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.