Indeed, treason was not only related to attacks on the person of the ruler but was inclusive of different military offenses, as well as protective of the highest officials. In this investigation of the adoption and appropriation of late Roman military law in early medieval Bavaria a clear distinction has been drawn between the historical context of the establishment of Bavaria as a duchy and the reflection of military elements in the text of the Bavarian law code. This was due not only to the uncertainty in precisely dating the draft of the Lex Baiuvariorum but also to a methodological caution not to intermix textual observations with general historical findings from the outset.
Nevertheless, the aim was to illustrate a regional context within which the provisions of the Bavarian lex make sense.
Regarding the origins of the Bavarian duchy, as more recent research has identified a clear borrowing from precursory provincial-Roman structures, a regionally different integration of provincial-Roman elements into the Bavarian duchy seems plausible. Fortresses, roads, fiscal property etc.
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As a result, we not only encounter the highly complex Roman concept of via publica in the Lex Baiuvariorum, but also m unera publica , such as paraveredus and angariae , even though such obligations were increasingly transferred to the dependents of ecclesiastical institutions, as indicated in the statute on coloni of the Lex Baiuvariorum.
However, such a regional-historical perspective can only provide the background needed to call attention to the complexity and selective nature of the problems addressed in this legal codes. For while there is no doubt that the Lex Baiuvariorum was intended for Bavaria, it cannot be assumed with equal certainty that the Lex was written in Bavaria by a Bavarian.
The result, one could conclude, is a compilation of various legal influences, fused into a composite whole through the directing hands of its compilers. It is precisely these many arbitrary elements, which demonstrate the attempt to reconcile legal considerations with practical needs.
On the other hand, the stark separation between treasonous offenses and those other offenses penalized by fines, as well as the distinction between offenses committed in wartime and those committed in peacetime, demonstrates the importance of defining crucial issues as precisely as possible in a frontier duchy.
In this light, the Lex Baiuvariorum proves to be a powerful text, illustrative of the exceptional character of the frontier duchies and their particular legal order, in striking contrast to the other leges of the Frankish kingdom. In light of the remaining textual borrowings, though also due to parallels with the Lex Alamannorum , it can be assumed that it is not a matter of oral customary law being written down but one of the adoption of legal texts. The military context of the duchy and the provisions contained within the Lex Baiuvariorum suggest perhaps less of a legal compilation on the Roman crimen laesae maiestatis than a dossier of texts pertaining to military law.
Such texts, it may be suggested, were used by the Frankish kings as a framework for their Eastern duchies. This framework was then fleshed out individually in the specific duchies and, in part, translated into vernacular terms. Naturally, this is impossible to prove with any certainty. If one takes the spectrum of the remaining traceable sources in the Bavarian lex into account, it does not seem by any means implausible, though still unlikely, that the Merovingian monarchs directly called upon collections of Roman statutes of military law.
Such collections are indeed well-attested and were in wide circulation, as the Strategikon of Maurice has shown in reflecting older traditions of Latin military law. Karl Zeumer had suggested that the provisions for treason in the Lex Baiuvariorum , as well as similar regulations in the Lombard Edictus Rothari , might be traceable to a common Visigothic model. This is the case, even when recorded provisions about the patrocinium and the Bucellarii allow us to suppose that, originally, the Codex Euricianus would have contained much more, regarding questions of military law, than indicated by the few remaining fragments we have today.
Yet for the title on the duke, specifically, she was hardly able to identify parallels to Visigothic law. Perhaps the method of strict textual comparison reaches its limits in the case of military law.
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Precisely the flexibility of military law in imposing sanctions, in particular, may have advised its compilers against an all too rigid transfer of sanctions from a possible model to the equivalent offenses in the Lex Baiuvariorum. Important to the adoption and afterlife of Roman military law in the Lex Baiuvariorum was the reservation of the death penalty and confiscation for particularly severe offenses.
With this context in mind, a certain ability to work independent from existing models appears among the compilers, in that particular punishments attested in Visigothic law were now provided for offenses that had actually called for different sanctions in Visigothic law. It can be assumed that the alleged Merovingian royal decree, which had guided the conception of the Frankish duchies, had already encroached upon those Visigothic legal texts upon which it wa s based.
For we must assume that the provisions for laesea maiestatis — originally intended for the Roman emperor, then applied to the successor kings — must have been eventually applied to the person of the dux. This was done, in order to link such provisions to regulations regarding army discipline in wartime and peacetime, as well as to clarify questions of jurisdiction and legal procedure.
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The incorporation of such models in the text of the Lex Baiuvariorum will have provided another reason to adapt particular items to present-day conditions, as concerns the sanctions to be imposed. In light of these many possible processes of the production, reception, compilation, and redaction of legal texts, if one were to take stock of the long journey late Roman military law has traveled since its initial adoption in Gaul, to its taking root in early medieval Bavaria, one would, at best, maintain an indirect influence of late Roman texts.
In the course of this process, many features of late Roman military law became adapted, transformed and newly legitimized. Its classification of certain offenses as well as the idea that the imposition of sanctions would have to be flexible in military matters seem to have had a large and longlasting effect, so much so that these classifications were translated in Bavaria — partially employing Frankish example — into the vernacular or language of the people.
Harald Siems and Karl Ubl kindly gave me access to their yet unpublished articles on the Lex Baiuvariorum and the Lex Salica, respectively. In particular I would like to thank Kelly M.
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Miller for translating this text into English and to Lukas Bothe for providing further assistance. Goetz, J. Jarnut, W. Pohl eds.
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Dilcher, E. Joye, M. Dedicated to A. Studies on individual legal topics include E. Nehlsen, Sklavenrecht zwischen Antike und Mittelalter. See more recently, S.
Motte & Bailey
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