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Ch. 22
This webpage reproduces a chapter of
History of the Later Roman Empire

by J. B. Bury

published by Macmillan & Co., Ltd.,
1923

The text is in the public domain.

This page has not been proofread.
If you find a mistake though,
please let me know!


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Ch. 24

Vol. II
p395
Chapter XXIII

The Legislative Work of Justinian

§ 1. Codification of the Law

Justinian is the only Emperor after Constantine, or at least after Julian the apostate, whose name is familiar to many who have never read a line about the history of the later Empire. He owes this fame to the great legal works which are associated with his name; and it may be suspected that some of those who have heard of the Digest and Institutions of Justinian think of him as a jurist and are hardly aware that he was an Emperor.

Justinian's legal achievements were twofold. By new legislation he brought to completion, in several important domains of civil law, the tendencies towards simplicity and equity which had been steadily developing for many centuries. This alone would have made his name remembered in the history of European law. But his chief work did not consist in legislative improvements. It consisted in reducing to order and arranging in manageable form the enormous and unwieldy body of Roman law as it existed.1

Roman law, at this time, was of two kinds, which we may distinguish as statute law and jurisprudence; the statute law consisting of the Imperial constitution, and the jurisprudence of the works of the authoritative jurists who had written in the second and third centuries. Codification of the statue law was not a novelty. There had already been three Codes, the last of which, as we saw, was issued under the auspices of Theodosius II p396 and his western colleague in A.D. 438. But a new collection, more compendious and up-to‑date, was a pressing need. The book of Theodosius was bulky, and was not always at hand to consult in the courts. Many of the enactments contained in it were wholly obsolete or had suffered modification, and in the seventy years which had elapsed since its appearance, a large number of new laws had been made.

It seems almost certain that Justinian had conceived the idea of compiling a new Code before he ascended the throne, not many months after his accession to power he issued a constitution addressed to the Senate, in which he announced the plan of a new collection of laws, edited up to date, with contradictions carefully eliminated, obsolete constitutions expunged, superfluous preambles or explanations omitted, words altered, eliminated, or added for the strategy of clearness; and appointed a commission of ten expert jurists to execute the work.2 Of these ten, the pagan Tribonian, afterwards Quaestor, the Emperor's right hand in his great legal enterprises, and perhaps partly their inspirer, and Theophilus, professor of law at Constantine, were the most distinguished.

The commission must have worked hard, for the Code was completed and published in little more than a year. The Imperial constitution which introduced it to the world and made it authoritative was dated on April 7, A.D. 529.3 But the Code which then appeared, and was arranged in ten Books, has not come down to us. Five and a half years later, an amended edition was issued,4 arranged in twelve Books and including the new constitutions of the intervening period. It is this edition which we possess, and it contains 4652 laws.

In the meantime a more original and far more difficult work had been planned and completed. This was to reduce to order and consistency, and to present in a convenient form, the admirable body of jurisprudence which had been built up in the second and third centuries, the classical period of Roman law. The great p397 lawyers of that age, who were licensed to give opinions and whose "answers" carried the weight of Imperial authority, explained and developed the rules of law which had been finally embodied in the Perpetual Edict of Hadrian. Their opinions (responsa prudentium) were scattered in many treatises, and they often differed. On many points antagonists might produce two opposite opinions, and on almost any the judge might be perplexed by inconsistent citations. The writings of five jurists soon came to obtain a predominant influence. These were Gaius, Papinian, Ulpian, Paulus, and Modestinus. The Emperor Constantine sought to diminish the practical inconvenience caused through the disagreements of these lawyers by exalting the authority of Papinian above Paulus and Ulpian. Valentinian III and Theodosius II passed an important measure, known as the Law of Citations, ordaining that the majority of opinions should determine the decision of the judge, and that, if they were equally divided, the ruling of Papinian should prevail.5

But the treatises of the recognised experts were so voluminous that in practice it was very difficult to administer good law. At most courts there was probably neither the necessary library nor the necessary learning available. It was a crying need, in the interests of justice, to make the opinions of the jurists easily accessible, and the idea was conceived and carried out by Justinian of meeting this want by "enucleating the old jurisprudence."

But one thing had to be done first. The Law of Citations imposed upon each judge the task of examining and correcting the opinions of the authorities when they disagreed. Plainly it would be much more convenient and satisfactory to have all important cases of disagreement settled once for all, so that the judge should have one clear ruling to guide him. Accordingly Justinian's lawyers drew up Fifty Decisions, which settled principal points of dispute.

This cleared the way for compiling an authoritative and consistent body of Jurisprudence. In the last month of A.D. 530, Justinian authorised a commission of sixteen lawyers, under the presidency of Tribonian, to set about the work.6 They were to eliminate all contradictions and omit all repetitions, and when they had thus prepared the vast material they were to arrange p398 it in one fair work, as it were a holy temple of Justice, containing in fifty Books the law of 1300 years. Tribonian seems to have adopted the practical expedient of dividing the commission into three committees, each of which digested and prepared a portion of the material.7 Immense as the task was, it was completed in less than three years, and was published in December, A.D. 533.8 The work was known as the Digest or the Pandects.9

The Code and the Digest were each promulgated as an Imperial statute. They were to compound the whole body of valid law, except such Imperial constitutions as might subsequently be issued. All the books of the jurists were herewith rendered obsolete, as well as the Twelve Tables and the older Codes.

