The Code in Merovingian Gaul
Ian Wood
The Franks and their neighbours were well aware of the importance of the emperor Theodosius as a law-giver.
Writing in the mid-seventh century, Fredegar attributed to Theodosius I the emendation of laws.[431] In all probability he meant to refer to Theodosius II. A century later the compiler of the Bavarian law-code, the Lex Baiwariorum, included within his preface a list, derived from Isidore, of great legislators of the past, Roman as well as Frankish; among them Theodosius.[432] Knowledge of the Theodosian Code in Francia and its satellites is not surprising. Theoretically, the Roman population of the Visigothic and Burgundian kingdoms had been subject to Roman law,[433] and to judge by Agobard’s complaints of legal pluralism in the ninth century this continued to be the case.[434] Further, in the Lex Ribvaria, the seventh-century code of the Ripuarian Franks, the church is said to have been subject to Roman law.[435] Nevertheless, it is not always easy to be specific about the use and influence of Roman law, and in particular of the Theodosian Code, in the Merovingian kingdom.The history of the transmission and influence of the Code in Merovingian Gaul is complicated for the historian by a number of crucial factors relating both to Roman and barbarian law. To take the issue of Roman law first: the Code was never intended as a complete collection of the law of the Roman Empire. It was a compilation of imperial laws which had been addressed to officials responsible for the p'eat courts. Even so it did not contain all imperial legislation. Nor did it contain the customary law which was current in provincial courts.
As a result, when Burgundian and Frankish sources talk of leges Romanae they may not always have the law of the Code in mind; they may instead be refering to provincial law, which was Roman if not imperial. Thus in the Angers Formulary, which contains some apparently sixth-century formulae, although the collection was probably compiled in the seventh century, the phrase lex Romana occurs in four instances,[436] [437] but none of them seem to refer to the Theodosian Code. Further, in one instance lex Romana is linked to antiqua consuetudo.1 Nor does the one direct reference made to Roman legal practice by Gregory of Tours, concerning the period of time which should elapse between a man’s death and the reading of his will,[438] relate to the Code.Moreover, even when there is a directly stated appeal to the Code, it is possible that the appeal is not, strictly speaking, to the Code itself, but rather to the Lex Romana Visigothorum, or Breviary of Alaric, the Visigothic version of the Theodosian Code, produced around the year 506. Thus, in his edition of the Merovingian formulae, Zeumer identified references to the Theodosiani Libri as being to the Breviary rather than the Code. For instance, in the mid-eighth-century Tours Formulary the so-called epistola collectionis quotes ex corpore Theodosiani libri quinti, but the sentence in question is contained in an interpretatio of the Breviary of Alaric.[439] And in the donatio in sponsa facta to be found in one ninth-century manuscript of the same Formulary, the reference to the clause in Theodosiano codice ‘de sponsalibus et ante nuptias donationibus' appears to relate to another interpretatio in the Lex Romana Visigothorum.[440] Indeed, rightly or wrongly, Zeumer consistently identified the Roman sources of the Merovingian formulae as being the Lex Romana Visigothorum and the Sententiae of Paul, rather than the Code itself.[441] Citations of the Theodosian Code, therefore, are not necessarily citations of the original compilation; they could as well refer to the Lex Romana Visigothorum.
Nor was the Breviary of Alaric the only compilation of Roman law from sixth-century Gaul which might have been cited in place of the Theodosian Code.
