160 Lafferty
administrative significance as early as the Republic. As the imperial adminis-
tration became more dependent on the use of the written word, even greater
weight was accorded to the significance of documents as a means of establish-
ing proof. Consequently, forgery became a far more serious offence and was
more widely applied to include offences that under classical law constituted
the less serious delictal act of fraud (dolus).45 The silence in ET 41 concerning
the penal component strongly suggests that by the 6th century the matter had
become one of judicial discretion. While the judge could impose a sentence of
deportation in accordance with earlier imperial law, he could just as well apply
the maximum penalty of death; he was not bound by the fixed limitations
of the Cornelian law. Such discretion, facilitated by the growing importance of
the role of the judge in deciding the outcome of a given suit (in part a conse-
quence of the demise of the formulary procedure in the 1st century AD), was a
defining feature of Theoderic’s justice system. As our sources reveal, however,
these discretionary powers could be swayed by well-timed gifts or rewards
from litigants hoping to obtain a favourable judgement.46
For particularly heinous crimes the tendency was to increase the scope and
severity of the original penalty. Of particular concern was the illegal usurpation
of property (invasio). Drawing from a decree of the emperors Valentinian II,
Theodosius I, and Arcadius in 389 (Codex Theodosianus 4.22.3), ET 10 pun-
ished the offender twofold the value of the stolen property (in addition to the
property itself ) as opposed to the simple sum prescribed in the original text.47
The theft of livestock was likewise considered a serious matter. Modelled after
PS 5.18.2, ET 56 punished all such offenders capitally, whereas the punishment
in the original varied from the most extreme (i.e. death by the sword or con-
signment to the mine) to a form of (unspecified) public labour depending
upon the seriousness of the problem in general or the status of the offender
specifically. Moreover, the Edictum Theoderici went beyond the original to
require that the victim be compensated in the form of fourfold remuneration
and that slaves or originarii that were condemned for the act were to be sur-
rendered by their owners to be punished capitally. Conversely, the largest fine
imposed upon a cattle rustler in the Pauli Sententiae was threefold the origi-
nal amount.48 Both of these examples illustrate the importance of property in
6th-century Italy and demonstrate the determined concern of the Ostrogothic
45 For this development see Harries, Law and Empire, p. 108.
46 Lafferty, Law and Society, especially ch. 3.
47 For specific instances in our sources: Variae 5.29, 30; 8.28. See further Innes, “Land,
Freedom”, pp. 39–74.
48 PS 5.18.3.