Lecture 11

It is important to have a clear idea of the legal position of the Goths in Italy. The Goths settled by Theoderic, like the Germans settled by Odovacar, had legally exactly the same status as mercenaries, or travellers, or hostages who dwelled on Roman territory, but might at any time return to their homes beyond the Roman frontier. The fact that these Germans had made their homes on Roman soil, though it altered practically their position, did not alter their legal status. They were foreign soldiers, without Roman citizenship. But you must observe that this by no means implies that Roman law did not apply to them. We have to distinguish between the laws which have a territorial and those which have a personal application. To the former class belong all laws pertaining to criminal matters and to the general intercourse of life, and these were applicable to all foreigners who happened to be sojourning in Roman territory. The personal laws, which concerned only Roman citizens, were mainly those which related to marriage and inheritance. These had no application to foreigners, and one consequence was that if a foreigner died on Roman soil his property fell to the state as unowned property, there being no legal heir, the laws of inheritance not applying to him. This was the condition of the Gothic soldiers in Italy. They were not Roman citizens: Theoderic speaks of a certain Goth, who had acquired Roman culture, as civis paene vester, 'almost a Roman citizen'. The only Goth in Italy who possessed Roman citizenship was Theoderic himself. The Goths did not belong to any municipal community. They were not even incolae. When a citizen of Naples went to live at Beneventum, he became an incola of Beneventum; but a foreigner, a Moor or a Frank, did not become an incola of the place where he lived, and neither did the Goth. And here we touch on another important restriction of Theoderic's powers. He could not turn a Goth into a Roman; he could not bestow Roman citizenship; that power was reserved for the Emperor.

The Goths were then foreign soldiers. Their quality of soldiers determined the character of the courts in which they were judged. The Roman rule at this time was that the soldier could be tried by a military court only, and Theoderic instituted military courts for the Goths on this principle. But here we come to a serious and important interference on the part of Theoderic with the rights of the Romans. All processes between Goths and Romans, to whichever race the accuser belonged, were brought before these military courts. In such cases a Roman lawyer was always present as an assessor; but probably no feature of the Gothic regime was so unpopular as this. So far as the personal law was concerned, the Goths and Romans lived side by side, each according to their own laws. But---and this is a very important fact---the territorial law, criminal jurisprudence and laws affecting general intercourse, applied to the Goths as well as to the Romans: this was the jus commune of which Theoderic speaks, and his Edict, which is based on Roman law, is addressed to Goths and Romans indiscriminately.

Theoderic, like the emperor, had a supreme royal court, which could withdraw any case from the lower court, or cancel its decision; and this court seems to have been much more active than the corresponding court of the emperor. It is indeed in the domain of justice, in striking contrast with the domain of legislation, that the German kings in Italy asserted their actual authority.

Besides holding the Roman office of magister militum in regard to the foreign soldiers, Theoderic was likewise their king. I have already called your attention to the fact that Theoderic was originally not king of the whole Ostrogothic people, but only a gaukönig, one among other Ostrogothic kings. On the conquest of Italy, the extent of his kingly power, that is the number of his subjects, increased through the circumstance that those of Odovacar's German settlers whom he did not extirpate or banish acknowledged him as their king; this was notably the case with the Rugians. His position in Italy then in regard to the foreign settlers is that of a German king; but those settlers are not all Ostrogoths. As a matter of fact Theoderic did not call himself "king of the Goths": he designated his position by the Latin title rex, but he never called himself rex Gotorum. But his adoption of this style, rex, his avoidance of rex Gotorum, was certainly not influenced by the fact that his German subjects embraced a larger circle than the Ostrogoths whom he had led to conquer Italy. It was rather due to his relation to the Roman population. For although formally and constitutionally the Roman citizens of Italy were the subjects of the emperor, of whom Theoderic himself was a subject and official, yet actually and politically they were in the hands of Theoderic, who was their ruler. This actual relation of Theoderic to the Roman population was unconstitutional, or perhaps I should say extra-constitutional, and there was no constitutional term to designate it. Theoderic used the word rex to signify this unwritten relation; for remember that rex had no constitutional meaning in the empire, no place in the vocabulary of the imperial constitution. It was an extremely convenient term, when used thus without any closer definition, to designate at once his regular relation to his German subjects, and his irregular relation, his quasi-kingship, to the Romans of Italy. If he had called himself rex Gotorum, he would thereby have seemed to exclude the Romans from that higher authority which he possessed beyond the power of an ordinary imperial official. On the other hand, it would have been impossible for him to describe himself as rex Gotorum et Romanorum, for rex Romanorum would have been a glaring unconstitutional monstrosity. The simple and vague rex was the most appropriate term to suggest that actual sovran authority which he exercised over the German settlers and Roman citizens alike.

