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The Burgundian Code

Book of Constitutions or Law of Gundobad; Additional Enactments

Translated by Katherine Fischer Drew. Foreword by Edward Peters

Publication Year: 1972

"Gives the reader a portrayal of the social institutions of a Germanic people far richer and more exhaustive than any other available source."—from the Foreword, by Edward Peters

From the bloody clashes of the third and fourth centuries there emerged a society that was neither Roman nor Burgundian, but a compound of both. The Burgundian Code offers historians and anthropologists alike illuminating insights into a crucial period of contact between a developed and a tribal society.

Published by: University of Pennsylvania Press

Title Page

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Copyright

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FOREWORD TO THE PENNSYLVANIA PAPERBACK EDITION

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pp. 6-9

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PREFACE

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pp. 10-11

The original suggestion for this translation of the Burgundian Code derives from the interest and appreciation in the early Germanic laws and institutions which Dr. Floyd Seyward Lear of the Rice Institute has incorporated in his various writings and instilled in the minds of his students...

CONTENTS

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pp. xiv-xvi

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INTRODUCTION

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pp. 1-14

The Burgundians were one of the East Germanic tribes. They first came into contact with the Roman Empire in the third century when they had established themselves just east of the Rhine along the Main River, where they and other groups of barbarians continually threatened the Roman...

LIBER CONSTITUTIONUMSIVELEX GUNDOBADA

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pp. 15-

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PREFACE- BOOK OF CONSTITUTIONS OR LAW OF GUNDOBAD1

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pp. 17-21

The most glorious Gundobad, king of the Burgundians. Since we have given deep thought to the enactments of our predecessors and of ourselves regarding the peace and welfare of our people, we have considered what is most fitting to promote hones , discipline...

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I

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pp. 22-23

Because nothing concerning the privilege of bestowing gifts which is permitted to fathers, or concerning the gifts (and gratuities) of rulers, has been provided in the laws, we have decreed in the present statute, with the common consent and will of all, that it be permitted to a...

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II

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pp. 23-24

If anyone presumes with boldness or rashness bent on injury to kill a native freeman of our people of any nation or a servant of the king, in any case a man of barbarian tribe, let him make restitution for the committed crime not otherwise than by the shedding of his own...

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III

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pp. 24-

If it shall be established that any were the freedmen or freedwomen of our ancestors of royal memory, that is, Gibica, Godomar, Gislaharius, Gundaharius...

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IV

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pp. 24-26

1. If anyone solicits another's bondservant, or anyone, either native Burgundian or Roman, presumes to take in theft a horse, mare, ox, or cow, let him be killed: and let him who lost the bondservants and animals mentioned above, if he is not able to find them in the possession of the solicitor or thief, receive compensation in fee simple: that is,...

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V

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pp. 26-

If anyone strikes a native freeman with such presumption, let him pay a single solidus for each blow, and let him render a fine of six solidi to the king's treasury. 2. Whoever strikes another's freedman, let him pay a single semissis for each blow

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VI

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pp. 27-28

If anyone seizes a fugitive within the provinces belonging to us, let him receive a solidus for the fugitive; and if the fugitive takes a horse with him, let him (the man who seizes the fugitive) receive a semissis for a pack horse, a tremissis for a mare, and let him return the fugitive...

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VII

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pp. 28-29

This procedure will be observed among Burgundians and Romans: if a crime is charged by anyone which cannot be proved at the present, we order...

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VIII

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pp. 29-

...If a native freeman, either barbarian or Roman, is accused of a crime through suspicion, let him render oath, and let him swear with his wife and sons and twelve relatives: if indeed he does not have wife and sons and...

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IX

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pp. 30-

If any Burgundian or Roman shall take away anything, even a young animal, we order him who took it away to pay the price which has been set by us ninefold...

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X

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pp. 30-31

...If anyone kills a slave, barbarian by birth, a trained (select) house servant or messenger, let him compound sixty solidi; moreover, let the amount...

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XI

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pp. 31-

...Whoever cuts off with a blow the arm of a man, either a freeman or slave, let him compound half his wergeld; if he does not cut the arm off...

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XII

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pp. 31-

...If anyone shall steal a girl, let him be compelled to pay the price set for such a girl ninefold, and let him pay a fine to the amount of twelve solidi. 2. If a girl who has...

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XIII

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pp. 32-

...anyone, Burgundian as well as Roman, makes a clearing in the common forest, let him give another such tract of forest to his host (or guest as the...