During the compilation of the Digest, Tribonian and his two most learned coadjutors, Theophilus, professor at Constantinople, and Dorotheus, professor at Berytus, prepared and published an official handbook of civil law for the use of students, the famous Institutions. This manual reproduces the Commentaries of Gaius, the great jurist of the second century, but brings that work up to date by numerous changes, omissions, and additions. Like the Code and Digest, it is published with all the authority of a statute.10

With the publication of the Institutions and the Digest, the Emperor announced a reform of legal studies. The education of a student in the legal schools extended over five years. Justinian prescribed a rearrangement of the course,11 which was now to be confined to his own law books, and he abolished all p399 the laws schools of the Empire except those of Constantinople and Berytus. This was intended to secure that the teaching should be in the hands of entirely competent persons.12

The Code, Digest, and Institutions form the principal parts of the Corpus Juris Civilis, on which the law of most European countries is based, and which has influenced English law, although it was never accepted in England. The fourth part of the Corpus consists of the later laws of Justinian, published after the second edition of the Code, and known as the Novels. It is perhaps surprising that the Emperor did not, in the course of the last thirty years of his reign, issue another edition of the Code, including the new constitutions. He promised to publish a collection of his Novels, but he never did so;13 and it was left to private jurists to collect them after his death.14 Thus the fourth part of the Corpus has not the same official character as the other three. The Novels testify to the growing disuse of Latin as the official language. Private Emperors, even Theodosius II, had occasionally issued constitutions in Greek; but in the reign of Justinian, Greek became the rule and Latin the exception. Nearly all the Novels (except those intended for publication in Africa and Italy) were drawn up in Greek.15

Many of the laws of Justinian are concerned with administrative reforms, which have claimed our attention in other pieces. Here we may consider how civil jurisprudence and criminal law developed under his predecessors and were completed or modified by him.

p400 § 2. Civil Law

The civil legislation of Justinian forms in many respects the logical term of the development of Roman law. The old law of the Twelve Tables had undergone profound modifications, first by the judgments of the Praetors under the influence of the Ius gentium, and then by Imperial statutes. We may say that this development was marked by two general features. The law was simplified in form, and it was humanised in substance. Both these processes were mainly a consequence of the Imperial expansion of Rome. The acquisition of strange territories, the subjection of foreign peoples, had led to the formation of a second system of jurisprudence, the praetorian law; and this, which had the merit of greater elasticity, reacted upon the native civil law of Rome and eventually wrought considerable changes in it, both by mitigating some of its harsher features and by superseding some of its cumbrous forms. At later stages the process of simplification progressed, first by Caracalla's grant of Roman citizenship to all the free subjects of the Empire (in A.D. 212), and secondly, at a later time, by the disappearance of the distinction between Roman and provincial soil, whereby it became possible to simplify the law of real property. The gradual changes in the spirit of Roman law responded generally to changes in public opinion, and the chief agency in educating Roman opinion and humanising the Roman attitude to life was undoubtedly Greek thought. The spirit of the De officiis of Cicero illustrates how far Roman educated opinion had travelled during the last two centuries of the Republic.

The extension of Roman citizenship to all freemen in the Empire did away with the ius Latii and the legal distinctions appertaining to it. But between the slaves and the citizens there still remained some intermediate classes, who were less than citizens and more than slaves. There were the Latini Iuniani, slaves who had been manumitted, but through some flaw in the process had not become citizens in the full sense, having neither the right to hold public office nor to marry a free person, and being unable to make a will or to inherit under a will. There were the dediticii, slaves who had undergone punishment for crime and were afterwards manumitted, but p401 who, in consequence of their old offences, did not enjoy the full rights of a citizen and could not live within a hundred miles of Rome. And there were persons in mancipii causa; children whom their fathers had surrendered into slavery, in consequence of some misdemeanour which they had committed, and whose status differed from that of true slaves in that, if they were manumitted, they became not freedmen but freemen (ingenui). These three classes had little importance in the time of Justinian, but he finally did away with them, and thus consummated the simplification of personal status. There were now, in the eyes of the law, only two classes, citizens and slaves. Among citizens indeed the class of freedmen was still distinguished, but only by the obligations which a freedman owed to his patron, not by any civil disabilities. Formerly he could not be a senator or a magistrate, unless the restrictions were removed by imperial favour,16 nor could he marry a lady of senatorial family. Justinian abolished these disabilities.

In regard to slavery itself, the legislation of Justinian was also progressive. He repealed the Lex Fufia Caninia (A.D. 8), which limited the number of slaves a master might manumit, and he abolished the restrictions which the Lex Aelia Sentia had imposed on the liberation of slaves under thirty years of age. The solemn forms of manumission17 ceased to be necessary; any signification of the intention to manumit was legally valid.

The patria potestas was one of the fundamental principles which underlay the fabric of Roman law, and nothing better illustrates the influence which the gradual humanising of public opinion exercised on legislation than the limitations which were successively placed upon the authority of the paterfamilias of the persons and property of those who were under his potestas. One of the last severities to disappear was the right of a father to surrender his children as slaves to any one whom they had wronged, a right of which he might be tempted to avail himself if he were unable or unwilling to pay compensation. This practice (noxae deditio) had practically disappeared before p402 the sixth century, but was still legally recognised. Justinian abolished it formally, and his observations on the subject illustrate the tendency of Roman legislation.18 "According to the just opinion of modern society, harshness (asperitas) of this kind must be rejected, and this practice has fallen utterly into disuse. Who will consent to give his son, far less his daughter, into noxal servitude? For a father will suffer, through his son, far more than the son himself, and in the case of a daughter such a thing is barred still more by consideration for her chastity."

By the harshness of early law, all property acquired by persons in potestas belonged to the father. This was modified by successive provisions under the Empire, and, before Justinian, the father was entitled to the usufruct of the property which his son had independently acquired. If he emancipated his son, he retained one third as absolute owner. Justinian changed this law to the advantage of the children. He gave the father a life interest in half the son's property; but when the father died, it reverted to the son.19

Justinian also simplified the process of emancipation. The ancient elaborate method of emancipating persons in potestas by fictitious sales was still in use. The Emperor Anastasius introduced, as an alternative method, emancipation by Imperial rescript, but this did not make the process easier, though it was highly convenient when the person to be emancipated was not residing in the same place as the paterfamilias. Justinian "exploded" the old fictitious process20 and enacted that a simple declaration of both parties in the presence of a magistrate or judge should be legally valid.

