This blogpost was written by Harry Mawdsley, PhD student on the project.

Over the last couple of months I have been examining the so-called ‘barbarian’ law codes, as part of my research into the penalty of exile in the post-Roman period. Of particular interest are the three compilations of Roman law that were issued in the Ostrogothic, Visigothic, and Burgundian Kingdoms – the Edict of Theodoric (c.500), the Breviary of Alaric (506), and the Roman Law of the Burgundians (c.516). The editors of these works excerpted from earlier legal sources to provide judges with a practical handlist of Roman law. But they were not only mere copyists; they often omitted, reworked or commented upon parts of the Roman material, updating it to reflect the changed circumstances of the early sixth century. Such alterations thus provide a valuable insight into how far the penalty of exile had developed in the decades after the collapse of the Western Empire. We see this quite clearly in the context of three themes: forms of exile, exile and social status, and crimes punished by exile.

In the Roman Empire, exile was expressed through a number of different sentences, but the two quintessential forms of exile were deportatio and relegatio. As we can see in the commentaries of the second- and third-century jurists, deportatio and relegatio were technical terms distinguished on the basis of severity. Of the two, deportatio was considered the harsher sentence as, unlike relegatio, it impaired legal status through the removal of citizenship.

Interestingly, in the post-Roman compilations, references to deportatio or relegatio were often changed to exilium – a much more generic term for exile. This would suggest that deportatio and relegatio were no longer understood to be relevant concepts in the early sixth-century west. Such a development can plausibly be associated with the emergence of new legal identities in the barbarian kingdoms, as the free population was no longer solely defined by the possession of Roman citizenship. This undermined the precise significance of sentences of deportatio, since the removal of civic status no longer carried the same severe ramifications. Thus, it would have been rather meaningless to describe a sentence as either relegatio or deportatio, as in practice the effects of the two penalties were now not so distinct.

Along with deportatio and relegatio, other forms of exile also became outmoded in the barbarian kingdoms, such as exile as forced labour in metalla (mines or quarries) – a consequence of the disappearance of state-owned mining institutions in the west. This eroded the foundations of the so-called dual penalty system, established since the beginning of the second century CE if not earlier. In the Roman period, the dual penalty system had ensured that low status offenders received sentences of forced labour in place of deportatio and relegatio, which were traditionally reserved for members of the elite. In the post-Roman legal sources, however, the narrowing of the forms of exile meant that all offenders, regardless of social status, now received the same basic sentence of exilium.

At first glance, this development could be seen as representing a turn towards a more egalitarian criminal justice system. In practice, though, the experiences of offenders in the post-Roman kingdoms still varied dramatically according to their social status. One example taken from the literary sources occurred in 484, when the Vandal King Huneric (r. 477-484) closed all the churches of the city of Carthage and exiled around 500 members of the clergy. Eugenius, the bishop of Carthage, was quietly packed off to the city of Turris Tamalleni in southern Byzacena. His subordinate clergy, however, were only expelled after being publically flogged on the forum.

The authorities, thus, continued to treat non-elites more harshly for the same crimes, even though the abandonment of certain penalties, such as condemnation to the mines, meant that they could no longer precisely follow the norms of Roman legal practice. I think that this reflects how status considerations remained of crucial importance to judges in the socially stratified barbarian kingdoms. It also shows how the overarching justifications of punishment remained constant, in particular the belief that low status offenders should always receive some form of physical abuse.

In the three compilations, a rather diverse set of crimes was punished by exile, including offences against the person (violence, kidnap), offences against property (theft, arson, despoliation of tombs), and sexual and marital offences (adultery, unilateral divorce). This provides an insight into the types of offences that barbarian legislators still perceived to be a problem. It is perhaps more rewarding, however, to examine those crimes previously punished by exile that were omitted or hardly feature in the post-Roman sources, as this provides evidence of how society had changed in the intervening years.

One example is the large reduction in the number of provisions that prescribed exile for governmental misconduct. In the late Roman period, a raft of legislation had imposed exile on various delinquent officials; even those occupying positions fairly low down in the imperial hierarchy. The post-Roman compilers excerpted only a tiny fraction of these laws, most of which targeted negligent judges. It seems that other legislation was ignored because the relevant public official no longer existed. For instance, the compilers of the Breviary of Alaric completely overlooked a law of Valentinian II (r. 375-392), which prescribed relegatio for corrupt supervisors of the now defunct public post. The omission of such legislation, thus, allows us to trace the impact of the involution of the state following the collapse of imperial authority in the west.

An even more significant change was the cessation of exile in the context of heresy. This was a very characteristic feature of late Roman legislation, with emperors from Theodosius I (r. 379-395) onwards prescribing the sanction against various dissenting groups. Such legislation was based on the notion that Nicene Christianity was synonymous with orthodoxy. Barbarian rulers, however —at least outside of Merovingian Gaul— all adhered to Arian or more properly homoian Christianity. Still, this is not a totally adequate explanation for the absence of anti-heresy laws, as barbarian kings could have updated the legislation to reflect their own creedal positions. In fact, we see this in the one surviving legal document from the Vandal kingdom of North Africa: an Edict of Huneric, issued on the 25 February 484 and preserved in Victor of Vita’s History, which reworked the content of Roman legislation to threaten Nicene Christians with exile if they refused to adopt the homoian creed. Vandal Africa, however, was a special case, and elsewhere in the post-Roman west legislators simply ignored the issue of religion, supporting the picture of toleration that emerges from the contemporary sources. Of course, this was largely a pragmatic decision — barbarian kings were simply not in a position to adopt coercive measures against a religiously diverse population — but nevertheless it represents a significant departure from the policies adopted by late Roman emperors.

To summarise, the post-Roman legal sources clearly demonstrate that the penalty of exile had lost some of its earlier features and associations by the early sixth century. As suggested above, many of these developments can be explained in light of the political, social, and economic transformations that engulfed the west following the collapse of the empire. The significance of the study of exile, thus, extends beyond the narrow confines of legal history, as it provides a fresh perspective on the ways in which barbarian rulers interacted with their subjects. This is something I plan to study further by comparing how the actual incidents of exile, as reported in the literary sources, conformed to the principles set out in the legal texts.