The legislation of the Gibichung rulers of Burgundy, and especially that which is contained in what is commonly known as the Lex Burgundionum, is particularly interesting for the study of late- and post-Roman law from the Barbarian West. It is unusual in providing a large number of references to the legislative process, not least because the so-called Burgundian Code is made up of a number of constitutions, some of which still bear the date and place of issue. As a result, we gain particular insight into the promulgation of individual laws in addition to their collection into a law-book1. Indeed the Lex Burgundionum seems originally to have been called the Liber Constitutionum2. The title seems significant: both in its emphasis on the constitutions that the book contains, and, as we will, in its lack of any ethnic descriptor3.
The original title of the other Burgundian collection, the so-called Lex Romana Burgundionum, would appear to have been Forma et Expositio Legum4. Again the title would seem to have some value for assessing the nature of the text. Rather than being a straight collection of laws, we are faced with a number of clauses in which a brief discussion of a particular crime and a statement of the appropriate punishment concludes with direction to the relevant clauses of the Codex Theodosianus and other imperial legislation, notably the Novels of Valentinian III, Majorian, Marcian, Leo and Severus, together with citations from Gaius, Paul, the Codex Gregorianus and the Codex Hermogenianus, and intriguingly from two laws which would later be included in the Codex Justinianus, but which do not seem to have been in the Theodosian Code5. The Forma et Expositio thus constitutes legislation, but primarily it acts as a guide (expositio) to law that was in force. It also presupposes the availability of earlier legal documents or collections.
Since the Liber Constitutionum states that Romans should be judged by Roman Law6, and since the Forma et Expositio includes legislation issued in 4657, which provides an important terminus post quem for the collection, it might at first sight seem reasonable to see the latter collection as providing a key to the law that was in force among the Roman subjects of Gundobad and Sigismund8, while the Book of Constitutions was directed to the Burgundians. Such an assumption, however, is oversimplistic. Certainly the Forma et Expositio would seem to have been compiled so that judges in cases concerned with Romans should not be ignorant of the law, which would seem to suggest that the compilation was aimed at those comites who were of non-Roman origin, and who, despite their judicial functions had not been trained as jurists: indeed many of them would have been military figures9. At the same time, many of clauses of the Liber Constitutionum were clearly applicable to both barbarian and Roman subjects10. In fact, neither the Forma et Expositio nor the Liber Constitutionum should be read as law intended for one “ethnic” group: there would seem to have been no clear-cut division between law for the Burgundians and Romans. Indeed, one clause of the Liber Constitutionum very remarkably modifies a law of Constantine11. Moreover, the Forma et Expositio clearly addresses many of the concerns of the Liber Constitutionum (which would appear to be later in date). Thus the thirty-year rule of the compilation of Roman Law would seem to be a point of reference for the Book of Constitutions12, as would other laws of the Roman collection13. The links between the two texts might even suggest that the Forma was in some way used as a blue-print for the Liber Constitutionum14.
Of course, the two Burgundian codes, and especially the Liber Constitutionum, have been the subject of considerable study, not least for what they reveal about the settlement of the Burgundians15, about their ethnic make-up16, and about society and politics of the Gibichung kingdom17. The actual process of legislation has been rather less discussed, at least in recent years18 – though certainly a vast amount of work was done in the nineteenth century19. Unfortunately the value of much of this early work was vitiated by the fact that it began from an assumption that the Liber Constitutionum represented Germanic law. My intention in what follows is first to look briefly at the structure of the Book of Constitutions, though this has been done many times, not least by De Salis in his edition for the Monumenta Germaniae Historica, and also more recently by Peter Heather: then to consider in more detail two moments of legislation: 500-2 and 517. This will lead us into questions about the capacity in which the legislator was acting – in the context of their law-giving did Gundobad (d. 516) and Sigismund (516-24) see themselves first and foremost as reges or as imperial officials, and more particularly as magistri militum? From this we will turn to the question of the identification of those subject to the legislation: a rather less obvious question than was once assumed, as we have already seen. Again this is a question that has been discussed by implication, although there are, I think, problems with some past assumptions about who might and might not be classified as Burgundian, and why20. Taken together, I hope these questions constitute a reasonably full discussion of the process of Gibichung law-making.