The Lex Romana Burgundionum is a difficult text. It is not clear whether it was an official compilation or not. Certainly it is closely related to the Liber Constitutionum of the Burgundians,[442] a work which is popularly, though misleadingly, known as the Burgundian Code.[443] Certainly, also, the Romans within the Burgundian kingdom were bound by Roman law: the prima constitutio of the Liber Constitutionum, issued by Sigismund on 29 March 517, states explicitly: ‘We order that cases between Romans... should be judged by Roman laws, as decreed by our parentes; and let them know that they must accept the written form and exposition of the law, when judgment is made, so that no one may excuse themselves out of ignorance.’[444] This suggests that there must have been an officially recognised law-book, but whether this was the Lex Romana Burgundionum, the Theodosian Code or even the Breviary of Alaric, it is impossible to say.In his edition of the Lex Romana Burgundionum, which consists of a mere 47 clauses, de Salis noted 64 references to the Theodosian Code, three to the novels of Theodosius II, seven to those of Valentinian III, one each to the novels of Majorian, Marcian and Leo and Severus, in addition to a reference to an unidentified novel, and two to laws preserved only in the Justinianic Codex. Further, there are seven references to Gaius, 22 to Paul, four to the Codex Gregorianus and six to the Codex Hermogenianus.[445] Not all the passages which the Lex Romana Burgundionum claims to have used have been identified, even when the title of the relevant law is provided. It may be that the compiler had access to fuller texts of the Theodosian Code and to the works of Gaius than now survive.[446]
Whatever the nature of the text, the Lex Romana Burgundionum is a remarkable compilation, made from a number of Roman legal sources: these it often specifies, citing the number of the book of the Theodosian Code, the emperor who issued the edict, and its recipient, or the title.[447] From the point of view of the historian studying the transmission and use of the Theodosian Code, however, this clarity of citation may be a hindrance.
Because the Lex Romana Burgundionum cites the Code so clearly and fully, it is possible that some later texts which claim to cite the Code were actually drawing on the Lex Romana Burgundionum, even when chapter and verse is quoted.Barbarian law presents rather more intractable problems. First, it is by no means clear that this law is Germanic. Even if some clauses of the codes of the barbarian kingdoms can reasonably be seen as reflecting Germanic custom, many of them have a very good claim to represent the provincial law of the Roman Empire.18 For instance, the direct parallels between the Latin codes of the Germanic kingdoms and the Byzantine Farmer’s Law can more reasonably be seen as reflecting provincial law than as indicating the existence of an otherwise unknown Gothic community in a particular district of Asia Minor.19 Some barbarian groups may have received Roman law considerably before the fifth century; in a panegyric on Constantius Chlorus Maximian is said to have restored the laetus to his position, leaving the Frank, receptus in leges, cultivating the fields of Trier.20 One might wonder whether the four obscure lawmen of the preface to the Pactus Legis Salicae, Wisogast, Arogast, Salegast and Widogast,21 had their origins in some transmission of Roman provincial law to the Franks. Provincial law does not, of course, bear witness to the transmission of the Theodosian Code. Nevertheless, it is likely that barbarian law is to be seen as being very much more Roman than was once thought.
Both Roman and barbarian law, therefore, present considerable problems to the historian of Merovingian Gaul. It is possible, however, to shed a little more light on the issue of the influence of the Theodosian Code and its derivative, the Breviary of Alaric, by considering the evidence of the manuscripts of the Code and the Breviary, and also by assessing the rare comments on the acquisition of legal knowledge in the Merovingian kingdom.
This may shed light on the processes of legislation in post-Roman Gaul and Francia.size=2 color=black face="Century Schoolbook">In Codices Latinae Antiquiores Lowe listed nine manuscripts of the Theodosian Code, or rather parts of it,22 one manuscript of a breviary of the Code,23 as well as a manuscript of the Novels.24 Of these he assigned four manuscripts of the Code and the manuscript of the Novels to France;25 one of the Code to Italy,26 and two, of which one was the breviary, to Egypt.27 The two remaining manuscripts could either have been written in Italy or France, and both seem to have been within Frankish territory at a later date.28 By any estimate, Gaul and Francia played a significant role in the preservation and transmission of early manuscripts of the Code, accounting for half of the total surviving at least. Further, the geographical spread of these manuscripts within the Frankish kingdom is of interest. Two of them,
18 R. Collins, Early Medieval Spain (1983), 28; Wood, ‘Disputes in Late Fifth- and Sixth-century Gaul: Some Problems’ (cited above in n. 13), 20.
