Cambridge Ancient Hi.. - Index of

270 10. law in the western kingdoms
standard form of judgement. Matters begin to be a little more complicated,
however, when we turn from the individual decree to the way in
which decrees are combined into ‘titles’. Up to now the consideration of
decrees has not presumed that such decrees were written down: the texts
have been scrutinized in order to understand what men thought law was,
and this has been done on the assumption that most law was oral and
remained oral. 46 Once units larger than the decree come into play, we have
to confront the difficult issue of written law.
In their organization of decrees into larger units, Frankish and Kentish
law part company. There are groups of related decrees in Æthelberht’s Law,
but they are not marked as such by being put under separate titles. The Salic
Law, however, follows the model of the Theodosian Code; and decrees are
therefore put under titles. So, for example, the decree about the killing of a
Roman tributarius is the tenth decree under Title 41, ‘Concerning killings of
free men’.
The issue of larger textual units is all the more important because there
is nothing inherently necessary in the grouping of decrees of the kind discussed
hitherto. If they were perceived as individual legislative acts,
responses at a particular place and time to circumstances of which we know
nothing, such an origin would not naturally engender any systematic organization
of the material. Once such decrees had been put into written form,
they might be expected to constitute a series of separate unordered decrees.
This expectation might then lead to a further claim – namely, that just as the
titles of the Salic or the Burgundian Laws were a device borrowed from the
Theodosian Code, so too any ordering of these decrees would probably
have been a habit of mind introduced via the participation of Romans in
the compilation of barbarian laws. Such figures are indeed well attested,
notably in a letter from Sidonius Apollinaris, written about 469, mocking an
aristocrat of consular descent, Syagrius, for his cultural collaboration with
the Burgundians. 47 Syagrius had gone so far as to learn Burgundian, to play
the three-stringed lyre and to astonish the Burgundian elders by acting as a
judge, with the result that he was acclaimed by the barbarians as a new Solon
in the discussion of their laws. Similarly, it has been observed that
Childebert II’s last edict is attested by Asclepiodotus, previously a referendary
to Guntram, and clearly, to judge by his name, a Gallo-Roman. 48
This argument – that Roman participation was necessary before decrees
could be grouped together – is, however, difficult to reconcile with
Æthelberht’s Law, where, in spite of the absence of titles, there is consid-
46 I would not accept Wormald’s definition – (1977) 107 – of legislation as meaning ‘written decrees
by secular authority with ostensibly general application’; Nehlsen (1977) 456–65 argues against the previously
widely held view that references in the texts to Lex Salica were always to a written text of Salic
Law. 47 Sid. Ap. Ep. v.5; Syagrius 3 in PLRE ii.1042.
48 See Asclepiodotus 3 and 4, PLRE iii.134.
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