Before turning to the laws themselves, it is necessary to say a word about the constitutional position of the Burgundian rulers. The earliest Gibichung for whom we have much evidence is Guntiarius or Gundichar, who appears in the second decade of the fifth century as phylarch in Olympiodorus and slightly later, in Prosper of Aquitaine, as rex Burgundionum21: what exactly the term phylarch implies is unfortunately unclear. In the next generation, that is the third quarter of the fifth century, Gundioc and Chilperic, who were probably sons of Gundichar, held the title of magister militum, in addition to being kings from the Gibichung family. Presumably their Roman title should be understood as magister militum per Gallias. It would seem to have been under Gundioc that a party of Burgundians was settled in Sapaudia, a region which includes land to the north of Geneva, though this group would not appear to have been very numerous, and we cannot be sure that they constituted all the Burgundians22 – nor can we be sure of Gundioc’s involvement: he is not mentioned in the sole reference we have to the Sapaudian settlement, and he may, therefore, have been associated rather more closely with what remained of the imperial army than with those Burgundians settled in the region of Geneva. His son, Gundobad, spent the first part of his known career as Ricimer’s right-hand man in Italy, and indeed on the latter’s death he seems to have acquired his office of magister militum praesentalis23 – he was thus extremely well placed to know of legislation issued subsequent to the Codex Theodosianus. This may be of some significance when considering citations of the Novels of Valentinian III, Majorian, Marcian, Leo and Severus in the Forma et Expositio Legum. Gundobad would subsequently abandon his career in Italy, returning to the Rhône valley, and establishing himself as leader of his father’s people in somewhat obscure circumstances. He did not, however, give up the title of magister militum (presumably praesentalis, but perhaps his father’s position of magister militum per Gallias). This was an office he still held at the time of his death, and which he endeavoured to pass on to his son Sigismund24. As magistri militum these Burgundian leaders automatically exercised judicial authority over the soldiers under their command25. Yet although the office was essentially a military one, increasingly it had encroached on the civilian authority of prefects, and indeed one of the novels of Valentinian III expressly instructed Aetius to enforce legislation relating to the ordination of bishops26. Gundioc would likewise find himself, as magister militum, involved in the solution of religious disputes27. With the collapse of the imperial government in Gaul the civil jurisdiction of the surviving magistri militum no doubt increased yet further: such, at least, is implied by the references to Gundioc’s brother Chilperic in the letters of Sidonius and in the Vita Patrum Iurensium28. Any attempt to understand the laws of the Gibichungs must take into consideration their complex constitutional position.
Turning to the laws, the Liber Constitutionum provides a number of chronological indications concerning their promulgation29. Above all there is the Prima Constitutio. Unfortunately this survives in what are essentially two contradictory recensions: one ascribing the collection to Gundobad, the other to his son Sigismund. Traditionally the ascription to Gundobad was thought to be correct, and de Salis in his edition for the Monumenta reconstructed the opening clause according to the recension which includes the earlier king’s name. There was an apparent logic to this. The Code is often referred to as the Lex Gundobada or Loi Gombette. This title, however, is derived from Agobard writing in the ninth century, and although he may have had a copy of some recension of the Liber Constitutionum in front of him, he was thinking especially about one clause, 45, which introduced ordeal by battle for the legislator’s people30 – populus noster, a term to which we shall return. This clause is fortunately dated, to 502, thus indicating that it is indeed a law of Gundobad. The collection as a whole, however, includes the laws of at least two rulers, probably more.
It is clear that the Liber Constitutionum, as we have it, was the product of more than one moment: the collection underwent a number of revisions, though the Prima Constitutio in all but one of its surviving recensions, has a dating clause which ascribes it to March 29th in the second year of the king’s reign31. By chance this same date is appended to another law, where there is also a consular date, making it quite clear that it was issued in 517, which happens to be the second year of Sigismund’s reign32. We can, therefore, be sure that a compilation known as the Liber Constitutionum was issued by Sigismund in 517. This was probably not the last recension of the collection, nor the first.
Gundobad had almost certainly issued a Code of his own33, which may have formed the core of Sigismund’s law-book, and Peter Heather has suggested that this might be preserved largely as clauses 1-41 of the Liber Constitutionum34. One notable feature of the Burgundian Book of Constitutions is the extent to which individual laws refer to others in the same compilation35: however, as Heather has pointed out, the references to earlier laws seem to begin with clause 42, which might indicate that previous clauses belong to a first recension of the collection. The argument is certainly attractive, at least in broad terms, but it cannot be taken to prove that the first 41 clauses constitute an unaltered collection of law issued by Gundobad. Moreover, the Liber Constitutionum as we have it is most certainly not what Sigismund issued in the second year of his reign, though the first 88 laws may largely (but, as we shall see, not entirely) reflect the collection of 517. Laws 89 to 105 sometimes appear in the manuscripts as continuations: they can also appear as the first 17 of a group of laws known as the Constitutiones Extravagantes. We can thus infer that there was a Sigismund collection, to which additions were made, but we can also be sure that Sigismund’s compilation from the second year of his reign – like the putative collection, or collections, of Gundobad – does not survive in its original form: for a start clause 52 was issued on the same day as the Prima Constitutio, and cannot, for that very reason, have been part of the prepared collection. Equally important, however, clause 43 emends clause 60: if they had both been part of the original Liber Constitutionum they would surely have been placed next to each other, either in chronological or in thematic order.
We should, therefore, acknowledge that we do not have an unaltered text of Sigismund’s collection of 517, although we may have all the clauses which were part of it. Moreover, we also have to acknowledge that the order of the laws does not reflect the arrangement of the 517 Code exactly: some are clearly out of order; others, like clause 52, must be later additions to the collection. Moreover, we should also note that not all of the continuations or Constitutiones extravagantes are to be dated later than 517: in particular, Constitutio extravagans 20 has a consular date of 516. Constitutio extravagans 21 might have been issued by Gundobad shortly after 508, although there is also a case for seeing it as a late piece of Burgundian legislation, issued by Godomar, Sigismund’s brother, after 52436.