19 Collins, Early Medieval Spain (1983), 28.
20 Pan. Lat. (ed. Mynors), 8.21.1.
21 Pact. Leg. Sal., praef. 2.
22 CLA I/IV 46; 1110; II 211; IV 440; V 591; VII1016; VIII1049,1212; X 1529.
23 CLAN 625.
24 CLA VIII1199.
25 CLA I/IV 46; 1110; V 591; VIII1049,1199.
26 CLA VIII1212.
27 CLA II 211; X 1529.
28 CLA V 625; VII1016.
both from the sixth century, Lowe assigned to Lyons, giving that city a considerable reputation in legal studies.[448] That of the Novels, from the second half of the eighth century, he assigned to the Loire region; later it was to be at Regensl ^rg.[449] Other manuscripts were to reach Northern France,[450] Switzerland[451] and the Italian monastery of Bobbio,[452] which had close links with Francia, in particular with the monastery of Luxeuil in Burgundy. Knowledge of the Code does not, therefore, seem to have been confined to one or two centres; nor was interest in the text confined in time. Of the seven manuscripts which he thought might have been written in Gaul or Francia, Lowe dated one, which he assigned to Gaul or Italy, to the fifth or sixth century,[453] and in addition to the two said to have come from Lyons he placed another, which he thought had come from Southern France or Italy, in the sixth century.[454] Of the remaining three, he dated one to the seventh,[455] one to the second half of the eighth,[456] and one to the eighth or ninth century.[457]Ten manuscripts may not seem to be a very significant number. The only other legal text, however, to have survived in similar numbers of Latin manuscripts from before the ninth century is the Breviary of Alaric.[458] Of course most of the barbarian codes were compiled considerably later than the Code, so the comparison is not strictly equal. As for manuscripts of the Lex Romana Visigothorum, since it was clearly cited as containing the law of Theodosius, they can reasonably be used to further our consideration of the impact of the Code on Merovingian Gaul. Here we are dealing with fourteen manuscripts, all of which, bar one,[459] appear to be of Frankish provenance. This Frankish nearmonopoly of manuscripts of the Breviary of Alaric should not surprise us. The evidence for the Visigoths suppressing law-codes which they regarded as outmoded is considerable; the survival of only one Spanish manuscript of the Lex Romana Visigothorum is simply a tribute to Gothic legal efficiency.[460] Nevertheless, the distribution of the Frankish manuscripts is interesting. Despite the Aquitainian origin of the text there are only two manuscripts which may have come from Southern France;[461] a further one possibly originated in the Loire region,[462] and another from Lyons.[463] Two more seem to have been written in Burgundy,[464] a third in Autun or the nearby monastery of St Georges at Couches[465] and a fourth in Western Switzerland.[466] Lowe assigned one manuscript to Rheims,[467] and three more to Northern France,[468] one of them to the monastery of Corbie.[469] The remaining manuscript appears to have been of Rhaetian provenance.[470] The distribution of these manuscripts of the Breviary thus covers much of the Frankish kingdom.
The date of the manuscripts, again, suggests that an interest in the text existed throughout the Merovingian period. Lowe dated one manuscript of the Breviary to the second half of the sixth century,[471] and another to the sixth or seventh.[472] One he placed in the seventh,[473] and another in the seventh or eighth century.[474] Seven he saw as being eighth-century manuscripts,[475] and two as either being eighth- or ninth-century.[476] Most of these later manuscripts are likely to have been Carolingian rather than Merovingian, and it is possible that they reflect an escalation of interest in the Breviary in the Carolingian period. Indeed the general chronology of the manuscripts of the Code and the Breviary may suggest that it was the Code which was marginally the more common text in the Merovingian period; a point which may indicate that Zeumer was over-hasty in identifying all citations of material from the Code in the formulae as being taken from the Breviary. Nevertheless, there is enough manuscript evidence to show that Frankish interest in the Breviary began before the eighth century. More generally the evidence of the distribution and chronology of the manuscripts of the Theodosian Code and the Breviary of Alaric is in absolute accord with the stated subordination of Romans and of the church to lex Romana.
Outside the evidence of the manuscripts, and that of other legal texts, such as the Frankish and Burgundian laws and the Formularies, there is pitifully little evidence for the use of the Code. There are, however, a handful of interesting pieces of information relating to legal education in the Merovingian kingdom. The earliest comes in the account of the slave Andarchius, given by Gregory of Tours in his Histories^ Here, Andarchius is said to have been learned in the works of Virgil and in legis Theodosianae libri. It is possible that it was the Breviary Qf Alaric that he knew, rather than the Code, since he seems to have spent his early, servile, career in the Marseilles district; that is in territory which had once been in the hands of the Visigoths. But, as we have seen, no clear distinction was made between the two texts. Andarchius used his cultural and legal skills to rise up the social hierarchy, attempting to make a good marriage and then to dispossess his intended father-in-law of one of his estates, before the latter’s slaves killed him.
