No More Learning

When civilisation was in peril
through the influx of savage nations, and an elaborate and complicated
system of law might easily have sunk into oblivion, a reformer was found
who by skilful and conservative measures stripped the law of much
antiquated complexity, and made it capable of continued life and general
use without any breach of its connexion with the past.
Sir Henry Maine has drawn attention to its influence as a system of
reasoned thought on other subjects: "To Politics, to Moral Philosophy,
to Theology it contributed modes of thought, courses of reasoning and a
technical language. In the Western provinces of the Empire it supplied
the only means of exactness of speech, and still more emphatically, the
only means of exactness, subtlety and depth in thought. 11
Gibbon in his 44th Chapter has employed all his wit and wealth of
allusion to give some interest to his brief history of Roman jurisprudence
and to season for the lay palate the dry morsels of Roman Law. The
present chapter makes no such pretension. It is confined to a notice of


## p. 54 (#86) ##############################################

54 Sources of Law
the antecedents and plan of Justinian's legislation, and a summary of
those parts of it which are most connected with the general society of
the period or afford some interest to an English reader from their
resemblance or contrast to our own law. Unfortunately a concise and
eclectic treatment cannot preserve much, if anything, of the logic and
subtlety of a system of practical thought.
The sources of law under the early Emperors were Statutes (leges},
rare after Tiberius; Senate's decrees (senatus cormdta), which proposed
by the Emperor took the place of Statutes; Edicts under the Emperor's
own name; Decrees, i. e. his final decisions as judge on appeal; Mandata,
instructions to provincial governors; Rescripta, answers on points of law
submitted to him by judges or private persons; the praetor's edict as revised
and consolidated by the lawyer Salvius Julianus at Hadrian's command
and confirmed by a Senate's decree (this is generally called The Edict);
and finally treatises on the various branches of law, which were composed,
at any rate chiefly, by jurists authoritatively recognised, and which
embodied the Common Law and practice of the Courts. By the middle
of the third century a. d. the succession of great jurists came to an end,
and, though their books, or rather the books written by the later of them,
still continued in high practical authority, the only living source of law
was the Emperor, whose utterances on law, in whatever shape whether
oral or written, were called constitutiones. If written, they were by Leo's
enactment (470) to bear the imperial autograph in purple ink.
Diocletian, who reformed the administration of the law as well as the
general government of the Empire, issued many rescripts, some at least
of which are preserved to us in Justinian's Codex, but few rescripts of
later date are found. Thereafter new general law was made only by
imperial edict, and the Emperor was the sole authoritative interpreter.
Anyone attempting to obtain a rescript dispensing with Statute Law
was (884) to be heavily fined and disgraced.
The imperial edicts were in epistolary form, and were published by
being hung up in Rome and Constantinople and the larger provincial
towns, and otherwise made known in their districts by the officers to
whom they were addressed. There does not appear to have been any
collection of Constitutions, issued to the public, until the Codex
Gregorianus was made in the eastern part of the Empire. (Codex
refers to the book-form as opposed to a roll. ) This collection was the
work probably of a man named Gregorius, about the end of the third
century. In the course of the next century a supplement was made
also in the Eastern Empire and called Codex Hermogenianus, probably
the work of a man of that name. Both contained chiefly rescripts.
A comparatively small part of both has survived in the later codes and
in some imperfectly preserved legal compilations. During the fourth
century, perhaps—as Mommsen thinks—in Constantine's time, but with
later additions, a compilation was made in the West, of which we