The history of marriage shows the same tendency to simplification. In early times a legal marriage between Roman citizens could be contracted in one of three ways: by a religious ceremony, which was confined to patricians (confarreatio); by a process of fictitious sale (coemptio); and by cohabitation for a year (usus). In each of these ways, the wife came under the power (manus) p403 of her husband; this power, in fact, was the fundamental feature in the legal conception of marriage. Towards the end of the second century A.D., these old forms of contracting civil marriage had fallen into disuse.21 In other words, manus was obsolete. The Romans had adopted the matrimonium iure gentium, which had formerly been used by those who did not possess the right of marriage with Roman citizens (ius connubii).22 This union did not produce manus, nor did it originally give the father potestas over his children. It was quite informal; consent only was required. But as it came into use among Roman citizens, it was allowed to carry with it the patria potestas. Divorce by consent was the logical result of marriage by consent and the disuse of manus. So long as manus had constituted the legal relation, the husband had to emancipate his wife in order to effect a divorce.

But the disuse of manus, which had placed the wife in the position of a daughter, did not make her legally independent (sui iuris). She remained either under patria potestas or under guardianship (tutela). The old theory was that a woman was not a person capable of legal action, and that if she were under neither potestas nor manus she must be legally represented by a guardian. Exceptions were made to this rule even in the time of Augustus;23 and the result of the growing belief that women were capable of acting for themselves was that by the fourth century perpetual guardianship of females had disappeared.

If we turn from the law of persons to the law of property, we notice similar tendencies. When the distinction between Italian and provincial soil disappeared,24 the distinction also fell away between the full quiritary ownership, which applied only to Italian land, and the bonitary ownership granted to the actual proprietors of provincial land, of which the supreme owner was the Roman people. The curious classification of property, which had played a great part in the old law, as res mancipi (real property in Italy, slaves, the chief domestic animals)25 and res nec mancipi, was abandoned and abolished; and the conveyance p404 of property was simplified by the disappearance of the ancient and cumbrous civil methods (mancipatio and in iure cessio) which were superseded by the natural process of simple delivery (traditio). Full ownership (dominium) could now be acquired by delivery. It could also be acquired by long possession or usucapio. This method of acquisition had formerly been inapplicable to provincial land (because the dominium belonged to the Roman people), and the praetors had introduced an equivalent institution (longi temporis praescriptio), which was extended to all kinds of property. Justinian simplified the law by applying the second method to land which could be acquired by prescription after ten or (in some cases) twenty years, and the first method to moveables, possession of which for three years produced full ownership.26

The governing conception in the Roman jurisprudence which concerned the family was the relationship known as agnatio. This untranslatable term is defined by Roman lawyers as kinship (cognatio) through males, but perhaps its scope is more clearly explained by saying that agnates were those who were under the patria potestas of the same person, or would have been so, if he were alive.27

The most important sphere in which agnatio operated was the law of inheritance. When a man died without making a will, his heirs at law were in the first instance those persons (children, grandchildren, etc.) who were in his potestas and whom his death automatically rendered independent (sui juris). These were called sui heredes and did not include sons whom he had emancipated before his death or married daughters. If there were no sui heredes the inheritance passed to the nearest agnates; and if these failed to the gens. The two most serious defects in this system were the exclusion of sons and daughters who had passed out of the potestas of the deceased before his death, and the disqualification of cognates who were not also agnates. The p405 Praetors devised expedients to remedy these hardships and to introduce new rules of succession which favoured cognation at the expense of agnation; but it was reserved for Justinian finally to lay down a scheme of intestate succession, which prevails in most European countries to‑day.28

By this reform the first heirs to an estate are the cognate descendants of the deceased, that is, his sons and daughters, their children, grandchildren, etc. The children inherit in equal shares; grandchildren only come in if their parent is dead, and divide his or her share. One trace, indeed, of the agnate system remains; adopted children count as natural.

If there are no descendants, the full brothers and sisters of the deceased, or the next nearest cognates, inherit, and dead brothers and sisters are represented by their issue, in the same way as in the former case. Failing heirs of this group, half-brothers and half-sisters have the next claim; after this, other collaterals.29

In this legislation, there is no recognition of the claim of a wife or of a husband. The theory was that the wife was adequately provided for by her dowry; but Justinian enacted that a poor widow should inherit a quarter of her husband's estate.

Nor was the law of inheritance under wills left unaltered. Hitherto if a testator failed to make any provision for his near kin, the aggrieved relatives had to seek a remedy by a process known as "complaint against an undutiful will."30 Justinian obliged a testator to leave his children, if they were four or fewer, at least one third; if they were more than four, at least one half of his estate;31 and bound him further to institute as his heirs those descendants who would be his heirs in case of an intestacy, unless he could specify some cause for disinheriting them which would appear reasonable in the eyes of the law.32

The jurists of Justinian also introduced a simple and final remedy for the hardship of the ancient law, by which the heir p406 was made responsible for the liabilities of the deceased even if they exceeded the value of the estate which he inherited. He might of course refuse to accept the inheritance, but if he accepted it he assumed, as it were, the person of the deceased, and any property he otherwise possessed was liable for debts which the estate could not meet. Of this law, which may well be considered one of the asperities of Roman antiquity, various modifications had been devised to meet particular cases, but they were inadequate. Justinian's "benefice of inventory" solved the difficulties. The heir was required to make an inventory of the estate and complete it within two months of the decease; if he did this, the estate alone was liable.33

The history of the law of divorce may be considered separately, for the legislation on this subject under the autocracy forms a remarkable and unpleasing exception to the general course of the logical and reasonable development of Roman jurisprudence. Here ecclesiastical influence was active, and the Emperors from Constantine to Justinian fluctuated between the wishes of the Church on one side, and on the other common sense and Roman tradition. The result was a confusion, no less absurd to a lawyer's sense of fitness than offensive to the reason of ordinary men. The uncertainty and vacillation which marked the Imperial attempts at compromise was aggravated by the fact that the ecclesiastics themselves had not yet arrived at a clear and definite doctrine, and were guided now, as later, not by any considerations of the earthly welfare of mankind, but by inconsistent texts in the New Testament34 which they were at some loss to reconcile.

