXV3JOehYn5Yz0QdnL0NEpkZCOTnisFskhxviFqyDJGARBNnCCZGt0wzGhtRxzIe+7CYFHAdXKow=
    Historians regard the interaction between Germanic and Roman peoples as a key component of the process by which Germanic kingdoms replaced imperial government in western Europe. What evidence of such interaction can you find in this document?