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CHAPTER XVI.
PECULIARITIES OF THE ROMAN LAW
THE mutual relations of the members of a community naturally
fall into two divisions, that is, public and private. In the first we have to consider the activities of the citizens
politically, or with reference to the work of the government or administration,
which enacts, or sanctions and enforces, the laws under which they live.
In this sphere of sociology the connection
of the individuals with each other arises only through their dwelling
in contiguity within some circumscribed area, and thus, while being
obliged to exist under the same human influences, they may for the most
part lie personally strangers to each other. In this department, then,
the tie of natural affection, which originates in blood or sexual relationship,
or, perhaps, from friendly association, is in general wanting. In the
second category the community must be regarded as consisting of an aggregate
of natural groups, that is, families, the members of which are so intimately
connected as to be affected at every moment by each other's acts. Such
groups in their mutual relations are necessarily subject to the laws
of the state; but in the privacy of the family circle it is also essential
that the individuals should conform to a minor system of law, which
may vary in every household according to the expediency of its particular circumstances. Of the latter code of conduct it
will be unnecessary to speak further; it might be identical in part
or wholly, in ancient and modern times, and among different nations,
or differ considerably in families living in the same age and adjacent
to one another. But statute law affects similarly all persons subject to its jurisdiction, and it is of this only we have to treat.
The origin of, and necessity for, law, humanly enacted,
arises from the gregarious tendency of mankind, through which the desires
and acts of the individual become circumscribed with reference to those
of his neighbours. At a very early stage in civilization the conception
of individual rights is awakened by each person becoming keenly perceptive
of self-interest; and hence those in a neutral position feel inclined
to resent that another should suffer a wrong to which they themselves
would be unwilling to submit. Thus the germs
of altruism are sown in a community, and the general utility of some
rule of justice being enforced soon becomes apparent to all. Yet each
one is loth to abandon advantages which he
finds to be within his grasp; and the abuse of power leads to oppression,
injustice, and crime. Power is of various kinds, and consists in the ability to take from another some
valued thing by open force, by strict legality, or by stealth. The last-named
is theft, and, in its various aspects, creates the necessity for almost
all criminal law; but the former are with difficulty dealt with by,
and sometimes form the paradox of legislation. Thus, by a general convention
the greatest injustice may be enforced within a state, and that in two
relationships, viz., as regards the members of other states, and with
respect to its own citizens. In the category thus indicated I propose
to advert only to two phenomena in Roman sociology, namely, slavery
and debt.
1. In modern times the only slavery recognized in Western
civilization has been that of some degraded race, whom nature seems
to have created as almost akin to the lower animals. Hence it was
considered to be no injustice to subjugate or domesticate them
as such, and to pass them from owner to owner at a price. But the Roman
slave, as a rule, was not racially distinguishable from his master;
and might even be his superior in natural endowments and education.
For the latter advantage, however, he would almost invariably be indebted
to his owner. He was generally a member of a foreign state, most probably
a captive taken in war, or the descendant of one; but sale by parents
within the Roman dominions and kidnapping were not uncommon.
In the early ages of the Republic the master had as much
power over his slave as over his ox or his ass, and lay under no penalty if he should choose to kill him; but the position
of the human commodity was gradually ameliorated. The advance of humane
conceptions, which attained their most emphatic expression in the Stoic
philosophy, soon exerted its influence on the servile condition; and
even under Augustus a master could not imperil the life of his slave
without first obtaining magisterial sanction.
Half a century later it was enacted by Claudius that
a man who wantonly killed his slave should be guilty of murder. Hadrian
and the Antonines legislated in the same spirit to protect them from cruelty, and gave them the right of being compulsorily
sold when they had just cause of complaint against their actual owner.
It has already been mentioned that Constantine, although a slave could
have no legal relatives, forbade that servile families should be separated
by sale to different persons; but, nevertheless, in the sixth century
the abolition of slavery was never contemplated as a social possibility.
A Roman slave wore no badge of servitude, and when on one occasion it
was proposed that they should do so, the proposition was negatived on the grounds that it would be hazardous to provide them with a means
of recognizing how very numerous they were.
