Legal History, Rey Juan Carlos University, Madrid, Spain
5.1 The Invasions
5.2.1 Diversity Versus Unity
5.2.5 The Structural Weaknesses of the New Kingdoms: Patrimonial Possession, Inheritance and Protofeudalism
In minoribus rebus principes consultant; of maioribus omnes … (Princes resolve the minor things, the major ones are dealt with at meetings for all …)—Tacitus (55–120)1.
5.1 The Invasions
Along with the rise of Christianity, the other factor which transformed the political constitution of Roman society were invasions by a series of Germanic peoples who, because they lived outside the borders of the Empire, were called “barbarians”.2 These peoples penetrated the Empire beginning in the late fourth century, and in many cases ended up as allies of Rome (foederati), defending the Empire’s borders. During the fifth century they settled in different areas of the Western Empire, although it was only after 476—when Odoacer deposed Romulus Augustulus—that Visigoths, Ostrogoths, Franks, Burgundians, Alamanni, Angles, and Lobards formed independent kingdoms.3
5.1.1 The First Germanic Wave: The Visigoths (Late Fourth Century)
The Goths were the first of the Germanic peoples to come into contact with the Romans. Hailing from the Black Sea, by the end of the third century, they had split into two groups: the Western Goths (Visigoths) and the Eastern Goths (Ostrogoths).4 Driven by the Huns, the former crossed the border of the Roman Empire, defeating and killing Emperor Valens at the Battle of Adrianople (378). As it was clear that Rome could not contain them, Theodosius I signed a first treaty (foedus) with the Visigoths in the year 382, whereby in exchange for their aid in defending the Empire they were granted permission to settle within its boundaries (specifically Lower Moesia, modern-day Bulgaria). After the death of Theodosius and the rupturing of the Roman Empire into Eastern and Western divisions, the Visigoths elected their first leader from among one of their most illustrious lineages, the Balthes: Alaric I (395–410), who aimed to exploit the youth of Honorius (395–423), the first emperor of the West, and invade Italy (Wolfram 1990, 143–145). He was stopped, however, at the Battle of Pollentia (near Asti) in the spring 402, by the regent Stilicho, who chose to negotiate with the Germanic leader, appointing him commander-in-chief (magister militum) of the Western Empire. However, it would be necessary for Stilicho to soundly defeat Alaric I at Verona, in 403, before the Visigoths agreed to serve as federated troops (allies) of Rome. This was a decisive step, as the knowledge and experience acquired opened up to individual members of the Visigothic nation a path which, once taken, would lead them to a more or less substantial affiliation and even solidarity with the Roman world (Chrysos 2003, 14).
The relationship between Rome and the Visigoths, however, was stormy. Stilicho was the last Roman general capable of defending the Western Empire. After his death in 408, Alaric I set out to conquer Italy, managing to plunder the city of Rome from August 24–26, 410. He would die just months later, but Roman history was changed forever.5 The result for the Visigoths was that they became more exposed to—and engaged in—Roman civilization. Ataulf, the new Visigothic leader, married the sister of Emperor Honorius, Galla Placidia, a union through which he sought to make the Visigoths the armed wing of the Western Empire, to defend its borders and maintain internal order.6 However, Ataulf’s murder at the hands of Sigeric and the premature death of Ataulf and Galla Placidia’s son, Theodosius, would foil these plans. After the brief reign of Sigeric, who was also assassinated, the Visigoths elected Valia as king, who in 416 signed a new foedus with the Emperor Honorius. The accord required the Visigoths to defend the Empire, in return receiving wheat and permission to settle in imperial territory, specifically in Aquitaine (southwestern France). The foedus would be renewed 2 years later. Theodoric I (418–451) succeeded and broke with Rome by invading Narbonese Gaul (southeastern France) and creating what was, de facto, the first Germanic kingdom on Roman soil.7 This was the beginning of the Kingdom of Toulouse (Wolfram 1990, 172).8 The occupation was ultimately accepted by Rome when, after Honorius’s death (423), the Roman General Aetius (390–454), on behalf of Emperor Valentinian III, renewed the foedus with the Visigothic leader in 425. However, by that time the Goths were heavily Romanized. In the first decades of the fifth century they had already lived under the shadow of Rome for a whole century; no longer products and victims of Roman history, they now formed part of it themselves (Kulikowski 2007, 184).