Roman law recognised two ways in which a marriage could be dissolved — divorce by mutual consent, and the repudiation of one spouse by the other.35 Divorce by mutual consent was always regarded as a purely private matter and was never submitted to a legal form, and even the Christian Emperors before Justinian did not attempt to violate the spirit of the Roman law of contract by imposing any limitations. It was reserved for Justinian to prohibit it, unless the motive was to allow one of the spouses p407 to embrace a life of asceticism.36 This arbitrary and rigorous innovation was intolerable to his subjects, and after his death his successor was assailed by numerous petitions for its repeal. The domestic misery resulting from incompatibility of temper was forcibly represented to him, and he restored the ancient freedom as a concession owing to the frailty of human nature.37

One-sided divorce had been equally unfettered; Augustus only required that the partner who decided to dissolve the marriage should make a formal declaration to this effect in the presence of seven citizens. Constantine introduced a new and despotic policy. He forbade one-sided divorce entirely except for a very few specified reasons. A woman was only permitted to divorce her husband, if he was found guilty of murder, poisoning, or the violation of tombs. If she separated herself from him for any other reason, she forfeited her dowry and all her property to the very bodkin of her hair, and was condemned to be deported to an island. A man might divorce his wife for adultery, or if she were guilty of preparing poisons, or of acting as a procuress. If he repudiated her for any other reason he was declared incapable of contracting a second marriage.38 This cruel law was but slightly softened by Honorius,39 but in the reign of Theodosius II reason and Roman legality prevailed for a moment. The legal advisers of that Emperor persuaded him that in the matter of divorce "it is harsh to depart from the governing principle of the ancient laws," and he abolished all the restrictions and penalties which his Christian predecessors had imposed.40 But p408 this triumph of reason and tradition was precarious and brief. Ten years later, the same Emperor, under contrary influence, did not indeed venture to revive the stringent laws which he had abolished, but attempted a compromise between the old Roman practice and the wishes of the Church.41 He multiplied the legitimate grounds for divorce. If a man was condemned for any one of nine or ten serious crimes, if he introduced immodest women into his home, if he attempted to take the life of his consort or chastise her like a slave, she was justified in repudiating him. If she dissolved marriage on any other ground, she was forbidden to remarry for five years.42 A woman, guilty of similar crimes, might be divorced, or if she sought her husband's life, or spent a night abroad without good cause, or attended public spectacles against his command. He might divorce her for adultery, but she could not divorce him. The husband who dissolved the marriage for any other than the specified reasons, was obliged to restore the dowry and the donation.

In his early legislation Justinian made no serious change in the law of Theodosius, but he added some new grounds for divorce, permitting a marriage to be dissolved if the husband proved to be impotent, or if either partner desired to embrace an ascetic life.43 But the Emperor soon repented of the comparative liberality of these enactments, and his final law, which deals comprehensively with the whole subject, exhibits a new spirit of rigour, though it does not altogether revive the tyrannical policy of Constantine.44 The causes for which a husband may dissolve the union and retain the dowry, and for which a wife may dissolve it and receive the dowry with the donation, are reduced in number;45 no release is allowed for a partner guilty of a public crime, except in the case of treason. A woman who repudiates her husband on other than the legal grounds is to be delivered to the bishop and consigned to a monastery. A man, in the same case, suffers only in his pocket. He forfeits the p409 dowry, the donation, and a further sum equal to one-third of the donation. But this disparity of treatment was afterwards altered, and the husband was also liable to incarceration in a monastery.46

The general tenor of these enactments of Justinian, though they were temporarily set aside in the eighth and ninth centuries, remained in force throughout the later period of the Empire, and the ecclesiastics never succeeded in bringing the civil into harmony with the canonical law which pronounced marriage indissoluble, and penalised a divorced person who married again as guilty of adultery.

This was perhaps the only department in which the Church exercised an influence on the civil law. It did not aim at nor desire any change in the laws concerning slaves, for slavery was an institution which it accepted and approved.47 In practice, of course, it encouraged mitigation of the slave's lot, but there it was merely in accord with general public opinion. Enlightened pagans had been just as emphatic in their pleas for humanity to slaves as enlightened Christians,48 and for the growing improvement in the conditions of slavery since the days of Cicero, the Stoics are perhaps more responsible than any other teachers. In this connexion it may be added, though it does not concern the civil law, that the Church happily failed to force upon the State its unpractical policy of prohibiting the lending of money at interest.49 In the sphere of criminal law, as we shall now see, it intervened effectively.

§ 3. Criminal Law

The criminal law of the Empire, which was chiefly based on the legislation of Sulla, Pompey, and Augustus, had been little altered or developed under the Principate;50 and the Cornelian p410 laws on murder and forgery, the Pompeian law on parricide, the Julian laws on treason, adultery, violence, and peculation, were still the foundation of the law which was in force in the reign of Justinian. Such minor changes as had been made before the reign of Constantine were generally in the direction of increased severity. This tendency became more pronounced under the Christian Emperors. Two fundamental changes were introduced by these rulers by the addition of two new items to the list of public crimes, seduction and heresy; but in those domains of crime which we should consider the gravest there were no important alterations.51

