MEDIEVAL HISTORY LIBRARY

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