5.1.2 The Second Wave: The Suebi, Vandals and Alani (Early Fifth Century)
Neither the Visigoths nor the Romans managed to prevent the Suebi, Vandals and Alani from breaching the Danube border and, after ravaging Gaul, occupying Hispania (409). To expel these people, Rome turned to the Visigoths, whose soldiers were deployed in the years 417 and 418 to vanquish the Vandals, Silingi and Alani. While the Suebi took refuge in Galicia, from whence they would not be expelled until Leovigild did so in the late sixth century, the Hasdingi Vandals migrated to North Africa.9
5.1.3 The Third Wave: Franks, Burgundians, Alamanni, Angles and Saxons (Mid Fifth Century)
In the first half of the fifth century, the Huns, a people from the steppes of Asia, led by Attila from 434 to 453, began to move westward. Their advance forced a series of Germanic peoples (Angles, Saxons, Franks, Burgundians and Alamanni) to cross the northern border of the Western Empire. Despite some Roman victories, such as that of Aetius against the Burgundians in 436, these Germanic peoples eventually came to permanently settle inside the Empire, on the island of Great Britain (Angles and Saxons), in Gaul (Franks), in the Rhone Valley (Burgundians), and on the right bank of the Rhine (Alamanni). Attila, meanwhile, threatened to devastate the Western Empire, but was checked by Aetius, who succeeded in forming a coalition of Romans, Visigoths, Franks, Burgundians and Saxons who, in 451, defeated the Huns at the Battle of the Catalaunic Fields (Halsall 2009, 242–253). The Visigoth king Theodoric I, was killed in the battle.
5.1.4 The Last Wave: The Lombards
After the formal dissolution of the Western Empire, the Italian Peninsula was occupied by the Ostrogoths, led by Theodoric the Great (ruler of Italy from 493 to 526). After his death, his descendants took on the troops of the Emperor Justinian (527–565), in a long and bloody war which allowed them to occupy all of Italy (552). However, this Byzantine domain did not preclude an invasion by another Germanic tribe, the Lombards (or Longobards, so named for the long beards) (Pohl 2002, 21–24), who, commanded by Alboin in the year 568, set foot in northern Italy, this region being subsequently named for them (Lombardy).10
5.2 The Germanic Kingdoms
The overthrow on September 4, 476, of the last Roman emperor of the West, Romulus Augustulus, by a barbarian chieftain, Odoacer, King of the Heruli, marked the conquest of the Western portion of the former Empire by the Germanic peoples (Pohl 2002, 15–16), who had been settling there since the late fourth century—although officially it was understood as a reunification of the Empire in the person of the Near Eastern Emperor Flavius Zeno. The Franks, Angles and Saxons, Visigoths, Ostrogoths, Burgundians and Lombards, founded in the territories they occupied “kingdoms” independent of the Roman Empire what had ceased to exist.
5.2.1 Diversity Versus Unity
In contrast to the unity of the Imperial Era, the West thereafter broke into a series of “kingdoms”, the most important being:
The Visigoths, who between 418 and 507 established themselves in southern France, setting up their capital at Toulouse. In this period reigned Euric (466–484), the most powerful Germanic king within the borders of the old Western Roman Empire. With him ended what Heather (2004, 166–178), has called the “Transformation of the Goths”, which began in 376. After being severely defeated by the Franks at Vouillé in 507, the Visigoths migrated to Spain where Leovigild (573–586), fixed the new Visigothic capital at Toledo, which became the West’s most well-structured Germanic kingdom until it was wiped out by Islamic occupation in 711. Herwig Wolfram has even called the Spanish Kingdom of the Visigoths, the “First Nation of Europe” (Wolfram 1997, 260–278).11
The Ostrogoths, headed by Theodoric. After driving out Odoacer in 493, they settled in Italy for 60 years, developing one of the most Romanized Western Germanic kingdoms (Heather 2004, 216–258), until Justinian’s reconquest in 552. Three decades later, the Lombards arrived in the Italian peninsula, their reign to last for two centuries (568–774).
The Vandals arrived in Spain in the early fourth century, and proceeded to Africa, where they would remain for practically a century (435–534), until the territory was occupied, first by Justinian and then by the Muslims.