Ordinary murder,52 for instance, was punished by banishment53 under Justinian as under Augustus, and in the penalties for treason, arson, sorcery, forgery and kindred offences, theft and robbery in their various forms, violence, false witness, there was little change. In contrast with this conservatism, a new spirit animated Constantine and his successors in their legislation on sexual offences, and the inhuman rigour of the laws by which they attempted to suppress sexual immorality amazes a modern reader of the Codes of Theodosius and Justinian. Adultery, which in civilised countries to‑day is regarded as a private wrong for which satisfaction must be obtained in the civil courts, had been elevated by Augustus to the rank of a public offence, and the injured husband who let the adulterer go free or compounded p411 with him for the injury, was liable to the same penalty as if he had himself committed the crime. The penalty consisted in the deportation of the guilty partners to separate islands. Augustus assuredly did not err on the side of leniency, but his severity did not satisfy Constantine, who made death the penalty of adultery.54 Perhaps this law was seldom enforced;55 and Justinian relaxed it by condemning the guilty female to be immured in a nunnery.56 The crime of incest, or marriage of persons within forbidden degrees, was usually punished by deportation; the Christian Emperors sought both to aggravate the penalty and to extend the prohibitions. Constantine imposed the penalty of death on marriage with a niece,57 and forbade unions with a deceased wife's sister or a deceased husband's brother.58 The savage legislator Theodosius I prohibited the marriage of first cousins, and decreed for those who were guilty of this or any of the other forbidden alliances, the penalty of being burned alive and the confiscation of their property.59 There were limits to the patience of the Roman public under the autocracy. Theodosius was not long in his grave before his son Arcadius cancelled these atrocious penalties,60 and some years later the same Emperor rescinded the prohibition of the marriage of cousins.61

The abduction of a female for immoral purposes, if not accompanied by violence, was, under the Principate, regarded as a private injury which entitled the father or husband to bring an action. Constantine made the abduction of women a public crime of the most heinous kind,62 to be punished by death in a painful form. The woman, if she consented, was liable to the same penalty as her seducer; if she attempted to resist, the lenient lawgiver only disqualified her from inheriting. If the nurse who was in charge of a girl were proved to have encouraged her to yield to a seducer, molten lead was to be poured into p412 her mouth and throat, to close the aperture through which the wicked suggestions had emanated. Parents who connived at abduction were punished by deportation. This astonishing law, with slight mitigation,63 remained in force, and was extended to the seduction of women who had taken vows of chastity. Justinian made a new law on the subject, but the essential provisions were the same.64

Unnatural vice was pursued by the Christian monarchs with the utmost severity. Constantius imposed the death penalty on both culprits, and Theodosius the Great condemned persons guilty of this enormity to death by fire.65 Justinian, inspired by the example of the chastisement which befell "those who formerly lived in Sodom," and firmly believing that such crimes were the immediate causes of famines, plagues, and earthquakes, was particularly active and cruel in dealing with this vice. In his laws,66 he contented himself with imposing the penalty of death, but in practice he did not scruple to resort to extraordinary punishments. It is recorded that senators and bishops who were found guilty were shamefully mutilated, or exquisitely tortured, and paraded through the streets of the capital before their execution.67

The disproportion and cruelty of the punishments, which mark the legislation of the autocracy in regard to sexual crimes, and are eminently unworthy of the legal reason of Rome, were due to ecclesiastical influence and the prevalence of extravagant ascetic ideals. That these bloodthirsty laws were in accord with ecclesiastical opinion is shown by the code which a Christian p413 missionary, untrammelled by Roman law, is reported to have imposed on the unfortunate inhabitants of Southern Arabia.

We saw how in the reign of Justin, Christianity was established in the kingdom of the Himyarites by the efforts of the Christian king of Ethiopia. When Abram was set upon the throne, Gregentius was sent from Alexandria to be the bishop of Safar, the chief city of the Himyarites.68 The laws which Gregentius drew up in the name of Abram are preserved. Doubts of their authenticity have been entertained; but even if they were never issued or enforced, they illustrate the kind of legislation at which the ecclesiastical spirit, unchecked, would have aimed. It is characteristic that sexual offences occupy a wholly disproportionate part of the code. Fornication was punished by a hundred stripes, the amputation of the left ear, and confiscation of property. If the crime was committed with a woman who was in the potestas of a man, her left breast was cut off and the male sinner was emasculated. Similar but rather severer penalties were inflicted on adulterers. Procurers were liable to amputation of the tongue. Public singers, harp-players, actors, dancers, were suppressed, and any one found practising these acts was punished by whipping and a year's hard labour. To be burned alive was the fate of a sorcerer. Severe penalties were imposed for failing to inform the public authorities of a neighbour's misconduct. On the ground of St. Paul's dictum that the man is the head of the woman, cruel punishments were meted out to women who ventured to deride men.69

Perhaps the greatest blot in Roman criminal law under the Empire, judged by modern ideas, was the distinction which it drew, in the apportionment of penalties, between different classes of freemen. There was one law for the rich, and another for the poor. A distinction between the honourable or respectable, and the humble or plebeian classes was legalised,70 and different treatment was meted out in punishing criminals according to the class to which they belonged. The privileged group p414 included persons of senatorial and equestrian birth, soldiers, veterans, decurions and the children of decurions; and on such persons milder penalties were inflicted than on their fellow-citizens of inferior status. They were, in general, exempt from the degrading and painful punishments which were originally reserved for slaves. If a man of the higher status, for instance, issued a forged document, he was deported, while the same crime committed by a poor man was punished by servitude in the mines.71 The general principle, indeed, of this disparity of treatment was the extension of servile punishments to the free proletariate, and it appears also in the use of torture for the extraction of evidence. Under the Republic freemen could not legally be tortured, but under the Empire the question was applied to men of the lower classes as well as to slaves.72