Yet, while we cannot take the order of the clauses of the Liber Constitutionum as providing an exact insight into what Sigismund actually issued in 517, or what was added thereafter, either by Sigismund himself or by his brother, Godomar, who ruled from 524-34, we are given a clear indication that legislation was issued with some regularity, and not just at the moments at which the compilations of the Liber Constitutionum and the Forma et Expositio were promulgated. For a start seven of the clauses are dated: to 50137, 50238, 51339, 51540, 51641, and two to 51742, one of which was issued on the same day as the Liber Constitutionum itself43. In addition, at least eighteen laws provide relative chronology, in that they explicitly refer to earlier law, while a further 25 implicitly do so44. Whether or not these laws were all included in Sigismund’s compilation of 517, they indicate a considerable tradition of law-giving by his predecessors. Two laws even point back to the period before Gundobad’s reign: in one Gundobad himself refers to freedmen of his royal ancestors45: in another there is a reference to the Mauriac Plains (in other words the defeat of Attila in 451) as a limit of legal memory46.
In considering the possibility that Gibichung rulers legislated prior to the period of Gundobad’s rule, it is worth remembering Syagrius, to whom Sidonius Apollinaris wrote around the year 47047. The latter commented on his friend’s ability to translate the language of the barbarians and on his acting as arbiter and disceptator in their negotiis mutuis: he was a Novus Burgundionum Solon in legibus disserendis48. The Burgundians were clearly the subject of legislation in the days of Gundobad’s father and uncle. It is also worth remembering that Sidonius’ epitaph suggests that he too helped legislate for the barbarians: Leges barbaros dedit furori49 – perhaps he was working alongside Syagrius: he certainly spent some time in places under Burgundian control50, so the barbarians for whom he legislated are as likely to have been Burgundian as Visigoth. Gundioc and Chilperic, like Gundobad, were Roman officials, and would have needed regular advice from men conversant with Roman law, and we might well guess that Syagrius and Sidonius played some role in collecting law that was subsequently enshrined in the Forma et Expositio.
The Gibichungs, then, are leaders used to legislating: we are not just dealing with the one-off promulgation of a law book51. Moreover, almost all the earlier laws which the Liber Constitutionum claims to be revising would seem to have been written: there is next to nothing to suggest that the Burgundians had a well-established tradition of unwritten legal custom, although there are a handful of references that can be construed in that way. We hear of antiqua calumnia52: of consuetudo antiqua53; of things that have long been conserved (haec in populo nostro antiquitus fuerint conservata)54; and, less certainly referring to tradition, of certa sub districtione olim… constitutum55. More problematic is a statement secundum consuetudinem barbarorum, praebeat iurisiurandum56. At first sight, since oath-taking was, according to academic tradition, a Germanic means of witness, this seems straightforward. There is, however, first, the point that oath-taking was by no means confined to Germanic law: it is both Roman and Christian57. In addition, another law, the infamous Loi Gombette, makes it clear that the populus noster of the legislator did not take oath-taking seriously: indeed it was treated as a joke: hence the need to introduce ordeal by battle58. On the other hand, we should not instantly assume that ordeal by battle was traditional to Gundobad’s Germanic followers. There is nothing in the law to say that is was an antiqua consuetudo. We might just as well assume that this is a legal practice whose origins lay among the military – perhaps even the Roman military, although its presence in Lombard law may suggest that it was widespread among Germanic peoples59.
Thus far, I have argued that the promulgation of law was a regular occurrence among the Gibichungs, and especially in the time of Gundobad and Sigismund. Clearly their followers did follow certain established customs, though whether there is anything to be gained by calling these customs Germanic is far from certain. Such customs would seem to have been much less important than written legislation, both imperial Roman law and that of the Gibichungs themselves. We should also envisage the use of Roman provincial law equivalent to that preserved in the later Byzantine Farmer’s Law60.
Gibichung rulers thus seem to have issued laws on numerous occasions. As we have already noted, there are a number of dated laws61. In addition, some other (undated) laws were clearly issued in response to problematic cases that had arisen, and effectively constitute a public statement of a specific legal decision62. There are, however, particular moments of legislation that seem to be more important than others: obviously these included those occasions on which collections of laws, or law-books, were issued – and it is important to note that the issuing of a code was much rarer and had far more, and different, significance from the promulgation of an individual law63. One particularly important moment was surely the 29th March of the second year of Sigismund: the date of the Prima Constitutio of the Liber Constitutionum. In the opening clause itself we learn that Sigismund was offering directives on law to all his law enforcers, Burgundian and Roman, although curiously the 31 names of comites appended to the constitution are without exception Germanic. Fortunately we know a little more about the gathering that issued the Code than is immediately apparent from the Prima Constitutio, from clause 42, which was issued on the same day.