## p. 55 (#87) ##############################################

Reform of Law by Theodosius II 55
have fragments preserved in the Vatican Library. They contained both
branches of law, extracts from the jurists Ulpian, Paul and Papinian, as
well as Constitutions of the Emperors.
At length the need of an authoritative statement of laws in force
was so strongly felt that the matter was taken up by government.
Theodosius II, son of the Emperor Arcadius, having previously taken
steps to organise public teaching in Constantinople, determined to meet
the uncertainties of the law courts by giving imperial authority to
certain text writers and by a new collection of the Statute Law. The
books of the great lawyers, Papinian, Paul and Ulpian and of a pupil of
Ulpian, Modestinus, were well known and in general use. Another lawyer
rather earlier than these, of whom we really know nothing, except his
name (and that is only a praenomen), Gaius, had written in the time of
Marcus Antoninus in very clear style a manual, besides other works of a
more advanced character. The excellence of this manual brought it into
general use and secured for its author imperial recognition on a level with
the lawyers first named. Another work in great general use was a brief
summary of the law by Paul known under the name of Pauli Sententiae.
All these lawyers were in the habit of citing the opinions of earlier lawyers
and often inserting extracts from them in their own works. Theodosius
(with Valentinian, then seven years old) in a. d. 426 addressed to the Senate
of Rome an important and comprehensive Constitution, intended to
put what may be called the Common Law of Rome on a surer footing.
He confirmed all the writings of Papinian, Paul, Gaius, Ulpian and
Modestinus, and added to them all the writers whose discussions and
opinions were quoted by these lawyers, mentioning particularly Scaevola,
Sabinus, Julian and Marcellus. The books of the five lawyers first named
were no doubt in the hands of judges and advocates generally, but the
books of the others would be comparatively rare, and a quotation from
them would be open to considerable doubt. It might contain a wrong
reading or an interpolation or even a forgery. Theodosius therefore
directed that these older books should be admitted as authorities, only so
far as they were confirmed by a comparison with manuscripts other than
that produced by the advocate or other person alleging their authority.
But Theodosius went further. If the writers thus authoritatively
recognised were found to differ in opinion, the judge was directed to
follow the opinion of the majority, and if the numbers on each side were
equal, to follow the side on which Papinian stood and disregard any notes
of Paul or Ulpian contesting Papinian's opinion, but Paul's Sententiae were
always to count. If Papinian's opinion was not there to decide between
equal numbers of authorities, the judge must use his own discretion.
The great portion of law which had been set forth in text-books as
reasonable and conformable to precedent and statute having thus been
sanctioned, and rules given for its application, Theodosius turned his
attention to the Statute Law itself. The jurists had in their various


## p. 56 (#88) ##############################################

66 Theodosian Code
treatises taken account of the pertinent rescripts, edicts, etc, already
issued and it was therefore only from the time when the series of authori-
tative jurists ended that the imperial constitutions required collecting.
The books of Gregorius and Hermogenianus (Codices Greg, et Herm. )
contained those issued down to Constantine's time, which was therefore
taken as the starting-point for the additional collection. Theodosius in
429 appointed a Commission of eight, and in 435 another larger Com-
mission of which Antiochus the praefect was named first with" other
officials and ex-officials of the Record and Chancellery departments and
Apelles, a law professor, power being given to call other learned men to
their aid. He instructed them, following the precedent of Gregory and
Hermogenianus'' books, to collect all the imperial Constitutions issued
by Constantino and his successors which were either in the form of edicts
or at least of general application, to arrange them in the order of time
under the known heads of law, breaking up for this purpose laws dealing
with several subjects, and while preserving the enacting words to omit
all unnecessary preambles and declarations. When this is done and
approved they are to proceed to review Gregory, Hermogenianus and this
third book, and with the aid of the pertinent parts of the jurists' writings
on each head of law to omit what was obsolete, remove all errors and
ambiguities, and thus make a book which should " bear the name of the
Emperor Theodosius and teach what should be followed and what
avoided in life. '"
The Theodosian code, technically called, as Mommsen thinks, simply
Theodosianug, was published in Constantinople 15 February 438 and
transmitted to Home at the end of the year. The consul at Rome
holding the authentic copy in his hands, in the presence of the imperial
commissioners, read to the Senate the order for its compilation, which
was received with acclamation. We have an account of this proceeding
with a record of the enthusiastic shouts of the senators and the number
of times each was repeated, some 24 or 28 times. Exclusive authority
was given to the code in all court-pleadings and court-documents from
1 January 439, the Emperor boasting that the code would banish a cloud
of dusty volumes and disperse the legal darkness which drove people to
consult lawyers; for the code would make clear the conditions of a valid
gift, the way to sue out an inheritance, the frame of a stipulation and
the mode of recovering a debt whether certain or uncertain in amount.
With the knowledge which we possess of the Vatican Fragments and
the Digest and Code of Justinian, we might expect from the above
description that the Theodosian Code would contain a selection from the
juristic writings as well as the constitutions of a general character
arranged under the several titles or heads of law. But the Code, which
has in a large part (about two-thirds of Books i-v being lost) come
down to us, contains no extracts from the jurists and no constitution
earlier than Constantine. So that the exclusive authority which the


