11 THE END OF THE WESTERN EMPIRE

During the fifth century the western empire gradually disintegrated in the face of continuous pressure from Germanic tribes. At the beginning of the century, the Visigoths under Alaric moved westward, entered Italy and were only temporarily kept at bay by troops withdrawn from the defence of Britain, which was being invaded by Saxons.

Two years after the sack of Rome, the Visigoths moved into south­western Gaul, south of the Loire, where they were allowed by treaty to establish themselves with a capital at Toulouse. In eastern Gaul the Burgundians were permitted to settle on similar terms and make common cause with the Gallo-Roman inhabitants against the Huns. Their capital was Worms. In 429 the Vandals, who had passed through Gaul into Spain, landed in Africa and soon established an independent kingdom within the imperial frontiers. In 455 they too invaded Italy and sacked Rome. Finally in 476 the last Roman emperor in the west gave up his throne and the Germanic kingdoms in Gaul and Spain became as independent in theory as for some time they had been in practice.

In a letter to the eastern Emperor Anastasius in 494, Pope Gelasius I put forward the view that the world is governed by two separate author­ities, sacerdotium and imperium, that of the Pope in matters spiritual and that of the emperor in matters temporal, both being subject to the lord­ship of Christ. He claimed for the papacy, against other bishops, the ulti­mate right to try cases affecting the Church. The Church was beginning to develop its own legal system, based on resolutions of Church coun­cils, the Bible and papal decisions, known as decretals. What welded these disparate sources into a single whole was the Roman secular law, from which the Church lawyers derived their basic categories.

The newly independent Germanic tribes were always heavily out­numbered by their romanised subjects and were usually glad to leave them to maintain their existing legal institutions. They followed the prin­ciple of personal law and, whereas they retained their own laws for themselves, they did not seek to impose them on others. The more advanced of these peoples felt the need to have their tribal laws put into written form. Significantly they did not publish them in their own lan­guages but in Latin, the language of administration and law.

The first known example of such legislation is in the form of an edict promulgated by Euric, king of the Visigoths from 466 to 484. It was probably published about 475, when Euric was asserting the authority hitherto exercised by the Roman prefect of Gaul. Instead of recording agreed Visigothic practice in the manner of traditional Germanic laws, Euric's law was formulated, in the manner of imperial constitutions, by the king and the chief magnates of his realm. Euric wanted to keep his Roman and Visigothic subjects apart and forbade intermarriage between them but there are several instances of the direct influence of Roman law, for example, a clause forbidding actions concerning matters which occurred more than thirty years previously. The draftsmen of Euric's law, being trained in Roman law, tended to see Roman law as expressing basic principles, which should lie behind the laws of all peoples. They recognised that there must be a temporal limit to litiga­tion on any private dispute and inserted the Roman rule.

Three collections of specifically Roman law for the subjects of bar­barian rulers appeared at the beginning of the sixth century. The Edict of Theodoric was promulgated about 500 by Theodoric the Great, king of the Ostrogoths in Italy, who found it politically convenient to regard himself as the representative of the eastern emperor in Constantinople. His Edict applied to both Romans and Goths but the material is Roman. Although the sources are not specified, they are the Theodosian Code of imperial legislation and its two predecessors, with post-Theodosian ‘Novels' (dovellae codrtitutiodns), the Sentences of Paul (probably an early post-classical selection of short opinions of the master) and Gaius's Institutes.

The Burgundian and Visigothic kings in Gaul promulgated separate collections of legal materials, specifically intended for the ‘Romans' in their dominions. The Burgundian kingdom had been re-established further south than their original settlement on the Rhine but was in a vulnerable position, squeezed between the Franks to the north, the Visigoths to the west and the Ostrogoths to the east. King Gundobad of the Burgundians enacted two laws. One, variously called Lex Burgundionum, Lex Gundobada, Loi Gombette and Book of Constitutions, was exclusively for Burgundians. The parallel law, the ‘Lex Romana Burgundionum', is similar in form to the Edict of Theodoric and is derived from the same sources.

The most influential of these collections of Roman materials was the ‘Lex Romana Visigothorum', otherwise known as the Breviary of Alaric. It was published by Alaric II, king of the Visigoths, in 506 for his Roman subjects, perhaps as an attempt to ensure their loyalty in the face of attack by the Franks (with whom Gundobad's Burgundians were allied). This resulted in the defeat of the Visigoths at Vougle, near Poitiers, in 507 and the subsequent concentration of the main part of their kingdom in Spain. Again the same sources were used as those of the Edict of Theodoric and the ‘Lex Romana Burgundionum' but this time they are expressly cited and the material is more extensive. A distinction is made between lex (official legislation) and ius. There are selected constitutions from the Theodosian Code and post-Theodosian Novels, followed by extracts from the Sentences of Paul and the complete Epitome Gai, the Gallic version of Gaius's Institutes. There are also extracts from the two pre-Theodosian codices, which, since they were private, unofficial col­lections, are treated as ius rather than lex. Finally there is a single frag­ment from Papinian, clearly inserted on account of the reputation of that jurist. Each part of the collection, with the exception of the Epitome Gai, is furnished with interpretationes, giving the gist of the text in succinct, robust Latin.

The Visigothic Roman law is our main source for western vulgar law in the last century of the western empire. It also became the main source for Roman law in the kingdoms which replaced the empire from the sixth century to the eleventh. It was in force in the Visigothic kingdom in Spain until the middle of the seventh century, when the fusion of the two peoples was recognised and the law became territorial, applicable to all living in the kingdom, rather than personal. In practice the Visigothic collection also maintained its authority in the kingdom of the Franks which, after their defeat of the Visigoths in 507 and of the Burgundians in 532, extended over the whole of former Gaul. The Franks accepted the personality principle but published no compilation of Roman law, preferring instead to use the Visigothic and the Burgundian Roman laws, which were often copied together in Frankish manuscripts.