This particular constitution deals with the case of a widow Aunegild, who, of her own volition, and with the consent of her parents, had been betrothed to the king’s sword-bearer, Fredegisil. But then as the title of the clause has it, “incited by desire” she went off with Balthamodus instead. This was a breach of Aunegild’s vows, for which she and Balthamodus both merited the death penalty. However, since the case was being judged during Eastertide (the feast itself falling three days earlier, on 26th March), the more lenient penalty of the payment of wergeld was enforced. The fact that it was at Easter that the Aunegild case was judged, and that the Prima Constitutio, and thus Sigismund’s recension of the Liber Constitutionum, was promulgated on the same day tells us a good deal. We know from the correspondence of Avitus of Vienne that the Easter festivities at the royal court were of great importance, and that it was hoped that leading churchmen might attend – though this was, of course, problematic, because a bishop would be expected to officiate in his own cathedral on Easter Sunday64. From the Prima Constitutio alone, and indeed from the case of Aunegild, which involved the king’s sword-bearer, one might conclude that Sigismund was simply meeting with his Germanic comites – though the office of comes should surely be understood as a Roman one65. From the precise date, and from the correspondence of Avitus of Vienne, however, we know that the meeting took place at the holiest time of the year, when there would have been plenty of people other than Germanic comites at court, among them a number of leading Romans and clerics. We can go one step further: March 517 was the second Easter of Sigismund’s reign, but since he came to the throne in 516, this was probably the first Easter court for which the king had had a significant period of preparation. We know that he was already ruling by March 8th 51666, but that must have been very early in his reign indeed, since he did not succeed to his father’s kingdom until after the start of the year. Thus we can conclude that the Prima Constitutio was issued at the first great Easter court for which Sigismund could have been fully prepared. Presumably he had commissioned the code in his first year. The Code itself should surely be read as a public statement of his authority – but the laws contained in it were not new, and we can assume that the one piece of new legislation issued on that day, relating to Aunegild, was not part of the original law-book.
517 also saw another major gathering, that of the bishops of the kingdom, who met at Epaon in the beginning of September67. Although the title given to the council in the manuscript includes the phrase tempore Sigismundi regis, there is no other reference to the king in the canons, and even the dating clause of the acta is merely consular. On the other hand, the bishops at Epaon dealt at length with the issue of incest68. In this they may have picked up on a clause in the Liber Constitutionum69. Although this has been doubted70, the bishops would certainly have been aware of the secular legislation. Moreover, the issue of incest was to become extremely significant within a short period of time, when the king allowed one of his own officials to ignore the ban on marrying the sister of his dead wife: an act which prompted a second episcopal council, and a mass walk-out by the episcopate71.
While we can be certain of the importance of the legislation of Sigismund’s second year, Gregory of Tours identified another moment as crucial for Burgundian law-giving. In 500 Clovis invaded Gundobad’s territory, and was joined by the Gibichung king’s brother, Godegisel72. Gundobad was driven into exile in Avignon, but when Clovis withdrew his forces from the Rhône valley the older Burgundian retook his kingdom, killing his brother, after besieging Vienne. He then tortured and killed many seniores and Burgundians, but thereafter, according to Marius of Avenches, ruled feliciter73. Gregory also notes the siege, the slaughter of the Roman nobles and of the Burgundians who had supported Godegisel – though captive Franks were sent unharmed to Toulouse. Gundobad then instituted leges mitiores among the Burgundians to ensure that they did not oppress the Romans74. Gregory clearly regarded the period after 500 as a time of significant legislation. Since his great-grandfather, Gregory of Langres, was comes in Autun at the time75, we may guess that he had good reason to know about the leges mitiores.
As the kinder laws were concerned with the Romans, it is tempting to think that this was the context in which the Forma et Expositio Legum was compiled – although a date as early as the late 460s is technically possible76: the latest piece of legislation to be excerpted in the collection was issued by the emperors Leo and Libius Severus in 46577: and, as we have seen, Sidonius commented on the involvement of Syagrius in Burgundian law, and was himself involved in legislation for the barbarians78. It might, however, be possible to see in some of the laws collected, and especially those concerned with violence and rape, a reflection of concerns prompted by the civil war of 50079. Certainly, since the Forma et Expositio would seem to have been in existence before the Liber Constitutionum was drawn up, it would most likely have been authorised by Gundobad. Yet Gregory is explicit that the laws which made life better for the Romans were issued to the Burgundians. While the aftermath of the civil war of 500 may provide the context for the Forma et Expositio, the collection can, therefore, hardly be Gregory’s leges mitiores, which must surely be sought for in the Liber Constitutionum.
It is tempting to think that Gregory had in mind an earlier recension of the Code, and indeed it has been suggested that Gundobad issued such a recension in 50280. Peter Heather has even seen the first 41 clauses of the Liber Constitutionum as Gundobad’s collection81. Yet these are very clearly concerned with a wider range of issues than relations between Romans and Burgundians: so the collection as a whole can hardly constitute the legislation described by Gregory. Yet we do not have to assume that the bishop of Tours was talking about a law-book rather than individual laws. Moreover, we may be able to identify some individual laws as belonging to the leges mitiores issued during the period after the return of Gundobad in 500. This is not to deny the possibility that Gundobad collected Gibichung legislation into a law-book at some point after the civil war. It is, however, worth emphasising the fact that certain individual laws, rather than a complete code, may well have addressed the complaints of the Romans, especially because interest in the collections of barbarian laws has tended to overshadow an appreciation of the significance of the promulgation of individual edicts.
