Italy in the twilight of the empire: the decline of Roman law and culture under Theoderic the Great (c. 493-526).
An important source for the social, political, and institutional history of Theoderic's rule in Italy is the Variae of the Roman statesman Cassiodorus, a collection in twelve books of 468 letters, proclamations, formulae for appointments, and edicts related to the Ostrogothic administration. (4) But inasmuch as it was intended as a semi-official record of the barbarian regime, the Variae was a product of political expediency that presents over three decades of Ostrogothic history, Theoderic's deeds in particular, in a rather flattering light. It was compiled in 537/8, towards the end of Cassiodorus's troubled service as Praetorian Prefect of Italy, while war was raging and the Ostrogothic king Witigis was besieging the Byzantine commander Belisarius in Rome. Its purpose was at once to instruct members of the Italian civil service through moral and religious exhortation, and to demonstrate their legitimacy and suitability for resuming palatine services following Justinian's reconquest of the peninsula. (5) Throughout, Cassiodorus deliberately glossed over disturbances (such as the downfall and execution of the philosopher Boethius in 524), and highlighted in deliberate fashion the perception of the order and civilitas--the civilized rule of law--associated with Ostrogothic rule. (6) At the same time, he emphasized a connection between the barbarian regime and the late imperial administration both in terms of ideology and organization. Theoderic, too, cultivated an image of himself as a barbarian king cut from the same purple cloth as great emperors of the past like Augustus and Trajan. (7) From all of this there emerges a highly civilized and Romanized picture of things--a picture that does not necessarily reflect conditions as they actually were, but rather as they were hoped for.
For Cassiodorus, in contrast to the preceding century--which witnessed decades of rivalry between ambitious generals, greedy aristocrats, and generally incompetent emperors, culminating in the deposition of Rome's last emperor and the seizure of power by the barbarian warlord Odovacer--Theoderic's reign was a veritable golden age of peace and posterity of a kind not experienced since the glory days of the early empire. In large part because of this assessment, modern historians have held a favourable opinion towards the age of Theoderic, treating it as a short interlude of Roman renewal, evoking both nostalgia for a peaceful and prosperous time and regret for the unavoidable fact that it was as fleeting and illusory as an Indian summer. (8) But the warmth of that summer is quickly cooled when we take into consideration evidence from the Edictum Theoderici (ET), a brief collection and emendation of Roman law that was composed at some point during Theoderic's reign. Intended as a guidebook for settling disputes between the Gothic and Roman inhabitants of Italy, the ET is a body of source material that raises important questions--and doubts--as to just how peaceful, prosperous, and Roman-like Theoderic's Italy really was.
I. On Problems of Authorship
There is some debate about the authorship of the ET, a debate that stems from problems connected to the uncertainty of the manuscript tradition, dating, and identity of those who compiled the text. In 1579 the French humanist Pierre Pithou published the first edition of the ET. (9) The circumstances of that edition are well known through a letter dated 2 January 1579 and addressed to Eduard Mole, an acquaintance of Pithou. (10) In it, Pithou refers to his recent publication of the Variae, and proposes to have published as an accompaniment to that work an edition of the ET. According to the letter Pithou was in possession of a surviving manuscript, and obtained a second from Mole. Unfortunately, neither exemplar has survived, leaving Pithou's edition as our only witness to the original texts. The relationship between the two manuscripts, and how Pithou drew from them for his own edition, is not known. (11)
Pithou identified the ET as the work of the Ostrogoth Theoderic (493-526), referring to his 1579 edition as the Edictum Theoderici regis Italiae, a title he apparently derived from the formula that appears at the end of the text: Explicit Edictum Theoderici Regis. But the formula does not specify--as Pithou does--that the Theoderic to whom the Edict is attributed is king of Italy, only that he is king. In total, there are eight kings known to us from historical sources who ruled under this name. These include two Visigothic kings, Theoderic I (418-451) and Theoderie II (453-466), the Ostrogoths Theoderie Strabo (d. 481) and Theoderic the Great, king of Italy, as well as four Frankish kings: Theoderic I (511 to 534), Theoderic II (595-613), Theoderic III, who became king in 679, and Theoderic IV (721-737). While a case has been made by Giulio Vismara for Theoderic II of the Visigoths, it can hardly be doubted that it was Theoderic the Great who commissioned the ET. (12) First, the text clearly mirrors aspects of the Variae in terms of content and ideology. For instance, in a letter (Var. 4.10) written in Theoderic's name to the distinguished John, governor of Campania (507-12), the king addresses the seemingly pervasive problem of pignoratio in that region--the practice of seizing someone's property in order to obtain payment of money that they owe. To put an end to it Theoderic instructs John that "in accordance with Our edict" (edictalis programmatis tenore) only a bona ride pledge-holding creditor could appropriate property of a debtor; in all other instances the creditor was to be penalized with forfeiture of his claim. The letter seems to be referring to ET 123 and 124, both of which functioned together as a general edict that granted the right to self-help of the creditor when the property concerned was pledged to him. According to ET 123, this could be done only with the permission of a judge.
Perhaps the most telling example of a correspondence between the ET and the legislative acts of Theoderic preserved in the Variae concerns the treatment of Jews. Cassiodorus documents several instances which together demonstrate that Theoderic's policy towards the Jews was generally positive. In a letter in Theoderic's name to the Jews of Genoa, for example, the king granted them permission to rebuild their synagogue, concluding that the provisions of the old laws concerning them should continue to apply. (13) Likewise, ET 143 accords protection to the Jews by confirming their right--inherited from previous Roman law and reaffirmed in the Variae--to live under their own laws. (14) We find nothing like this sort of thing in the legal sources pertaining to other contemporary kingdoms. (15) In fact, Theoderic's goodwill towards Jews was comparatively unique for this time, and no doubt goes a long way in explaining why the Jews of Naples were among the supporters of the Goths in the city when the forces of Belisarius came knocking in 536. (16)
Second, three provisions of the ET--10, 111 and 145--address issues particular to the Italian peninsula. The first deals with the problem of invasio and requires that judges and their staff, appointed in the provinces or "Venerable City," who believe themselves incapable of bringing offenders to book, were to notify the scrinia so that their decisions could be enforced. A second reference to Rome appears in ET 111, which upholds the ancient proscription against the practice of burying corpses within the city's limits, a custom that seems to have intensified during Theoderic's reign. (17) In any event, both references make it clear that the ET was intended to apply to the ancient capital. A third indicator of the ET's Italian provenance is ET 145, which mentions capillati, an honorific term (meaning "long-haired ones") used on one occasion by Cassiodorus to refer to the Goths living in the northern regions of Siscia and Suavia. (18)
In light of this evidence there is little doubt that the ET was produced in Italy sometime during Theoderic's reign. Unfortunately there is no way of determining exactly when this happened. There is nothing in the ET that allows for the pinpointing of a precise publication date. Although the question as to when the ET was produced cannot be resolved, it is possible to identify to a certain extent the identity of the individuals to whom this task fell. Judging from their intimate knowledge of Roman legal and juristic conventions and concepts, those who compiled the ET were clearly Roman jurisprudents. A further indication of this is their use of the term barbarus to mean Goth, a term that appears both in the prologue and epilogue, and in ET 32, 34, 43, 44, 145. Generally speaking this was an expression used by Romans to describe the Goths, and not by the Goths themselves. (19) Roman sympathizers, too, avoided the term in their description of the Goths. Only on two occasions does Cassiodorus refer to the Goths as barbarians; elsewhere he makes it clear that they were not. (20) Jordanes, too, implicitly denies that the Goths were barbarians. Yet, for most other Romans of the time, the Goths were barbarians. Pope Gelasius, for instance, viewed the Goths as barbarous; Boethius complains often in his Consolation about the avarice of the barbarians; and in his war narrative Procopius clearly regarded the Goths as barbaric. (21)
As to the official capacity of these compilers, there is a clue in ET 10. According to the provision, judges who were unable to enforce their own judgment were to bring the matter to the attention of nostra scrinia, that is, we may presume, the offices of the palace secretariat, the magister officiorum. In theory, the Master of the Offices had the widest range of administrative duties. Cassiodorus, himself a holder of the position (523-527), observes that the officer controlled access to the court, was in charge of the imperial attendants, had authority over provincial governors, and performed a variety of undisclosed legal functions. (22) But the responsibility for the actual compilation of the ET most likely fell to the office of the imperial quaestor. Derived from the distant senatorial quaestor candidatus, who acted as the emperor's spokesman in the Senate, the imperial quaestor had become, by the reign of Constantius II (337-361) and Valentinian I (364-375), the emperor's legal adviser. (23) According to the late imperial Notitia Dignitatum ("Register of State Dignities"), the quaestor was responsible for dictating the emperor's laws (leges dictandae), and receiving petitions (preces). (24) He had no officium of his own but was expected to rely on the services of the serinia, the clerks and advisers from the three principal secretariats of the memoria, epistulae, and libelli, whose magistri were subject to the magister officiorum. (25)
Under Theoderic, the position of the quaestor remained largely unchanged. According to Cassiodorus's formula for appointment (Var. 6.5), the main points of which are reiterated throughout the Variae, the quaestor was responsible for dealing with appeals and petitions, and the restatement of existing laws in edictal form--which is precisely what the ET was. (26) While Cassiodorus's own letters attest to the importance of eloquence in the quaestor's role as official spokesman for the king, his appointment letters for the position make it clear that legal knowledge was essential. Despite the fact that the ET lacks the rhetorical flourish on display in the Variae, it certainly attests to the legal erudition of the officer under whose supervision it was most likely produced.
II. On the Historical Significance of the ET
Comprised of 154 edicts in addition to a prologue and epilogue, the ET was the product of royal initiative, drawn up in the tradition of the praetor's edict of old by Roman jurisprudents working under the authority of the ancient imperial office of the quaestor. It was a work of inherently Roman jurisprudence, but it was also a work of critical selection, the purpose of which--as stated in the prologue--was to put an end to those sorts of disputes that most commonly reached the ears of the king. The prologue announces that the king has received many Complaints that laws are not being observed in the provinces. To preserve the desired peace and order, the ET was to be posted so that Romans and barbarians would know what was expected of them. It was to supplement existing Roman law, which was at this time erratically preserved in sources that were not easily accessible for the general public at large, and to function as a sort of emergency measures act, designed to remedy or give clarification to the most pressing issues in Italy at the time. (27) Like the Visigothic Code of Euric (c. 477) and the Lex Romana Burgundionum (c. 500) for the Burgundian kingdom, the ET was a reworking of earlier Roman law, made relevant for the contemporary period, which applied equally to Roman inhabitants and barbarian newcomers. The issue of jurisdiction was not one of nationality but territory: everyone had a right to the text, and appeals to it could not be refused.