The Suebi, also present in Spain since 409, founded an independent kingdom in the northwestern region of the Peninsula that lasted until they were conquered by the Visigoths under King Leovigild in the year 585.
The Burgundians, who established themselves between Geneva and Lyon, retained their kingdom for nearly a century (443–534), until they were conquered by the Franks.
The Franks, forged into a kingdom by Clovis in 481, rapidly expanded throughout Gaul after defeating the Visigoths in 507 and the Burgundians in 534, which enabled them to establish a protectorate over the territories already occupied by the Alamanni and the Bavarians (James 1991, 79–87). After the Muslim occupation of Visigothic Spain, the Frankish realm became the most important of the West’s Germanic kingdoms (Becher 2011, 179–198).
Finally, between 500 and 650, the Angles and Saxons settled most of southern Great Britain, confining the Britons to the western reaches of Cornwall and Wales (Stenton 2001, 31).
5.2.2 The Social and Political Transformation of the Germanic Peoples
After the disappearance of the Western Roman Empire, the Germanic kings became independent. The establishment of solid political structures in these new Germanic kingdoms, however, was no easy task, because the Germanic tribes traditionally had a model of political organization which might be described as “collective”, in the sense that it contrasted sharply with the “monarchical” structure of the Roman Empire. As a result, the kings’ power was undercut by their patrimonial conception of their kingdoms, and the considerable power wielded by the chiefs of the clans making up the Germanic peoples. As Noble (2006, xiv) affirms, the old idea that barbarian tribes suddenly toppled Rome and replaced its Empire with their own kingdoms and cultures, has been replaced by the conclusion that, in reality, the Germanic gentes adapted to, accommodated and absorbed Rome. It was a bidirectional process: the Germanic tribes conquered Rome, but Rome also “conquered” the Germanic tribes, transforming their culture and infusing it with Roman ideas and institutions.
Originally, the most characteristic feature of the Germanic tribes was that they governed themselves “collectively”. The Germanic peoples described by Julius Caesar in his Bellum Gallicum (Murray 1983, 42–50), and especially by the Roman historian Tacitus (55–120), were initially, nomadic societies featuring a military structure in which major decisions were made by all the warriors gathered in assemblies.12 The Germans, at this stage, had no kings but those occasionally elected as leaders to lead the army in war, and who held power only as long as war was being waged.
When these peoples came into contact with the Roman Empire beginning in the late third century, the structures of their polities underwent a profound transformation, as they abandoned their nomadic ways and became sedentary peoples occupying fixed territories (Goffart 2006, 195–216). As a result, they began to gradually abandon their traditionally collective decision-making and to exhibit practices more akin to the Roman model. To begin with, the Germanic warlords gave way to “kings”, although the traditional spirit of their assemblies did survive to some extent in the ecclesiastical councils, where the king met with the members of the aula regia and the bishops, and the creation of the popular jury as an instrument to resolve legal conflicts.
5.2.3 Roman Monarchy vs. German Royalty
The Germanic peoples had no tradition of politically structured societies. Unlike the Romans, the Germans did not feature “monarchy”, that is, the sustained possession of power by one individual. In fact, it should be noted that the Germans did not use the Latin word “rex”, of Indo-European origin that designates the leader of a human group, the one person (monarch) who exerts the political power, the drafter of the “rules” (regula) (Lupoi 2007, 233). Germans had another word for referring to the idea of kingship: cyning that derives from the root kun- “kin, family”, where the words “king” and “König” comes from, and was equivalent to the Latin term gens.13
In times of war Germans used to designate a temporary military commander, elected to lead their people or tribe’s army during a campaign. Wolfram (1997, 19–20) makes a difference between tribal kingship and military kingship. Though there is very little information in sources about archaic tribal kingship, as they are only dimly visible in old names and tales of abandoned cults, the tribal kings,—theodcyning—were charitable “normal” gods, as they had divine ancestors. They were “heros” that assured the “eternal return” of traditional order and maintained a geographically small, stable system of laws and traditions by ensuring fertility and peace. On the contrary, the military kings of the age of migration came always from a good family ex nobilitate and his military success was the precondition to be named king.14
In any case the Germanic king, thus, was no dominus with absolute power over a territory and its inhabitants. He stood at the head of a people who elected him, but after his appointment power still resided in the community. Traditionally the most important decisions were made by the assembly of all the free men (mallus). Over time, however, between the assembly of free men and the king, a group of eminent members of the community came to intercede (nobiles, magnates), the equivalent of the old companions of the emperor (comes) comprising the comitatum (Gefolgschaft in German). They swore allegiance to the king, in return for which they obtained a substantial portion of the spoils from military campaigns. As Halsall (2009, 497) has indicated, the fall of the Empire and the barbarian migrations did not overturn the traditional bases of aristocratic power.