The Liber Constitutionum contains two laws dated to 501 and 502. The first of them is unlikely to have had much impact on the Roman population, being concerned with the inheritance of those who die without children82. Since this refers explicitly to the morginegiva given by the husband to his wife, it is surely directed primarily towards the Burgundians or barbarians more generally: there would be no other reason for using the Germanic term. The law of 502 is rather different83. This is the law in which Gundobad institutes trial by battle. Since individuals among populus noster, out of greed, have been swearing oaths about matters over which they could not be certain, Gundobad ordered that a party could refuse the oath of his opponent and opt instead for the judgement of God: that is trial by battle. This may not seem immediately to help the Romans, but it is one of a number of clauses concerned with cases in which Burgundians seem to have been exercising undue pressure on the Roman population – the problem, of course, was an old one: the involvement of barbari in appeals is dealt with in an edict of 40584. One law of the Liber Constitutionum bans the use of Burgundian patrocinium in cases between Romans85: another excludes Burgundians from involvement in Roman land-disputes86: a further law prevents Burgundians from refusing to provide hospitality to visiting legates, and from directing them to Romans instead87. So too, one might see a number of the laws regulating the land-division and preventing Burgundians from exceeding their rights as belonging to this period88. The leges mitiores are probably to be found in such legislation, rather than in the issuing of a complete law-book. But the rhetoric of better treatment for the Romans seems not to be confined to the period immediately following 500: it is an underlying concern of the Prima Constitutio of 517. One might wonder whether Sigismund has deliberately picked up his father’s rhetoric.
If we turn from the moments of legislation, to the legislative body involved, we again find a good deal of evidence in the Liber Constitutionum. The Prima Constitutio issued in Lyon itself makes it clear that the king has sought the consent of his comites and proceres89. The lengthy Constitutio Extravagans 21, which contains laws issued at the conventu Burgundionum held in Ambérieux, talks of discussions with the ruler’s comites. Further laws – two of them concerned with inheritance, and a third with the mitigation of the death penalty laid down by Constantine – mention the involvement of obtimates90. Thus we see the king and his counts and other obtimates legislating from at least two centres, Lyon91 and Ambérieux92. Ambérieux might perhaps be seen as a centre rather more closely associated with the Burgundians than was Lyon, with its established imperial traditions and senatorial families. One might see a number of inscriptions from the nearby site of Briord as reflecting the presence of high-status Burgundians in the region93.
For the most part, the clauses of the Liber Constitutionum indicate that the king was acting with the leaders of his Germanic following. Certainly only comites with Germanic names appear in the subscription list of the Prima Constitutio, and one of the Ambérieux laws talks of a conventus Burgundionum94. Yet we should remember that the Prima Constitutio was issued at Sigismund’s second Easter court, which, as we have seen, would have been attended by Romans. Further, it is worth remembering that there were Roman as well as Burgundian comites in the Gibichung state, which raises the question of why only Burgundians signed the Prima Constitutio. Perhaps the law was ratified at more than one meeting, and the surviving versions of the text derive from a gathering limited to the Burgundian military. It was surely they who dealt with the case of Aunegild, Fredegisil and Balthamodus, that was judged on exactly the day that the Liber Constitionum was issued95.
One law contained in the Constitutiones Extravagantes was explicitly inspired by a Roman bishop. On March 8th 516 Sigismund legislated on foundlings in response to a request by Gimellus of Vaison96. Exposed children had been left to die because of worries about later claims over them. It would even seem that there had been law-suits between Romans and Burgundians. Important for us is the explicit admission that the law was prompted by Gimellus, who was clearly present at court. Surely much of the other legislation in the Liber Constitutionum would have required the presence of Romans, since it concerned them, and since it was on occasion based on laws in the Forma et Expositio: or, in the case of one law, responded directly to legislation of Constantine97. Sidonius’ comments on the role of Syagrius in the 460s or 470s are a clear indication of the involvement of Romans in Burgundian legislation before the days of Gundobad and Sigismund98, and, as we have seen, Sidonius’ epitaph may indicate his own involvement.
Although the laws present the Burgundian rulers as legislating primarily in discussion with their Germanic followers, it is notable how rarely they are said to be legislating as kings. Sigismund appears as rex in the Prima Constitutio three times; he also appears as rex Burgundionum in the heading to the law of foundlings99. Gundobad appears once with same appelation in the title to a law on arrests100. Whether the titles of these last two laws, both of which only appear in the Constitutiones Extravagantes, are original is perhaps questionable: it is worth remembering that the Liber Constitutionum has not come down to us in its original state, and that a later Frankish redactor might have added the ethnic descriptor. It should be noted that rex rarely appears in an official Burgundian document with an ethnic signifier101: outsiders were more likely to use the phrase, and no doubt to do so could be a deliberate disparagement: the title rex Burgundionum is arguably more limiting than is that of rex. References to the king, without any ethnic descriptor, are to be found in the Liber Constitutionum: thus we hear of munera regis102, servus regis103, conviva regis104. Rex also appears twice in the Forma et Expositio105. In addition, Sigismund is described as rex in the headings of letters he, or rather Avitus on his behalf, wrote to the emperor Anastasius. Of course, these may be editorial additions106. Tellingly, however, Avitus states cumque gentem nostram videamur regere, non aliud nos quam milites vestros credimus (“Even though we seem to rule our own people, we think of ourself as nothing other than your soldiers”)107. The king rules over a gens, but one without ethnic definition.