In the seventh century, there is some further evidence of the knowledge of the Theodosian Code. The most detailed references relate to Praeiectus, bishop of Clermont. He became involved in a lawsuit at the court of Childeric II (662-75) during the Easter festivities in 675. Accused of taking the land of a lady named Claudia, he refused to face his accusers on the grounds that Roman and canon law forbad the hearing of cases On Easter Saturday.59 The reference here is to a law contained in both the Theodosian Code60 and also the Breviary of Alaric.61 As an Auvergnat,62 Praeiectus is likely to have been classified as a Roman, and, in any case, since the Lex Ribvaria explicitly states that the church was subject to Roman law,63 as a churchman he would have fallen under its aegis. What is important about his case is the clear evidence that Roman law was specifically invoked. In 675 the legal prescriptions relating to the church were being observed, and Praeiectus’ hagiographer thought fit to record the exact procedure followed by the bishop. The Theodosian Code, or perhaps the Breviary of Alaric, was thus of distinct importance at Childeric H’s court in the 670s.
Another Auvergnat, Bonitus, a younger contemporary of Praeiectus, who later held the see of Clermont, is also said to have known the Theodosian Code. In his vita he is described as grammaticorum inbutus iniciis necnon Theodosii edoctus decretis.64 Other seventh-century bishops are also said to have been learned in Roman law. For instance, Desiderius, later bishop of Cahors, was educated first in litterarum
58 Greg,DL2fIV 46.
59 Pass. Praeiecti 24.
60 CTh 2.8.19.
61 LR V 2.8.2.
62 Pass. Praeiecti 1.
63 Lex Rib. 61,1.
64 Vit. Bon. 1; see P. Wormaid, ‘The Decline of the Roman Empire and the Survival of its Aristocracy’, JRS 66 (1976), 224. studia,class=a1> and then, at the royal court, in legum Romanorum... studiurn 'so that Roman gravitas might temper the richness of Gallic eloquence and the brightness of its speech’.65 A more important figure was Praeiectus’ exact contemporary, Leodegar, who was also involved in the lawsuit at Childeric’s court. Before becoming bishop of Autun, he was said to have learned doctrinae legum,66 and to have been a terribilis iudex, knowing mundanae legis censura.67 That his legal knowledge really was considerable is suggested by a record of his revising the laws of previous kings; 'having taken on the government of the kingdom, whatever he found to be useless, and in contradiction to the laws of ancient kings and the greater nobility, he restored to its former state’.68 What this might have entailed is indicated by the statement that ‘all sought king Childeric, so that he might command throughout the three kingdoms which he had obtained, that judges should preserve the law and custom of each patria, as used to be the case’.69 The three kingdoms were Neustria, Austrasia and Burgundy: the standard units of the Merovingian regnum.
It may be that some evidence for these legal revisions survives in the earliest frankish law code, the Pactus Legis Salicae. The epilogue to what some manuscripts identify as book three of the Pactus contains a famous account of Merovingian legislation from the time of an unnamed first king, down to Chlothar I, who died in 561. This account is followed by an equally famous list of kings, which begins with Theuderic III, who succeeded his brother Childeric II in 675. Childeric was the king under whom Leodegar is said to have carried out his legal reforms; that the king-list of the Pactus should start after his reign suggests that it marked a caesura of some kind. The king-list may, in fact, have originally been a list of royal authenticators of Leodegar’s version of the Pactus. If this is the case, it may be possible to ascribe some of the variants within the texts of the Pactus Legis Salicae to a Leodegarian recension. For instance it may be that those manuscripts of the text which contain the epilogue stem ultimately from Leodegar’s reforms of the 670s. Further, since one clause of the Pactus seems to be applicable only to Neustria,70 it may be that the manuscripts in question descend ultimately from Leodegar’s recension of the law of the Neustrian kingdom. If this interpretation is correct, it may be that Leodegar also revised the Lex Ribvaria for the Austrasians, and the Liber Constitutionum for the Burgundians.