## p. 57 (#89) ##############################################

Burgundian Code 57
Emperor gave to his code can only be understood to relate to constitu-
tions since Constantine, and he must have relied on the Gregorian and
Hermogenian Codes for earlier constitutions still in force, and on the
text-books of the lawyers, approved by his constitution of 426, for
supplying the requisite details of practical law.
The Code of Theodosius was divided into sixteen books, each book
having a number of titles and each title usually containing a number of
constitutions or fragments of such. The order of subjects is similar to
that of Justinian's Code with some exceptions. Private law is treated
in Books ii-v, military matters in vii, crime in ix, revenue law in
x and xi, municipal law in xii, official duties in i, and xiii-xv, and
ecclesiastical matters in xvi. The names of the Emperors at the time
of enactment and the date and the place either of framing or of publi-
cation were given with each constitution though they are not wholly
preserved. Compared with Justinian's Code it contains a much larger
proportion of administrative law and a much smaller proportion of
ordinary private law. The Code remained in force in the East and in
Italy until Justinian superseded it, though the traces of its use are few.
In the West, in Spain, France and Lombard Italy, it remained in
practical use for long, chiefly as part of the Code issued to the Visigoths
by Alaric II in 506.
A number of constitutions issued by Theodosius and his successors
after the Code and therefore called Novellae (i. e. , leges), " new laws," have
come down to us—84 in number, the latest of which bearing the names
of Leo and Anthemius was issued in 468. Of further legislation by
Roman Emperors until Justinian we have only what he chose to retain
in his Code.
After the Theodosian Code and before Justinian there were compiled
and issued codes of laws for the Romans in Burgundy, for the Ostrogoth
subjects in Italy, and for the Romans in the Visigothic kingdom in South
France and in Spain; and we have evidence of other laws prevailing in
the Eastern part of the Empire, before and after Justinian's time.
In Burgundy about the beginning of the sixth century King
Gundobad issued a short code of laws for all his subjects whether
Burgundian or Roman. A few subsequent constitutions by him or his
successors have been appended to it. Somewhat later he issued a code
for his Roman subjects, when suits lay between them only. This code
is about half the length of the other but many of the headings of the
chapters are the same. The matter is principally torts and crimes (e. g. ,
cattle-lifting), runaway slaves, succession, gifts, marriage, guardianship,
process and some brief rules on other parts of the law. It appears to
have been taken from the same sources as the Lex Visigothorum and the
particular source is frequently named. But instead of simply repeating
selected words of the source, it is rather an attempt at real codification.
(The name Papiamts often given to it arises probably from this Code


## p. 58 (#90) ##############################################

58 Codes for Ostrogoths and Visigoths
having followed in the MSS. the I^ex Visigothorum and the extract from
Papinian which closes that having been taken as the commencement of
this. Papianu. 1 is a frequent mistake for Papinianus. )
For the kingdom of the Ostrogoths in Italy a code of laws was
issued by Theodoric about a. d. 500. It is usually called Edictum
Theodorici. The code is nearly the same length as the Lex Romana
Bvrgimdiorum and much resembles it in character and sources, but does
not name them. The contents are torts and crimes, especially attacks
on landed possessions and cattle-lifting, successions, marriage, serfs,
conduct of judges, process, etc. The first editor, Pithou, had two MSS.
in 1578, but these have completely disappeared.
The Lex Romana Visigothorum is much more important than either
of the above. It is a compilation promulgated by Alaric II for Roman
citizens in Spain and part of Gaul in the twenty-second year of his
reign, i. e. , a. d. 506. He states in an accompanying letter to Count
Timotheus that it was compiled by skilled lawyers (prudcntes) with the
approval of bishops and nobles, to remove the obscurity and ambiguity
of the laws and make a selection in one book which should be solely
authoritative. No power of amending the law appears to have been given.
It contains a large number of constitutions from the Theodosian
Code, omitting especially those which relate to administration rather
than general law. Consequently there are few taken from Books vi, vii,
xi-xiv. Some post-Theodosian Novels follow; then an abridgment of
Gaius' Institutes, a good deal of Paul's Sententiae, a few extracts from
the Gregorian and Hermogenian Codes and one extract from Papinian.
A short interpretation is appended to all of these, except to Gaius and
to most of Paul's Sentences, where interpretation is stated not to be
required. The author and age of the interpretation are quite unknown.
It sometimes gives a restatement of the text in other words, sometimes
adds explanations. The selection of matters for the code shews the
intention of giving both Statute and Common Law. The code was no
longer authoritative law after Chindaswinth (642-653), but it was used in
the schools and assisted largely in preserving Roman Law in the south
and east of France till the twelfth century; and a tradition that it
received confirmation from Charlemagne is possibly true. Our knowledge
of Books ii-v of the Theodosian Code and of most of Paul's Sentences is
due to this compilation, which in modern times has received the name of
Breviarium Alarici.
In the lands on the eastern part of the Mediterranean—Syria,
Mesopotamia, Persia, Arabia, Egypt and Armenia—a collection of laws,
evidently translated from Greek, was used under the name of "Laws of
Constantine, Theodosius and Leo," probably composed at the end of the
fourth century and enlarged in the fifth, perhaps with later alterations
from the Justinian laws. Versions of it in Arabic, Armenian and
several in Syriac, differing in some degree from one another, have been