The normal mode of inflicting death on freemen was decapitation by the sword. But more painful modes of execution were also prescribed for certain offences.73 Sorcerers, for instance, were buried alive, and deserters to the enemy incurred the same penalty, or the gallows. In some cases, as for treason, the painful death was inflicted only on people of the lower class;74 and in some, persons of this status were put to death while persons of higher rank got off with a sentence of deportation. The privileged classes were also exempted from the punishment of being destroyed by wild beasts in the arena. Next to death, the severest penalty was servitude in the mines for life, or for a limited period. This horrible fate was never inflicted on the better classes. They were punished by deportation to an island, or an oasis in the desert.75

p415 Mutilation does not appear to have been recognised as a legal penalty under the Principate, but it may sometimes have been resorted to as an extraordinary measure by the express sentence of an Emperor. It first appears in an enactment of Constantine ordaining that the tongue of an informer be torn out by the root.76 Leo I condemned persons who were implicated in the murder of Proterius, patriarch of Alexandria, to excision of the tongue and deportation.77 In the sixth century, mutilation became more common, and Justinian recognises amputation of the hands as a legal punishment in some of his later enactments. Tax-collectors who falsify their accounts and persons who copy the writings of Monophysites are threatened with this pain.78 And we have records of the infliction of a like punishment on other criminals.79 This practice seems to have been prompted by the rather childish idea that, if the member which sinned suffered, the punishment was fitly adjusted to the crime.80 Amputation of the nose or tongue was frequently practised, and such penalties afterwards became a leading feature in Byzantine criminal law, and were often inflicted as a mitigation of the death penalty. When these punishments and that of blinding are pointed to as one of the barbarous and repulsive characters of Byzantine civilisation, it should not be forgotten that in the seventeenth century it was still the practice in England to lop off hands and ears.

It must be remembered that a considerable latitude was allowed to the judges (praetors, prefects, provincial governors) in passing sentences on culprits.81 The penalties prescribed in the laws were rather directions for their guidance than hard and fast sanctions. They were expected to take into account circumstances which aggravated the guilt, and still more circumstances which extenuated it. For instance, youth, intoxication, anº ethical motive were considered good reasons for mitigating p416 penalties, and women were generally treated more leniently than men.

On the whole, the Roman system, from Augustus to Justinian, of protecting society against evil-doers and correcting the delinquencies of frail humanity, can hardly arouse much admiration. It was, indeed, more reasonable and humane than the criminal law of England before its reform in the nineteenth century. Its barbaric features were due either indirectly to the institution of slavery, or to the influence of the Church in those domains which especially engaged the interest of ecclesiastics. Augustus and his successors definitely stemmed the current of tendency which in the last period of the Republic promised entirely to do away with capital punishment, but they did not introduce any new reasonable principle into the theory or practice of criminal law. Wider extension of the field of public crimes, increasing severity in the penalties, and differential treatment of citizens of the lower classes, are the most conspicuous features of the development of criminal justice under the Empire.


The Author's Notes:

1 Good general accounts of the legal works of Justinian will be found in Roby's Introduction to the Digest, and in Bryce's article on Justinian in the Dict. of Christian Biography.

2 February 13, A.D. 528. This constitution (Haec quae —) is prefixed to the Code.

3 Prefixed to Code (Summa —); addressed to the Prefect of the City. [A fragment of the Index titulorum of the 1st ed., found in Egypt, has been published this year by A. S. Hunt (Oxyrh. Papyri, XV p217 sqq.). It contains the Index to Bk. I, titles 11‑18, but 12 and 13 are omitted. Among other interesting points it supplies the name of the Emperor who enacted I.11.9: it was Anastasius.]

4 Prefixed to Code (Cordi nobis —); addressed to the Senate.

5 A.D. 426, C. Th. 1.4.3.

6 C. J. 1.17.1.

7 The composition of the Digest was elucidated by F. Bluhme, Die Ordnung der Fragmente in den Pandecten-titeln. Bluhme showed that the arrangement of the Books was determined by Pythagorean theories of numbers. This was quite in the spirit of the time. Cp. Roby, preface to Introduction to the Digest.

8 See the constitutions prefixed to the work (Omnem reipublicae —, and Dedit nobis —); and C. J. I.17.2.

9 Digesta; πανδέκται. C. J. I.17.1 § 12.

10 See the prefixed constitution (dated A.D. 533, November 21) addressed cupidae legum iuventuti. Gaius and the Institutions can be conveniently compared in Gneist's ed., in parallel columns (2nd ed., 1880).

11 See the constitution Omnem (addressed to the professors of law, antecessoribus). The students of each year were distinguished by special names: 1st year, Dupondii; 2nd, Edictales; 3rd, Papinianistae; 4th, λύται; 5th, προλύται. Justinian stigmatises dupondii as a frivolous and ridiculous name, and orders that the freshmen shall henceforth be designated Iustiniani novi. In Zacharias, Life of Severus (ed. Kugener), there is some interesting information about the life of law students at Berytus. It was a regular practice for the Edictales to "rag" the Dupondii.

12 Const. Omnem, § 7 audivimus etiam in Alexandrina splendidissima civitate et in Caesariensium et in aliis quosdam imperitos homines devagare et doctrinam discipulis adulterinam tradere.

13 See Const. Cordi nobis (prefixed to Code): aliam congregationem — quae novellarum nomine constitutionum significetur. It has been conjectured that the death of Tribonian may have had something to do with the non-fulfilment of this purpose.

14 The basis of our text is a collection of 168 Novels, of which four are duplicates, seven belong to Justin II and Tiberius II, and four are edicts of Praetorian Prefects; so that it contains 153 laws of Justinian. Another collection formed the basis of the Latin epitome of Julian, which we possess (125 Novels). We have also the Authenticum, a Latin version used in the Middle Ages (134 Novels). But we know of other collections too (cp. Heimbach, Gr.-röm. Recht, p199). At the end of the first text are eleven edicts (not counted as Novels); and we have also some other constitutions of Justinian, derived from various sources. These additional texts will be found as Appendices I and II to the edition of Schoell and Kroll.

15 Zachariä von Lingenthal attributes this change to the influence of John the Cappadocian (appendix to his ed. of Novellae, pp6, 8). John was ignorant of Latin, and most of the laws were addressed to the Praet. Pref. of the East.