Leodegar’s legal knowledge would not have been confined to the
65 Vit. Des. 1.
66 Pass. Leudegarii II 2.
67 Pass. Leudegarii 11.
68 Pass. Leudegarii II 5.
69 Pass. Leudegarii I 7.
70 lang=EN-US style='font-style: italic'>Pact. Leg. Sal. 47, 1, 3. For a full statement of this case see the chapter on law in my forthcoming book on The Merovingian Kingdoms, 450-751. barbarian codes. Roman law would still have been applicable to those who were defined as Romans;[477] being brought up in Poitiers in Aquitaine, Leodegar would have been well acquainted with a region dominated by a legally Roman population.[478] Moreover, as a churchman, Leodegar himself would, like Praeiectus, have been subject to Roman law. It has been suggested that he was associated with the compilation of the great canon collection of the Merovingian period, the Vetus Gallica,[479] This would tend to strengthen the case for his being interested in the law to which the church was subject, and, as we have seen, this, according to the Lex Ribvaria, was Roman.[480]
There is some reason, therefore, for seeing the 670s not only as a period when the law of the Theodosian Code, or perhaps the Breviary of Alaric, was used in lawsuits, and but also for interpreting the decade as one of considerable legal activity, with Leodegar involved in the revision of a variety of legal texts, including the Pactus Legis Salicae\ he may even have been responsible for compilation of a version of the Pactus, containing its first 93 chapters. There is nothing, however, to suggest that Leodegar was an initiator of new legislation. For the sixth century, on the other hand, there is considerable evidence for the creation of new law. Bearing in mind the range of legal knowledge which Leodegar appears to have possessed, it is worth looking at the work of earlier legislators, and considering whether the Theodosian Code may have influenced that too.
The notion of compiling a law-code may, in itself, reflect admiration for the Theodosian Code, and a desire to emulate it. But a further observation is perhaps significant. Despite the format of many of the clauses of the barbarian codes, a proportion of the laws preserved within the codes are in fact edicts. This is readily apparent in the case of the Liber Constitutionum of the Burgundians, where a number of edicts are preserved in their entirety.[481] It is also apparent in the major additions to the Pactus Legis Salicae, in the Pactus pro tenore pads of Childebert I and Chlothar I, in the edictus of Chilperic I and in the decretus of Childebert II, apparently issued between 594 and 596.[482] It is less apparent in the Lex Ribvaria, where only the phraseology of individual clauses indicates their origins in royal edicts.[483] Nevertheless, it is clear that Burgundian and Frankish kings did issue edicts, and it is therefore worth wondering to what extent this practice was influenced by the Theodosian Code itself.
It is as well to begin with the Liber Constitutionum of the Burgundians, for here we have the clearest evidence for law-making in action in one of the barbarian successor states of what had been Roman Gaul. Although much of the legislation in the Book of Constitutions can be assumed to be the result of royal legislation simply from the tone of individual chapters, in seven cases the law itself is dated, and the place of issue given;[484] one of these laws, which is specifically called an edictum, is also prefaced with the name of the king, Sigismundus rex Burgundionum.[485] One additional law is prefaced with the title, Gundobadus rex Burgundionum omnibus comitibus,[486] while the last law of all has the unfortunately unspecific heading incipit capitulus, quem domnus noster gloriosissimus Ambariaco in conventu Burgundionum instituit[487]
style='font-size:9.5pt'>Among these laws are some of the best known of the Liber Constitutionum, including the notorious one in which Gundobad instituted trial by battle as an alternative to oath-taking, because the Burgundians were taking perjury rather too lightly.[488] More interesting for understanding one context in which law was issued is the chapter concerned with the breach of promise committed by the widow Aunegild, who enjoyed a consuetum flagitium with Balthamod, although she was betrothed to the king’s spatarius, Fredegiscl.[489] Here, a description of the case and the royal judgment is set out in full in order to stand in perpetuity. A specific sentence given by a king could thus become enshrined as law.