But this title, this style, was not the invention of Theoderic. It was the usage of his predecessor Odovacar, and was clearly taken over by Theoderic from him. Fortunately we possess one original official document from the chancery of Odovacar. It is a deed of gift, written on papyrus, and is preserved in two fragments, of which one is at Vienna and the other at Naples. Odovacar grants therein some farms at Syracuse to Pierius the Count of Domestics. The important point is that Odovacar is here officially designated as rex. The Ostrogothic dynasty adopted this style. And this is a noteworthy fact, because it is part of a larger fact which has not been sufficiently recognised and which I want to impress upon you, that in regard to the constitutional principle and the administrative system the Ostrogothic regime is simply a continuation of the regime of Odovacar: there is no break; the substitution of Theoderic is from this point of view simply a change of person. The historian who has most fully recognised this fact is Heinrich von Sybel. Everything points to the assumption that the capitulations of the agreement between Theoderic and Anastasius corresponded in all essential points to the arrangement which Odovacar had made with Zeno. And I think it is not unimportant to observe a circumstance which helped to secure and facilitate administrative continuity. The first Praetorian Prefect of Italy under Theoderic's government was Liberius, who held the office for seven years from A.D. 493 to 500. Now this Liberius was one of the chief ministers of Odovacar, though we do not know what post he held. He supported his first master loyally until the final catastrophe, and he transferred his services to Theoderic, who wisely accepted them. Another minister of Odovacar was Cassiodorus---not the famous Cassiodorus whose writings are our chief authority for the Ostrogothic period, but his father. Cassiodorus, the father, was a finance minister under Odovacar. He had held both of the great financial offices; he had been Count of the Sacred Largess, and Count of the Private Estate. He stood aloof apparently in the contest between Theoderic and Odovacar; and when that contest was decided, he served under Theoderic, and in the early years of the sixth century became praetorian prefect. (I may remark in parenthesis that it would be very unreasonable to make any reflections upon the character of Cassiodorus because he stood aloof and did not support Odovacar under whom he had served against Odovacar's conqueror. You must remember that, in the eyes of the Roman citizens of Italy, Odovacar was an imperial official, and their own allegiance was due to the Emperor; thus when a new Master of Soldiers in the person of Theoderic came from the Emperor, sent by the Emperor to remove Odovacar, it was perfectly natural and reasonable that they should have stood aloof.) To return to my point: Liberius and Cassiodorus were two conspicuous instances in which the ministers of Odovacar's regime continued to take part in Theoderic's administration; and there were doubtless a great many cases of the kind. This continuity of the personnel of the civil service is significant, because it helped to secure Italy against breach or change in the administration.

I have tried to bring out the thoroughly Roman character of the Italian kingdom. The question will naturally be asked: How far did Germanic influences make themselves felt in Theoderic's administration? In the first place, of course, as I have already noted, the Germans lived, so far as their own personal relations were concerned, according to Germanic laws and customs. But in the general administration there are one or two cases where Germanic influence may have operated. Let us take the case of the officer called by the Gothic name of saio, who was always a Goth. These officers were marshals or messengers whom the king employed to intimate his commands. They were employed to summon the Gothic soldiers to arms, or to call a Roman official to a sense of duty. If a praetorian prefect attempted an act of oppression, Theoderic sent a saio to inform him that this kind of thing could not be allowed. Now, the office of saio may well represent a German institution. But it is well to insist on the fact that it can be explained without that assumption; there need be nothing Gothic about it but the name. For there were other officers who were called by a Roman name and had exactly similar functions. There were the comitiaci who were subordinate to the magister officiorum. Mommsen has shown that these comitiaci are identical with the well-known agentes in rebus, one whose duties was to execute special missions of the Emperor. Thus the saiones may merely represent a transference to the Goths of a Roman institution.

