Cambridge Ancient Hi.. - Index of

286 10. law in the western kingdoms
Burgundian Liber Constitutionum perceives written evidence as the Roman
custom, while witnesses are characteristic of barbarian tradition. It is to be
noted that this is a matter of distinctive customs as to how a transaction may
be guarded against the possibility of subsequent dispute, not an issue about
the validity of a gift or a sale: Roman law required neither documentary
confirmation nor witnesses in order to make a gift or sale of movables
valid. 123 In the Ostrogothic Edictum Theodorici it is declared that a donation of
movable wealth may be confirmed by written evidence while a donation of
immovable property, whether urban or rural, required to be confirmed by a
document containing the subscriptions of witnesses – in other words, a
charter – and that it was to be recorded in the gesta municipalia. 124 Euric, treating
of a sale rather than a donation, allows confirmation either by written
document or by witnesses without any observation as to whether one was
Roman and the other barbarian. 125
The end of the empire in the west brought about the extension of written
law to the barbarian settlers. Initially, Roman law itself remained in force,
alongside the laws of the various nations, even as far north as Cologne.
Only in Britain did Roman law virtually disappear; to judge by the later
Welsh law, as well as by Gallic attitudes to Bretons in the fifth and sixth
centuries, that may have been because of its weak hold on the Britons. In
Gaul, there is a marked contrast between the Roman pretensions of the
Burgundians, perhaps derived from the political ambitions of Gundobad
in the earlier part of his reign, and the Frankish tradition of law. Among
the Franks, the legal tradition remained attached to the constituent peoples
of the Frankish federation, to the Salians rather than to the Franks as a
whole. This was associated with a less overt role for the king in lawmaking:
until some date in Clovis’ reign the Salians had more than one
king. Among the Burgundians, however, a kingship that was much more
assertive in the legal sphere also ensured that one law prevailed for all the
Burgundians and any other barbarians within their kingdom. At the level
of Frankish or Burgundian identity, rather than, say, Salian identity,
Burgundian law is more ethnic precisely because it is more Roman and
more royal. Gregory of Tours says that Gundobad made laws for the
Burgundians, although he never says as much about any Frankish king. 126
When rulers such as Gundobad asserted their independence as legislators
vis-à-vis the empire, they did so as kings of their own peoples; hence the
less overtly royal character of the Lex Romana Burgundionum as compared
with the Liber Constitutionum. Barbarian kings were most anxious to pro-
123 Cf. Lex Romana Burgundionum 35.2. 124 Edictum Theodorici cc. 51–2, ed. J. Baviera, p. 692.
125 Codex Euricianus cclxxxvi, ed. Zeumer (1902) p. 11. Cf. Classen (1977b) 20–5; Zeumer (1899)
20. 126 Greg. Tur. Hist. ii.33.
Cambridge Histories Online © Cambridge University Press, 2008