Delving into the realm of concrete examples, in the case of the Visigoths, before establishing themselves in Spain (sixth century), the king was assisted by an assembly of elders belonging to the most influential families (seniores).15 In Visigothic Spain, this assembly endured, initially as the senatus, until the late sixth century, to be replaced by a new assembly: the Aula Regia, also called Palatium Regis or Officium Palatinum. After Reccared’s official conversion to Catholicism (589), the king began gathering more and more frequently at the councils held in the capital, Toledo, with the nobles and bishops, meetings where decisions were made that were of greater importance to the kingdom, as occurred at the Fourth Council of Toledo (633), where Isidore of Seville and his fellow bishops instituted a system for choosing new monarchs, which sought to prevent instability surrounding the succession (Wood 2012, 61). By seventh century, the Germanic elites had mixed with the old Hispano–Roman nobility (García Moreno 2011, 271–282).
Consequently, the power of these Germanic kings, unlike that of the Roman dominus, was by no means absolute. First, because they were elected and could be deposed. Secondly, because, in principle, the kings were bound by their traditional law. Such was the case, for instance, with the Frankish kings (James 1991, 162–65). Thirdly, because the vast majority of their subjects were former Roman citizens who had their own institutions and who, generally, were truly led by the only territorial power which had remained intact after the demise of the imperial state: the Church. If the bishops exercised clear influence on the emperors from the fourth century onwards, their power over the new monarchs became even more crucial, as they represented Romans constituting some nine tenths of the kingdom’s population.
5.2.4 The Gradual Assimilation of the Roman Imperial Tradition
After their settlement in the territory of the extinct Western Roman Empire, a sedentary lifestyle transformed the political practices of the Germanic peoples. Once they had an increasingly territorial state structure, the new “barbarian” leaders assimilated some features of the former Roman state.
First of all, the Germanic peoples, once settled, began to choose kings, which triggered constant conflicts and struggles for the crown between the various clans, led by notabiles, which quite often ended with the monarch’s murder at the hands of a rival family. Therefore, the kings gradually tried to introduce the hereditary principle as a way to suppress the fighting between clans. This represented a variation from the Roman Empire, in which the hereditary principle of imperial succession never took hold.
If in the field of succession the Germanic kings gradually moved away from the Roman imperial tradition, in the legislative and jurisdictional fields they moved closer to it. They not only began to legislate, but appointed judges. Originally, the law for the Germans had been the custom of each people, clarified by the assembly of warriors when there was a conflict. The same assembly was the entity which judged cases and issued verdicts. Thus, law was not created ex novo. Rather, the unwritten tradition was simply concretized when necessary.
From the time when the Germanic kingdoms emerged, however, monarchs strove to monopolize the legislative function by following the example of the emperors of the Dominate. Submission to the traditional or customary law of each people, inspired by the practices of past Germanic kings, gave way in many cases to monarchs gradually enacting laws. Some of them consolidated this new power to create law with the support of the Church, as happened, for example, at the councils of Toledo in the Visigothic kingdom, which approved the laws proposed by the monarch (King 2006, 23–51).
The kings also tended to monopolize the exercise of judicial functions, whether by themselves or through judges they appointed to act on their behalf. Thus, emerged a relatively bureaucratic administration of justice in which judges were organized hierarchically, with the possibility of appealing decisions of lower courts, following the scheme of Late Roman due process (cognitio extraordinem) all the way up to the king himself.
5.2.5 The Structural Weaknesses of the New Kingdoms: Patrimonial Possession, Inheritance and Protofeudalism
Despite the progressive assimilation of the concepts and structures of the former Roman state, the Germanic monarchies were politically very unstable, though there were exceptions, of course. Thus, when a charismatic monarch came along, such as the Franks’ Clovis (481–511), of the Merovingian dynasty, he was able to forge a great kingdom by way of conquest.