According to the epilogue, its authority as a valid source for settling disputes lay in the fact that it was derived from novella lex, or the written law issued by emperors contained in imperial decrees, subscriptions (official decisions of an emperor in response to a particular case), and rescripts (official replies to petitions or queries from private individuals)--as well as from vetus ius, a body of law found in juristic writing which incorporated legal rules and principles established by the agencies of legislation other than the emperor (i.e. senatorial decrees, edicta of praetorian prefects, and ancient customary law dating back to the Twelve Tables). (28) While not cited specifically, the sources for this lex and ius were the late third-century Gregorian and Hermogenian Codes; extracts from the commentaries and legal opinions of the third-century jurists Marcian, Ulpian, and Paul; the Theodosian Code (CTh); and some post-Theodosian Novels. (29) Of all these sources, the Pauli Sententiae (PS), a post-classical collection of summaries of legal pronouncements and rules attributed to Paul (although not compiled by the jurist himself), and the CTh figure most prominently. The former was the source for 35 provisions of the ET, and the latter supplied the material for a further 49 provisions. (30) In each instance the basis for identification rests on similarities between the original text and provision in terms of technical subject matter, organization, language, and syntax.
It goes without saying that the jurisprudents who compiled the ET selected for inclusion those laws that seemed most relevant to them for maintaining the peace and order of the present times. But they were no mindless copyists: they expanded upon what they considered important and rejected what they found impractical or unnecessary. Sometimes this meant defining terms that were perhaps no longer familiar or offering a paraphrase, and occasionally omitting or adding details for clarity and relevance to conditions particular to their own day. Their efforts resulted in a text that is quite unlike "pure" classical Roman law in terms of its artistic elaboration, technical precision, and sophistication. In these respects the ET is similar to other important legal compilations like the Visigothic Breviary of Alaric (506) and the much later Edict of the Lombard king Rothari (643), which together formed a distinctive western legal culture in the aftermath of Rome's demise. Although created under entirely different political circumstances, these texts all shared certain qualities that distinguished them from earlier Roman law codes like the Theodosian Code, as well as the crowning achievement of Roman legal science, the Corpus Iuris Civilis of the emperor Justinian (527-565). (31) First, while drawing heavily from the Roman civil tradition, these texts incorporated elements of provincial custom in terms of their emphasis upon reason, flexibility, and judicial discretion, as well as in their desire for specific regulations adapted to the conditions of the time, as opposed to general principles. Second, they strove for simplicity and clarity of expression, ignoring the standards of artistic elaboration that defined classical jurisprudence. The law enshrined in these works was an evolution or, depending upon one's perspective, a degeneration of pure classical Roman civil law, or the law of the Roman people dating back to the third century and earlier. (32)
As the ET shows, the Roman law of Theoderic's Italy was quite unlike that preserved for us in the Theodosian Code or Justinian's Corpus. This was a law unconcerned with the traditional niceties of strict classical Roman law, and governed by social and economic rather than legal considerations: it was a law averse to the standards of classical jurisprudence with respect to artistic elaboration, rhetorical flourish, and technical precision. While the compilers certainly possessed a rudimentary knowledge of some of the more complex and technical aspects of classical law and jurisprudence, it is clear from their work that such knowledge was no longer necessary or even practical. They freely adapted the law, both in terms of form and content, to fit current realities better. Thus, although the ET is a byproduct of Rome's classical legal heritage, it is also, and more importantly, a testament to how this ancient institution evolved over time to reflect the sorts of changes that characterized Italy's turbulent transition from Roman province to barbarian kingdom.
Turning to the text itself, topics range from sundry breaches of the criminal law, such as murder, kidnapping, and tomb violation, to aspects of the private law, including contracts, property, marriage, and divorce. But the primary focus of the compilers was on issues such as runaway slaves (ET 80, 84, 85, 87), labour shortages, the overworking of slaves or oxen (ET 150), damaged crops (ET 98), shifting boundary markers (ET 104, 105), cattle rustlers (ET56-58), and so on--in short, the sorts of perennial problems that plague all agricultural communities. In their selection of topics, they made no reference to the Roman army, its enrollment, means of organization or provisioning. The whole subject of Roman public works and entertainments was omitted. There is nothing in the ET on the repair of aqueducts or roads, on public monuments and works of art, or on theatres and games. This, despite the fact that according to Cassiodorus, the cursus publicus and Flaminian Way were maintained at great expense to the state, aqueducts still flowed, statues and temples continued to be erected, the games still flourished, and theatres and patrons continued to flock to the local baths. (33) Of course, walls, roads, and aqueducts continued to be maintained well into the early middle ages, at least in the former ancient capital. (34) But this was becoming increasingly a matter of private initiative rather than public policy. In the city of Catana, for example, we are told that the walls and public works (theatre and amphitheatre) were in such a state of disrepair that the inhabitants petitioned the king, seeking permission to rebuild where possible. (35)
The vast and complex body of Roman tax law and its administration is likewise largely overlooked. Such silence casts doubt on the extent to which Theoderic and his successors were actually capable of using the existing imperial tax system for collecting revenue. In fact, we hear from Cassiodorus of several instances of embezzlement and corruption by local officials. In a letter drafted in his name as praetorian prefect, for example, Cassiodorus chastened two tax collectors in Sicily who refused a summons to the king's court to face charges of extortion and oppression of the local population. (36) In another instance of fiscal corruption, Gildias, count for Syracuse, used an alleged need for wall repairs to raise taxes and then did not rebuild the walls. He was rebuked with a reminder that "the true praise of the Goths is respect of the laws." (37) In effect, this was little more than a slap on the wrist, and underscores the inability of the Ostrogothic administration to ensure the integrity of its local officials.
In this process of selection and omission we get a sense as to what kinds of issues mattered in Ostrogothic Italy and how they were to be dealt with. To put it another way, by its silence on certain matters, the ET offered a statement of what was no longer important, that is, of the extent to which the institutions that characterized civic life in the later Roman Empire no longer had any practical applications in Theoderic's Italy. As to what kinds of things mattered, the arrival of the Goths on Italian soil created a predictable legacy of boundary disputes which had to be settled within a limited time (ET 10). (38) In an effort to control the unruly retinues of powerful warlords, violent and unlawful seizure of property, beating people with clubs or stoning them, and setting fires were henceforth considered seditious and subject to the harshest penalties (ET 47, 75). In addition, this was a slave-owning society in which slaves could expect to be punished more harshly than their free counterparts (e.g. ET 61). All of these provisions, of course, had a basis in Roman law. But it does not follow that the compilers or the judges, lawyers, and practitioners for whom these were concerns necessarily identified some things as Roman and some not, or even understood the complexities of some of the Roman institutions covered in the ET. One example of the erosion of understanding of a central Roman institution is what the ET made of patria potestas (paternal authority). At ET 94, children in potestate could be sold by their parents. What is strange here, and inconsistent with the ancient notion of patria potestas, is the use of the term parens, which could mean either parent (or any close relation for that matter), and not specifically pater. (39)
Even more significant for would-be litigants in Ostrogothic Italy was the absence of the imperial system of administration through which the proper and efficient adjudication of disputes could be carried out. Inasmuch as law was about rights, obligations, and penalties, it was also about procedures. In the later Empire, lawsuits were judged in the first instance by the provincial governor or his deputy. His decision could be appealed against to the vicar and in some circumstances, for those with enough time and money, to the praetorian prefect or even the emperor himself. But such a system was predicated upon the existence of a functioning judicial hierarchy in the provinces. The problem for Ostrogothic Italy was that the supply of skilled judges and other magistrates who could effectively uphold the law was extremely scarce. Concerning provincial governors, only twelve are known for Italy between 476 and 553--a significant drop from the thirty-three governors attested for the peninsula in the period 394-476. (40) The number of lesser magistrates seems to have declined also. According to ET 52, for instance, while donations involving movables and immovables were to be witnessed and a record drawn up in the presence of a specified number of municipal officers, just as they had been in the Empire, the compilers acknowledged that the availability of such officers could pose a problem: "if these [officials] are not available, the registering of the transaction shall be fulfilled in another municipality which has these officers; or let a report of what was given be forwarded to the governor of that province." (41)
Just as important as quantity was the quality of available judges. Of all the factors that influenced how law was applied and justice administered, it was the judge who had the greatest bearing. While the lack of a professional judiciary no doubt played its part in permitting injustice to flourish and the laws to be flouted, a judge whose perceived impropriety was the result of bribery or favoritism was an altogether different matter. Of course, the problem of judicial venality and abuse of power was nothing new, and laws dealing with the corrupt judge have a long history behind them. For instance, in 325, following his victory over Licinius at Chysopolis, Constantine issued a proclamation to the people of Nicomedia encouraging them to forward complaints against provincial governors or members of the palatine staff directly to him. (42) He followed this up in 331 with a wide-ranging edict that dealt specifically with corrupt judges. (43) In 386, three years after the western emperor Gratian threatened judges who sold verdicts with the penalty for embezzlement (peculates), Theodosius I in the East issued an open invitation to all citizens of the Empire to bring forward complaints against judges for extortion, venality, and other acts of injustice. (44) In legislation enacted by the emperors Arcadius and Honorius, judges who abused their powers were subject to stern moral condemnation as well as fine of thirty pounds of gold, and those who contrived "venally" to delay the execution of a sentence or abuse the appeals procedure were threatened further. (45) To compensate for these untrustworthy judges, the state relied more heavily on other organizations. The Church, for instance, became responsible for the treatment of prisoners and the return of people enslaved or imprisoned abroad, while Valentinian III recruited decurions in a bid to enforce the law on tomb violations--a law for the most part disregarded by the conniving and venal governors. (46) In addition to these forms of criminal conduct, legislation of the late fourth century was expanded to encompass punishments for judges whose inefficiency or negligence prevented justice from prevailing: those found to be lazy, negligent, or idle were to be punished and replaced if necessary. (47)
Jill Harries has argued that the concern of judicial venality and abuse of power in these laws was simply a rhetorical device intended to demonstrate that emperors were concerned about the state of justice, and willing to do something about it, not that there was necessarily more corruption in the fourth and fifth centuries than in earlier times. In other words, it was not that judges were more corrupt in late antiquity, but rather that emperors were more often prepared to say so in a bid to appear as hardliners against such imperial corruption. (48) While this might certainly have been the case for the later empire, it seems clear that for the compilers of the ET such concern was genuine. The untrustworthiness of judges is one of the persistent themes of the ET: a total often provisions deal with related matters of judicial corruption and misconduct. So important was the issue, in fact, that the first seven provisions were dedicated to it. (49) And the epilogue concludes with this warning for judges: "All judges and those who pronounce the law shall know that if they allow these edicts to be violated in any way, they shall be deservedly struck by the punishment of proscription and exile." (50)
To guard against the various dangers posed by the corrupt and negligent judge, Theoderic naturally relied upon those whose loyalty he had no cause to doubt, but this was no guarantee against acts of injustice and lawlessness on their part. (51) Judging from the amount of attention the compilers dedicated to issues of judicial corruption and venality, it would seem that the corrupt judge continued to pose a significant problem for Theoderic and his successors. In fact, shortly after the king's death in 526, the administration grew increasingly incapable of commanding the loyalty and obedience of those officers entrusted with administering justice in the provinces. Cassiodorus on several occasions in his capacity as praetorian prefect reprimanded provincial judges for not doing the jobs appointed them, and in one instance felt it necessary to remind them not to boast about the fact that people were afraid to approach them in the streets. (52)
The ET also speaks to the worsening economic conditions of Theoderic's Italy. For some centuries the peninsula was in decline both with respect to the role it played in long-distance trade and its internal situation, and for reasons not directly connected with the political turmoil of the times. (53) Despite the efforts of Theoderic to stimulate the economy, it is clear from the ET that no amount of government involvement could completely rid the peninsula of one of the greatest problems that had plagued it for centuries: the shortage of manpower on the land, a situation made worse in the early sixth century by the occurrence of devastating droughts and famines. (54) The lack of available manpower led to a highly competitive labour market, forcing desperate landowners to take on fugitives as free workers or tenants, no questions asked, in an attempt to preserve their accustomed standard of living (hence the preoccupation of the compilers with the " subject of runaway slaves). ET 142 addresses the sorts of problems facing the landowner as a result of the manpower shortage, and the steps some of them took to compensate for it. The provision permitted an owner to transfer his slaves to areas where they were most needed, whether to perform domestic duties in town or provide agricultural labour in the fields, as a means to maximize production; he could even lend them to other landholders at his discretion. In such instances, however, the slave remained the property of the original master: should he end up in the employ of another, he was to be returned to the original owner upon his request.