There is another institution which we find active under Theoderic, and in which I think a certain Germanic influence may have been at work. This is the tuitio. It is a purely Roman institution in itself. The earliest mention we have of it is in a law of A.D. 393. Any person who considered his personal safety in danger might apply for special protection, and a judge was bound to assign an officer to assist and protect him. The officer must not be a soldier, but a civil officer---an apparitor. Whether the Emperor ever himself granted a tuitio of this kind we do not know; no case is recorded, and we may assume that he was seldom or never called upon to do so. Such petitions cannot, in the ordinary course of things, have come before the highest court of all. Now this practice of tuitio plays a very prominent part in Ostrogothic Italy, and we find it mainly as a protection granted by the king himself. It was one of the methods by which the king preserved peace and order among the two races; it was used to protect Roman against Goth and Goth against Roman. A Roman proprietor who felt his life or property threatened by an aggressive Gothic neighbour could apply to the royal court for an officer to protect him, and a saio would be quartered in his house for that purpose. Now it seems highly probable that the quickening of this Roman custom under the Gothic government, and its special association with the king himself, may have been partly due to the influence of the Germanic idea of the king's duty of protection, the Königsschutz---an idea which was very important among the Franks. The old German word for it was Munt, now obsolete, but preserved in some compounds like Vormund, 'guardian', and unmündig, 'under age.'

THE REIGN OF THEODERIC

We have considered the regime of Theoderic from the constitutional point of view---as founded upon the capitulations agreed upon between him and the emperor. We have seen how sharply it was distinguished in this respect from the position of the other German kingdoms in the west, when they were first founded. We must now regard it briefly from a political point of view. The essential fact is that the constititutional system of administration which Theoderic adopted and observed was not a necessity to which he reluctantly or half-heartedly yielded; it was a system in which he was a convinced believer, and into the working of which he threw his whole heart and his best energies. His avowed political object was to civilise his own people in the environment of Roman civilisation. The circumstance that Roman law was applicable, under his government, to the Goths in Italy, just as far as it was applicable to peregrini in any part of the Empire, was an important condition in furthering this object. But Theoderic made no premature attempt to draw the two classes of his subjects nearer, by breaking down lines of division. They were divided from one another in two ways, by religion and by legal status---just as in the Visigothic kingdom. So far as religion was concerned, Theoderic was ardently tolerant. His principle was "Religionem imperare non possumus quia nemo cogitur ut credat invitus": we cannot command religion because no one can be compelled to believe against his will. So extreme was his repugnance to influencing the religion of his fellow-creatures, that an anecdote was invented that he put to death a Catholic deacon for embracing Arianism in order to please him. If there is any truth in the tale, there must have been other circumstances; but in any case it is evidence for Theoderic's religious attitude, for if it was entirely invented it illustrates his reputation. The only people whom Theoderic desired to convert were the Jews; but to them also he extended in fullest measure his policy of toleration.

And just as he accepted the duality of religion, accepted and maintained the dual system of Goth and Roman as two distinct and seperate peoples living side by side. He accepted the government of this double population as the problem which he had to solve; he took no steps to bring about fusion; his only aim was that the two nations should live together in amity. It might be asked how far he regarded this state of things as no more than a stage; whether he thought that a day would come when the Gothic peregrini, assimilated by their Roman neighbours, would be admitted to Roman citizenship and intermarriage; whether he looked forward to a fusion of the two races in the future. To such a question I think we may answer, probably, No. He did not look beyond the dual system, nor comprehend that the dual system could not be permanent. The Ostrogothic kingdom was overthrown before such a fusion could begin. But the development in the Visigothic kingdom, under similar conditions, suggests that some fusion would have ensued, if the Ostrogothic kingdom had endured.

In foreign politics Theoderic acted as an independent sovran, and his great aim here corresponded to his aim in his own kingdom. As his object in Italy was to maintain law and order, what he called civilitas, so on the wider scene of Western Europe his object was to maintain peace and the existing order of things. The four chief powers which came into account were the Visigoths, the Vandals, the Burgundians, and the Franks. It was natural that Theoderic should look for special co-operation from the Visigoths, who besides being Arian were a kindred folk. But his policy was not to form a close, intimate alliance with the Visigoths, which could only seem a threat and a danger to the other powers. He sought to form bonds of friendship and alliance with all the reigning houses. If he wedded one of his daughters to Alaric, king of the Visigoths, the other married Sigismund, who became king of the Burgundians after his father Gundobad's death. Theoderic himself took as his second wife a Frankish princess, sister of Clovis. Moreover, his own sister married Thrasamund, king of the Vandals. Thus he formed close ties by marriage with all the chief powers of the west. In addition, his niece married a king of the Thuringians.