However, these moments of brilliance were most often limited to a single reign. First, because an uncharismatic monarch was seldom respected by his subjects and, above all, by the representatives of the rival clans. Secondly, because when the Roman Empire dissolved the abstract notion of the state and its leadership, conceived as public authority, disappeared along with it. The Germanic kings adopted a patrimonial conception of their kingdoms, envisioned as the property of the reigning family, which caused, among other things, hereditary divisions among the heirs of the deceased monarch.16 Finally, the need to establish an effective administration of the royal domains demanded that they cede parts of the territory to nobles, who ended up ruling with considerable autonomy. This is what the specialized historiography has termed protofeudalism, as it was the first step towards feudal fragmentation, a phenomenon which ultimately took root when royal power faded in the Early Middle Ages.
5.3 The Church and the Preservation of the Roman “State” Tradition
If the acceptance of Christianity and the recognition of the Church radically transformed the Roman Empire beginning in the fourth century, the collapse of the Western Roman Empire in 476, made the various Western churches the only organized power. Beginning in the sixth century, Christianity was further reinforced by the emergence of the monastic movement and the consolidation of papal authority. From the point of view of the history of the western polity it is important to emphasize that the Church, during the stage of the Germanic kingdoms, became the standard-bearer of the Roman imperial tradition.
5.3.1 The Emergence of the Monastic Movement
The first monastic communities in the Near East arose in reaction to the “officialization” of Christianity as a state religion. Thus, faced with a Church integrated into a complex territorial organization and subject to doctrinal unity (orthodoxy) which became universal (Catholic), a number of people decided to abandon the world in pursuit of penance and prayer. These individuals embraced the ideal of the ascetic life, retiring to the desert or any remote location. First they were called anchorites (from the Greek anajorein: separation), hermits (from the Greek eremos: desert), or Cenobites (from koinobion: common life) and, finally, by the generic name of monks (from the Greek monakhós: lonely). At the beginning of the sixth century, monastic communities, very numerous in the Near East,17 were virtually unknown in the West. Having emerged in Egypt in the third century, with the hermits Anthony and Pachomius (Gorg 2011), Christian monasticism took on a coenobitic orientation which initially developed in Ireland, a barely Romanized Celtic territory where many Christians had taken refuge to escape the invasions of the fifth century (Dunn 2008). The Irish monks became, from the outset, an intellectual class dedicated to preserving the Christian tradition by copying the old texts (Harmless 2004). However, in a second phase they undertook a major proselytizing campaign, which led them to preach the gospel, first in Scotland and later in Europe (Vosges, Switzerland and northern Italy), where they founded new monastic communities (O’Neill 1989, 270–287).
One of these communities was founded in 529 at Monte Cassino, the site of an ancient temple to Apollo, by a monk named Benedict of Nursia (circa 480–547), who was admired and recognized in the region for his rigorous asceticism. Benedict gathered some lay people who wished to abandon the world and lead lives of meditation and prayer together, led by an abbot (from the Aramaic abba: father). To govern this monastic community, its founder would develop the famous Rule that bears his name (Dunn 2000, 111–137). The success of the Benedictine order was significant, mainly because its rule was less severe than that of the Irish monks and attached great importance to manual labor, mainly the cultivation of the land surrounding the monasteries, which allowed them to become economically self-sufficient. Moreover, the rule complemented the intense manual labor with intellectual work, which included not only reading the Bible, but other texts comprising the cultural heritage of the era (Clark 2011). This was a major event in Western history, as the work of transcription carried out by these monks assured the transmission of ancient culture.