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XIV

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pp. 32-33

Among Burgundians we wish it to be observed that if anyone does not leave a son, let a daughter succeed to the inheritance of the father and mother in place of the son. 2. If by chance the dead leave neither son nor daughter, let the inheritance go...

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XV

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pp. 33-

If any freeborn Burgundian enters another's house to fight, let him pay six solidi to him to whom the house belongs; and let the fine be twelve solidi. Furthermore we wish this to be observed equally among Burgundians and Romans. 2. Indeed if a slave...

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XVI

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pp. 33-34

If anyone has followed the tracks of an animal, and following those tracks comes to another's house, and if he to whose house he comes prohibits his entering the house to seek back his property, let him who...

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XVII

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pp. 34-35

All cases which involve Burgundians and which were not completed before the Battle of Chalons1 are declared dismissed. 2. If anyone shall identify his slave or maidservant, let him receive him back. 3. For a freeman...

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XVIII

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pp. 35-

If any animal by chance, or if any dog by bite, causes death to a man, we order that among Burgundians the ancient rule of blame be removed henceforth: because what happens by chance ought not to conduce to the loss or discomfiture of man. So that if among animals...

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XIX

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pp. 36-37

If anyone removes pledges of any sort whatsoever before the hearing, let him lose his case, and let him pay a fine of twelve solidi. 2. If anyone takes another's horse as if identified for his own, and is not able to prove it his, let him be sentenced to the loss of another (additional...

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XX

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pp. 37-38

If any slave has fled, and while in flight steals any ornaments, clothes, or anything belonging to anyone and takes them with him, let none of these things be sought back from the master of the slave; provided only that...

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XXI

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pp. 38-

If anyone, Burgundian as well as Roman, lends money to a serf or slave without consulting his master, let him lose the money. 2. Indeed whoever has permitted a slave to exercise his assigned occupation in public as gold, silver, iron, or bronze smith, tailor or shoemaker, and perchance...

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XXII

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pp. 39-

Whatever Roman hands over a case which he has with another Roman to be transacted by a Burgundian as advocate, let him lose the case, and let him who receives...

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XXIII

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pp. 39-40

If a man has enclosed or shut away an animal from his crops or from any place where it can do damage, and if the man to whom the animals belong drives them by force out of the courtyard of him who confined them as a voluntary act of presumption before the value of the damage done...

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XXIV

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pp. 40-41

If any Burgundian woman, as is the custom, enters a second or third marriage after the death of her husband, and she has children by each husband, let her possess the marriage gift (donatio nuptialis) in usufruct...

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XXV

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pp. 41-

If anyone enters a garden with violence, let him pay three solidi for such presumption to him to whom the garden belongs, and let the fine be...

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XXVI

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pp. 41-42

If anyone by chance strikes out the teeth of a Burgundian of the highest class, or of a Roman noble, let him be compelled to pay fifteen solidi. 2. For middle-class...

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XXVII

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pp. 42-43

If a native freeman breaks and opens another's fence when subject to no impedient (impairment) therefrom, only for the purpose of causing such damage, let him pay a single tremissis for each stake to him to...

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XXVIII

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pp. 43-

If any Burgundian or Roman does not have forest land, let him have the right to cut wood for his own use from fallen trees or trees without fruit in anyone's forest, and let him not be driven away by the owner of the...

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XXIX

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pp. 44-

If anyone in an act of assault or robbery kills a merchant or anyone else, let him be killed; with the further condition that if those things which he took cannot be found, let them be compensated in fee simple from...

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XXX

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pp. 4-

Whatever native freeman does violence to a maidservant, and force can be proved, let him pay twelve solidi to him to whom the maidservant belongs. 2. If a slave does this,...

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XXXI

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pp. 44-

Among Burgundians and Romans, we order that the rule be observed that whoever plants a vineyard in a common field with no opposition shall restore a like field to him in whose holding he placed the vineyard...

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XXXII

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pp. 44-45

If a native freeman binds an innocent native freeman, let him pay twelve solidi to him whom he bound, and let the amount of the fine be twelve solidi....

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XXXIII

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pp. 45-

If any native freewoman has her hair cut off and is humiliated without cause (when innocent) by any native freeman in her home or on the road, and this can be proved with witnesses, let the doer of the deed pay her twelve...

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XXXIV

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pp. 45-46

If any woman leaves (puts aside) her husband to whom she is legally married, let her be smothered in mire. 2. If anyone wishes to put away his wife without cause, let him give her another payment...

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XXXV

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pp. 46-

If any slave does violence to a native freewoman, and if she complains and is clearly able to prove this, let the slave be killed for the crime committed. 2. If indeed a native free girl unites voluntarily with a slave, we order both to be killed...