Two other observations can be made about the context of the Aunegild case. The royal judgment was given on 29 March 517, which also happens to be the date of the prima constitutio, which prefaces the Liber Constitutionum, and thus dates the original promulgation of the compilation.[490] The case was, therefore, brought to the very gathering which was to issue the law-book of the Burgundian kingdom. The law which arose from the royal sentence cannot, as a result, have beer in the original Liber Constitutionum, but it was delivered to an audience ready to hear legislation. Second, the gathering of 29 March 517 was the king’s Easter court; for this reason Sigismund did not enforce the death penalty, putting reverence for the time of year before public punishment. In so doing, he may well have had the chapter of the Theodosian Code de indulgentiis criminum in mind.[491]
That the Theodosian Code was not far from the mind of the legislators of the Burgundian court can be seen in other instances,[492] not least in matters of rape,[493] marriage,[494] slaves,[495] manumission,[496] and postliminium.[497] But the clearest example of the way in which the Theodosian Code weighed on the court of Sigismund is to be found in another edict, the first of his reign, issued on 8 March 516.[498] Here bishop Gimellus of Vaison is said to have drawn to attention the problem of foundlings who were not being cared for, because the finders feared that the true parents of the children would claim them in due course. Sigismund ordered that the legis Romanorum ordo should be followed, and he announced that in cases involving Romans and Burgundians the king’s decree should hold good. There can be no question that the legis Romanorum ordo is the title of the Theodosian Code, de expositis?[499] Since the legislation on foundlings was inspired by a bishop, it is possible that the requisite knowledge of Roman law was supplied by the clergy; on the other hand, it is worth calling to mind Syagrius, whom Sidonius had described a generation earlier as a new Solon of the Burgundians,[500] and his contemporary, Leo of Narbonne, whom some have seen as having a hand in the creation of the Codex Euricianus?[501] Whether it was Gimellus and his fellow bishops, or secular officials at court, who drew the relevant law to Sigismund’s attention is of no consequence - in 516 we see a Burgundian king legislating not just for the Romans, but also for his own people, with the Theodosian Code in mind.
Burgundian law is remarkably imperial in many ways; this is not surprising. As Ricimer’s nephew,[502] and as the man who raised Glycerius to the imperial throne,[503] Gundobad came as close to the heart of Empire as any barbarian leader in the fifth century. And he was later to receive the title of magister militum which his son Sigismund, held after him.[504] No Merovingian could quite match Gundobad’s imperial pedigree, but Clovis was the recipient of some major honour from the emperor Anastasius in 508,[505] and his successors certainly had an eye on the Roman past.[506] Merovingian legislation, however, is not usually thought of within the same context as the Theodosian Code.
As with the legislation of the Burgundian Gibichungs, the best starting point for understanding the laws of the Merovingians is their royal edicts. Of these there are a significant number, beginning with that issued by Clovis I (481-511) as he invaded the kingdom of the Visigoths in 507.[507] Offering protection to widows, orphans and those whom the church wished to defend, it was clearly a sop to the Catholic episcopate, and it may mark Clovis’s first move in favour of Catholicism, rather than Arianism, which was also present at his court.[508] Another piece of secular legislation, the Treaty of Andelot agreed between Guntram (561-93) and Childebert II (575-96) in 587, is preserved in the Histories of Gregory of Tours.[509] But the majority of the surviving Merovingian edicts are incorporated into the Pactus Legis Salicae, There are six so-called capitularia attached to the Pactus, The first[510] and fifth[511] are unattributed, the second and third, the decrees of Childebert I (511-58) and Chlothar I (511-61) make up the Pactus pro tenore pads,[512] the fourth is the edict of Chilperic I (561-84) of the same title,[513] and the sixth, the decree of Childebert II, is made up of legislation issued on three occasions, at Andernach, Maastricht and Cologne.[514]
