Lecture 11

In three years and a half Theoderic had accomplished his task. The reduction of Italy cost him four battles, a massacre, and a long siege. His capital blunder had been to trust Tufa after the victory of Verona. We may be sure that throughout the struggle he spared no pains to ingratiate himself in the confidence of the Italian population. But when his rival had fallen, and when he was at last securely established, Theoderic's first measure was to issue an edict depriving of their civil rights all those Italians who had not adhered to his cause. This harsh and stupid policy, however, was not carried out, for the bishop Epiphanius persuaded the king to revoke it and to promise that there would be no executions.

THE OSTROGOTHIC CONSTITUTION

The reign of Theoderic in Italy, if we date it from the battle of the Adda in 490, lasted thirty-six years, and it was, as I shall show, in its general principle, a continuation of the regime of Odovacar. Of Odovacar's government we know very little, of Theoderic's we know much; but the continuity is quite clear. One of the first things which Theoderic had to do was to settle his own people in the land, and this was done on exactly the same principle as the settlement of Odovacar. The Ostrogoths for the most part replaced Odovacar's Germans, who had been largely killed or driven out, though some of them embraced the rule of Theoderic and were permitted to remain in their lands. But the general principle was the assignment of one-third of the Roman estates to the Goths.

The Emperor Anastasius, who succeeded Zeno in 491, did not at first recognise Theoderic. But six years later they came to terms. In 497 a definite agreement was made; Anastasius recognised the position of Theoderic in Italy, subordinate to himself, on certain conditions. Then capitulation determined the constitutional position of Theoderic.

In order to understand the political aims of Theoderic, and his place as a statesman, it is indispensable to have a clear view of his constitutional position and the nature of his administration, and these matters will occupy the rest of this lecture. Fortunately there is very good material, for besides valuable notices in Procopius and a long fragment of an Italian chronicle, we have numerous state papers of Theoderic, drawn up by his state secretary, Cassiodorus.

The formal relation of Italy to the Empire, both under Odovacar and under Theoderic, was much closer and clearer than that of any other of the states ruled by Germans. Although practically independent, it was regarded officially both at Rome and Constantinople as part of the Empire in the fullest sense. Two circumstances exhibit this theory very clearly. Odovacar and Theoderic never used the years of their own reigns for the purposes of dating, as the kings of the Visigoths did. Secondly, the right of naming one of the consuls of the year which had belonged to the emperor reigning in the west was transferred by the consent of the Emperors Zeno and Anastasius to Odovacar and Theoderic. So far as Theoderic is concerned, we have the express attestation of the historian Procopius; but Mommsen, who elucidated the whole subject, showed that the same principle applied to Odovacar. I may give a word of explanation as to the system of consular nomination in the fifth century. The rule was that the emperor reigning in the east and the emperor reigning in the west should each nominate one of the two men who were to be consuls for the one undivided Empire. But as a rule the two names were not published together. The name of the western consul was not known in the east, nor the name of the eastern in the west, in time for simultaneous publication. Hence the custom of successive publication. But there are exceptions. Between 421 and 530 there are twenty-three years in which the consular names were published together. Four of these are cases in which two emperors filled the consulship together, and as this was evidently done by prearrangement, the simultaneous publication is at once explained. But all the other cases, whether of two private persons or of an emperor and a private person, are peculiar. In more than half of them it is demonstrable that both consuls belonged to the same half of the Empire, whether east or west; thus in 437 both Aetius and Sigisvult belonged to the west: and of the other cases there is not a single one in which it can be shown that they belonged to different realms. We can infer with certainty that in these cases, one of the two nominators resigned his right in favour of the other, and that both consuls were nominated by the ruler of the half of the Empire to which they respectively belonged. This at once accounts for the simultaneous publication of the names. In the years 473 to 479 no consul was nominated in the west, owing to the unsettled conditions, but in 479 Zeno must have conceded to Odovacar the right of nominating a consul, for one of the consuls of 480, Basilius, almost certainly belonged to the west and was recognised in the east; and from this year we have a series of consuls appointed in the west up to the year of Odovacar's death, 493. This right did not immediately pass to Theoderic, because the Emperor Anastasius, Zeno's successor, did not immediately recognise him. From 494 to 497 the consular fasti exhibit exclusively eastern consuls. This shows Theoderic's tact. He would not widen his breach with the Emperor by assuming the right of naming a consul without his consent. But in 497 matters were arranged, and from 498 forward Theoderic named one of the consuls as Odovacar had done before him. In 522 the Emperor Justin waived his own nomination and allowed Theoderic to name both consuls---Symmachus and Beothius. It would be interesting to know whether this exceptional favour had anything to do with the anti-German and anti-Arian sentiments of these two patricians which brought about their fall.