In the same way, ET 150 recognized the need for landholders to share oxen and slaves between them, but severe fines punished anyone who did so without express permission. Those found guilty were to pay the owner a solidus for every day they so employed his slave or oxen. In light of the fact that in the sixth century an average person could survive on three to four solidi a year, this was a particularly harsh penalty. (55) Both it and ET 142 attest to the fact that Italy at this time was plagued by acute labour shortages and a general lack of resources by which produce-bearing land could be effectively maintained.
Apart from what they did and did not select for inclusion, the compilers demonstrated a keen awareness of the differences between the fourth and early fifth centuries and their own time in how they drafted the provisions. Many of the 154 provisions of the ET contain words, phrases, and concepts that represent significant departures from the original texts. Some of these changes are simply the result of misunderstanding, but others represent attempts by the compilers to update the law to better reflect and account for the prevailing social conditions at the time of their writing. The world they shed light on is one which can only be glimpsed behind the smokescreen of Roman culture offered by Cassiodorus.
As one example, ET 10 adopts and amplifies the measures of invasio--the deliberate and unauthorized occupation of immovables in the possession of another--prescribed in CTh 4.22.3 of the emperors Valentinian II, Theodosius I, and Arcadius. While both prohibited invasio and required the unlawfully seized property to be returned to the dispossessed, the ET went much further than the CTh. Where the offender had a legal claim to the property and was acting in anticipation of a court order, he forfeited his claim and was required to pay the dispossessed twofold the value of the income. Where he was acting without any legal claim, he was to return to the property and was fined the value of the property (to be paid to the fisc).
The legal consequences of invasio were severe, and they demonstrate the determined concern of the compilers both to protect property-holders against the open greed of others and to prevent the anarchy which would have threatened if private individuals had been permitted to take the law into their own hands. (56) At the same time, however, they felt it prudent to observe the thirty-year statute of limitations established by earlier Roman precedents and repeatedly mentioned in special decrees of Theoderic between 507 and 526. (57) Based in part on a novel of Valentinian III of 452, which reiterated an earlier law of Theodosius II on prescription of actions, ET 12 prohibited attempts to contest title from being made if the current possessor could demonstrate long and uninterrupted enjoyment of the property for a period of thirty years or more. (58) New here was the provision that the time of possession could include that of predecessors. The purpose of this thirty-year prescription, whereby ownership was once again defined in terms of de facto and de iure possession, was to protect current landholders, presumably Goths, against the actions of individuals (presumably Romans) attempting to reclaim property seized during the initial settlement of the Goths under Odovacer, to assert their continuing title to lands which now housed barbarian settlers, even to claim rights over waste or woodland brought under the plough by these barbarian newcomers.
Roman marriage legislation is a detailed subject with a long history behind it. In drawing from it, the compilers ignored a good deal, and in some instances made important changes to earlier legislation. Concerning the subject of prohibited marriages, ET 36 stipulates that a prohibited marriage lacked legitimacy and any children from it were themselves illegitimate, the main consequence of which was that they were barred from making a claim of ownership on their natural father's estate. This is a highly interpolated version of CTh 3.12.3, an imperial rescript of the emperors Arcadius and Honorius of 396. Issued in Constantinople and addressed to the praetorian prefect Eutychianus, the rescript concerned one specific type of prohibited marriage, namely ones which contravened rules of incest and outlawed unions between first cousins. (59) Drawing from CTh 3.12.3, the compilers took out any reference to incest, a significant modification considering the amount of attention the subject received from jurists and imperial legislators. Under Diocletian, incest seems to have been a capital offence, and, by the mid-fourth century, prohibition extended to relations between cousins of the third degree and those between an individual and a relative of his or her previous spouse. (60) That the compilers did not mention incest specifically in the provision can perhaps be explained by a more relaxed position towards the subject at this time--a position reinforced by Cassiodorus's formula for granting legitimacy to unions between first cousins. (61) According to the formula, unions which contravened rules of incest continued to be penalized, but the scope of the censure was not nearly as comprehensive as that of earlier Roman legislation.
A possible explanation for this more relaxed stance on incest lies in numbers. On the one hand, Italy in the early sixth century simply lacked the sufficient population levels to allow for comprehensive legislation on the subject of incest. That is, the number of eligible candidates for marriage precluded far-reaching legislation on incest of the kind issued in previous centuries. While direct evidence for population estimates is lacking, Cassiodorus's description of the amphitheater and baths of Rome suggests that they were far too large for the actual number of people residing in the city. (62) On the other, the central administration lacked sufficient numbers of officers who could effectively regulate extensive incest laws. As ET 52 suggests, municipal magistrates were at this time in short supply.
ET 41 concerns the subject of forgery (falsum) and for this draws upon a commentary of the third-century jurist Paul (PS 4.7.2). Whereas the original treats the offence as capital and punishes the guilty with deportation (presupposed by PS 4.7.1), ET 41 is purposefully imprecise in fixing a specific punishment, simply stating that the offender would be punished capitally. This could mean any number of things, including exile, deportation, and execution. The basis for all of this is the Cornelian law on forgery, which the original makes specific reference to--a detail lacking in ET 41. When Roman jurists or legislators mentioned sources like the Cornelian law, the purpose was to show an accumulation of juristic interpretation of how the principles and expectations of the particular law or statute were intended to apply. This was not simply a matter of mere convention; rather, it was an affirmation of an ancient legal tradition. If the compilers of the ET had wished to continue this tradition, they could have done so by making specific reference to the original sources. But since the compilers were concerned with the application of the law in specific circumstances, they did not need to trifle with details as to ancient precedents, even if these precedents continued to underpin the basic function of the law in the early sixth century. (63) In any event, the silence in ET41 concerning the penal component would seem to suggest that by the sixth century the matter had become one of judicial discretion. While the judge could impose a sentence of deportation in accordance with earlier imperial law, he could just as well apply the maximum penalty of death; he was not bound by the fixed limitations of the Cornelian law.
The compilers likewise did away with all outmoded forms of punishment. In ET 42, for instance, they omitted the reference in the original (PS 5.15.5) to the penal component requiring deportation to an island. In sixth-century Italy, the punishment of exile as a general rule did not necessarily entail banishment to an island. Usually, those sentenced to exile were subjected to a form of imprisonment; the case of Boethius is illustrative of this. (64) Thus, the compilers modified each instance where the original source included a penalty that stipulated relegation to an island. (65) Other outdated punishments included crucifixion, condemnation to the mines, and exposure to beasts in the arena. By the early sixth century, crucifixion had long since been abolished, and there were no longer gladiatorial shows or venationes involving victims. (66) The compilers made adjustments to reflect these developments. For example, in ET 107 we read that those guilty of sedition (a treasonable offence) were to be burned alive, whereas the original, PS 5.22.1, provided varying penalties according to the status of the accused, including crucifixion, exposure to wild beasts, or deportation to an island.