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XXXVI

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pp. 46-

If anyone has been taken in adultery with his relative or with his wife's sister, let him be compelled to pay her wergeld, according to her status, to him who is the nearest relative of the woman with whom he committed...

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XXXVII

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pp. 46-

Anyone who draws out his sword or dagger for striking another, and does not strike him, let him pay a fine of twelve solidi. If he strikes him, let him likewise pay twelve solidi and be judged according to the inflicted...

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XXXVIII

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pp. 47-48

Whoever refuses his roof or hearth to a guest on arrival, let him be fined three solidi for the neglect. 2. If a member of the royal court be refused, let the amount of the fine be six solidi. 3. We wish it to be...

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XXXIX

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pp. 48-49

If anyone receives a stranger coming to him from any nation, let him present him to the judge for investigation so that he may confess under torture to whom he belongs. 2. But if anyone does not do this within seven days, and the matter is learned by the master...

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XL

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pp. 49-

If any Burgundian gives his liberty to a bondservant under his jurisdiction1 and if upon the occasion of a slight offense he thinks the servant ought to be recalled into servitude, let the manumitter know that he is denied...

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XLI

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pp. 49-50

If anyone makes a he in a clearing, and the fire, with no wind driving it, runs over the land and comes to another's fence or field, let whatever has been...

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XLII

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pp. 50-51

Although we have ordered many things in former laws concerning the inheritance of those who die without children, nevertheless after considering the matter thoroughly, we perceive it to be just that some...

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XLIII

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pp. 51-

Although our law prescribes many things concerning gifts set forth in earlier times, nevertheless because some things arise under the same heading concerning which the law is riot clearly established, it is necessary...

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XLIV

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pp. 51-52

If the daughter of any native Burgundian before she is given in marriage unites herself secretly and disgracefully in adultery with either barbarian or Roman, and if afterward she brings a complaint, and the act...

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XLV

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pp. 52-53

We know that many of our people are corrupted through inability to establish a case and because of instinct of greed, so that they do not hesitate frequently to offer oaths about uncertain matters and...

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XLVI

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pp. 53-

It is fitting that those who create strife among our people or cause danger to men should be corrected reasonably by the prohibition of law. And therefore we order that from the present time anyone who sets a...

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XLVII

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pp. 54-55

Although in former laws it has been established by what means the crimes of robbers should be repressed, nevertheless, because so far neither by corporal punishments nor by losses of property has it been possible...

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XLVIII

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pp. 55-56

If anyone resists violently in his own defense, let the rule be followed as established in former laws by what means he may be judged in the matter of wounds inflicted by the sword; but it is desirable to define...

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XLIX

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pp. 55-56

This is established for the welfare and peace of all, that a general definition be set forth relevant to each and every case, so that the counts...

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L

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pp. 57-58

However often cases of this kind come up in which the provisions of preceding constitutions have not clearly decreed what rules of procedure should be followed, it is necessary that an instruction be added...

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LI

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pp. 58-

Although these things have been observed from of old among our people, that a father should divide his property equally by law among his sons, nevertheless we have ordered in a law established now for a long...

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LII

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pp. 59-60

Howsoever often such cases arise concerning which none of the preceding laws have established provisions, it is fitting that the ambiguity of the matter be removed so that the judgment set forth shall receive the...

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LIII

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pp. 61-

It has been permitted now for a long time as set forth and established in previous law, that if, a father being dead, his son dies without a will and the mother still lives, she shall possess the substance (usufruct) of the son's property during the rest of her life, and after her...

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LIV

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pp. 62-63

It was commanded at the time the order was issued whereby our people should receive one-third of the slaves, and two-thirds of the land, that whoever had received land together with slaves either by the gift of our predecessors or of ourselves, should not require a third of the...

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LV

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pp. 63-64

Inasmuch as it has been established under certain penalty that no barbarian should dare to involve himself in a suit which a Roman has brought against another Roman, we advocate a stricter handling of these cases...

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LVI

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pp. 64-

If anyone buys back another's slave ia Alamannia, either let his master pay his price (wergeld) or let him who redeems him have the slave; furthermore...

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LVII

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pp. 64-65

A freedman of a Burgundian who has not given his master twelve solidi as is the custom so that he may have the privilege of

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LVIII

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pp. 65-

If anyone kills a dog without any apparent cause, let him give a solidus to him to whom...