The legislation of Childebert, Chlothar and Chilperic pro tenore pads is of major importance for an understanding of Frankish law. The preface to Childebert’s decree, delivered apud nos maioresque natus Francorum palacii procerum, allows a slight insight into the context of the legislation.[515] At the same time the dependence of the pactus of Childebert and Chlothar on the Roman centena provides an important clue to the imperial origins of the Frankish system of enforcing the law.[516] Chlothar’s contribution, moreover, shows unquestionable ecclesiastical influence.[517] Chilperic’s edict of the same title constitutes by far the richest account of the process of Merovingian law in local courts.[518] Nevertheless, it is the so-called decretus of Childebert II which is most revealing of the circumstances of Frankish legislation, and the sources on which it could draw. The three meetings at which the decrees were issued were held at Andernach, Maastricht and Cologne between 594 and 596. In the first and last cases the day of the meeting was 1 March; the context in which this legislation was issued was probably the Frankish campus Martius or Marchfeld, the royal court at the beginning of the campaigning season.[519] The legislation itself, however, particularly that issued at Maastricht looks away from Frankish tradition. It draws clearly on the Liber Constitutionum of the Burgundians over the thirty-year rule,[520] homicidehref="#_ftn521" name="_ftnref521" title="">[521] and the question of witnesses.[522]
In considering the influences on this legislation it is necessary to consider the role of Asclepiodotus, whose name appears at the end of the Cologne decree, in the phrase Aslepiode recognovit. He was the referendary of Childebert,[523] but he is known previously to have served Childebert’s uncle, Guntram (561-93), attending the ecclesiastical council of Valence summoned by that king in 585.[524] In addition he has been associated with Guntram’s edict of the same year, and the Treaty of Andelot two years later.[525] Like Leodegar, he has been identified as a possible author of a recension of the Pactus Legis Salicae,[526] although there are difficulties in this identification.[527] As a servant of Guntram, whose kingdom included territory which had been ruled by the Burgundian Gibichungs at the beginning of the century,[528] he may well have been an expert in Burgundian law. On the other hand, at Valence he appears as a vir illustris, which should mean that he was a Roman, subject to Roman law. It is not impossible that he knew the Theodosian Code, or the Visigothic recension of it, every bit as well as the slave Andarchius before him, and bishop Praeiectus after him.
Thus, even though much of the Decretus Childeberti can be seen as a continuation of Burgundian law, it is important to recognise its earlier Roman, origins. In the case of the thirty-year rule Burgundian legislation looked back to Roman law,[529] and with regard to the number of witnesses required the Liber Constitutionum itself was following the Theodosian Code, without necessarily understanding why five or seven witnesses might be needed.[530] On rape, Childebert followed the Lex Romana Burgundionum,[531] which again was dependent on the Theodosian Code.[532] Finally, on matters of possession the Decretus Childeberti seems to have been following the Lex Romana Visigothorum [533] Childebert may not have had the Theodosian Code itself at hand, but he had all the alternatives. His is sophisticated legislation in a sub-Roman tradition.
Childebert Il’s legislation can, therefore, be set within a context which looks back ultimately to the Theodosian Code. The same is true of the legislation of his cousin, Chlothar II (584-629). This is a point most clearly made in the Praeceptio Chlotharii,[534] which is preserved independent of the Pactus Legis Salicae. The preamble and four other clauses of the Praeceptio have been seen as having parallels with the Lex Romana Visigothorum [535] One concerned with rescripts which are contrary to law[536] and another dealing with royal authorisation of marriage[537] are particularly close to imperial legislation.[538] From these clauses it is clear enough that Chlothar’s legal advisers included someone versed in Roman law. Chronology and politics suggest that the man in question is unlikely to have been Asclepiodotus himself Nevertheless whoever drafted the Praeceptio may, like Asclepiodotus, have had Burgundian connections, for another clause reaffirms the authority of romanae leges in suits between Romans,[539] something which had been proclaimed in similar terms at the beginning of the Burgundian Liber Constitutionum.[540] Regardless of such specifics, the legislation from late sixth- and early seventh-century Francia reveals the influence of men learned in the Theodosian Code, or one of its derivatives.