## p. 59 (#91) ##############################################

Syrian Code. Justinian's Reform 59
lately published. The chief portion relates to family law, marriage,
dowry, guardianship, slaves and inheritance, but obligations and pro-
cedure are also included. It is supposed to have been compiled for
practical use in suits before the bishops and minor ecclesiastics.
Differences between the law prevailing in the East and that in the West
are sometimes mentioned, e. g. , that in the former the husband's marriage
gift was only half the value of the wife's dowry. Other differences from
the regular Roman Law of the time are the requirement of a written
contract for marriage, the recognition of the possession (as in the Gospels)
of wives and slaves by demons, punishment of a receiver of others' slaves
or serfs by making him a slave or serf, prescription of 30 years for suits
for debts, prohibition of purchase by creditor from debtor until the debt
is paid, allowance of marriage with wife's sister or brother's widow if
dispensation be obtained from the king, many peculiarities in intestate
inheritance, privileges and endowments for the clergy, etc.
Justinian succeeded his uncle Justin in 527 and at once took up the
task partially performed by Theodosius, and succeeded in completing it
in a more thorough manner than might have been expected from the
speed with which it was done. In 528 he appointed a commission of
ten, eight being high officials and two practising lawyers, with
instructions to put together the imperial constitutions contained in the
books of Gregorius, Hermogenianus and Theodosius, and constitutions
issued subsequently, to strike out or change what was obsolete or unneces-
sary or contradictory, and to arrange the constitutions retained and
amended under suitable heads in order of time, so as to make one book,
to be called by the Emperor's name, Codex Justinianus. The book
compiled by the commission was sanctioned by the Emperor in 529, and
it was ordered that no constitution should be quoted in the law courts
except those contained in this book, and that no other wording should
be recognised than as given there.
The next step was to deal with the mass of text-books and other
legal literature, so far as it had been recognised by the courts and by
the custom of old and new Rome. In 580 Tribonian, one of the
members of the former commission for the code, was directed to choose
the most suitable professors and practising lawyers, and with their aid
in the imperial palace under his own superintendence to digest the mass
of law outside the constitution into one whole, divided into fifty books
and subordinate titles. All the authors were to be regarded as of equal
rank: full power was given to strike out and amend as in the case of
the constitutions: the text given in this book was to be the only authori-
tative one: it was to be written without any abbreviations; and, while
translation into Greek was allowed, no one was to write commentaries on
it. This work, never attempted before and truly described by Justinian
as enormously difficult, was "with the divine assistance" completed in