ET 107 is interesting for another reason. Unlike the original, it makes a specific reference to mutineers within the army. And whereas PS 5.22.1 required that the guilty be punished according to considerations of status (which could entail deportation), ET 107 prescribed death in all such instances. Only in six other instances do the compilers specify the manner of execution: of these, death by fire was the most flagrant. (67) The attention to detail on display here, particularly the specific reference to the army, is perhaps indicative of the concern of the compilers towards such treasonable acts associated with the military. This fear is echoed by Cassiodorus, who notes several instances where soldiers who were improperly or insufficiently supplied resorted to brigandage in direct defiance of the central authority. (68) Procopius, too, in his narrative of the Byzantine conquest, includes several accounts of military leaders who were able to exercise considerable authority in provincial areas that were loosely controlled by the king. The nobleman Theudis, for example, was said to have raised a private army of about 2,000 soldiers on the estates of a wealthy Hispano-Roman woman whom he married. (69) During the early stages of Justinian's Italian campaign, a certain Pitzas surrendered to Belisarius without royal consent. (70) After Witigis's official surrender in 540, which most other Goths originally followed, there remained a small band of rebels in Venetia who, under the leadership of Ildebad, refused to give in. (71) Likewise, a contingent of Goths in the Cottian Alps remained loyal to their commander, a man by the name of Sisigis, regardless of royal prerogative. (72)
ET 56 concerns cattle rustling, a recurring problem throughout the Empire whose pervasiveness rose and fell in response to the prevailing economic conditions of the time. Unlike ordinary theft (furtum), it was prosecuted as a public crime whose punishment was generally more severe. The legal force behind this was a decree of the emperor Hadrian (117-138), the main points of which were reiterated in PS 5.18.2. This served as the model for ET 56. Whereas the punishment in PS 5.18.2 varied from the most extreme (death by the sword or consignment to the mine) to a form of unspecified public labour depending upon the seriousness of the problem in general or the specific offense, ET 56 punished all such thieves with the extreme penalty. Moreover, it went further than the original to require that the victim be compensated in the form of fourfold remuneration, and that slaves or originarii condemned for the act were to be surrendered by their owners to be punished capitally. Conversely, the largest fine imposed upon a cattle rustler in the PS was threefold the original amount. (73)
In light of its severity and attention to detail, ET 56 might be taken as proof of the pervasiveness of the problem of cattle rustling in sixth-century Italy. As Ulpian noted in his commentary on Hadrian's rescript, the penalty of death applied only in those areas where the crime was most prolific. (74) ET 56 made no such restriction and provided specific remedy for the victims. (75) Cassiodorus, too, seems to confirm that cattle rustling posed a significant problem for Theoderic. In a letter written in the king's name to the provincials, capillati, defensores, and curiales of Suavia concerning the appointment of the governor Fridibad and the seemingly ongoing violence that has been plaguing the land, Cassiodorus has Theoderic proclaim, in rather bold fashion, that the newly-appointed governor "will punish cattle rustlers with due severity." (76) Here, cattle rustlers were purposefully signaled out and threatened harshly (presumably this meant capitally).
In ET 58, the compilers went beyond their source to make explicit the application of the rule of law that was most obviously relevant in their own day. Based on PS 5.18.4, the provision outlines in detail the obligations of an individual who should happen upon another's escaped animal(s). ET 58 obliges anyone who finds strays to make this fact public for a period of seven days, by announcement to the local judge or notification in recognized public places; presumably he was then required to carefully look after them as his own and duly compensated--but there is no direct evidence for this. Failure to publicize his find rendered him liable to pay the compensation for theft. The basis for this punishment no doubt rested on the grounds that the culpability of the offender yielding to the temptation of a situation which he had not himself brought about should be rated less than that of the man who deliberately chose to assume the charge of strays, but concealed the fact. Presumably after the seven days were up the animals became the property of the individual who happened upon them, provided he took all necessary precautions. None of this information is found in the original, which simply required that the individual who assumed ownership of another's strays be held liable as a thief rather than as a cattle rustler.
ET 146 permits both a tenant farmer (colonus) and property owner to bring forward a legal action against a person suspected of stealing from the owner's estate. In this it follows PS 2.31.30 closely, but ignores the detail that the basis for this remedy is the classical actio furti, concerning which the PS makes explicit reference (furti agere). In classical terminology, actio signified a person's right to institute proceedings in a court of law. And each actio had a specific designation. Thus, a plaintiff could seek remedy against a thief on the basis of an actio furti. This was a particular feature of the formulary procedure, with the division of the action into two stages, one under the control of a magistrate and the other in the hands of a layman. (77) In the fourth century, and perhaps even earlier, this system was abandoned and replaced by the cognitio procedure, in which the judge was a state-appointed professional who heard the whole case. Under the rules of the cognitio system, the plaintiff presented his claim to the court in writing. It was then served by a court officer on the defendant, who filed his defence with the court. The parties appeared before the judge, who heard argument on the legal issues, took evidence from witnesses, and then rendered his decision.
The abandonment of the formulary procedure had certain effects on the law --traces of which can be found in ET 146 and elsewhere. (78) First, actio ceased to be conceived in classical terms as a basis of remedy with its own specific set of procedures: no longer did it determine or delimit the demands of the plaintiff or the pleas of the defendant. Second, since it was no longer necessary for a plaintiff to choose a particular formula, it was possible to bring forward an action without identifying precisely what the legal basis of the claim was. Third, now that one judge heard the entire case, the former distinction between the role of the praetor and iudex--a division which was reflected in a division of the law from the facts--became blurred. The legal issues could be brought up gradually as the case proceeded.
In the ET, the term serves only as a symbol for a substantive legal concept. Actio and agere are employed chiefly to express the right to sue or as collective expressions for judicially enforceable claims (e.g., ET 12, 24, 31, 43, 46, 146, 152). Where the compilers name a specific actio, for example actio furti in ET 85, 86, and 120, it is not for the purpose of identifying a particular claim, but rather in a less technical sense to express the object of the action. Whereas in classical law, actiofurti denoted a penal action through which the plaintiff could claim double or fourfold damages from the defendant, depending on the type of theft that had been committed (i.e., whether it was manifest or not), in the ET it refers to the very offense itself. (79) In all instances the compilers either did not specify the nature of the actio, as in ET 146, or the specific rules associated with a particular claim. Thus, while the language of actions did not die out with the demise of the formulary system, by the early sixth century actio had lost its technical meaning, which in turn led to a loss of precision in the law itself. (80)
One last example is ET 54, which lays down the legal grounds for initiating a unilateral divorce. For these, it borrows from a law of the emperor Constantine of 331 (CTh 3.16.1). In terms of subject matter and organization of content, the two texts are similar, but there are important differences between them. According to both, a spouse could initiate a unilateral divorce with impunity only if the other partner was guilty of a particularly heinous crime. In the case of the wife, she had to prove that her husband was one of three things: a murderer, sorcerer, or disturber of tombs. For the husband, it was necessary to prove that his spouse was an adulteress, sorceress, or procuress. In each case, there are significant variations in terminology between the ET and CTh. In Constantine's law, the word for an adulteress is moecha; a preparer of poisons/dealer in magic is a medicamentaria/us; and a procuress or go-between is a conciliatrix. In the ET, the corresponding terms are adultera, malefica/us, and aggagula, which for clarity the compilers note is a colloquial expression (quam vulgus adpellat aggagulam). Given the similarity between them, it would be tempting to see aggagula in ET 54 as a misreading of acucula ("hairpin") in CTh 3.16.1. In replacing these terms it seems that the compilers regarded them as outdated or obscure. (81) Thus, they took it upon themselves to update the original language in an effort to make the law more understandable for a population that was presumably no longer familiar with the sort of classical legal terminology of Constantine's time.
In early sixth-century Italy, when a Goth or Roman required clarification or remedy in such matters as the payment of loans, distributions of property, boundaries, the status of slaves, succession, sales, gifts, and so on, he could turn to the ET. With its stated purpose in mind, the ET did not need to be comprehensive, only relevant. Thus, the compilers approached the Roman sources, both primary acts of written legislation (lex) and laws preserved in the opinions and commentaries of jurists (ius), with a selective eye for the most useful and applicable. In this process they ignored a good deal. Their selections represent changed cultural, political, and economic circumstances: a society in which a king, rather than an emperor, attempted to maintain peace and order through a much attenuated officer corps; a land of powerful magnates (disingenuously described as patrons) who were capable of wielding considerable authority through their private retinues; a largely rural place where the vast majority of people scratched out a living through the direct exploitation of the land. All of this was underpinned by a set of rules that presupposed a population still concerned with formalities that had their origins in a distant past and a bygone culture, and still with access to institutional resources at the local level, such as municipal curia and gesta, by which they could be administered. (82)
Indeed, the ET fully bears out the longevity of Rome's legal heritage. By the early sixth century the imperial administration had long since collapsed, but, however selective and modified, the ET was a handbook of Roman law that preserved the essence of classical law to a remarkable degree. But to suggest from this sort of continuity alone that Theoderic's Italy constituted a renewed Empire is to overlook far more important questions raised by the ET. For instance, how much of the population had access to legal experts and the courts? Were the judges capable of dispensing justice swiftly and equitably? Were they honest and upright? Were the rights of citizens reasonably secure against greedy officials and powerful magnates? To judge from the amount of attention devoted to such topics in the ET, it would seem that the availability of skilled and honest judges who could effectively settle cases at the local level was limited, and this posed a significant challenge for the central administration to effectively maintain peace and order throughout the provinces.
The text also casts doubt on the supposed prosperity of Ostrogothic Italy as suggested by some rather ambiguous references in the Variae. While the peaceful conditions Cassiodorus attributed to Theoderic's reign certainly allowed for a measure of recovery, Such recovery was temporary, and it is questionable whether it extended to the entire population. As the ET bears witness, Theoderic was unable to remedy certain structural weaknesses that had afflicted the peninsula since the third century: specifically, the problem of manpower shortage and the insecurity of property in the provinces. Such pressures could only have served to undermine a superficially stable social fabric that disintegrated completely with Justinian's wars of reconquest, which enveloped Italy shortly after Theoderic's death.
Such things should not come as a surprise when we consider the extent to which other defining features of classical Roman society had declined or passed into oblivion in the course of the fifth century. While Theoderic restored a degree of stability and allowed normal life to resume its course, his 'Italy continued to be plagued by an acute shortage of available manpower and resources, and by problems associated with the inability of the central administration in maintaining an effective presence in towns and communities at the local level. To be sure, civic life continued, as did the administrative bureaucracy that regulated it, but on a much smaller scale. That there was an overall decline in civic life in post-Roman Italy can hardly be doubted. Many towns had been in a period of decline long before the official capitulation of the imperial administration, and others were, over the course of the fifth and sixth centuries, despoiled, abandoned, or replaced by military fortifications called castella. (83) Even the many buildings Theoderic is alleged to have built have either not been found by archaeologists, or else turn out to be nothing more than restored ancient buildings: the palaces built in Ravenna, Verona, and Pavia appear to be adaptations of existing Roman structures. (84) Thus, rather than the active and attentive promoter of urban renewal that contemporary accounts make him out to be, Theoderic was, as the archaeological evidence suggests, a much more modest figure in that regard.