Such, in general, was the position of slaves within the
Empire when Justinian came to the throne; and in many important details
they were indebted to him for an increase of their privileges. That
emperor was a busy law-giver in every department of the state; and,
when not blinded by fanaticism or financial greed, his measures tended
to the extension of liberty and the removal of technical restrictions.
Obstacles were placed in the way of the manumission of slaves, and in
many the freedom bestowed was only partial. Justinian abolished such
irksome distinctions, and decreed that all
freedmen should enjoy the full rank of Roman citizenship irrespective
of their previous status or formalities in the mode of manumission.
By a law passed in the time of Augustus a man could not by will confer
liberty on all his slaves, but only on a proportion of them; and a youth
who was considered to have attained to manhood, that is, to fourteen
years of age, so that he could legally make a will, yet was denied the
power of manumitting a slave. The first of these enactments was abrogated,
the second modified by Justinian.
In the case of a slave being in the joint possession
of two or more persons, and one of the owners desiring to manumit, he
made it compulsory that the others should sell their share to that one;
and if a free woman married a slave he enacted
that she should retain her liberty, contrary to previous law on the
subject. He also forbade the prostitution of female slaves, to whom
in such case he ordained that freedom should at once accrue as
a consequence of the offence. In general he declared himself to be the friend of liberty, and endeavoured to
expedite the solution of all legal difficulties in wills, and the wishes
of testators in favour of the slave being speedily emancipated. Finally he deprived the slave of the option of remaining in servitude, stating
that no one had the right to reject the gift of Roman citizenship. He
asserted, however, very strictly that a freedman should fulfil his duties
towards his patron, that is, his former master, to whose generosity
he owed his liberty, and threatened him with relapse into servitude
should he prove himself to be an ingrate. But he relaxed the rule which
compelled a freedman to leave half his property to his patron; and
in ordinary cases relieved him altogether of the obligation, whilst
he also attempted to institute some legal relationship among the emancipated
by tracing the connections of a family through those still retained
in slavery.
Another liberal provision of this Emperor was that if
an unmarried man kept one of his slaves as a concubine and died intestate,
she and her children forthwith became free instead of passing into the
hands of the heirs as part of the inheritance. He also pronounced against
foundlings being reduced into servitude, either as slaves or serfs,
on the assumption that they were not free born. By the same rule a slave
cast out or abandoned, the fate sometimes of those who had become useless
through illness or decrepitude, became free. Yet the colons or serfs
of an estate gained no step towards freedom in this reign; on the contrary
Justinian confirmed the laws which bound them to the soil and interdicted
them from migrating to another locality under pain of forfeiting their
chance of being emancipated. In this connection he feared, doubtless,
lest anything which might hamper the profitable cultivation of estates
would lessen the returns to the fisc.
2. The very harsh laws of debt, which prevailed among
the primitive Romans, were one of the chief sources of civil commotion
in the first centuries of the Republic. The defaulting debtor might
be seized by his creditor, imprisoned, and sold as a slave; and the
terms of one law of the Twelve Tables have been held by many jurists
to indicate that joint creditors were legally empowered to hew the body
of their debtor in pieces in order that each of them might take possession
of a section.
The various popular measures which were passed from time
to time with the view of relieving the citizens of debt and restraining
the oppressive creditor are treated of at length by the Latin historians.
Such enactments compelled a spirit of moderation among those who practised
usury, and many debtors were assisted by arrangements comparable to
modern bankruptcy.
Ultimately the increase of power and wealth in the Republic,
and the concessions granted to the overflowing population by aspirants
to personal dominion effaced most of the hardships which were so galling
in the primitive community; but no permanent legislation was ever devised
which effectually curbed a creditor prone to drastic exaction of money
due. Thus in the eleventh year of this reign
we find Justinian forbidding that the corpse of a debtor should be impounded
with the object of forcing immediate payment of a debt from his heirs,
the attached penalty being confiscation of the sum owing, together with
a third of the fortune of the offending person. And nearly twenty years
later he was obliged to enact that creditors should not seize the sons
of debtors and retain them in slavery as a gage of the amount owing
being paid. In this case the delinquents were to forfeit the debt and
also an equal sum to the youth kept in bondage, and in addition
were to be sentenced to a flogging by the local Rector. At the same
time the Emperor decreed that securities given by women in respect of
their husband's debts were to be void of effect; whilst under no circumstances
were females, even when liable to the fisc, to be sent to a common prison for debt. They were only
to be immured in monasteries or ascetic establishments, where they would be in charge of custodians of their own sex.
