CHAPTER XV

PECULIARITIES OF ROMAN LAW: THE LEGISLATION OF JUSTINIAN

The mutual relations of the members of a community naturally fall into

two divisions, that is, public and private.[769] 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 be 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 civilisation 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,[770] 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.[771] Half a century later

it was enacted by Claudius that a man who wantonly killed his slave

should be guilty of murder.[772] Hadrian[773] and the Antonines[774]

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.[775] It has already been mentioned

that Constantine,[776] 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.[777]

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.[778] 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;[779] 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,[780] the second

modified by Justinian.[781] 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;[782] and if a free woman married a slave he enacted that

she should retain her liberty, contrary to previous law on the

subject.[783] 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.[784] In general he declared himself to be

the friend of liberty,[785] 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.[786] 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.[787] 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.[788] 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,[789] 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.[790] 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.[791] He also pronounced

against foundlings being reduced into servitude, either as slaves or

serfs,[792] 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.[793] 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.[794] 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.[795] 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.[796] 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.[797] 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.[798] 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.[799] 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.[800]

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.[801] 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;[802] 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.[803] But two centuries previously Hadrian had pronounced it

to be "illicit and disgraceful" for a father even to sell his

children.[804] 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.[805] 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.[806] 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.[807]

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.[808] Further, he issued Constitutions in which he

reiterated more emphatically the prohibition against the exposure of

infants.[809]

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.[810] 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.[811] 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.[812] 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.[813]

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 B.C.) were productive of much flagrant injustice of this kind, as

it appeared to the Romans themselves as time wore on.[814] 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.[815] 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.[816] 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.[817] 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.[818]

While in Republican times the rights of succession to an intestacy had

been constrained within narrow limits of agnation and male

precedence,[819] 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.[820]

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.[821] 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.[822]

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.[823] 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.[824] Justinian modified this stringency, remarking

that natural passion might fairly lead persons of both sexes to

re-marry, and that free procreation of children was ultimately for the

benefit of the state.[825] 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.[826] 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

legitimate.[827]

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.[828] From the moment of his accession Justinian

began to elaborate legislation of this kind,[829] and in 541 went so far

as to forbid the dissolution of marriage by mutual consent,[830] 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.[831]

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 adjurant 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.[832]

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.[833]

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.[834] 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.[835] 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.[836]

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."[837] 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.[838]

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.[839] 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.[840]

[769] Pand., I, i, 1; Instit., i, 1.

[770] See p. 241.

[771] Pand. XLVIII, viii, 11, etc. Illustrated by the story of Androcles

and the lion; Aulus Gel., v. 14.

[772] Suetonius, Claudius, 25.

[773] Hist. Aug., Hadrian, 18.

[774] Gaius, i, 52, etc.; Seneca, De Benef., iii, 22; see p. 43.

[775] Cf. Cod., I, xxv.

[776] See p. 114.

[777] Seneca, De Clement., i, 24.

[778] Cod. VII, vi; vii; Instit., i, 5.

[779] Suetonius, Octavius Aug., 40; Gaius, i, 42 _et seq._

[780] Cod., VII, iii; Instit., i, 7.

[781] Instit., i, 6. He allowed him to manumit at 17 instead of 20 as

previously.

[782] Cod., VII, vii, 1.

[783] _Ibid._, xxiv; Instit., iii, 13.

[784] _Ibid._, vi.

[785] _Ibid._, vii, 2.

[786] Cod., VI, xxxv, ii; VII, ii, 15. He quotes a sentiment of Lucan,

"To think nothing accomplished while anything remained to be done,"

_àpropos_ of some legislation of Marcus Aurelius, which he essays to

complete.

[787] _Ibid._

[788] Nov. lxxviii.

[789] Instit., iii, 8.

[790] Cod., VI, iv, 4; Instit., iii, 7.

[791] Cod., VII, xv, 3.

[792] Cod., I, iv, 24; VIII, lii, 3; Nov. cliii.

[793] Cod., VIII, lii, 4; Nov. cliii, 1.

[794] Cod., XI, xlvii, 23, etc.

[795] XII Tab., iii, 5 (Aul. Gel., xx, 1).

[796] Livy, vi, 34; vii, 42, etc.

[797] Nov. lx.

[798] Nov. cxxxiv, 7.

[799] Nov. cxxxiv, 8, 9.

[800] Cod., IV, xxxii, 26; Nov. cvi; cxxxviii, etc.

