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 Emperors Zeno and Anastasius to Odovacar and Theoderic.112 From A.D. 498 Theoderic nominated one of the consuls. On one occasion (A.D. 522) the Emperor Justin waived his own nomination and allowed Theoderic to name both consuls — Symmachus and Boethius. But in exercising this right the Ostrogothic king was bound by one restriction. He could not nominate a Goth; only a Roman could fill the consulship. The single exception corroborates the existence of the rule. In A.D. 519 Eutharic, the king’s son-in-law, was consul. But it is expressly recorded that the nomination was not made by Theoderic; it was made by the Emperor, as a special favour.113
The capitulation which excluded Goths from the consulship extended also to all the civil offices, which were maintained under Ostrogothic rule, as under that of Odovacar.114 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 of Rome; there were all the provincial governors, divided as before into the three ranks of consulars, correctors, and praesides. There was the Master of Offices. There were the two great finance ministries.115 There was the Quaestorship of the Palace.116 It may be added that Goths were also excluded from the honorary dignity of Patricius. Under Theoderic no Goth bore that title but Theoderic himself, who had received it from the Emperor.
The Roman Senate, to which Goths on the same principle could not belong, continued to meet and to perform much the same functions which it had performed throughout the fifth century. It was formally recognised by Theoderic as possessing an authority similar to his own.117
If all the civil offices were reserved for the Romans, in the case of military posts it was exactly the reverse. 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.118 Theoderic was the commander of the army, as Master of Soldiers, for, though he did not designate himself by the title, he had retained the office, and no Master of Soldiers was appointed, subordinate to himself.119 Though the old Roman troops and their organisation disappeared, it has been shown that the military arrangements were based in many respects on practices which had existed in Italy under Imperial rule.
The various disabilities of the Ostrogoths which have been described depended on the fact that they were not Roman citizens. They, like the Germans settled by Odovacar, had legally the same status as mercenaries or foreign travellers or hostages who dwelled in Roman territory, but might at any time return to their homes beyond the Roman frontier. The laws which applied only to Roman citizens, for instance those relating to marriage and inheritance, did not apply to them. But what may be called the ius commune, laws pertaining to criminal matters and to the general intercourse of life, applied to all foreigners who happened to be sojourning in Roman territory; and thus the Edict of Theoderic, which is based on Roman law, is addressed to Goths and Romans alike. The status of the Goths reminds us of a fundamental restriction of Theoderic’s power. He could not turn a Goth into a Roman; he could not confer Roman citizenship; that power was reserved to the Emperor.
Their quality, as foreign soldiers, determined the character of the courts in which the Ostrogoths were judged. The Roman rule was that the soldier must be tried by a military court, and military courts were instituted for the Goths. But here Theoderic interfered in a serious way with the rights of the Italians. All processes between Romans and Goths, to whichever race the accuser belonged, were brought before these military courts. A Roman lawyer was always present as an assessor, but probably no feature of the Gothic government was so unpopular as this. Like the Emperor, Theoderic had a supreme royal court, which could withdraw any case from a lower court or cancel its decision, and this tribunal seems to have been more active than the corresponding court of the Emperor. It is indeed in the domain of justice, in contrast with the domain of legislation, that the German kings in Italy sharply asserted their actual authority.
Besides being Master of Soldiers in regard to the Ostrogothic host, Theoderic was likewise the king of the people. He did not style himself rex Gotorum; like Odovacar, he adopted the simple title of rex. This indefinite style was hardly due to the circumstance that the foreign settlers in Italy were not all Ostrogoths, that the remnant of Odovacar’s Germans, and notably the Rugians,120 acknowledged his kingship. It was perhaps intended also to express his actual, as distinguished from his constitutional, relation to the Roman population. While the Roman citizens were constitutionally the subjects of the Emperor, of whom the Patrician Theoderic was himself a subject and official, they were actually in the hands of Theoderic, who was their real ruler. To designate this extra-constitutional relation, the word rex, which had no place in the constitutional vocabulary of Rome, was appropriate enough. It served the double purpose of expressing his regular relation to his German subjects, and his irregular relation, his quasi-kingship, to the Romans of Italy.121
The continuity of the administration of Odovacar with that of Theoderic was facilitated by the fact that some of the Roman ministers of Odovacar passed into the service of the Ostrogothic ruler, and probably the mass of subordinate officials remained unchanged. For instance, the first Praetorian Prefect of Italy under Theoderic was Liberius (A.D. 493-500), who had been one of the trusted ministers of Odovacar. Cassiodorus — father of the famous Cassiodorus whose writings are our chief authority for Theoderic’s reign,— who had held both the great financial offices under Odovacar, continued to serve under Theoderic, and in the early years of the sixth century became Praetorian Prefect.122
The constitutional system of administration which Theoderic accepted and observed was not a necessity to which he reluctantly or lukewarmly yielded. It was a system in which he seems to have been a convinced believer, and he threw his whole heart and best energies into working it. His object was to civilise his own people in the environment of Roman civilisation (civilitas). But he made no premature attempt to draw the two classes of his subjects closer, by breaking down lines of division. They were divided by religion and by legal status. So far as religion was concerned, the king was consistently tolerant, unlike the rulers of the Vandals and the Franks. His principle was: “We cannot impose religion because no one can be compelled to believe against his will” — a maxim which might well have been pondered on by Roman Emperors.123 So extreme was his repugnance to influencing the creed of his fellow-creatures that an anecdote was invented that he put to death a Catholic deacon for embracing Arianism to please him. If there is any foundation for the story, there must have been other circumstances; but it is good evidence as to his religious attitude; if it was entirely invented, it proves his reputation.124
And just as he accepted the duality of religion, he accepted the dual system by which Goths and Romans lived side by side as two distinct and separate peoples. He made no efforts to bring about fusion, his only aim was that the two nations should live together in amity. But little love was lost between them. The rude German barbarians despised the civilised Italians, and the Ostrogothic kingdom was overthrown before fusion could begin; but the development in Visigothic Spain, under similar conditions, makes it probable that fusion would have ensued, if the Ostrogothic power had endured. It says much for Theoderic’s authority and tact that he was able to hold an equal balance between the two peoples, and to attain so nearly in practice to the difficult ideal which he set before him
Tors Tyriusque mihi nullo discrimine agetur.
After his death the concealed impatience of the Goths under his philo-Roman policy was soon to burst out and hurry them to disaster.
Although he aimed at maintaining peaceful relations with the Emperor throughout his long reign, this concord was threatened more than once, and there were even actual hostilities. A campaign which Theoderic undertook against the Gepids, in order to recover Sirmium and adjacent districts of the Prefecture of Italy which this people had occupied, led to a collision with the Imperial troops (A.D. 504-505).