Justinian also legislated in restriction of interest
on money lent, which in this age seems generally to have been calculated
at twelve per cent, per annum. He now fixed the precise amount which
he considered it fair for lenders to receive in proportion to the risk
they ran and the importance to them of the transaction. Thus nobles of Illustrious rank were allowed to take only four per cent.;
but ordinary citizens were to be entitled to six. Merchants in legitimate
trade, if they lent money, might demand eight per cent.; but the investor
in any risky venture, such as nautical enterprises, was permitted to
stipulate for twelve per cent.
The despotic power exercised by a Roman father over his
family, expressed by patria potestas, was
almost peculiar to that nation, but in practice it seems to have been
very rarely abused. By this convention wife and children were subjected
to the male parent almost as completely as if they had been his slaves;
but at the same time sons of mature age had all the rights of citizens
with respect to voting at elections, holding magistracies, and commanding
armies. By tacit consent, however, this exaggerated jurisdiction was
gradually abandoned, and in the time of Justinian had become more nominal
than real. Thus already, during the reign of Augustus, it was agreed
that a father could not inflict more than ordinary chastisement on a
son without obtaining magisterial sanction; whilst Constantine publicly
decreed that a parent who killed his child should suffer death by the
paradoxical method invented to emphasize the unspeakable atrocity of
the crime of parricide.
But two centuries previously Hadrian had pronounced it
to be "illicit and disgraceful" for a father even to sell
his children.
Justinian began early to limit by definite legislation
the extent of paternal absolutism, and in 533 decreed that patricians
should be released from it, on the grounds that it was “intolerable
for one whom the Emperor had chosen to be his father” to lie under such
a disability. At the same time he forbade parents
to oppose by any overt act the resolution of any of their offspring
who should elect to lead a religious life; providing, however, that
if the latter should tire of asceticism and return to the world, the
special favours shown to them should be withdrawn. Six years later he
followed up the principle by declaring the exemption of practically
all high officials, viz., consuls, ordinary or honorary, praetorian
prefects, and those of the two Romes, masters
of soldiers, and, of course, bishops.
Justinian also abolished the power of the father to surrender
his children to those upon whom they had inflicted an injury in lieu
of compensation. Further, he issued Constitutions in which he reiterated
more emphatically the prohibition against the exposure of infants.
Originally a son could have nothing of his own during
the lifetime of his father, but in the reign of Augustus an exception
was made in favour of whatever he might gain in military service. In
the first half of the fourth century the right was extended, and the
privilege of retaining anything received as pay from the government
was bestowed on officials of the civil service. Justinian went a step
further and enacted that a son's independent or extraneous earnings
should be his own, but yet he permitted the
father to have the usufruct of any capital thus acquired. Later (541),
he made another concession that a son might inherit anything from a
relative, as part of his separate estate, if left to him with a proviso
that it should not come under his father's control.
The artificial conception of blood-relationship which
prevailed among the Romans, whereby those connected through females
were excluded from all legal rights in a family, had been modified in
some of its most inequitable features before the sixth century. In the
earliest times if a citizen died intestate having no agnates to inherit,
that is, persons related to him through males, the property was divided
among his gens. The latter consisted of all those of the same stock
or name as himself, being the reputed descendants in the male line of
some common ancestor. Possibly, however, by this dispensation some of
his heirs might not even be of the same blood, owing to adoptive children
having conferred upon them all the legal rights of those naturally born
to the father by whom they had been assumed. Thus it happened that the children of a married daughter could claim nothing
of their maternal grandfather’s estate; and, as a rule, their mother
would be in the same position. A mother could not inherit from her sons
and daughters; whilst emancipated children, that is, those who had been
relieved by their father from the semi-servile condition in which they
stood towards him, thereafter became as strangers to their own family in the eye
of the law. The narrow conceptions of the primitive laws as defined
in the Twelve Tables (462 BC) were productive of much flagrant injustice
of this kind, as it appeared to the Romans themselves as time wore on.