There was one limitation which Theoderic recognised in this matter: he could not nominate a Goth; only Romans could fill the consulship, and indeed only Romans could fill the other magistracies. The rule is corroborated by the single exception: in 519 Eutharic, Theoderic's son-in-law, was consul. But it is expressly recorded that this nomination was not made by Theoderic; it was made by the Emperor. This shows that in the capitulations of Theoderic to the government of Constantinople, one article was that a Goth should not fill the consulship. And so when Theoderic desired an exception in favour of his son-in-law, the favour had to come from the Emperor.

The capitulation which excluded Goths from the consulship extended also to all the civil offices, which were maintained under Ostrogothic rule, as they had been under Odovacar's. There was still the praetorian prefect of Italy, and when Theoderic acquired Provence the office of Praetorian Prefect of Gaul was revived. There was the vicarius urbis Romae, as before. There were all the provincial governors, divided as before into the three ranks of consulares, correctores, and praesides. There were the two finance officers, the comes sacrarum largitionum and the comes rerum privatarum. Anastasius instituted a new financial officer, the comes patrimonii, who shared the functions of the comes rerum privatarum, and Theoderic followed his example. But in this case he did not conform to the rule which excluded Goths; several of his comites patrimonii have German names; the office does not seem to have been regarded as a regular state office; or perhaps it was treated as an exception because it was instituted after the captiulation had been made. All the officia, or staffs of subordinate officials, were maintained under Theoderic's regime. In the state documents we often read of officium nostrum; that means the bureau of the magister officiorum, who was the chief commander of the scholae of bodyguards and was at the head of all the subordinate officials of the palace. Both the praetorian prefect and the magister officiorum reside at Ravenna, but they have each a representative at Rome, who belongs to the same rank of illustres as themselves. The drafting of state documents, the official correspondence of the king, was carried on by the quaestor palatii, an office which was long filled by Cassiodorus. It may be added that the exclusion of Goths also applied to the honorary title of Patricius. Under Theoderic no Goth bore that title but Theoderic himself, who had received it from the Emperor.

But if Goths were excluded from the civil posts, it was exactly the reverse in the case of the military posts. Here it was the Romans who were excluded. The army was entirely Gothic; no Roman was liable to military service; and the officers were naturally Goths. The regiments are formed by the Goths settled in the districts of the various towns. In consequence of the confiscation of one-third of the land for the Gothic freemen, every territory in the peninsula ought to have had a garrison of these settlers; but as a matter of fact the settlements were not uniformly distributed, and the Gothic population in the south of the peninsula did not amount to much. We know practically nothing about the organisation of the army; but it seems likely that each territory in which Goths were settled had to supply men in proportion to the number of acres. The chief officers were called priors or counts. But although the old Roman troops and their organisation have disappeared (in consequence of the exclusion of Romans), it has been shown by Mommsen that the military arrangements of Theoderic were based in many respects on arrangements which had existed in Italy under imperial rule in the fifth century. Now what about the highest office of all, that of Master of Soldiers? Under Odovacar we hear of Master of Soldiers. But under Ostrogothic rule no Master of Soldiers is mentioned. The generals employed by Theoderic are not described by this title. In the long list of the formulae of the various offices which existed in Italy at this time the Mastership of the Soldiers does not appear, and that cannot be explained as an oversight.

