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Germanic Law: Betrothal and Divorce

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Germanic Law: Betrothal and Divorce CHAPTER THREE GERMANIC LAW: BETROTHAL AND DIVORCE The Sources and their Interpretation The "leges" The laws and codes that the Germanic kings issued during the period from the fifth to the ninth centuries are our chief source of evidence about Germanic marriage in the early Middle Ages, albeit one that is notoriously difficult to interpret.1 One can supplement this evidence with what can be gleaned from formulae, chronicles and conciliar decrees. The leges are the Latin laws of the Germanic tribes. As I use the term here, it covers not only Germanic laws but also those codes of Roman law which were prepared under the auspices of Germanic kings for their Roman subjects. (The latter are sometimes known as Romano-Germanic or Romano-Barbarian codes.) All written Germanic laws on the Continent (unlike the laws of England) were in Latin, and it is probable that the Germanic kings commissioned Roman lawyers to write them. The oldest surviving Germanic codes are those of the Visigoths and the Burgundians. The Lex Visigothorum, which Reccesvind issued and Ervig revised in the seventh century, was the result of an extended process of revision and augmentation that began with the preparation of the first substantial code under Euric in the late fifth century.2 In 506, some thirty years before Justinian published his Digest, Institutes and Code, Alaric II is- 1 C. Schott, "Der Stand der Leges-Forschung," Frilhmittelalterliche Studien 13 (1979), 29-55, provides a useful review of leges scholarship. R. Buchner, Die Rechtsquellen (1953), which suveys Germanic and Romano-Germanic law, covers ecclesiastical sources, capitularies and formularies as well as the leges. There are summary treatments of barbarian law in the Dictionary of the Middle Ages, vol. 7: see "Law, French: in South" (Reyerson and Henneman), esp. pp. 461-2; and "Law, German: early Germanic codes" (Drew and Rivers), 468-77. See also K. F. Drew, Law and Society in Medieval Europe ([collected articles] 1988). On Roman vulgar law in the leges, see P. Vinogradoff, Ro­ man Law in Medieval Europe (1929), pp. 11-42, and P. Stein, "Roman Law," Cambridge History of Medieval Political Thought (1988), esp. p. 41. 2 Lex Visigothorum, ed. Zeumer (1902), MGH Leges 1. For a summary of the history of this code, see P. D. King, Law and Society in the Visigothic Kingdom (1972), pp. 1-22. GERMANIC lAW: BETROTHAL AND DIVORCE 67 sued a comprehensive code for the use of the Visigoths' Roman subjects. This is the Breviarium Alaricanum or Lex Romana Visigothorum, whose chief source was the Theodosian code.3 Alaric was probably motivated in part by his need to concili­ ate his Catholic, Gallo-Roman subjects, for the Visigoths were at this time still Arian, and the Catholic Franks were already posing a threat to their security. The Breviary remained in force for the Roman subjects of the Visigoths only until the mid seventh century, when Goths and Romans became subject to the same law. Nevertheless, it remained in use among the Galla­ Roman population of Aquitaine, which had been under Visigothic rule until the defeat by Clovis's Franks at Vougle in 507, and it was the chief source of Roman law in Western Europe until the discovery of Justinian's corpus in the high Middle Ages. In the late fifth and early sixth centuries, Gundobad and Sigismund issued codes both for their Burgundian and for their Roman subjects. 4 The Germanic code is known as the Lex Gundobada. The Merovingian Franks conquered the Burgundian kingdom in 534, but because the Franks respected the prin­ ciple of the personality of law, the Burgundians continued to live under their own laws. The Roman code, which was issued in the early sixth century, was only briefly in force because Alaric's Breviary became the written source of Roman law in Burgundy after 534. The Lex Romana Burgundionum acquired most of its contents from the Theodosian code, but its organi­ zation was original, being modeled on the Lex Gundobada. 5 The earliest code of law for the Salian Franks-the sixty-five title version-is traditionally ascribed to Clovis himself. A number of revisions and versions were made by Clovis's successors and by the Carolingians through to the early ninth century.6 During this period, the Salian Franks also issued codes for their sub­ ject peoples: that is, for the Ribvarian and Chamavian Franks, the Alamanni, the Bavarians, the Saxons, the Frisians, the Thuringians and the Raetians, the last being a romance people 3 Ed. G. Haenel (Leipzig, 1849). On the composition of the Breviary, see J. Gaudemet, Le Breviaire d'Alaric et les Epitome, = Ius romanum medii aevi vol. 1.2.b.aa.B (1965). 4 Both the Germanic code (the Lex Gundobada) and the Roman code are found in Leges Burgundionum, ed. von Salis (1892), MGH Leges 2.1. 5 On the organization of this code, see G. Chevrier and G. Pieri, Le loi romain des Burgondes, =Ius romanum medii aevi 1.2.b.aa.b (1969). 6 Ed. Eckhardt, MGH Leges 4.1 (Pactus legis Salicae) and 4.2 (Lex Salica). .
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