After the lapse of about a century, a new magistrate, second in authority
only to the Consuls, was created under the title of Praetor, and his
functions gradually evolved themselves into those of the chief justice
of the Republic. Although legislative powers were not bestowed on him,
he became virtually a legislator, and in his court equity was administered in accordance with the current development of
public opinion. Thus he became a special providence
for all those who found themselves hard pressed by the cramped enactments
of the old laws, which were sometimes supplemented, sometimes evaded
by a legal fiction or subterfuge in the Praetor’s Court. On taking office,
each Praetor published an edict in which he stated the views he took
of debatable questions in law; and his rules and decisions, though caduciary, were often confirmed and fixed by Imperial legislation.
By the reign of Hadrian a considerable body of law had been thus concreted,
which that emperor ordered to be codified by Salvius Julianus, and thus a collection of statutes, called the Perpetual Edict,
was permanently approved and took the place of the variable practice
of successive Praetors.
While in Republican times the rights of succession to
an intestacy had been constrained within narrow limits of agnation and
male precedence, the laws of inheritance as ultimately settled by Justinian
became the most liberal that the world has seen. Priority of birth had
never been recognized as constituting a title to preference in Roman
law; and now every notion of any prescriptive claim being inherent in
sex was abolished. The state of the deceased was divided equally between
male and female children, grandchildren, of course, subdividing a predeceased
parent's share. By this disposition a wife took her marriage settlement,
but if there were none such she ranked as one of the children, as did
also a husband. If the intestate left no issue, but several brothers
and sisters, the property devolved on them according to the same principle,
but to them the parents of the deceased, if living, were preferred. Thus the degree of affinity by blood was alone
considered in regulating heirship. Under this system adopted children
inherited from their natural parents as if no such formality had taken
place, but they also had a claim, in the absence of near kindred, to
succeed to those who had adopted them.
In the earliest times a Roman could bequeath his property
to any member of the community he pleased, but not to a foreigner. In
the time of Augustus, however, a law was passed, in completion of previous
tentative efforts, which made it compulsory for him to leave a fourth
part of his estate to his children, otherwise he had to state expressly
why he disinherited them. Justinian confirmed and reduced legislation
of this class to a compact form, defining the relations of parents and
children to each other as regards the disposition of their possessions
in precise terms. Fourteen causes were enumerated, which the law would
recognize as just grounds for a parent to disinherit a child, and eight
which would confer the same right on the latter. Among these, lapse
into heresy holds the most prominent place, and also neglect to ransom if the parent or child should be
taken captive by an enemy.
The dissolute tendencies of society under the early Empire
induced the promulgation of laws which imposed a penalty on celibacy, and granted privileges to those citizens who were
fertile in offspring. Legal incapacity to inherit was inflicted on a
bachelor, whilst in the division of an estate larger amounts were assigned
to the heirs in proportion to the number of their children. With the
introduction of Christianity and asceticism, qualities of this kind
began to occupy reversed positions; and, if marriage did not fall altogether
into disrepute, second nuptials, at least, were ranked almost as a crime
deserving to be visited with penalties comparable to those decreed against
heretics. Justinian modified this stringency, remarking that natural
passion might fairly lead persons of both sexes to remarry, and that
free procreation of children was ultimately for the benefit of the state.
Legitimation of children by subsequent marriage had long been recognized,
and Justinian extended the principle by a decree that a woman seduced
under promise of marriage could compel her lover to complete the contract,
or, in default, to endow her with a quarter of his property. By a law
of Anastasius, illegitimate children were called on to inherit the estate
in the case of an intestacy without legal offspring, but in the second
year of Justin this rule was abrogated. At the beginning of his reign,
however, Justinian restored the former claim to the extent of one half,
and later he supplemented it by enacting that a father could leave all
his possessions to his natural children if he had none who were legitimated.
