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1 Ian Wood the Legislation of Magistri Militum 1 Ian Wood The Legislation of Magistri Militum: the laws of Gundobad and Sigismund La législation des Magistri Militum: les Lois de Gondebaud et Sigismond Abstract: The legislation of the Gibichung rulers of Burgund ! and es"eciall that which is contained in what is commonl #nown as the Lex Burgundionum! is "articularl interesting for the stud of late- and post$%oman law from the Barbarian West& %ésumé : La législation des rois des Burgondes et s"écialement la loi ap"elée Loi Gombette est "articuli'rement intéressante "our l(étude du droit romain tardif et "ost-classi)ue dans les ro aumes barbares occidentau*& +e words: Lex Burgundionum – late and post$%oman law – Gundobad – Sigismund Mots$clés : Loi Gombette , droit %omain tardif et "ost-classi)ue , Gondebaud , Sigismond 1& The legislation of the Gibichung rulers of Burgund ! and es"eciall that which is contained in what is commonl #nown as the Lex Burgundionum! is "articularl interesting for the stud of late$ and "ost$ %oman law from the Barbarian West& It is unusual in "ro-iding a large number of references to the legislati-e "rocess! not least because the so-called Burgundian .ode is made u" of a number of constitutions! some of which still bear the date and "lace of issue& As a result! we gain "articular insight into the "romulgation of indi-idual laws in addition to their collection into a law-boo#&1 Indeed the Lex Burgundionum seems originall to have been called the Liber Constitutionum&/ The title seems significant: both in its em"hasis on the constitutions that the boo# contains! and! as we will! in its lac# of an ethnic descri"tor&1 1 2or emphasis on edicts rather than law$books! see I. 3& Wood! “The .ode in Mero-ingian Gaul”, in The Theodosian Code! 6& Harries and I. 3& Wood (eds&9! London! 19:1! p. 161-<<! at p. 170$;> id&! “Roman law in the barbarian kingdoms5! in Rome and the North! A& ?llegård and G. AkerstrBm$7ougen! Jonsered! 1::;! p. C$14! at p. 10$12& / See the edition of L& %& Ee Salis! Leges Burgundionum! MGH Leges Nationum Germanicarum! II, 1, Hanno-er! 19F/: in the following footnotes I will refer to the Liber Constitutionum 8Lex Burgundionum9 as LC! and the Forma et Expositio Legum (Lex Romana Burgundionum9 as FEL& 1 ?arly scholarship on the Bugundian laws is con-eniently sur-e ed in +& 2ischer Drew! The Burgundian Code! Philadelphia, 19D:& Among more recent discussions of the Burgundian laws see 7& Nehlsen! “Leges Burgundionum5! in Hand örterbuch "ur deutschen Rechtsgeschichte! /! Berlin! 1:<F! col. 19=1-15> I. 3& Wood! 4Eisputes in late 0Hh$ and sixth$ centur Gaul: some problems5! in The #ettlement o$ %isputes in Earl& Medie'al Europe! W& Eavies and G& 2ouracre 8eds&9! Cambridge! 19F;! "& <$//> E& Bo son! 4%omano$Burgundian societ in the Age of Gundobad: some legal, archaeological and historical e-idence5! Nottingham Medie'al #tudies! 1/! 19FF! "& :1-118> E& 2r e! “Gundobad! the Leges Burgundionum! and the struggle for so-ereignt in Burgund 5! Classica et Medie'alia! D1, 1::=! "& 19:$/12> G& Amor ! “The meaning and purpose of ethnic terminolog in the Burgundian laws5! Earl& Medie'al Europe! /! 19:1! "& 1-/F> id&! “Names! ethnic identit and communit in 0fth$ and sixth$centur Burgund 5! (iator! /C! 19:D! "& 1-1=> 6&$G& Goly! 4)lybriones *uondam& Loi! romanité et barbarie au* Ie$IIe s&5! in Traditio +ur,- .ermanence et/ou discontinuit0 du droit romain durant le haut Moyen 1ge! L on! /==C! "& 1/C$C1> %& +aiser! %ie Burgunder! Stuttgart! /==D> B& Saitta, + Burgundi 234567538! Milan! /==;> I. 3& Wood! “Le Bré-iaire cheJ les Burgondes5! in Le Br0'iaire d9:laric; :ux origines du Code ci'il! M& %ouche and B& EuméJil (eds&9! Paris! 2==:! p. 151-160> P& Heather! “Law and Societ in the Burgundian kingdom5! in La , Custom, and .lio@Thémis - nL1=! 201; / Ian Wood /& The original title of the other Burgundian collection! the so-called Lex Romana Burgundionum! would ap"ear to have been Forma et Expositio Legum&D Again the title would seem to have some -alue for assessing the nature of the te*t& %ather than being a straight collection of laws! we are faced with a number of clauses in which a brief discussion of a "articular crime and a statement of the ap"ro"riate "unishment concludes with direction to the rele-ant clauses of the Codex Theodosian< and other im"erial legislation! notabl the 3o-els of Ialentinian III! Majorian! Marcian! Leo and Se-erus! together with citations from Gaius! Gaul! the Codex Gregorianu and the Codex Hermogenianu! and intriguingl from two laws which would later be included in the Codex =ustinianu! but which do not seem to have been in the Theodosian .ode&C The Forma et Expositio thus constitutes legislation! but "rimaril it acts as a guide (expositio9 to law that was in force& It also presu""oses the availabilit of earlier legal documents or collections& 1& Since the Liber Constitutionum states that %omans should be Mudged b %oman Law!; and since the Forma et Expositio includes legislation issued in D;C!