16 Namely, by a decree granting restitutio natalium (which cancelled the rights of the patron), or ius anulorum aureorum. Justinian granted these to all freedmen, but reserved the patron's rights, Nov. 78.

17 Under the Empire, till the fourth century manumission could in general only be effected by vindicta or by testament. The recognition of Christianity introduced a new form, declaration in ecclesiis.

18 Inst. IV.8 § 7. The influence of "oriental" (Greek) law on many of Justinian's reforms is traced and emphasised in P. Collinet's valuable Études historiques sur le droit de Justinien,º vol. I, 1912. The Syro-Roman lawbook, edited by Bruns and Sachau (1880), is of much service in elucidating this subject.

19 C. J. VI.61.6.

20 Fictione pristina explosa, Inst. I.12 § 6. For the influence of Greek law on the simplification of form in this case and in that of adoption see Collinet, op. cit. 52 sqq.

21 Confarreatio survived, but was only used by certain families who held certain religious offices.

22 Caracalla's law abolished, ipso facto, all restrictions on the ius connubii.

23 Lex Iulia et Papia Poppaea, A.D. 9.

24 Inst. II.8.40; C. J. VII.25; VII.31.

25 Also rural servitudes. The word res has of course a much wider connotation than property.

26 Inst. II.6; C. J. VII.31.1; VII.33.12.

27 For the benefit of readers who are not familiar with the conception, it may be explained that if we start with a paterfamilias (A), a first group of agnates is formed by his sons and daughters, the children of his sons, the children of the sons of his sons, etc. This group is determined by a common relation to A. A second group of agnati proximi is constituted by those who were in the potestas of A's father; namely, A's brothers and sisters, the sons and daughters of the brothers, and so on. A third and more remote group is formed by those who were in the potestas of A's grandfather. And so on in ascending scale. Adoption carried with it inclusion among the agnates.

28 Nov. 118; Nov. 127.

29 In the case of an intestate freedman, the patron's rights had to be considered and the law was different. His heirs were (1) natural descendants; (2) his patron; (3) the patron's children; (4) the patron's collaterals.

30 Querela inofficiosi testamenti.

Thayer's Note: For details and references, see under the article Testamentum in Smith's Dictionary of Greek and Roman Antiquities.

31 Nov. 18.

32 Nov. 115. It may be added that Justinian also simplified the law of Legacies, and the law of Trusts, by assimilating all legacies to one another (there used to be four different kinds), and by placing legacies and trusts on the much the same footing. Cp. Inst. II.20 § 2, and 23 § 12.

33 Ib. 19.6.

34 Matthew v.32, against Mark x.2‑12, Luke xvi.18. Gregory of Nazianzus expressed the general ecclesiastical disapprobation of divorce when he wrote (Ep. 176), "Divorce is altogether displeasing to our law, though the laws of the Romans ordain otherwise."

35 Divorce bona gratia and repudium.

36 Nov. 117, § 10, A.D. 542. Six years before he had confirmed the old practice on the ground that all ties can be dissolved, τὸ δεθὲν ἅπαν λυτόν, Nov. 22, § 3.— It is interesting to read records of actual divorces. Thus in P. CairoII. No. 67154, we have a contract of divorce by mutual consent between Fl. Callinicus, a notary, and Aurelia Cyra. They state that they have quarrelled, they ascribe their quarrel to a malignant demon (σκαιοῦ δαίμονος), and agree to separate permanently by the "written contract of dissolution which has the force of a repudium." It is agreed that they are to have the care of their son Anastasius in common (ἀνὰ μέσον ἀμφοτέρων). This amicable document is signed for the wife (who cannot write) and by several witnesses. It belongs to the reign of Justinian, evidently before the law of A.D. 542. — No. 67153 and No. 67155 are examples of one-sided divorce, in the form of a letter of repudiation from the husband to the wife, the former in the year 568, the latter undated.

37 This law of Justin is included in the collection of Justinian's Novels: Nov. 140, A.D. 566.

38 C. Th. III.16.1 (A.D. 331).

39 Ib. 2 (A.D. 421). If a woman divorced her husband for immorality or faults that were not legally heinous, she forfeited the dos and donatio, and could not remarry; a man who divorced his wife for culpa morum non criminum, might remarry after two years. In other cases, Constantine's penalties remained in force.

40 Theodosius, Nov. 12, A.D. 439.

41 C. J. V.17.8, A.D. 449.

42 Anastasius reduced this to one year, A.D. 497, ib. 9. The woman of course forfeited both dowry and donation. It may be mentioned that Justinian enacted (Nov. 97) that the amount of the donation shall be exactly equal to that of the dowry; this was due to the influence of Greek law, Collinet, op. cit. 145 sqq.

43 C. J. V.17.10 and 11; Nov. 22 (536).

44 Nov. 117 (542).

45 But some new causes are added in the wife's favour; she may dissolve the marriage if her husband is persistently and flagrantly unfaithful, if he falsely accused her of adultery, or if he is detained in captivity in a foreign country.

46 Nov. 134, § 11 (556).

47 For the views of the Fathers and the Church on slavery see Carlyle (R. W. and A. J.), A History of the Mediaeval Political Theory in the West, I.116 sqq. A full history of the Roman Law of Slavery will be found in W. W. Buckland's treatise with that title (1908).

48 Take, for instance, the views expressed by the pagan Praetextatus in the Saturnalia of Macrobius Macrob. Sat. (I.11). Dill observes (Roman Society, p136): "The contempt for slaves expressed by S. Jerome and Salvianus is not shared by the characters of Macrobius."

49 On laws on interest see above, Vol. I p55, n1; Vol. II p357.

50 Roman jurisprudence did not draw a capital distinction between civil and criminal law. What corresponds to our criminal law came partly under private (privata delicta) (p410) partly under public law (publica iudicia). See Digest, Bks. 47, 48; Instit. IV.18; C. J. Bk. 9; C. Th. Bk. 9. The subject is treated exhaustively in Mommsen's Römisches Stafrecht.