At the same time, much of the Roman administrative machinery that Theoderic inherited was either underutilized or abandoned altogether. In the course of the sixth century, military officers like the comes and saio began to supersede the traditional civil service (militia Romana) in terms of importance in the overall administration. (85) By the close of the century this process was complete: Byzantine Italy was at this time ruled by a military governor known to historians as the exarch. (86) In view of these developments the ET takes on greater significance as a testament to the extent to which Rome's laws had evolved to reflect the sorts of changes taking place in Italy between the fourth and sixth century, and to the challenges which Theoderic and his successors faced in attempting to stave off economic decline and a weakening of civic and administrative institutions.
For Theoderic, governing over the famous lands of Italy whose cities, monuments, and amenities he was entirely unable to maintain, Roman law was a source of prestige and authority through which he sought to define and justify his rule: it symbolized a connection between his reign and those of other glorious emperors of the past, thereby reinforcing his claims that little had changed in the intervening centuries. But the ET serves as ample proof that while Roman law withstood the social, political, and economic upheaval that brought an end to the western Roman Empire, it was not the law of Constantine or even Theodosius. It was a much simplified law of a barbarian king, created by Roman jurisprudents who were acutely aware of the fact that--despite ideological statements of Cassiodorus to the contrary--the Roman world characterized at the height of its power as a highly-civilized urban culture and governed through an effective administrative and legal apparatus had long since passed by.
(1) The end of imperial rule in the west was a long and complicated process that lasted the better part of a century, beginning with the battle of Adrianople in 378 and ending with the removal of Romulus Augustulus in 476. For excellent surveys on the western Empire's dissolution and disintegration, with different emphases on the role played by the barbarian invaders, see Edward Arthur Thompson, Romans and Barbarians." The Decline of the Western Roman Empire (Madison, 1982); Ian Wood, "The Fall of the Western Empire and the End of Roman Britain," Britannia, 18 (1987), pp. 251-62; Averil Cameron, The Later Roman Empire." A.D. 284-430 (Cambridge, Massachusetts, 1993); Michael E. Jones, The End of Roman Britain (Ithaca, 1996); Walter Pohl (ed.), Kingdoms of the Empire: The Integration of the Barbarians in Late Antiquity (New York, 1997).
(2) Odovacer's position viz. Constantinople was ambiguous at best. Following the deposition of Romulus, Odovacer wrote to Emperor Zeno proclaiming that Italy no longer required its own emperor. Instead, he would rule as king and patrician, subordinate to the emperor's authority. But the official position of the eastern court was that Odovacer was a usurper who lacked any legitimate authority: in 475 the true emperor, Julius Nepos, had been deposed by Orestes who in turn named his own son, the "Little Augustus," as emperor in that same year. See Penny MacGeorge, Late Roman Warlords (Oxford, 2002), pp. 281-93.
(3) On these events, see John of Antioch, fragment 238 (ed. and trans. Sergei Mariev), Ioannis Antiocheni Fragmenta Quae Supersunt Omnia, (Berlin, 2008), pp. 444-45; Ennodius, Vita Epiphanii 109 (ed. Friedrich Vogel), Magni Felicis Ennodii Opera, Monumenta Germaniae Historcia Auctores Antiquissimi [hereafter cited as MGH AA], 7 (Berlin, 1885); Jordanes, Getica, 57.289-91 (ed. Theodor Mommsen), MGH AA 5.1 (Berlin, 1882), pp. 53-138; Procopius, gella Gothica [hereafter cited as BG], 5.1.9-12 (ed. J. Haury and trans. H.B. Dewing), Loeb Classical Library, 5 volumes (Cambridge, MA, 1914-28). With respect to secondary sources, see: Herwig Wolfram (trans. Thomas J. Dunlap), History of the Goths (2nd edn., London, 1988), pp. 278-80; John Moorhead, Theoderic in Italy (London, 1992), ch. 1; Peter Heather, The Goths (Oxford, 1997), pp. 216-20.
(4) Cassiodorus, Variae (ed. Theodore Mommsen), MGH AA [hereafter cited as Cass. Var.] 12 (Berlin, 1894), pp. 1-385; ed. and trans, in part by Sam J. B. Barnish, Cassiodorus: Variae. Translated Texts for Historians, volume 12 (Liverpool, 1992). The standard treatment of Cassiodorus's life and work is that of James J. O'Donnell, Cassiodorus (Berkeley, 1979).
(5) On the problems surrounding the Variae as a propagandistic text, see Shane Bjornlie, "What Have Elephants to Do with Sixth-Century Politics? A Reappraisal of the 'Official' Governmental Dossier of Cassiodorus," Journal of Late Antiquity [hereafter cited as JLA], 2.1 (2009), pp. 143-71; Andrew Gillett, "The Purposes of Cassiodorus's Variae," in A.C. Murray (ed.), After Rome's Fall: Narrators and Sources of Early Medieval History. Essays Presented to Walter Goffart (Toronto, 1998), pp. 37-50. For the religious dimensions of the text see Barnish, "Sacred Texts of the Secular: Writing, Hearing, and Reading Cassiodorus's Variae," Studia Patristica 38 (2001), pp. 363-70. On the authenticity of the Variae as part of an actual chancery tradition, see Stefan Krautschick, Cassiodor und die Politik seiner Zeit. Habelts Dissertationsdrucke, Reihe Alte Geschichte, 17 (Bonn, 1983), pp. 41-45, 118-22; Moorhead, Theoderic, pp. 2-3; 145; O'Donnell, Cassiodorus, p. 59; Gunhild Viden, The Roman Chancery Tradition: Studies in the Language of Codex Theodosianus and Cassiodorus's 'Variae' (Goteborg, 1984), pp. 84, 88, 142.
(6) For example, Van 1.1 (a letter in Theoderic's name to the emperor Anastasius, remarking that the king's rule was in direct imitation of the emperor's, and noted how his Gothic followers obeyed Roman law); 1.27 (here, the Roman Senate is instructed by Theoderic to uphold the rule of Roman law); 1.44 (a letter to the people of Rome instructing them to obey the authority of the newly-appointed urban prefect); 3.17 (a letter in Theoderic's name to the Gothic inhabitants of Gaul, instructing them to obey Roman law); 3.43 (a letter to the same provinces of Gaul, Theoderic reiterates the point that Roman law was to be followed by all provincials). In the preface to the Variae, Cassiodorus exclaims how he was frequently encouraged by Theoderic to embrace the laws of the ancient Romans: "hortamini [Theoderic] me [Cassiodorus] frequenter, ut diligam senatum, leges principum gratanter amplectar."
(7) For instance, during his visit to Rome to mark his decennalia in 500, Theoderic enjoyed the last western adventus, the formal and elaborate late Roman ceremonial used when an emperor entered a city. A special medal was also issued to commemorate the event. This is the so-called Senigallia Medallion, now in the National Museum at Rome. The obverse bears a portrait of the king making a stylized gesture with his right hand as the pacifier of the world, and carrying in his left a statue of Victory. Inscribed is the legend "REX THEODERICUS PIUS PRINC(EPS) I(NVICTUS) S(EMPER)" ("king Theoderic, the pious and always most invincible prince"); and on the reverse "REX THEODERICUS VICTOR GENTIUM" ("king Theoderic, conqueror of the peoples"). Theoderic is portrayed with his hair cropped short in the front and long hair to the back. The style is evocative of the modern-day mullet. He is likewise portrayed with short hair in the mosaic in Sant'Apollinare Nuovo--his Arian palace church in Ravenna--along with the so-called clipped moustache, the barba Gothica. For discussion of the mosaic of Sant'Apollinare Nuovo, see Friedrich von Lorentz, "Theoderich-nicht Iustinian," Mitteilungen des Deutschen Archaologischen Instituts, Romische Abteilung, 50 (1935), pp. 339-47; Giuseppe Bovini, "Note sul presunto ritratto musivo di Giusttiniano in S. Apollinare Nuovo di Ravenna," Annales Universitatis Saraviensis. Philosophie, Lettres, 5 (1956), pp. 50-53; Brian Ward-Perkins, From Classical Antiquity to the Middle Ages: urban public buildings in northern and central Italy AD 300-850 (Oxford, 1984), pp. 162, 164-65. The medallion is discussed by Maria R. Alfoldi, "Il medaglione d'oro di Teodorico," Rivista italiana di Numismatica e scienze affini, 80 (1978), pp. 133-41.
(8) See, for example, Thomas S. Brown, Gentlemen and Officers: imperial administration and aristocratic power in Byzantine Italy, A.D. 554-800, British School at Rome (Rome, 1984), p. 4; Moorhead, Theoderic, ch. 1.
(9) The most accessible editions of the ET are those of Friedrich Bluhme, Edictum Theoderici regis in Monumenta Germaniae Historica Leges [hereafter cited as MGH Leges], 5 (Hannover, 1889), pp. 145-79; and Johannes Baviera, Fontes Iuris Romani Anteiustiniani [hereafter cited as FIRA] (2nd edn, Florence, 1968-69), II, pp. 683-710.
(10) The letter accompanied Pithou's 1579 edition as well as subsequent editions of Nivellius (1589), l'Orry (1588, 1600) and Brosse (1600, 1609).
(11) On Pithou and the MSS, see the comments in the editions of Bluhme, MGH LL 5 (Hannover, 1889), pp. 146-47; and Baviera, FIRA, p. 683.