But the legislator is not described solely as rex. Almost as common is domnus – a term which Katherine Fischer Drew in her translation of the Burgundian Code unhelpfully rendered as “king”108 – or dominus, which, while usually simply meaning lord, on one occasion seems to refer to either Gundobad or to Sigismund109. The Forma et Expositio more generally uses the term princeps. Although on occasion the reference is explicitly to an imperial legislator110, on other occasions the word would seem either to apply to the Burgundian ruler or to be ambiguous111.
It is worth adding a point observed by Mark Handley. Among the rulers of sub-Roman kingdoms the Gibichungs would appear to be unusual in their preference for consular over regnal dating112. Although Handley’s case is overstated, because of an acceptance of forged documents, and of the inclusion of letters which were issued from the papal and not from the Burgundian chancery, it would appear that Gibichung edicts were dated primarily by consular year, rather than that of the king113. This use of a system of dating which linked the kingdom firmly with the eastern Empire is also to be found in other documentation, and on inscriptions. It is fully in tune with the expressions of subordination to the Empire expressed in Avitus’ letters to the emperor114. Remarkably, Jonas of Bobbio, writing in 659 talks of the late fifth century as being a time when a consul ruled the Gauls115.
It would not seem, therefore, that the legislation of Gundobad or Sigismund was seen as being associated particularly with their position as king. It may be significant that most of the occurences of the word rex occur in the years 516 to 517, which could have been a problematic time for Sigismund. His elevation to power was a complex one. Like his father Gundobad, and his uncle Chilperic, he held the title patricius116. This was already his position sometime before 515. He was also elevated in regnum at Carouge on his father’s orders117. He did not, however, become king until after the death of Gundobad in 516118. Meanwhile first Gundobad and then Sigismund tried to negotiate with the emperor for the younger man to receive his father’s title of magister militum. Although the title does seem eventually to have been conferred, Sigismund does not seem to have received it until some time after his father’s death119. In other words, at the time of the 516 edict on foundlings, and perhaps still at the time of the promulgation of the Liber Constitutionum in 517, Sigismund may not have been magister militum, but only rex. There may, thus, be a reason for the fact that the preponderence of legal references to Sigismund as rex fall in the first two years of his reign.
What of the people with whom the Liber Constitutionum is concerned? As we have seen, a traditional view would be that these are laws for the Burgundians, a Burgundian Code, and that the Romans had their own discrete laws, as is mentioned in the Prima Constitutio120. These laws could be the Forma et Expositio, or the Codex Theodosianus itself121. Yet this is clearly not an adequate description of the contents of the Liber Constitutionum. While it may be addressed primarily to Burgundians, or the Burgundian counts who subscribed, the Prima Constitutio makes it quite plain that relations between Burgundians and Romans are at the heart of the legislation. Judges are to judge between the two groups according to the revised laws: Omnes itaque administrantes ac iudices secundum leges nostras, quae communi tractatu compositae et emendatae sunt, inter Burgundionem et Romanum praesenti tempore iudicare debebunt (“Therefore all administrators 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”)122. Romans appear frequently in the laws, not least with regard to property and the Burgundian settlement, but also more generally in cases of dispute settlement. The great Italian legal historian Carlo Troya noted that what he regarded as Gundobad’s laws mentioned Romans more than forty times123. In making the point he had in the back of his mind the apparent absence of any reference to Romans in the Lombard laws: Burgundian law could be used to illustrate the oppression of the Italians in the Lombard period. One may question the comparison, but Troya’s emphasis on the presence of Romans in the clauses of the Liber Constitutionum is still important.
Despite the simplicity of the statement that judges are to deal with relations between Romans and Burgundians, it would be wrong to think that Roman and Burgundian constitute straightforward categories. The Romans we can perhaps regard as an easily defined group (although, as we shall see, the term ingenuus presents problems of distinguishing Roman from Burgundian). There is nothing easy about the definition of a Burgundian, as has long been recognised. Indeed, the Liber Constitutionum itself is inconsistent in its terminology. It talks of Burgundians, barbarians124, and populi nostri125, and contrasts them with Romans, Jews126, Franks and Goths127, externae gentes, adveni or homines extraneae nationis128 – although the word extraneus might also mean nothing more than someone who was not a local129. In a much-cited article Patrick Amory saw a steady shift away from the use of Burgundian as an ethnic term, which he regarded as having particular significance at the time of settlement: in its place he saw a growing use of the terms populus noster and barbarus, which he regarded as expressing social rather than ethnic difference130. The general point may be valid, although it is unfortunately unverifiable because far too many of the laws in question are dateless, and, as we have seen, they do not even have to date from before the 517 promulgation of the Liber Constitutionum. Certainly Constitutio Extravagans 21, which might have been issued any time between 508 and 534, talks very clearly of Burgundiones.
