The Law 165
that judges recognized the need to proceed “according to the law”, in those
special circumstances where the interests of the king were involved, they must
have been unsure where law and custom left off and the king’s will began.65
The case of Boethius is illustrative. Accused of treason in 524, the senator
was marched to Ticinium (Pavia) where he was put on trial. Despite this being
a capital case, he was never called to defend himself. Instead, the presiding
judge, the urban prefect Eusebius, permitted the dubious claims of a certain
Opilio and Gaudentius (also discussed in Chapter 6), whose testimony secured
them amnesty for previous crimes, to determine the facts of the case. In what
amounted to little more than a show trial Boethius was convicted and sen-
tenced to death.66
Under Theoderic the judicial system worked, but not without its deficien-
cies. The frequency of laws that deal with some form of corruption or another,
negligence, or disobedience by royal officers, while demonstrating the earnest-
ness with which the central administration addressed concerns of judicial
corruption and misconduct, reveals the magnitude of the problem and the
government’s inability to do anything about it. And it is all too clear that the
disintegration of the justice system was already far advanced before Justinian’s
forces landed in Sicily in 535. In the prologue to his edict, Athalaric outlines
this disintegration from beginning to end:
For a long while, now, complaints from all parts have sounded in Our ears
with frequent whispering that certain people, having spurned civilitas,
have chosen to live in bestial savagery, since, having returned to such a
state of primitive rusticity, they have developed a wild hatred for the laws
of man.67By 552 Ostrogothic power in Italy was shattered. In the years following the
death of Theoderic in 526, succeeding Ostrogothic rulers engaged in divisive
fratricidal strife. Over the course of the same period, the competing kingdoms
65 Lafferty, Law and Society, ch. 3.
66 For a full account of these events see Anonymus Valesiani 14.85–87; Boethius, Consolatio
Philosophiae 1.4.14–18; Procopius, Wars 5.1.32–9. That Boethius fictionalized, or at the very
least embellished, these events in an effort to emphasize his suffering is certainly pos-
sible, but there is enough correspondence between Boethius’s own account and those
of the Anonymus Valesianus and Procopius to conclude that the account has a basis in
historical fact.
67 Cassiodorus, Variae 9.18: “diu est, quod diversorum querellae nostris auribus crebris
susurrationibus insonarunt quosdam civilitate despecta affectare vivere beluina saevitia,
dum regressi ad agreste principium ius humanum sibi aestimant feraliter odiosum.”