(12) Vismara argued that the text was written in Gaul sometime during Theoderic Ii's reign (453-66) by the praetorian prefect Magnus of Narbo. Vismara largely tests his case on the absence of any specific reference in the Italian sources to Theoderic the Great having issued an edict along the lines of the ET. Generally speaking, however, negative arguments like these are a weak form of proof for this period, especially for a document-type like the ET that was not out of the ordinary. For Vismara, see his "Romani e Goti di fronte al diritto nel regno ostrogoto," Settimanae di studio del Centro Italiano di studi sull'alto medioevo 3 [= I Goti in occidente: problemi] (Spoleto, 1956), pp. 407-63; Cuadernos del Instituto Juridico Espanol, Roma 5 (1956), pp. 49-51; most notably his "Edictum Theoderici," Ius Romanum Medii Aevi, part l, 2 b aa a (Milan, 1967). Vismara's findings have received broad support. See, for example, Hans-Jurgen Becker, "Edictum Theoderici," in Handworterbuch zut Deutschen Rechtsgeschichte, vol. 1 (Berlin, 1971), pp. 802-4; Wolfgang Kunkel (trans. J.M. Kelly), An Introduction to Roman Legal and Constitutional History (2nd edn., based on the sixth German edition of Romische Rechtsgeschichte, Oxford, 1973); Hans Schlosser, Grundzuge der neueren Privatrechtsgeschichte (4th edn., Heidelberg, 1982), p. 6; Allan Watson, The Evolution of Western Private Law (Baltimore, 1985), pp. 77-79. Supporters of the attribution of the ET to Theoderic the Ostrogoth include most notably: Arnold H.M. Jones, The Later Roman Empire, 284-602: A Social, Economic and Administrative Survey (Oxford, 1964), p. 477; Hermann Nehlsen, Edictum Theoderici, Zeitschrift der Savigny-Stiftung fur Rechtsgeschichte, Germanistische Abteilung 86 (1969), pp. 246-60; Idem, Sklavenrecht zwischen Antike und Mittelalter: germanisches und romisches Recht in den germanischen Rechtsaufzeichnungen I, Ostgoten, Westgoten, Franken, Langobarden, Gottinger Studien zur Rechtsgeschichte 7 (Gottingen, 1972), pp. 120-23; Wolfram, History, p. 289; Katherine Fischer Drew, Law and Society in Early Medieval Europe. Studies in Legal History (London, 1988), II, p. 21 (though she contradicts herself at VII, p. 2); Moorhead, Theoderic, pp. 75-76; Roberto Lambertini, Introduzione allo studio esegetico del diritto romano (Bologna, 1993), p. 92; Patrick Amory, People and Identity in Ostrogothic Italy, Cambridge Studies in Medieval Life and Thought: Fourth Series (Cambridge, 1997), pp. 78-82; Patrick Wormald, "The Leges Barbarorum: Law and Ethnicity in the Post-Roman West," in Hans-Werner Goetz et al. (eds.) Regna and Gentes: The Relationship Between Late Antique and Early Medieval Peoples and Kingdoms in the Transformation of the Roman World (London, 2003), pp. 21-53.
(13) Cass., Var. 4.33. In another letter (Var. 4.43) to the populace of Rome in the king's name, Cassiodorus reports that any Romans who took part in the burning of a synagogue at Rome were to be punished, although the cause of their anger towards the Jews was to be investigated; and the synagogue at Milan was to be protected from the attacks of clerics.
(14) ET 143: "The privileges conferred by the laws upon Jews shall be preserved: when disputes arise between those Jews who live in accordance with their own laws, they must have as judges those whom they consider to be teachers of their observance." ("Circa Iudaeos privilegia legibus delata serventur: quos inter se iurgantes, et suis viventes legibus, eos iudices habere necesse est, quos habent observantiae praeceptores.") On Theoderic's Jewish legislation, sec Amnon Linder, The Jews in the Legal Sources of the Early Middle Ages (Detroit, 1997), pp. 200-6 (with translation and commentary of Cassiodorus'ss accounts).
(15) Visigothic law, for instance, was decidedly anti-Semitic. For this, sec Paul D. King, Law and Society in the Visigothic Kingdom (Cambridge, UK, 1972), pp. 130-44.
(16) Procopius, BG 1.8.41 and 10.24-6.
(17) There is extensive evidence for burials around the Colosseum in the fifth century, which are no doubt connected with the traumas associated with the Visigothic sack in 410. There was a renewal of burial activity in that same region in the first half of the sixth century (some tombs feature tiles with stamps bearing the image of Theoderic). On these burials, see Neil Christie, From Constantine to Charlemagne. An Archaeology of Italy AD 300-800 (Burlington, Vermont, 2006), p. 253; Rossella Rea (ed.), Rota Colisei: La valle del Colosseo attraverso i secoli, Electa (Milan, 2002), pp. 85-125.
(18) Cass., Var. 4.49.
(19) On the significance of the term barbarian, see Guy Halsall, Barbarian Migrations and the Roman West, 376-568 (Cambridge, 2007), p. 332; Amory, People and Identity, 59-71 ; Peter Heather, Goths and Romans, 332-489 (Oxford, 1991), pp. 52-57.
(20) Cass., Var. 3.24 (a letter addressed in Theoderic's name to the Romans and barbarians residing in Pannonia); 1.18.2 (a letter of general instruction to the Roman Domitianus and the Gothic Wilia, both recently dispatched to administer justice in their respective jurisdictions, which addresses the problem of invasio and refers to any Goth who has committed this crime as a "barbarian usurper"); 2.5.2 (in this letter concerning soldiers' arrears, Cassiodorus has Theoderic describe other Germanic groups as barbarians); 9.21.4 (in this proclamation of Athalaric which calls for an increase in the wages of grammarians, Cassiodorus has the king extol the skills of these individuals, and note that while the grammatical art may be lost on other barbarian kings, it is cherished by legitimate sovereigns [in other words, members of the Amal royal household]).
(21) Gelasius: Ep. 6.1 (ed. Andreas Thiel), Epistolae Romanorm Pontifieum Genuinae (reprinted New York, 2004), p. 325; Idem, frag. 9.35 (ed. Thiel), Epistolae, p. 488; Boethius, Consolatio philosophiae 1.4.10; Procopius, BG 1.1.26, 1.2.8, 17, 18.
(22) Cass., Var. 6.6 (formula for appointment). For a review of the office in Ostrogothic Italy, see Wolfram, History of the Goths, p. 293. William G. Sinnigen, "Administrative Shifts of Competence under Theoderic," Traditio, 21 (1965), pp. 456-67.
(23) Jill Harries and Ian Woods (eds.), The Theodosian Code (Ithaca, New York, 1993), p. 7.
(24) Notitia Dignitatum. In Partibus Orientis (ed. O. Seeck) [hereafter cited as Not. Dig. Or], 11.13-16, (Berlin, 1876; reprinted Frankfurt, 1962). The Notitia is an official list of all ancient Roman civil and military posts drawn up under the auspices of the offices of the eastern and western primicerius notariorum respectively. Latest scholarly efforts to date both western Notitia Dignitatum Occidentis [hereafter cited as Not. Dig. Occ.] and eastern (Not. Dig. Or) versions of the list place it somewhere between 395 and 427. See Michael Kulikowski, "The 'Notitia Dignitatum' as a Historical Source," Historia, 49 (2000), pp. 358-77. On the importance of the quaestor in imperial lawmaking in Late Antiquity, see Jill Harries, "The Roman Imperial Quaestor from Constantine to Theodosius II," Journal of Roman Studies [hereafter cited as JRS], 78 (1988), pp. 148-72.
(25) Not. Dig. Or. 12; Not. Dig. Occ. 10.
(26) For example, Var. 5.4; 8.13; 8.18; 10.6.
(27) Concerning the accessibility of Roman law at this time, the Theodosian Code (438), arguably the most important source for Roman law in the West throughout the early Middle Ages, survives in only ten manuscripts from before the ninth century. In his Codices Latinae Antiquiores E.A. Lowe listed nine manuscripts of the Code, or sections of it, one manuscript of a summary of the Code, and one manuscript of the post-Theodosian Novels. Of these, he assigned only one manuscript of the Code to Italy: E.A. Lowe (ed.), Codices Latinae Antiquiores. A Palaeographical Guide to Latin Manuscripts Prior to the Ninth Century, I-XI plus supplement [hereafter cited as CLA] (Oxford 1934-71), VIII, p. 1212. Ten manuscripts is not a very significant number for such an important legal source. The dearth of early manuscripts of the Theodosian Code in the West, particularly in Italy, is perhaps an indication that the preservation and transmission of Roman legal texts in general was at this time limited.
(28) On this distinction between ius and lex, see Peter Stein, Roman Law in European History (Cambridge, 1999), pp. 4, 28; George Mousourakis, The Historical and Institutional Context of Roman Law (Aldershot, 2003), p. 357. For similar usages of the terms in later periods, see Rosamond McKitterick, The Carolingians and the Written Word (Cambridge, 1989), p. 38.
(29) For the sources of the ET, see Bluhme's appendix to his edition (p. 176). The identification of a particular source or sources for any given provision is not a straightforward process. In many cases, the compilers were simply adhering to a universally-held legal principle or juristic concept that might be upheld in multiple decrees and juristic commentaries and was already well-established in Italy by the early sixth century. In these instances the compilers may have consulted a specific source for guidance in especially complex legal matters; but there is simply no way of telling if this was the case. A further complication is the fact that many of the sources from which the compilers were working do not survive in their original form, but rather in possibly later interpolated versions that share little or no verbal affinities with the corresponding provisions of the ET. For imperial decrees originally collected in the Gregorian and Hermogenian Codes, as well as the opinions of Papinian and Ulpian, we must rely primarily on later, often highly interpolated, versions collected in Justinian's Codex and Digest of 533/4.