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LIX

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pp. 65-

If the father is dead, let a grandchild with all his possessions be given over to the supervision and care of the grandfather if his mother has decided upon a second marriage. Moreover, if she fails to remarry because...

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LX

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pp. 65-66

Since the ancient custom is often neglected in various legal matters, it is necessary that consideration be taken for future times through a new law. And because we how some barbarians are willing, with two...

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LXI

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pp. 66-

Whatever woman, barbarian by nation, enters into union with a man willingly and secretly, let her wedding price be paid in fee simple to her relatives...

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LXII

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pp. 66-

Let an only son, if his father is dead, leave a third part of his property for the use of his mother, provided nevertheless she does not take another...

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LXIII

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pp. 67-

If a native freeman has taken grain which is standing in sheaves, let him pay threefold, and let the fine be according to the rank of the person. If a slave has...

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LXIV

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pp. 67-

If anyone has killed an animal in his harvest, let him first be paid the damage which the animal has caused, and let him return the animal (or perhaps the value of the animal) which he killed. 2. This is to be observed...

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LXV

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pp. 67-

If any widow has sons, and if she and her sons have made a cession of the goods of the deceased husband, let them suffer no suit for recovery nor...

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LXVI

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pp. 67-

If a girl is given in marriage and has neither father nor brothers, but only an uncle and sisters, let the uncle receive a third part of the wittimon, and let...

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LXVII

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pp. 68-

If any persons have cultivated fields of their own or lands tilled by serfs, let them know the forest must be divided among them according to the...

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LXVIII

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pp. 68-

If adulterers are discovered, let the man and woman be killed. 2. This must be observed: either let him (the injured party) kill both of them, or if he kills only one of them, let him pay the wergeld of that one according...

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LXIX

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pp. 68-

If a woman enters upon a second marriage, let her wittimon be claimed by the nearest relatives of the first husband. 2. If indeed she...

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LXX

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pp. 68-69

If a native freeman and a slave commit a theft together, let the freeman pay triple the value of what was stolen, provided it was...

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LXXI

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pp. 69-

If anyone believes that a theft which has been committed may be compounded without the knowledge of the judges, let him receive the punishment to which a thief would be subjected. 2. If anyone assuming...

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LXXII

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pp. 69-

If anyone sets a trap for wild animals outside the cultivated land, and places it in a deserted spot, and by chance, a man or animal runs into it, no blame...

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LXXIII

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pp. 69-70

If an animal shall have been found in that place in which it causes loss, or outside as well, and if it shall have been endangered...

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LXXIV

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pp. 70-71

Indeed it has been established in general in a law stated in earlier times that if a woman whose husband has died childless...

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LXXV

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pp. 71-73

It is fitting that those suits which are not shown to have been regulated by prior decrees should be settled by the equity of a newly stated (prolatae) law, so that the heirs may not remain ignorant of the order of procedure...

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LXXVI

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pp. 73-

The complaint is made constantly by our counts (comites) that some of our people have become so presumptuous that they have struck down our..

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LXXVII

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pp. 74-

However often a slave is accused of crime and however often it is necessary that he be handed over to the judge under a warrant, this procedure in holding an examination shall be observed, namely, that...

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LXXVIII

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pp. 74-75

Upon careful consideration of these matters, we have established that if a father shall have divided his allotment (sors) with his sons and afterward...

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LXXIX

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pp. 75-76

Now for a long time it has been ordained by us that if anyone of our people has invited a person belonging to a barbarian nation to live with him, and if he has voluntarily given him land to dwell upon, and..

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LXXX

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pp. 76-

As new cases appear, it is necessary that those things which have not been well-defined should be established with the sanction of current law...

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LXXXI

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pp. 76-77

In the introductory statute (prima constitutio), it was decreed by us that judges, after a third appeal, should settle and decide cases between the...

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LXXXII

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pp. 77-

If anyone accepts a guarantor (oathtaker) at a hearing, let the guarantor (oathtaker) insist on clearing himself (establishing his integrity) so that...

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LXXXIII

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pp. 77-78

Whoever identifies his property, whether bondservant or anything else that is his, shall receive a satisfactory guarantor...

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LXXXIV

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pp. 78-

Because we know that the Burgundian allotments have been sold away (dissipated) with too much ease, we believe this rule should be established in the present law, that no one is permitted to sell his land unless he has...

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LXXXV

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pp. 78-79

If a mother wishes to assume guardianship (tutela)2 no other relationship (parentela) shall be placed before her......

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LXXXVI

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pp. 79-

If a father leaves daughters, and while living, wishes to give the marriage ornaments (malahereda), let him give to whom he pleases, with the consequence...