While allowing that Amory is right to see the term Burgundian as having particular (although not exclusive) currency in the laws relating to settlement (which, one should note, was not a single event, but rather a sequence)131, it is perhaps more useful to look at the use of three other terms: barbarus, populus noster and ingenuus. The latter word at times goes with the ethnic descriptors Burgundio, barbarus and Romanus132. On only one occasion is the term ingenuus linked exclusively with Burgundio133; elsewhere it appears together with the phrase tam Burgundio quam Romanus134 or tam barbarus quam Romanus135. Clearly the word is simply concerned to describe the social status of an individual. His (or her) ethnicity is of no significance. Katherine Fischer Drew’s slightly cumbersome translation “native freeman” seems largely correct. Eighteen of the laws of the Liber Constitutionum concern ingenui, and we may assume that they were directed to any native freeman of the Gibichung realm, regardless of ethnicity136.
More problematic are the other two terms, barbarus and populus noster. Barbarus is a particularly interesting term to use, because it flies in the face of the standard assumption that no one would have identified himself as a barbarian137. This assumption might seem to hold true when one considers the Variae of Cassiodorus: in the Ostrogothic kingdom the barbari were outsiders138. This, however, was not the case in Gibichung Burgundy139. It is true that on one occasion the term does seem to be used to describe a non-Roman from outside the kingdom140, but in most other cases the word would seem to be used simply as a synonym for Burgundian141 – there is, however, one exception which suggests that this is a statement that will need some modification. Liber Constitutionum 2 talks of killing hominem ingenuum ex populo nostro cuiuslibet nationis aut servum regis, natione duntaxat barbarum (“a native freeman of our people of any nation, or a servant of the king, in any case a man of barbarian tribe”)142. The implications of this may perhaps become clearer once we have looked at the other awkward descriptor, the phrase, populus noster.
The term populus noster is reasonably common in the Liber Constitutionum, occuring twelve times143. For the most part it would seem to be synonymous with the words barbari or Burgundiones. Certainly it could encompass the higher sections of society: the ruler legislates after discussion with the obtimates populi nostri144, but it also encompasses people lower down the social scale. The rhetoric of populus noster is, of course, rather different from that of barbarus, implying a direct association between the ruler and his people. It is worth noting here that the phase populus noster would seem to be alluded to by Avitus of Vienne in one of the letters to the emperor he wrote for Sigismund, to secure the transfer of his father’s title of magister militum145. There Avitus uses the phrase vester quidem est populus meus. The king’s people is in the service of the emperor. Sigismund might wish to imply that all the people, Roman and Burgundian, under his jurisdiction were part of the Byzantine Empire. He might be wishing to make a rather less elevated claim, that all the Burgundians were subject to the emperor. Or alternatively he might have been wishing to suggest that the military force he could command was at the emperor’s service. Of course, given the ambiguity of the rhetoric, all three meanings might have been intended.
The Avitus letter raises the possibility that the language of the laws was deliberately ambivalent. Populus noster might mean the Burgundians, and clearly at some moments does. Yet it might also stretch rather wider than that, and might encompass those who could not have been included within the descriptor Burgundio/Burgundiones. The same might be argued for the term barbarus. While we tend to see this last term as derogatory, it might have the advantage of being applicable to men other than Burgundians who were still not Roman. With this possibility in mind, it is worth returning to the history of the Gibichung state.
The origins of the Burgundian kingdom within the Roman Empire are always (although perhaps rather too simply) traced to the transfer of the remnant of the people to Sapaudia in c.443, following their destruction by the Huns some ten years earlier146. Exactly why Aetius settled Burgundians in the region to the north of Geneva is unknown, although creating a buffer zone against the Alamans has been suggested. What is equally unclear is the scale of the settlement. It is mentioned in only one Chronicle (that known as the Chronicle of 452), and the archaeology does not suggest that large numbers of identifiable Burgundians were transferred to Sapaudia147. Of course, identifying peoples archaeologically is questionable, and the question of numbers might be radically reopened if new cemeteries are discovered. Even so, in the current state of our knowledge, it is unlikely that the Burgundian settlement in Sapaudia was extensive. In any case, there may not have been a large pool of Burgundians after the Hunnic onslaught.
The next event relevant to the establishment of the Gibichung kingdom was the arrival of Burgundians in the central Rhône valley. This party was led by Gundioc148. It is an assumption that Gundioc’s Burgundians were only drawn from Sapaudia: they could have been a different group that had not been settled by Aetius. Certainly they were first and foremost an army. This expansion into the central Rhône was short-lived, and Gundioc and his men were driven back by Majorian. Soon after 461, however, they returned. On this occasion Gundioc seems to have had the support of Ricimer, who must by this time have been his brother-in-law149, and he was even recognised as magister militum150. In this office he was succeeded by his brother Chilperic, sometime around the mid 460s. Thus far, we can talk of a relatively small body of Burgundians, under the leadership of kings who had also come to hold the office of magister militum. We have no legislation that we can identify as being issued by either Gundioc or Chilperic, but we can be certain that these two leaders had a say in the settlement arrangements which can be traced in later laws151.