The main body of the Pactus Legis Salicae does not belong to the same legal tradition as the edicts of Childebert II and Chlothar II; much of it concerns the legal procedures appropriate to small communities,[541] and if they have antecedents in Roman law, those antecedents are likely to have been drawn from the laws in force in the provincial courts of the Empire.[542] Yet it may be wrong to make a complete distinction between the legislation of the Theodosian Code and that of the main body of the Pactus Legis Salicae. Even in the first sixty-five chapters of the Pactus, that is, before the so-called Capitula Legi Salicae addita, there are laws which are likely to have been edicts in origin.[543] Royal edicts also underlie much of the other major Merovingian code, the Lex Ribvaria, even though the only indication of the original nature of individual laws is to be found in their phraseology.[544]
Of the clauses in Lex Ribvaria which unquestionably had their origin in edicts, those dealing with church freedmen[545] are the most immediately instructive. The use of the verb iubere at the start of the section indicates clearly that we are dealing with an edict. This is borne out by what follows, since it is here that the subordination of the church to Roman law is emphasised. In addition, Roman influence is apparent in individual clauses; none more so than in those dedicated to the offspring of slaves. Thus the descendants of a church freedman and a Ripuarian servant are to be servile, as are those of a church or king’s freedwoman and a Ripuarian slave, but the freed parent does not lose status;[546] similarly if a Ripuarian man marries a royal ecclesiastical or freedman’s maidservant, he keeps his status, but his offspring are to be slaves;[547] the equivalent situation and legislation appears in two laws of Constantine preserved in the Theodosian Code.142 On the other hand, in the Lex Ribvaria, if a free Ripuarian marries an unfree Ripuarian, then the two of them and their issue are to be slaves;143 as regards free women marrying servile men, once again there is an imperial equivalent in a law of Constantine preserved in the Code.144 Whoever was responsible for chapter 61 of the Lex Ribvaria was probably a churchman, and he certainly had access to Roman law in some shape or form.
There is, therefore, in Frankish legislation itself, as in the Liber Constitutionum of the Burgundians, an indication that the laws which were being composed in the sixth and seventh centuries were drawn up with some awareness of Roman precedent. Whether or not the precedent was to be found directly in the Theodosian Code or in the Breviary of Alaric, or even the Lex Romana Burgundionum is impossible to say. Nevertheless, a little can be said about the legislators. Sidonius’ correspondents, Syagrius and Leo, clearly knew their Roman law;145 they may not have known much about barbarian custom; Asclepiodotus was equally at home in a church council as at the king’s court; Gimellus and Leodegar were bishops; as such they ought to have known something about Roman law. Leodegar, however, could also be entrusted with revising the laws of Neustria, Austrasia and Burgundy. In the light of this, Roman influence on the laws of the Merovingians is scarcely surprising.
For a man like Leodegar Roman and barbarian law certainly applied in different instances, but a knowledge of both was required. Some of the earliest manuscripts of the Pactus Legis Salicae, Lex Alamanorum and the Formularies seem to make the same point, since they also include texts of Roman law. In one eighth-century manuscript the Pactus is to be found together with the Lex Alamanorum and the Lex Romana Visigot horum 146 in another it is preserved with a Summa of the Breviary of Alaric.147 Similarly, the Angers Formulary is accompanied by the Breviary, and by the Novels of the Theodosian Code,148 while the earliest copy of Marculf is contained in a manusc/ipt which includes the Epitome Aegidiana of the Lex Romana Visigotharum149 Roman law and barbarian law go together.150
142 CTh 4.12.3, 5; see also 4.6.7.
143 Lex Rib. 61,15,16.
144 CTh 9, 9; compare NAnth 1,1.
145 Sid. Ap., Ep. V 5; Carm. xxiii.
146 CLA VII 950. On this MS (St Gall 731) see McKitterick, The Carolingians and the Written Word (1989), 46.
147 CLA IX 1395. On this MS (Wolfenbuttel, Weissemburg 97) see McKitterick, The Carolingians and the Written Word, 44.
148 CLA VIII1199.
149 CLA X 1576.
150 For a list of Carolingian legal MSS, and their contents, see McKitterick, The Carolingians and the Written Word, 48-55.
There is perhaps a final twist to all this; the student of early medieval law has no option but to look back to the Theodosian Code in order to understand the history of Burgundian and Frankish law. At ino same time, the history of the reception, preservation and transmission of the Code necessarily runs through post-Roman Gaul. Although Late Roman scholars may feel unhappy about venturing into the apparently alien world of the Liber Constitutionum and the Pactus Legis Salicae, those texts are relevant to the history of Theodosius’ great legal compilation.