The character and spirit of Theoderic's policy are exhibited in his intervention in favour of the Alamanni. This people, after their defeat by Clovis, had moved southward into Baden, Wurtemburg, and eastern Switzerland. Some years later Clovis decided to pursue them and extirpate them. Theoderic wrote to his brother-in-law advising him not to push his victory further. "Hear the counsel of one who has experience in such matters. Those wars of mine have been successful the ending of which has been guided by moderation." The Alamanni were taken under the protection of Theoderic, being settled in the province of Rhaetia, which officially belonged to Italy; and they served there as a sort of frontier garrison.

But the family alliances of Theoderic did not avail to hinder war or to prevent the inevitable struggle between the Franks and Visigoths in Gaul. No moment in his reign perhaps caused more anxiety and vexation than when Clovis declared war against Alaric. He did all he could to avert it. We have the three letters he wrote at this crisis to Alaric, to Gundobad, and to Clovis himself. It was in vain. But the remarkable thing is that Theoderic did not render the help which he promised to his son-in-law Alaric. The probability seems to be that he had not calculated upon the Burgundians taking the side of the Franks, and that they cut him off in 507 from marching to Aquitaine in time to intervene in the struggle. But in 508 and the next two years his generals conducted campaigns in Gaul, and succeeded in rescuing the city of Arles and in saving Narbonensis for the Visigoths. these campaigns resulted also in an acquisition for Theoderic himself. Provence was wrested from the Burgundians and annexed to Italy. The power of Theoderic also received another extension. The heir of Alaric, who had fallen in the battle of Vouille, was a child. The government of Spain was consigned to Theoderic, who was the boy's grandfather and his most powerful protector; and for the rest of his life he ruled Spain in his own name. He ruled it quite independently, and the union in the same hands of Spain, the independent kingdom, and Italy, the imperial dependency, exhibits in a striking way the contrast between them.

Theoderic died in 526, and within ten years from his death the struggle began which ended in the destruction of his work, the overthrow of the Ostrogothic kingdom. The stage was cleared for a new development. It may then seem unnecessary to have dwelt at such comparative length on the reign of Theoderic and the Ostrogothic period, seeing that it was an episode which led to nothing and had no morrow. But the importance of studying the Ostrogothic regime is not so much due to its place in the development of events, as to the light it throws, both by way of similarity and by way of contrast, on the process of the formation and on the conditions of the kingdoms into which the western half of the Empire broke up. It helps us to understand the position of the Visigothic federate kingdom and the Burgundian federate kingdom in Gaul when they were first planted; it helps us to understand how the parallel dual systems worked in other lands; it helps us to realise the problems of government which the other German kings had to solve, whether they were still federate or had ceased to be federate; it helps us to apprehend the attitude and aims of the half-Romanised Germans.

I cannot include the story of the fall of the Ostrogothic kingdom, and the resumption of Italy under the immediate government of the emperor, within the compass of these lectures. I have only to remind you that Justinian's conquest of Africa and his conquest of Italy differed in one important point. In the case of Africa, he was recovering lost provinces from a power which was quite independent of the Empire. In the case of Italy, he was resuming the direct government of a territory which had been committed to the sway of a regent who in theory fully acknowledged the imperial authority and accepted the limitations which had been laid down by that authority. Observe also that to the Roman population of Italy the change of masters was welcome; the Goths were still aliens to them, and they were heretical aliens as well. This difference in religion was of fundamental importance.

The fall of the Ostrogothic kingdom reminds us of the comparative failure of the East German peoples to perform their early promise. It had seemed, a century earlier, that the fate of western Europe lay with them. The Vandal and the Ostrogothic kingdoms had now both disappeared. The Visigothic still survived, but at the beginning of the eighth century it was to go down before invaders from Asia. It was the only one of the three which was to have abiding effect on the country in which it was established. The fourth, the Burgundian, had already been absorbed into the Merovingian realm. Two of the sons of Clovis conquered it in 532. But it maintained an integral identity of its own within that realm; an identity which was marked by the continued use of Burgundian law.