From the first ages of the Republic liberty to divorce
his wife was considered to be the inalienable
right of every Roman, but the privilege was rarely, if ever, taken advantage
of in the primitive community. This strict attachment, however, to the
conjugal contract gradually disappeared, and in Imperial times the marriage
bond was tied and loosed on many occasions in their lives by persons
of unstable character. Not until the fifth century did the Christian
emperors attempt to impose any stringency on the freedom of divorce,
when the younger Theodosius published a list of offences, in the absence
of one or more of which repudiation of the nuptial tie by either husband
or wife would be legally insufficient. From the moment of his accession
Justinian began to elaborate legislation of this kind, and in 541 went
so far as to forbid the dissolution of marriage by mutual consent, a
right with which no previous emperor had ventured to interfere. The
restriction, however, was probably inoperative and highly unpopular,
and one of the first acts of his successor was the repeal of the obnoxious
measure.
THE LEGISLATION OF JUSTINIAN
The difficulties which in this age beset the practice
of the law courts, owing to the confused condition of legal literature
and the consequent absence of attainable information on forensic questions,
has already been adverted to. The pressing need of rescuing the elements
of jurisprudence from the two thousand volumes in which they were entombed
had been felt by previous emperors, but, if they apprehended the possibility
of executing it, they shrunk from the magnitude of the task.
No sooner, however, was Justinian seated on the throne
than he engaged in this enterprise and nominated a commission of ten
jurists to prepare a code in which all extant and effective Acts of
various emperors should be repeated and arranged in lucid order. Tribonian was included among these commissioners, as an adjutant rather than as
a principal, but during the execution of the work it is certain that
he proved himself to be the master spirit of the undertaking. The materials
which had to be manipulated consisted of the Theodosian Code, in sixteen
books, composed under the auspices of that feeble-minded prince, whose
simple piety assumed that all but the laws
of Christian emperors should be expunged from the statute book. This
ineffective performance, therefore, left unnoticed all legislation previous
to Constantine, but there were two other extensive compilations,
the Gregorian and Hermogenian Codes, of private origin, in which had
been amassed a multitude of Imperial constitutions, beginning with those
of Hadrian. The work was begun in February, 528, and finished by April of the following year.
It was then announced to the Praefect of the East as the "Justinian
Code", to which alone for the future reference was to be made in
order to ascertain the law of the Empire; and he was directed to give
it effect from the next month. If, the Emperor added, certain enactments
were found to have been altered in tenor by additions, detractions,
or verbal changes, such modifications had been necessitated by the exigences
of the age; and it was forbidden that anyone should thereafter cite
such passages as they appeared in previous books, with the view of inducing
decisions not in conformity with the new Code.
The capacity and erudition of Tribonian,
which had been revealed during the preparation of the Code, inspired
Justinian to undertake in the next year a work of much greater magnitude,
which it was anticipated would demand fully ten years for its achievement.
It was proposed to extract all the essential pronouncements of jurisprudential
law to be found in the two thousand volumes, which emanated from the
recognized legal luminaries of the previous fourteen centuries, and
dispose them categorically in fifty books, so that they should be readily
available for forensic consultation. The Constitution which enjoined
the preparation of this comprehensive work, to be called the "Digest",
or "Pandects", was addressed to Tribonian alone, and he was left untrammelled in the choice of coadjutors in the
stupendous task. Nowhere throughout the Empire, indeed, was there known
to be a legal library which contained all the books necessary for the
compilation of the Pandects, except in the
collection which had been formed with vast pains and accurate judgment
by Tribonian. He now made choice of sixteen
associates, and all engaged assiduously on the materials at their disposal.
To their surprise, they found that the work advanced much more rapidly
than had been expected, and at the end of three years they were able
to announce that the Digest had assumed a practical shape.