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LXXXVII

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pp. 79-80

We believe that the following provision should be made concerning the age of minors (for their protection), that they shall...

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LXXXVIII

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pp. 80-

Since the title of emancipation takes precedence over the law of possession, great care must be exercised in such matters. And therefore it should be observed...

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CONTINUATION OF THE BOOK OF CONSTITUTIONS

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pp. 80-81

Inasmuch as we are concerned with the pursuit and useful purpose of agriculture, a general complaint has been brought to us not only regarding...

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XC

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pp. 81-

If anyone despises the decision of the judges appointed by us, let him pay six solidi to the judges, let the amount of the he be twelve solidi, and finally...

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XCI

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pp. 82-

If a native freeman commits a theft with a slave, we order that the sheep, goat, pig, or beehive which was stolen be compounded threefold according to the value established by us; indeed, let the slave receive three...

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XCII

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pp. 82-

If any native freeman presumes to cut off the hair of a native freewoman in her courtyard, we order that he pay thirty solidi to the woman, and let the fine be twelve solidi. 2. But if the woman...

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XCIII

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pp. 83-

If anyone has broken the arm or leg of another with a stone, stick, or with the back of an ax...

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XCIV

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pp. 83-

If anyone presumes to take a ship or a boat, let him pay twelve solidi to him to whom the ship belongs, and let the fine be four solidi. Indeed...

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XCV

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p. 179-179

If anyone has lost a bondservant, a horse, ox, cow, mare, sheep, pig, bees, or goat, and if there is a way-pointer (tracker, vegius) present (who helps him),...

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XCVI

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pp. 83-84

If anyone, either Burgundian or Roman, undertakes to be a guarantor (oathtaker), and if the property of his wife has been offered as surety for the pledged...

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XCVII

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pp. 84-

If anyone shall presume to steal a hound, or a hunting dog, or a ru~indgo g, we order that he be compelled to kiss the posterior of that dog publicly in...

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XCVIII

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pp. 84-

If anyone presumes to steal another's falcon, either let the falcon eat six ounces of meat from his breast (super testones),' or if he does not wish...

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XCIX

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pp. 85-

If anyone has bought a bondservant, or field, or vineyard, or landsite and house built in any place, we order that if it has not been confirmed in writing or witnessed, he shall lose his payment; that is, provided that...

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C

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pp. 85-

If any woman, Burgundian or Roman, gives herself voluntarily in marriage to a husband, we order that the husband have the property of that woman...

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CI

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pp. 85-

If any Burgundian of the highest (optimas) or middle class (mediocris) ' unites with the daughter of another (probably of the same class) without...

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CII

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pp. 86-

If any Jew presumes to raise a hand against a Christian with fist, shoe, club, whip, or stone, or has seized his hair, let him be condemned to the loss of a hand. 2. But if he wishes...

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CIII

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pp. 86-

1. If anyone presumes to enter another's vineyard by day for the purpose of theft, let him pay three solidi to the owner of the vineyard, and let the amount of the fine be two solidi. 2. If he has presumed...

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CIV

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pp. 87-

If anyone presumes to hold another's ass without the consent of its owner, and drives it for his own errands (in ambascia suu minure): for...

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CV

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pp. 87-

We have found this under title one hundred five in the law of Constantine: if anyone presumes to take in pledge another's oxen, let him be punished capitally. This is resolved by us and our nobles that whoever has...

CONSTITUTIONES EXTRAVAGANTES

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pp. 89-

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XVIII-

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pp. 91-

The complaints of many Burgundians and Romans have come to us stating that their vineyards have been destroyed by animals, pigs, as well as other beasts; after discussing the matter thoroughly with our nobles (obtimates..

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XIX

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pp. 91-92

Gundobad, king of the Burgundians, to all his counts. From statements made by many, we know that horse thieves and housebreakers have resorted to such madness that they commit crimes and..

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XX

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pp. 92-

Sigismund, king of the Burgundians. Since we have learned at the worthy and laudable suggestion of that venerable man Bishop Gimellus that exposed children whom compassion...

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XXI

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pp. 93-94

Since cases of this kind arise within our realm for which no provision has yet been made by law, we decree by the present enactment what ought to be observed among our people following a discussion...

BIBLIOGRAPHY

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pp. 97-102

INDEX

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pp. 103-106


E-ISBN-13: 9780812201789
Print-ISBN-13: 9780812210354

Page Count: 128
Publication Year: 1972

Series Title: The Middle Ages Series