5.3.2 St. Gregory the Great and the Consolidation of Papal Authority
The initial foundation of Monte Cassino was soon followed by new monasteries in Rome and Naples. In the Roman capital, the Benedictine Rule was soon discovered by a Roman aristocrat named Gregory, who had held a series of important public offices which had allowed him to occupy, at the age of just 30, the city’s most important position: praefectus urbi. Gregory, however, was captivated by the Rule of St. Benedict to such a degree that in 575, he retired to devote himself to the monastic life, donating his considerable wealth to the founding of convents. A few years later, he would give up the contemplative life when he was virtually obligated to occupy the papal throne. His 14-year papacy (590–604), would prove an essential chapter in Church history.18
Until the time of Gregory I (590–604), it can be said that local churches resisted the introduction of Roman centralism, especially in the Near East, where since the Council of Chalcedon (451), they had patriarchates in Alexandria, Antioch, Jerusalem and Constantinople. However, the fact that Rome was the only Western patriarchy, gradually led to the Pope becoming the natural head of all the churches. Gregory the Great was the first pope to become the pontiff wielding power over the whole Church, even if this primacy was more a matter of moral authority than of actual administrative power (Fichtenau 1991, 15). The role and work of Gregory the Great marks an essential milestone in the history of the Catholic Church, not only because during his papacy there was a clear strengthening of papal authority, but because Gregory realized that his main task was not the preservation of the gradually decaying Romanism of the provinces, but the recruitment to the Catholic faith of pagan and Arian tribes. This is why he pushed for the evangelization of the Lombards, Anglo-Saxons and Germans, which allowed for Roman Catholicism to become the prevailing religion on the Continent.
From the legal point of view, as well, Gregory’s efforts served to shape what was undoubtedly one of the pillars of the Western Church’s legal system (Llewellyn 1974, 363–380): his idea of a societas reipublicae christianae, a community of all Christians over which the Roman Church exercised its principatus unimpeded by considerations of a constitutional nature. As Ullmann (1970, 37–38) points out, this conception of Gregory’s was a prophetic vision of medieval Europe, a societas made up of the nations and kingdoms outside the imperial but inside a universal, Christian framework.
5.3.3 Christianity and the New Germanic Peoples
One of the reasons Germanic kings had problems consolidating their power was that, from the beginning, they had to deal with local churches representing the whole of the predominantly Roman population. This conflict would be resolved in favor of ecclesiastical power after the kings converted to Catholicism. At this juncture, the Church came to support royalty in exchange for the kings’ endorsement and defense of this religious organization, profoundly influenced by the Roman political and legal model.
Christianity flourished relatively quickly amongst the Germanic peoples. In fact, those who came into contact with the Empire were quick to convert to Christianity. In this respect the role of the Goth Ulfilas (311–383), is worthy of note; to spread Christianity among his people he translated the Bible into the Gothic dialect, creating the oldest text written in a Germanic language (Wolfram 1990, 75–84).19 However, Ulfilas was an adherent of the early Christian school of thought known as Arianism, which denied that Jesus Christ was coeternal with God the Father.20
The Arians and pagans in each of the new Germanic kingdoms found themselves openly squaring off with the Catholic bishops, who stood as the natural representatives of the Roman population. The episcopal pressure was so great that beginning in the late fifth century the Germanic kings, one by one, converted to Catholicism.
The first to embrace Catholicism was the Frankish King Clovis, baptized at Reims by the bishop St. Remigius circa 496 (James 1991, 121–123). He was followed by the Burgundian King Sigismund in 516; Rechiar, King of the Suebi in 550, catechized by St. Martin of Dumium (Thompson 1980, 77–92); Authari, King of the Lombards, in 585; and the Visigoth Reccared in 589, whose conversion was brought about by St. Leander.21
The successive conversion of the Germanic kings to Catholicism augmented the political influence of the churches, which henceforth made every effort to preserve the Roman idea of political organization of which they were custodians.
5.3.4 The Church and the “Romanization” of the Germanic Kingdoms
The influence of the Church on the government and the legal organization of the new kingdoms was crucial because it served to sustain the Roman model of government. Moreover, it can be said that the Church encouraged its continuation by imposing its political ideology on the Germanic kings who converted to Catholicism.
The clearest and most relevant case is that of Visigothic Spain, where after the conversion of Reccared (589), at the Third Council of Toledo (Orlandis Rovira 2007, 531–538), the Church clearly imposed itself on the civil authority (Nirenberg 2012, 12–20). Of special note in this regard was the role played by the councils of Toledo, mixed assemblies in which the members of the Visigothic nobility served together with the bishops, and which adopted rules essential to the organization of the kingdom (Stocking 2000). For example, at the Fourth Council of Toledo (633), an elective procedure to designate the king was approved,22