Yet the office had not ceased to exist; for we find in a letter of Cassiodorus the mention of an officialis magistri militum, 'a subaltern of the Master of Soldiers'. The solution, as Mommsen has shown, is that Theoderic himself was the magister militum. He had, as we saw, received that title---magister militum praesentalis---from Zeno ten years before he conquered Italy; he bore it when he conquered Italy, and he continued to retain it while he ruled Italy. It is intelligible that he did not designate himself by this title, because his powers as ruler of Italy far exceeded the powers of the most powerful magister militum; but this does not mean that he gave the office up. It explains why the title was never given to any of his generals. The matter is illustrated by certain measures taken after Theoderic's death. His grandson and successor, the vicious lad Athalaric, was out of the question as commander of the forces, and his mother, Amalasuntha, who acted as regent, appointed a Gothic warrior, Tuluin, and Liberius, a Roman, who was the Praetorian Prefect of Gaul, to be patricii praesentales. This remarkable appointment involved two deviations from existing rules. It gave the rank of Patricius to Tuluin, who as a Goth was excluded from that title; and it gave a military command to Liberius, who as a Roman was incapable of such. The office, though under this modified title, was simply that of magister militum praesentalis but the circumstance that the title was modified is significant, and illustrates the fact that the office of magister militum had become closely united to that of king, through the long tenure of it by Theoderic.

It need hardly be said that as the Goths were excluded from civil offices, so they were excluded from the Roman senate. The senate continued to exist under the Ostrogothic kings, and to perform the same functions as it had performed throughout the fifth century. It was still formally recognised as a sovran body. Theoderic writes: parem nobiscum reipublicae debetis adnisum. The senate like the emperor could leges constituere, and the constitutional difference between a senator and the emperor was that the senator was under the law and the emperor was not. But only the senators of the highest class, the illustres, had the right of voting, and as this class consisted of men who held the highest state offices, and were appointed by the emperor, it was the emperor who nominated the senators. Such was the constitutional position of the senate: politically it had no power, and its functions were practically confined to the affairs of Rome.

The position of Theoderic as deputy-governor of the emperor, and the position of Italy as part of the empire is shown by the maintenance of the imperial sovran rights in coinage and in legislation. Theoderic did not claim the right of coining except in subordination to the emperor. The silver coins of his reign show the Emperor Anastasius (dominus noster Anastasius) on the obverse, and on the reverse Theoderic's monogram with the legend invicta Roma. Did he claim the right of making laws? In Procopius, it is expressly stated by representatives of the Goths, that neither Theoderic nor any of the Gothic rulers issued a law. This statement involves the admission that the right of legislation was the supreme prerogative of the emperor. And there is no formal contradiction between this statement and the fact that ordinances of Theoderic exist. None of these ordinances are designated as leges. They are only edicta. The lex, and the making of a lex, was the exclusive right of the emperor; but various high officials could issue an edictum. Here then, formally, the regime of Theoderic stands in marked contrast with the regime in the western kingdoms which did not depend on Constantinople. The Ostrogothic king issues edicts, the contemporary Burgundian king enacts leges, mansurae in aevum leges.

But was this difference between the law and the edict, between the right of the emperor and the right of the king, merely a formal one? Did it mean nomore than the difference of a name, that Theoderic called his laws edicta, while the laws of Anastasius or Justin were leges? Theoderic certainly promulgated what Cassiodorus calls edicta generalia, laws which did not concern special cases, but were of a general kind permanently valid, and which, if they had been enacted by the emperor, would have been called leges. But it must be remembered that the highest officials of the empire, especially the praetorian prefect, had the right of issuing an edictum generale, provided it did not run counter to any existing law. This may sound like a contradiction, but practically it was a very important distinction. It amounted to this, that the praetorian prefect could modify existing laws, in subordinate points, whether in the direction of mildness or severity or definition, but could not originate any new principle or institution. Now the ordinances of Theoderic which are collected in his code, known as the Edictum Theoderici, exhibit conformity to this rule. They introduce no new institutions; they alter no established principle. When he first appeared in Rome we are told that Theoderic addressed the people and promised that he would preserve inviolate omnia quod retro principes ordinaverunt. Procopius twice emphasises the fact that he preserved the laws of the empire. Theoderic himself, through the official mouthpiece of the regime: "nescimus a legibus discrepare"; sufficiens laus conscientiae est veterum decreta servare". Thus in the matter of legislation the king is neither nominally nor really co-ordinate with the emperor. His legislative powers are those of a great official, such as a praetorian prefect, and though he employed these powers to a greater extent than any praetorian prefect could have done, owing to the circumstances of the case, yet his edicts are qualitatively on the same footing, and are qualitatively quite distinct from the laws which the emperor might make. In legislation, the position of Theoderic as an official of the empire is clear and unmistakable, and it is remarkable how loyally he adhered to the capitulations.