[801] Instit., i, 9; Cod., VIII, xlvii.

[802] Seneca, De Clement., i, 14, 15.

[803] Cod., IX, xvii. He was to be thrown into the sea sewn up in a sack

with a dog, a cock, a viper, and an ape; cf. Instit., iv, 18.

[804] Cod., VII, xvi, 1; cf. Pand., XLVIII, ix, 5.

[805] See p. 90.

[806] Cod., I, iii, 55; Nov. cxxiii, 41, etc.

[807] Nov. lxxxi.

[808] Instit., iv, 8.

[809] Cod., VIII, lii, 3; Nov. cliii.

[810] Gaius, ii, 106; Juvenal, Sat. xvi, 51.

[811] Cod., XII, xxxvii.

[812] Cod., VI, lxi, 6

[813] Nov. cxvii, 1; cf. cxxxiv, 11.

[814] Generally see Muirhead's Private Law of Rome (by Gould), Edin.,

1899, pp. 163, 270 _et seq._, and the reconstruction of the XII Tab.

thereto appended; also Gaius, iii, 18, etc.

[815] Livy, vi, 42; vii, 1, etc.

[816] Pand., I, i, 7.

[817] The way in which the Prætor gave relief to those hard pressed by

the letter of the law, is expressed very clearly throughout the

Institutes, especially in iii, 1, 2, 9, etc.

[818] Eutropius, viii, 9; Cod. I, xvii, Tanta (+Dedôken+), etc.

[819] By the XII Tab., as J. points out, males and females, apart from

agnation, had equal rights in successions; Cod., VI, lviii, 14.

[820] Nov. cxviii; cxxvii; cf. Instit., i, 11; iii, 1.

[821] The Lex Falcidia, concerning which there is much matter in Code,

Pand., and Nov., etc.; cf. Gaius, ii, 226.

[822] Nov. cxv. Other causes for disinheriting were a son going on the

stage, or a daughter under twenty-five refusing to marry a certain

person, etc.

[823] Lex Papia-Poppaea, Pand., XXXVIII, xi; XXIII, i, and commentators;

Gaius, i, 178, etc.

[824] Cod., V, ix.

[825] Cod., VI, xl; Nov. xxii, 43. He speaks of a law said to have been

passed by one Julius Miscellus, but there was no such person. For a clue

to the muddle, see Daremberg and S. Dict. Antiq. _sb._ Lex, where the

best list of these old laws will be found.

[826] Nov. lxxiv, 4, etc. He excuses these lapses by "nothing is

stronger than the fury of love, and how can those so affected resist the

blandishments of those they love?"

[827] Cod. V, xxvii, 6, 7, 8; Nov. lxxxix, 12, 15, etc. Incestuous

children are, however, barred from all such privileges.

[828] Cod., V, xvii, 8.

[829] _Ibid._, 11; Nov. xxii. Some of Justinian's just causes of divorce

are procuring abortion and bathing in the public baths with men.

Wife-beaters are not divorceable, but must make large pecuniary

compensation; Nov. cxvii, 14.

[830] Nov. cxvii, 10; cxxxiv, 11.

[831] Nov. cxl.

[832] See the two prefaces to the Code.

[833] Cod., I, xvii, 1.

[834] As mentioned in Cod., I, xvii, 2, 3 (Tanta and +Dedôken+).

[835] Thirty-nine legal writers were excerpted, but many others are

referred to incidentally. A sketch of the origin and development of

Roman law, as well as the names and connection of the chief

practitioners from Pomponius, is included; Pand., I, ii, 2.

[836] Cod., I, xvii, 2, 3; cf. I, xiv, 12. It was part of the scheme

that no antinomies or contradictions should occur. Several such,

however, have been detected by later jurists.

[837] Instit., _præf._

[838] Pand., _præf._ (Omnem). See p. 219.

[839] Cod., _præf._, 3. The fifty Decis. are scattered through the Code

without clue to their location. One Merillus spent twenty years in

trying to solve the crux of identifying them.

[840] Some jottings as to the practice of the bar in this age occur in

Ammianus, xxx, 4; Jn. Lydus, De Magistr., ii, 17; and Agathias, iii,

1. From the first it seems that there were a great many pettifogging

lawyers, who made a practice of fleecing clients by involving them in

interminable litigation.

The Age of Justinian and Theodora: A History of the Sixth Century A.D., Volume 2 (of 2) · 第 11 / 12 章