(30) On the sources of the Pauli Sententiae [hereafter cited as PS]: ET 5 (PS 5.5a.5-6), 33 (PS 5.12.2), 40 (PS 1.12.2 ), 41 (PS 4.7.2), 42 (PS 5.15.5; cf. Digest (of the Emperor Justinian) [hereafter cited as Dig.], 22.5.16 Paulus libro 5 sententiarum), 56 (PS 5.18.2; ex Coll. 11.2), 57 (PS 5.18.1), 58 (PS 5.18.4; ex Coll. 11.5; cf. Dig. 47.14.1, 1), 62 (PS 2.26.11), 75 (PS 5.26.3), 83 (PS 5.30b.1), 89 (PS 5.25.12), 90 (PS 5.25.12, 5, 2), 91 (PS 5.25.12), 94 (PS 5.1.1), 95 (PS 5.1.1), 97 (PS 5.20.2; ex Coll. 12.2.1), 98 (PS 5.20.3-4), 99 (PS 5.23.10 ; of. PS 5.26.1), 100 (PS 5.16.3), 101 (PS 5.16.7), 102 (PS 5.16.9), 104 (PS 5.22.2), 107 (PS 5.22.1), 115 (PS 5.27), 117 (PS 2.31.7), 119 (PS 2.31.16); 120 (PS 2.31.8-10), 123 (PS 5.26.4), 124 (PS 5.26.4), 130 (PS 2.31.25 ), 131 (PS 5.5a.4), 141 (PS2.17.11), 146 (PS 2.31.30; Dig. 220.127.116.11), 151 (PS 2.31.24 ). On the sources of the CTh: ET3 (CTh 9.27.3,4 ), 10 and 11 (CTh 4.22.3 ), 12 (CTh 4.14.1 ), 13 (CTh 9.1.11 ; 9.1.19 ), 14 (CTh 9.1.15 ), 17-19 (CTh 9.24.1 pr., 2 and 4 ), 20 (CTh 9.24.3 ), 26 (CTh 5.3.1 ), 27 (CTh 5.2.1 ), 28 (CTh 4.4.1 [326?]), 35 (CTh 10.10.1-3), 37 (CTh 3.8.1), 43 (CTh 2.13.1 ), 44 (CTh 2.12.6 ), 46 (CTh 2.14.1 ), 48 and 49 (CTh 9.6.3 ), 50 (CTh 10.10.4 ), 51 (CTh 8.12.1 ), 52 and 53 (CTh 8.12.8 ), 54 (CTh 3.16.1 ), 55 (CTh 11.30.22 ; 11.30.42 ), 61 (CTh 9.25.1 ), 65-68 (CTh 5.10.1 ), 70 (CTh 9.45.3 ; 9.45.5 ), 71 (CTh 9.45.1 ; 9.45.3 ), 77 (CTh 9.10.4 ), 84 (CTh 5.9.?), 103 (CTh 9.1.10 ), 108 (CTh 16.10.6 ; 16.10.23 ), 111 (CTh 9.17.6), 112, (CTh 9.42.2 ), 113 (CTh 9.42.2 ; similarly, 9.42.24 ), 121 (CTh 2.30.2 ; similarly, 2.32.1 ), 122 (CTh 2.13.1 ), 132 (CTh 11.39.12 ), 134 (CTh 2.33.2 ), 144 (CTh 12.6.18 ), 149 (CTh 11.8.1 ;11.8.3 ), 154 (CTh 2.8.18; 8.8.3; 11.7.13 ).
(31) Stein, Roman Law in European History, pp. 32-36.
(32) Traditionally, scholars have applied the term "vulgar" to the kind of law characterized by the ET, and to describe and account for the many changes taking place in Roman law from the third to sixth centuries as "vulgarization," a much debated and value-laden term which implies a degeneration of the classical standards of Roman law and legal erudition. See, for example, Ernst Levy, West Roman Vulgar Law: The Law of Property (Philadelphia, 1952), p. 7; Fritz Schulz, History of Roman Legal Science (Oxford, 1967), pp. 99-261; Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History (Oxford, 1966), pp. 135-51. In contrast, Tony Honore, whose viewpoint is typical of most British scholars on the subject, argues against any such notion as vulgarization or vulgar law. In his "Conveyances of Land and Professional Standards in the Later Empire," in Peter Birks (ed.), New Perspectives in the Roman Law of Property. Essays for Barry Nicholas (Oxford, 1989), pp. 137-52, he notes at p. 151: "This Vulgar Law theory is a prize candidate for scholarship's Most Implausible Myth." Honore's skepticism notwithstanding, there is no denying the fact that Roman law in the West underwent considerable change in the centuries that witnessed the end of Antiquity and the beginning of the middle ages.
(33) Cass., Var. 4.47 (cursus publicus); 11.12 (Flaminian Way); 3.31 (statues); 5.38, 8.30 (aqueducts); 1.20, 1.27, 1.30, 3.51, 5.42, 6.4. A contemporary chronicler, the so-called Anonymus Valesianus (hereafter Anon. Val.), provides a useful history of Theoderic's civic programme: 12.60, 67 (games); Var. 7.10 (theatre); 2.37, 5.38, 6.4, 7.6, 8.31, 9.6, 10.29 (baths). For a translation of the text see John C. Rolfe, Ammianus Marcellinus, volume 3, Loeb Classical Library (Cambridge, Mass., 1935-39; reprinted London, 2001).
(34) Robert Coates-Stephens, "The Walls and Aqueducts of Rome in the Early Middle Ages, A.D. 500-1000," JRS 88 (1998), pp. 167-78.
(35) Cass., Var. 3.49.
(36) Cass., Var. 9.12.
(37) Cass., Far. 9.14.8: "Gothorum laus est civilitas custodita.'"
(38) The question of the number of Goths who accompanied Theoderic to Italy is difficult to assess with any certainty. Conservative estimates, and these serve for the purposes of this study, place their number at twenty thousand warriors, that is to say, about one hundred thousand people altogether. Thomas S. Bums, "Calculating Ostrogothic Population," Aeta Antiqua Academiae Scientiarum Hungaricae 26 (1978), pp. 457-64, estimates 35,000 to 40,000; and Herwig Wolfram History of the Goths, p. 279, estimates about 100,000. This latter figure is supported by Wilhelm Ensslin Theoderic der Grosse (2nd edn., Munich, 1959), pp. 62-64.
(39) On the decline of patria potestas as a viable legal concept in Late Antiquity, see Antti Arjava, "Paternal Power in Late Antiquity," JRS, 88 (1998), pp. 147-65; Idem, "The Survival of Roman Family Law After the Barbarian Settlements," in Ralph W. Mathisen (ed.), Law, Society and Authority in Late Antiquity (Oxford, 2001), pp. 33-51; Elisabeth Meyer-Marthaler, Romisches Recht in Ratien im fruhen und hohen Mittelalter (Zurich, 1968), pp. 131-38.
(40) Janet R. Martindale, The Prosopography of the Later Roman Empire, vol. II: A.D. 395-527 (Cambridge, 1980), pp. 1278-79; Paul S. Barnwell, Emperors, Prefects and Kings (London, 1992), p. 158.
(41) ET 52: "... qui si defuerint, in alia civitate, quae haec habuerit, allegationis firmitas impleatur, aut apud iudicem eiusdem provinciae, quod donatum fuerit, allegetur."
(42) CTh 9.1.4 (325).
(43) CTh 1.16.7.
(44) CTh 9.27.5 (383).
(45) CTh 1.12.8 (400) imposing a fine of 301b of gold for improper delegation; 9.40.15 connivance with criminals.
(46) Valentinian, Novel, 23.6 (447).
(47) CTh 1.5.9 (389).
(48) Jill Harries, Law and Empire in Late Antiquity (Cambridge, MA, 1999), ch. 8.
(49) ET 1-7, 55, 91, 114.
(50) ET epilogue: "scituris cognitoribus universis ac Jura dictantibus, quod si in aliquo haec edicta fuerint violata, se proscriptionis deportationisque poena merito esse feriendos."
(51) In the early part of his reign, Theoderic, not unlike Odovacer, appointed aristocrats to high office. However, towards the end of the first decade of the sixth century he turned towards novi homines (many of which were Goths) to fill such positions. Not surprisingly, this led to a souring of relations between Theoderic and the traditional lay holders of power in Rome in the second decade of the century. On Theoderic's policies of appointment, see in general Moorhead, Theoderic, pp. 147-58; John Matthews, Western Aristocracies and Imperial Court, AD 364-425 (Oxford, 1992), pp. 355, 386-88.
(52) Cass. Var. 9.20; 12.2, 3, 6.
(53) On the decline of Italy from the fourth to sixth centuries, see Chris Wickham, Land and Power: Studies in Italian and European Social History, 400-1200 (London, 1994), p. 101; Idem, Framing the Early Middle Ages: Europe and the Mediterranean, 400-800 (Oxford, 2005), pp. 203-5 (with a focus on the decline of the senatorial elite--a good indicator of overall economic decline according to the author); Bryan Ward-Perkins, "Land, Labour and Settlement," in Averil Cameron et al. (eds.) The Cambridge Ancient History, volume 14: Late Antiquity: Empire and Successors, A.D. 425-600 (Cambridge, 2000), pp. 315-46. For discussion on the general decline of western Europe from the fourth century to the eighth, see Paul Fouracre, "Space, Culture and Kingdoms in Early Medieval Europe," in Peter Linehan and Janet Nelson (eds.), The Medieval World (New York, 2003), pp. 366-80, esp. p. 367.
(54) On Theoderic's reform of the coinage and fixing of corn prices: Cass. Var. 2.26, 10.27, 12.27. Some account must also be taken of the many building programmes that Theoderic is said to have initiated (e.g. Cass. Var. 11.39.2; Anon. Val. 12.71); and his granting of land to private individuals who took on such income-producing activities as the draining of the Pontine Marshes and the swamps around Ravenna (Cass. Var. 2.32, 33). For the negative effects of droughts and famines in the peninsula: Cass., Var. 4.5 (a letter addressed in Theoderic's name to the comes Amabilis, concerning the supply of provisions to the famine-stricken province of Gaul); 4.7 (apparently, some of the supply ships sent to Gaul to relieve the famine sank. Here, Theoderic instructs the comes privatarum not to penalize any merchants whose loss was no fault of their own); 10.27 (written in Theodahad's name, this letter concerns the supply of corn to the depleted regions of Liguria and Venetia); 12.25 (a letter in Cassiodorus's own name concerning the famine that struck Italy in 538). The famine is mentioned again in 12.28.
(55) See generally the statistics compiled in Jones, The Later Roman Empire, pp. 447-8.
(56) For specific instances, see Variae 5.29-30. On the subject in general: Matthew Innes, "Land, Freedom and the Making of the Medieval West," Transactions of the Royal Historical Society, 16 (2008), pp. 39-74.
(57) E.g., Cass., Var. 1.18.2; 2.27; 3.31.3; 5.37.3.
(58) CTh 4.14.1 (424).
(59) CTh 3.12.3.
(60) On legislation see, for example,. Collatio 6.4 (FIRA2 ii. pp. 588-60 [1 May 295] of the emperor Diocletian to the provincials in Damascus), which likened incestuous unions to the mating of cattle or wild beasts (which lacked any respect for modesty), recognized children of such unions as illegitimate, and punished wrongdoers with a penalty of "worthy severity" (presumably death). See also CTh 3.12.1-2 (344 and 355) of the emperor Constantius, issued to the provincials of Phoenicia, which prohibited unions between a man and the former wife of his brother or the sister of his former wife. On the subject in general, see Judith Evans Grubbs, Law and Family in Late Antiquity (Oxford, 1995), pp. 24, 55, 95, 96, 99-101.