< which "ro-ides an im"ortant terminu post *uem for the collection! it might at first sight seem reasonable to see the latter collection as "ro-iding a #e to the law that was in force among the %oman subMects of Gundobad and Sigismund!F while the Boo# of .onstitutions was directed to the Burgundians& Such an assum"tion! howe-er! is o-ersim"listic& .ertainl the Forma et Expositio would seem to have been com"iled so that Mudges in cases concerned with %omans should not be ignorant of the law! which would seem to suggest that the com"ilation was aimed at those comites who were of non$%oman origin! and who! des"ite their Mudicial functions had not been trained as Murists: indeed man of them would have been militar figures&: At the same time! man of clauses of the Liber Constitutionum were clearl ap"licable to both barbarian and %oman subMects&1= In fact! neither the Forma et Expositio nor the Liber Constitutionum should be read as law intended for one 4ethnic5 grou": there would seem to have been no clear-cut di-ision between law for the Burgundians and %omans& Indeed! one clause of the Liber Constitutionum -er remar#abl modifies a law of .onstantine&11 Moreo-er! the Forma et Expositio clearl addresses man of the concerns of the Liber Constitutionum 8which would ap"ear to be later in date9& Thus the thirt $ ear rule of the com"ilation of %oman Law would seem to be a "oint of reference for the Book of Constitutions!1/ as would other laws of the %oman collection&11 The lin#s between the two te*ts might e-en suggest that the Forma was in some way used as a blue$"rint for the Liber Constitutionum&1D D& Of course! the two Burgundian codes! and es"eciall the Liber Constitutionum! have been the subMect of considerable stud ! not least for what the re-eal about the settlement of the Burgundians!1C about their =ustice in Late :nti*uit& and the Earl& Middle :ges! A& Rio 8ed&9! London! /=11, "& 115-C1> S& +erneis! 4%e Theodosiani codic, auctoritate. Le code théodosien et le droit des populations barbares dans l’Empire” (forthcoming9& D I. 3& Wood! “Le Bré-iaire cheJ les Burgondes5! p. 155. C See the edition in De Salis! Leges Burgundionum& ; LC! Prima Constitutio! 8& < FEL! 4;& F I. 3& Wood! “Le Bré-iaire cheJ les Burgondes5! p. 15:& : LC! Prima Constitutio! 8: the signi0cance of this is signaled in S& +erneis! “%e Theodosiani codic, auctoritate5& 1= 2or comment on the positions adopted b 7& Nehlsen! “Leges Burgundionum5! and G& Amor ! “The meaning and purpose of ethnic terminolog in the Burgundian laws5! see G& Heather! “Law and Societ in the Burgundian #ingdom5! "& 115-;& 11 LC! 10C! citing Codex Theodosian<! II, 1=& The o"ening "hrase of the law! which announces that it is the titulum centesimum quintum! is uni)ue! and deser-es consideration& 12 FEL! 31; LC! 7:& 13 LC! 8= would seem to allude to FEL! 2/& 14 I& 3& Wood! “Le Bré-iaire cheJ les Burgondes5! p. 156. 15 W& GoOart! Barbarians and Romans :;%; 34?67?3; The Techni*ues of :ccommodation! Grinceton! 1:F=! "& 12<$61. 2or a more recent assessment! I. 3& Wood! 4L’installation des Burgondes dans l’empire romain& 7istoire é-énementielle5! in Expropriations et con@scations dans les royaumes barbares! P& Gorena and Y& %i-i're (eds&9! Rome! 2=13! p. ;:$:=& .lio@Thémis - nL1=! 201; 1 Ian Wood ethnic make-u"!1; and about societ and "olitics of the Gibichung #ingdom&1< The actual "rocess of legislation has been rather less discussed! at least in recent ears1F , though certainl a -ast amount of wor# was done in the nineteenth centur &1: Qnfortunatel the -alue of much of this earl wor# was -itiated b the fact that it began from an assum"tion that the Liber Constitutionum re"resented Germanic law& M intention in what follows is 0rst to loo# brieR at the structure of the Boo# of .onstitutions! though this has been done man times! not least b Ee Salis in his edition for the Monumenta Germaniae Historica! and also more recentl b Geter 7eather: then to consider in more detail two moments of legislation: C==$ / and C1<& This will lead us into )uestions about the capacit in which the legislator was acting , in the conte*t of their law-gi-ing did Gundobad 8d& C1;9 and Sigismund 8C1;$/D9 see themsel-es first and foremost as reges or as im"erial officials! and more "articularl as magistri militumT 2rom this we will turn to the )uestion of the identification of those subMect to the legislation: a rather less ob-ious )uestion than was once assumed! as we have alread seen& Again this is a question that has been discussed b im"lication! although there are! I thin#! "roblems with some "ast assum"tions about who might and
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