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.