We know remarkably little about events in the zone controlled by Chilperic, despite a few comments in the letters of Sidonius Apollinaris and in the Vita Patrum Iurensium. Perhaps more important was the career of Gundobad, who left Burgundy for Italy, where he served under his uncle Ricimer152. When the latter died in 472 Gundobad took over his office of magister militum praesentalis. Two years later, however, he abandoned Italy, apparently after the elevation of Julius Nepos. As we learn from letters of Avitus of Vienne, however, he did not see himself as giving up his title. We may infer that he returned to the Rhône valley with at least a portion of Ricimer’s old forces. If these included men who had not been among Gundobad’s original companions when he left the Rhône valley they might not have been Burgundians.
Gundobad’s rise to the rulership of the Burgundian kingdom is obscure. He may have overthrown his uncle Chilperic153, or he may have succeeded naturally. All we can say is that he was well established by 490, when he received an embassy from the Ostrogothic ruler of Italy, Theodoric, led by Epiphanius of Pavia. Ennodius in the Vita Epiphanii described Gundobad as rex and as princeps Burgundionum154. The ethnic term, however, cannot have remotely described the reality of Gundobad’s subjects. The Gallo-Romans, of course, would have constituted the majority of the population. The Burgundians of Sapaudia and of the Rhône would have been a small minority. They were not even the only barbarian group settled in the Rhône valley the 440s by Aetius: the Chronicle of 452 records the settlement of Alans under Sambida in Valence under what can be read as the year 439155. And then there is the question of the scale and political importance of the following that accompanied Gundobad back from Italy. This, however, was not the end of immigration into the Gibichung kingdom. There are also adveni and homines extraneae nationis, who appear in the Liber Constitutionum156. These may have been no more than travellers, although the law does suggest that some may have been intent on staying longer. More important, in Constitutio Extravagans 21, which is unfortunately dateless, but is unlikely to be earlier than 508, we hear of Goths who have escaped from the Franks, and who are being given permission to settle in regione nostra157. The fact that this merits legislation suggests that there were quite a few Gothic refugees following Clovis’ victories158.
All barbarian peoples were mongrel, but the ethnic mix among the followers of Gundobad and Sigismund seems to have been extreme. Against this background, the tendency to substitute barbarus for Burgundio surely makes a good deal of sense. So too, the use of the phrase populus noster was a convenient way of talking about all the subjects of the ruler, but especially the barbarians among them. The people of the Burgundian kingdom were indeed the people of the Gibichung ruler. These terms represent a simple reality, and would no doubt have been more acceptable to a non-Burgundian barbarian living within the kingdom than would the word Burgundiones, especially in those laws dealing with matters other than the settlement of Burgundians. So too, the word ingenuus marked a distinction more important than any ethnic one: being free.
Given the mongrel nature of the Gibichung subjects, one might also consider the value of the term rex. That Gundioc, Gundobad, Sigismund and Godomar were all called rex at some point in clear enough159. We even hear of Sigismund’s elevation in both Marius and Fredegar160. But these men were scarcely kings of the Burgundians, although the phrase rex Burgundionum does occur occasionally, albeit almost always in non-Gibichung or later sources. We are not dealing with ethnic kingship. Gundobad’s emphasis on his Roman title and his desire to pass it on to his son, thus makes a good deal of sense. This was an authority that all, including the Romans, could recognise. It was, however, an authority which was first and foremost military. It is perhaps not surprising that the signatories of the Prima Constitutio were Burgundian comites, who may well have been primarily military men rather than urban administrators. Here it is worth remembering that the Liber Constitutionum contains numerous laws that can best be viewed from a military point of view: among them there are the laws on settlement, but also the infamous Lex Gundobada, instituting trial by battle. Of course, the Gibichungs legislated on issues that went far beyond the military, and their power was over the whole population. It is, however, worth remembering Sigismund’s words to Anastasius, as expressed by Avitus: cumque gentem nostram videamur regere, non aliud nos quam milites vestros credimus161. Gundobad and Sigismund understood their authority as being derived from their military position.
Ethnic terminology has bedevilled interpretations of the post-Roman period. To speak of the Burgundian kingdom is a convenient shorthand, but the area ruled by the descendents of Gundioc was not Burgundian in an meaningful sense. The Burgundians were not numerically dominant, nor were they the only barbarian group within the Gibichung realm. Barbari was a more accurate description of the non-Roman followers of Gundobad and Sigismund: not surprisingly they used the term in their legislation, even though modern scholarship would see it as derogatory. Populus noster was yet vaguer and perhaps for that reason had its own value: it could imply the personal following of the ruler, but it could also stretch to cover all his subjects, Romans included. As for the rulers themselves, they were reges, but preferred not to see themselves as reges Burgundionum, arguably because the descriptor might seem to be limiting. They were principes and domni, and above all they were officers of the empire, legislating within an imperial tradition, with Roman laws in front of them, which they used and modified as they thought fit. Their jurisdictional authority came from their positions as servants of the empire: as Sigismund, through Avitus, remarked to Anastasius, vester quidem est populus meus. He stated this, angling for the office of magister militum, which had been held by his father, grandfather and great-uncle. He may not have received the title before he issued the Liber Constitutionum, but the origins of the Code surely lie in the Roman authority of the Gibichungs.