(61) Cass., Var. 7.46.
(62) Var. 11.39.2. Modern estimates place the population of Rome during Cassiodorus's time at 500,000. See Christie, From Constantine to Charlemagne, p. 251.
(63) A similar air-brushing out of this Roman legal tradition is found in the Code of Euric, and noted by Jill Harries in her "'Not the Theodosian Code': Euric's Law and Late Fifth-Century Gaul," in Harries and Wood (eds.) The Theodosian Code, pp. 39-51 at p. 47.
(64) The Anonymus Valesianus reports (14.87) that Boethius was banished to Calventia (modern Calvenzeno).
(65) For instance, PS 5.23.11 (10): "a judge who accepts a bribe in a capital case shall have his goods confiscated and be deported to an island." ("iudex, qui in caput fortunasque hominis pecuniam acceperit, in insulam bonis ademptis deportatur.") = ET 1 : "In the first place We have decreed that if a judge accepts money to pass judgment which imperils the life or civil status of an innocent person against the ordinances and provisions of the public law, let him be subjected to a capital penalty." ("Priore itaque loco statuimus, ut si iudex acceperit pecuniam, quatenus adversum caput innocens contra leges et iuris publici cauta iudicaret, capite puniatur."); PS 4.7.2: "[a person guilty of forgery] shall be deported to an island." ("... in insulam deportatur.") = ET41 : "[the guilty] shall suffer a capital penalty." ("... capitali poena feriatur."); PS 5.15.5: "those who deliver false or varying testimony, or provide such testimony to either party shall either be exiled or relegated to an island or be removed from the court." ("qui falso vel varie testimonia dixerunt vel utrique parti prodiderunt, aut in exilium aguntur aut in insulam relegantur aut curia submoventur.") = ET 42: "Those who deliver conflicting or false testimony, or provide such testimony to either party shall be exiled." ("Qui varium aut falsum testimonium dixerint, aut utrique parti prodiderint, in exilium dirigantur."); PS 5.20.2: "anyone who sets fire to another's house or villa out of enmity, if they are humiliores they shall be condemned to the mines or endure public labour, honestiores shall be relegated to an island." ("qui casam aut villam inimicitiarum gratia incenderunt, humiliores in metallum aut in opus publicum damnantur, honestiores in insulam relegantur.") = ET97: "... anyone who sets fire to another's dwelling, house or villa out of enmity, if they are a slave, colonus, slave woman or originarius, they shall be consumed by fire. If a freeborn should do this, he shall repay any of the costs associated with the fire that he set, and he shall restore the building, and in addition, as a penalty for committing such an act, he shall be compelled to pay the value of the possessions destroyed; but if he is unable to raise this amount on account of his penury, let him be flogged and punished with the banishment of perpetual exile." ("Qui casam, domum, aut villam alienam inimicitiarum causa incenderit si servus, colonus, ancilla, originarius fuerit, incendio concremetur: si ingenuus hoc fecerit, restituat quid-quid dispendii acciderit per illud, quod commovit, incendium, aedificiumque renovet, et aestimationem insuper consumptarum rerum pro poena talis facti cogatur exsolvere; aut si hoc sustinere pro tenuitate nequiverit, fustibus caesus perpetui exilii relegatione plectatur.")
(66) Constantine is credited with formally abolishing crucifixion. This is attested by Aurelius Victor, Liber de Caesaribus 41.4, ed. Franciscus Pichlmayr (Leipzig, 1911); trans. Harold W. Bird, Sextus Aurelius Victor: Liber de Caesaribus, Translated Texts for Historians 17 (Liverpool, 1994). See further Harries, Law and Empire, p. 139.
(67) There are three instances of punishment by the sword (ET 48, 49, 56) and a further three where the offender was to be burned alive (ET 35, 61 and 97). Generally speaking, in Late Antiquity the death penalty applied to more crimes and extended to more categories of people. At the same time, however, the range of penalties to which criminals were subject had decreased. Death by fire was a punishment reserved for the most heinous of crimes. For instance, in legislation of the emperor Constantine of 323 (CTh 7.1.1), it was stipulated that any soldiers who colluded with enemy forces (identified as "barbarians") and caused loss or ruin to another Roman, or otherwise profited from such dealings, was to be burned alive. Elsewhere in legislation of the emperor Constantius (373), any person found to have mutilated his person in a bid to avoid military, service was similarly condemned to the "avenging flames." Jews and members of other non-Christian sects who punished Christian converts were also punished by the flame (CTh 16.8.1 ). The punishment could also be used to further enhance the deterrent effect. Thus, according to ET 97, arsonists were to be burned alive. See further Harries, Law and Empire, pp. 138-39.
(68) For example, Cass. Var. 3.38, 4.13, 5.13, 12.5.
(69) Procopius, BG 1.12.50-4.
(70) Ibid., 5.15.1-2. See also Wolfram, Goths, p. 502; Moorbead, Theoderic, p. 102.
(71) Proeopius, BG 6.29.41 ; 7.1.25-27.
(72) Ibid., 6.28.28-30.
(73) PS 5.18.3.
(74) Dig. 47.14. l pr.: "Let evil-doers [i.e. cattle rustlers] be punished most severely, but not everywhere and only in those places where the crime is most prolific" ("puniuntur autem durissime non ubique, sed ubi frequentius est id genus maleficii.")
(75) Compensation for cattle-rustling is also mentioned at PS 5.18.1: whereas ET 56 prescribed fourfold remuneration, PS 5.18.1 provided twofold or threefold compensation depending on the severity of the crime or the propensity of the offender. In the late fourth century, the fourfold penalty had become standard for all forms of furtum. For this development see E. Levy, Westromisches Vulgarrecht. Das Obligationenrecht. Forschungen zum romischen Recht (Weimer, 1956), pp. 36 and following
(76) Cass., Var. 4.49: "'qui [sc. Fridibad] abactores animalium legitima severitate coerceat ..."
(77) On the formulary system in general, see Arthur A. Schiller, Roman Law: Mechanisms of Development (New York, 1978), pp. 435-37; Herbert F. Jolowicz and Barry Nicholas, A Historical Introduction to the Study of Roman Law (3rd edn., Cambridge, 1972), pp. 199-201; Mousourakis, The Historical and Institutional Context of Roman Law, pp. 206-18; Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History (2nd edn., Oxford, 1973), ch. 6; David Johnston, Roman Law in Context (Cambridge, 1999), pp. 112-14.
(78) On the demise of the actio in late Roman law, see Levy, West Roman Vulgar Law, p. 202.
(79) Levy, West Roman Vulgar Law, p. 202; Reinhard Zimmerman, The Law of Obligations (Oxford, 1996), p. 200.
(80) Stein, Roman Law in European History, p. 25.
(81) On the unique vocabulary of Constantine's law, see Evans Grubbs, Law and Family, p. 258; Edoardo Volterra, "Intorno ad alcune costituzioni di Costantino,'" Rendiconti dell'Accademia Nazionale dei Lincei. Classe di Scienze morali, storiche e filologiche, series 8 (1958), XIII, pp. 61-89.
(82) Municipal curia: ET 27, 52, 53, 126; municipal gesta: ET 52, 64, 80.
(83) For instance, in a letter (Var. 3.31) penned by Cassiodorus, Theoderic bemoaned the ruinous state of Rome the city, and his inability to prevent further destruction to the ancient capital. The formulae for the prefect of the watch of Rome (7.7) and Ravenna (7.8), as well as that of the count of Rome (7.13) mention the problem of the theft of brazen statutes and the destruction of public works specifically. See further Federico Marazzi, "The Last Rome: From the End of the Fifth to the End of the Sixth Century," in Barnish and Marazzi (eds.) The Ostrogoths, pp. 279-301. See also Vat. 2.35 (a letter to the senator Tancila, concerning the theft of a statue from the city of Como) and liar. 3.49 (on the deterioration of the walls and amphitheatre of Catana). On the construction of military fortifications, see Cass., Var. 1.17, 3.48; Procopius, BG 2.28.28-9. For archaeological evidence for the destruction of cities and emergence of castella between the fifth and sixth century, see Gian Pietro Brogiolo, "Dwellings and Settlements in Gothic Italy," in Sam J. Barnish and Federico Marazzi (eds.) The Ostrogoths from the Migration Period to the Sixth Century: An Ethnographic Perspective (Woodbridge, 2007), pp. 113-33, esp. pp. 114-17, 122.
(84) Anon. Val. 12.71. For the archaeological evidence, see Brogiolo, "Dwellings and Settlements," pp. 113-33; Christina La Rocca, "Perceptions of an Early Medieval Urban Landscape," in Peter Linehan and Janet Nelson (eds.) The Medieval Worm (London, 2001), pp. 416-31, esp. pp. 417-25. On Theoderic's building program in general, see Mark J. Johnson, "Toward a History of Theoderic's Building Program," Dumbarton Oaks Papers 42 (1988), pp. 73-96.
(85) On the office of the comes (plural comites), see Dieter Timpe, "Comes," Reallexikon dergermanischen Altertumskunde, 5 (2nd edn., New York/Berlin, 1982), pp. 63-65; Wolfram, History of the Goths, pp. 290-92. Similar to the comites but of lesser rank were the saiones royal officers charged with exercising the king's authority in the provinces. Established perhaps as early as 508 when Theoderic instructed saio Nandus to prepare an invasion force for Gaul (Cass., Var. 1.24), the office seems to have emerged in response to the basic need of the king to maintain personal and trusted contacts throughout his kingdom. See further Ernst Stein, Histoire du Bas-Empire, II: De la disparition de l'Empire d'Occident d la mort Justinien (476-565) (Paris, 1949), pp. 122-23; Jones, The Later Roman Empire, p. 255.
(86) On the militarization of the Italian bureaucracy, see Brown, Gentlemen and Officers, pp. 6181, 93-101.
Sean Lafferty holds a PhD in history from the University of Toronto. His current research explores the different ways in which the institutions of Roman law, society, and governance manifested themselves in the world of late antiquity.
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|Author:||Lafferty, Sean D.W.|
|Publication:||Canadian Journal of History|
|Date:||Dec 22, 2010|
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