The three million sentences had been reduced to one hundred
and fifty thousand, which were distributed in an orderly manner throughout
the fifty books in seven categories. Among these were to be found all
the matter required to enlighten the hesitating lawyer as to official
duties, judicial functions, pledges, contracts, usury, nuptials, wills
and codicils, legacies and trusts, relations of slaves and freemen,
heirship, intestacy, liabilities of those occupying land and dwellings,
crimes and punishments in "two terrible books", public works,
and miscellaneous definitions. Having achieved this great work Justinian
became apprehensive that it would be corrupted by copyists, wherefore
he ordained that no abbreviations should be used in writing out the
original or reproductions. But he was still more alarmed lest his concentrated
text should be overwhelmed by commentators, so that after the lapse
of a certain period there might be a return to the former state of things,
when administrators of the law should again suffer bewilderment amid
the overplus of legal literature. Commentaries, therefore, were forbidden,
and, should any persons attempt them, they were warned that they would
be considered as perverters and falsifiers of the law. Should any doubts
arise, reference was to be made to the Emperor, as the sole legislator
and interpreter of the law.
When the Pandects were approaching
completion, Justinian decided on the issue of a third work, which should
form a handbook for the law-student and ground him in the principles
of Imperial jurisprudence as set forth in the two ponderous Codes. Under
the name of the Institutes this little treatise soon took shape in four
books, being for the most part a remodelled edition of a similar work
by a certain Gaius, which had been in circulation for several centuries.
This compendium was then announced to the student as furnishing him
with as much legal information in a small compass as he could have attained
to previously after a four years' investigation of the diffuse compositions
to which he was obliged to have recourse. "Take these our laws",
said the Emperor, "and study them assiduously, encouraged by the
bright hope that your proficiency will one day enable you to govern
our Republic in some province which may be entrusted to your care".
At the same time Justinian mapped out the work of the class-rooms for
legal education, in which the new law books were to supersede all texts
previously placed before the student during his five years' course.
The first year was to be devoted to the Institutes, the next three to Pandects, and the last to the Code. He also directed that
the freshmen were henceforward to discard their ridiculous cognomen
of Dupondii, and enter on their career under the dignified title of "New Justinians."
He also sternly prohibited the rough games which students
had been wont to play off on one another, on
rude novices, and even on professors, such reckless proceedings having
sometimes eventuated in actual crimes.
Finally he decreed the abolition of the law schools of Alexandria,
Caesarea, and elsewhere, since he had heard that in those places unskilful
men with insufficient licence had been engaged in imbuing their disciples
with adulterated doctrine. For the future, as previously, Berytus was to be the chief academy of jurisprudence, but
the Royal Cities of Rome and Constantinople were also sanctioned to
continue as centres of legal instruction.
No sooner had Justinian completed his reintegration of
the legal profession than he entered on an active career of new legislation
which rendered much of his former work obsolete. The close attention
paid to law during the preparation of the Digest had revealed a
number of disputed questions, and these the Emperor determined
to decide once for all by virtue of his own Imperial inspiration. When
they had accumulated to the number of fifty the list seemed to be exhausted,
and thereupon a fasciculus of "Fifty Decisions" was published
to settle the law on these moot points. This supplement seemed to&
antiquate the Code, and hence it was resolved to abolish it in favour
of a revised edition, which should be perfected by the inclusion of
all more recent legislation.
A new Code was, therefore, published in 534 with an injunction
that the first should be consigned to oblivion, and never again opened
in the law courts. Still, however, Justinian found an unlimited field
for his legislative proclivities, and every year saw the promulgation
of new Acts, until his energy began to succumb to senility. Most of
the new enactments were called Novels, and many of them were elaborated
at great length. For these compositions the Greek language was almost
invariably used, but a contemporary Latin translation was made. More
than one hundred and sixty of them remain, but some of them are in a
fragmentary condition. In addition thirteen
other pronouncements, named Edicts, are extant, and also the Pragmatic
Sanction, of which an analysis has been given in connection with the
annexation of Italy. Such are the four complements of Justinian's legislation,
of which in bulk his own productions constitute about one fifth, but
some considerable portion of the latter has probably been lost.
CHAPTER XVII.THE LAST DAYS OF JUSTINIAN
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