51 Three legislative acts may be noticed. (1) For plagium (which may be roughly translated "kidnapping"), the penalty before Constantine had been exile with confiscation of half the property of the condemned. Constantine made it death, C. Th. IX.18.1, but Justinian allowed this punishment only in aggravated cases (Inst. IV.18). (2) Anonymous libellous publications: Constantine made the penalty death instead of deportation, C. Th. IX.34, but Justinian rejected this law. (3) Arcadius (C. Th. IX.14.3) extended the law of maiestas (treason) to include attacks on the persons of senators, members of the Imperial Council, and all Imperial officials. Previously only magistrates (consuls, praetors, etc.) were protected from personal violence by the law of perduellio.

52 Except in the case of parricide (murder of near relatives), for which Constantine (C. Th. IX.15.1) revived the ancient punishment of the culleus, or sack, in which the criminal was sewn up in the society of snakes (serpentum contuberniis misceatur) and drowned.

53 Originally banishment from Italy with "interdiction of fire and water." Under the Principate deportation to an island replaced this penalty. But the statement in the text applies only to freemen of the better classes; death was inflicted not only on slaves, but also on men of the lower classes — a distinction which will be explained below.

54 C. Th. IX.7.1, 2; II.36.4. In Inst. IV.18 the death penalty is erroneously ascribed to the Lex Iulia. The texts which Mommsen cites to show that this penalty had been introduced in the third century (op. cit. 699, n3) do not appear to be decisive.

55 Ammianus (XXVIII.1.16) mentions one case, but as an instance of the inhuman cruelty of Valentinian I.

56 Nov. 77; 141.

57 C. Th. III.12.1. Claudius had permitted, and set the example of, the union of a niece with her father's brother.

58 Ib. 2.

59 Ambrose, Ep. 60; C. Th. III.12.3 (cp. Augustine, De civ. Dei, XV.16).

60 C. Th. ib. (A.D. 396).

61 C. Th. V.4.19 (A.D. 405); cp. Instit. I.10.4.

62 See Mommsen, op. cit. 701‑702; C. Th. IX.24.1.

63 C. Th. IX.24.2 (Julian punished the offence by banishment, Ammianus, XVI.5.12.)

64 C. J. IX.13.1.

65 C. Th. IX.7.3 and 6. In the third century the seduction of a puer praetextatus was punished by death (Digest, XLVII.11.1, 2). Measures, but we do not know what, were taken by the Emperor Philip to suppress this vice (Hist. Aug. XVIII.24.4).

66 Nov. 77; 141.

67 John Malalas, XVIII p436; Procopius, H. A. 11, ad fin.; Theodosius of Melitene, Chron. p90 τοὺς μὲν ἐκαυλοτόμησε τοῖς δὲ καλάμους ὀξεῖς ἐμβάλλεσθαι εἰς τοὺς πόρους τῶν αἰδοίων ἐκέλευσεν καὶ γυμνοὺς κατὰ τὴν ἀγορὰν θριαμβεύεσθαι. Cp. Michael Syrus, IX.26. The enemies of Justinian alleged that the trials were a farce, that men were condemned on the single testimony of one man or boy, who was often a slave; and the victims were selected because they belonged to the Green Faction, or were very rich, or had given some offence to the Emperor (Procop. loc. cit.). No account was taken by the law of female homosexuality. Abbesses were obliged to take precautions against it in nunneries. See the Epistle of Paul Helladicus, abbot of Elusa (p21), one of the most unsavoury documents of Christian monasticism. He lived in the sixth century.

68 See above, p327.

69 Homeritarum Leges, P. G. LXXXVI.1.581 sqq. One curious provision regards early marriages; parents who do not arrange for the future marriage of their children when they are between the ages of ten and twelve are liable to a fine.

70 Honesti, and humiles (tenuiores, plebeii; εὐτελεῖς). Mommsen, op. cit. 1032 sqq. A member of the higher classes could be degraded to the lower (reiectus in plebem), C. Th. VI.22.1. The distinction was based on status, not on income, but it virtually discriminated the richer from the poorer.

71 In many cases death was inflicted on the humiles where the honesti were only deported. See the table showing the disparity of punishments in the first half of the third century (based on the Sententiae of Paulus), in Mommsen, op. cit. 1045 sqq.

72 Mommsen, 406 sq. In cases of treason, and magic, and forgery, indeed, any citizen might be tortured, and many instances are recorded.

73 Such modes are often designated in the laws as summum supplicium. Four are recognised under the autocracy: (1) the gallows, furca; (2) fire; (3) the sack, for parricides; this had fallen out of use but was revived by Constantine; (4) exposure to wild beasts; this was an alternative to (1) or (2) and could be inflicted only when there happened to be a popular spectacle immediately after the condemnation. Crucifixion was discontinued under the Christian emperors.

74 Cp. Digest, XLVIII.19.28. The milder form of banishment (relegatio) allowed to the condemned a choice of the place of his domicile, and did not involve disfranchisement.

75 Penal servitude and deportation, when they involved disfranchisement, were classified as capital punishments. All capital punishments involved confiscation of property.

76 C. Th. X.10.2; it is not quite clear whether this was to be done before or after death (strangulation on the gallows). A later law reduced the penalty to death by the sword, ib. 10.

77 Theophanes, A.M. 5951.

78 Nov. 17, § 8; 42, § 1. Cp. Nov. 134, § 13, where it is forbidden to punish theft by cutting off οἱονδήποτε μέλος.

79 John Mal. XVIII pp451 (gambling, A.D. 429); but no physical penalty is enacted in the law of this year against gambling in C. J. III.43.2), 483, 488.

80 Cp. C. Th. X.10.2; and Zonaras, XIV.7.2, where Justinian is reported to have justified his punishment of paederasty on this principle. The same idea may have dictated the punishment of incendiaries by fire.

81 On this subject see Mommsen, op. cit. 1037 sqq.

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