## p. 60 (#92) ##############################################

60 Justinian's Digest
three years, Tribonian calculating that he had reduced nearly 2000
rolls containing more than 3,000,000 lines into a Codex of about
150,000 lines. Justinian called this book Digesta or Pandectae and
directed that it should take effect as law from 3 December 533. Its
somewhat irrational distribution into seven parts and fifty books was
probably due to a superstitious regard to the mysterious efficacy of
certain numbers. The really important division is into titles, of which
there are 432.
From reverence to the old lawyers, he directed that the name of the
writer and work from which an extract was taken should be placed at
the commencement of it, and he had a list of the works used placed
before the Digest. This list requires some correction. There were
used between 200 and 300 treatises of about 40 authors, some of the
treatises being very voluminous, so that over 1600 rolls were put
under contribution. Over 95 per cent, of the Digest was from books
written between the reigns of Trajan and Alexander Severus. Two
works by Ulpian supply about one-third of the Digest: sixteen works
by eight authors form nearly two-thirds: twice this number of books
supply four-fifths. From some treatises only a single extract was taken.
Tribonian's large library supplied many books not known even to the
learned. Many were read through without anything suitable for
extraction being found.
The plan which Tribonian devised appears to have been to divide
the commission into three parts and give each committee an appropriate
share of the books to be examined. Ulpian's and Paul's Commentaries
and other comprehensive works were taken as the fullest exposition of
current law and made the foundation. They were compared with one
another and with other treatises of the same subject-matter; antiquated
law and expressions were cut out or altered, contradictions removed,
and the appropriate passages extracted and arranged under the titles to
which they severally belonged. The titles were, as Justinian directed,
mainly such as appeared in the Praetor's Edict or in his own code. The
extracts made by the committee which had furnished the most matter for
the title were put first, and the others followed, with little or no attempt
to form an orderly exposition of the subject. What connexion of thought
between the extracts is found comes mainly from the treatise taken as
the foundation. There is no attempt at fusing the matter of text-books
and giving a scientific result, nor even of making a thorough and skilful
mosaic of the pieces extracted. The work under each title is simply the
result of taking strings of extracts from the selected treatises, arranging
them partly in one line and partly in parallel lines, and then as it were
squeezing them together so as to leave only what is practical, with no
more repetition than is requisite for clearness. This process done by
each committee would be to some extent repeated when the contributions
of the three committees came to be combined. For special reasons


## p. 61 (#93) ##############################################

i Revised Code. Institutes 61
occasionally this or that extract might be moved to some other place,
sometimes to form an apt commencement for the title, in one case
(Book xx, title 1) by way of honour to Papinian.
Justinian's work was thus not a codification, as we understand the
word, but a consolidation of the law, both of the jus and the leges, as it
may be called, of the Common and the Statute Law. It was consolida-
tion combined with amendment. The removal of obsolete law and of
consequent reference led necessarily to innumerable corrections both of
substance and of wording. Whatever criticism this mode of solving the
problem may justly receive, it had two great merits. It gave the Roman
world within a short time a practical statement of the law in use, cleared
of what was obsolete and disputable, full in detail, terse in expression,
familiar in language and of unquestionable and exclusive authority.
And it has preserved for the civilised world in all ages a large
amount of the jurisprudence of the best trained Roman lawyers of the
best age, which but for Tribonian would in all probability have been
wholly lost.
But Tribonian was not satisfied with this achievement. In preparing
the Digest it was found desirable formally to repeal parts of the old law,
and for this purpose fifty constitutions were issued. On this and other
accounts Justinian directed him with the aid of Dorotheus, a professor
at Bery tus, and of three eminent lawyers in the Courts at Constantinople
to take the Code in hand, to insert the new matter, to omit what were
repetitions, and thoroughly to revise the whole. This second or revised
Code is what we have. It took effect from 29 December 534. The
earliest constitution in it is one of Hadrian's and there are few before
Severus, the jurists' writings having embodied earlier ones so far as they
were of general and permanent application. Many rescripts of Diocletian
are given, but none of subsequent Emperors. Many constitutions are
much abridged or altered from the form in which they appear in the
Theodosian Code, which itself contained often only an abridgment of
the originals.
A manual for students (the Institutes) founded largely on Gams'
Institutes (which have come down to us in a palimpsest luckily discovered
at Verona by Niebuhr in 1816) was also sanctioned by Justinian, and took
effect as law from the same day as the Digest. An authoritative course
of study was ordained at the same time, and law schools were sanctioned,
but only in Constantinople, Rome and Bery tus, those existing in
Alexandria, Caesarea and elsewhere being suppressed, under the penalty
for any teacher of a fine of 10 lbs. gold and banishment from the town.
Justinian did not end here his legislative activity, but issued from
time to time, as cases brought before him or other circumstances
suggested, new constitutions for the amendment of the law or regulation
of the imperial or local administration. Of these 174 are still extant,
about half relating to administration and half to private law and
CB. II.


## p. 62 (#94) ##############################################

62 Justinians Novellae. Slaves
procedure. About forty deal with the law of the family and of succession
to property on death. Some are careful consolidations of the law on
one subject, some are of miscellaneous content. These constitutions
with a few issued by his near successors are called Novellae, and as being
the latest legislation supersede or amend some parts of the Digest, Code
and Institutes, which with them form the Corpus Juris1 as received by
European nations. Almost all are written in Greek, whereas very little
Greek occurs in the Digest (chiefly in extracts from the third-century
lawyer, Modestinus) and not much relatively in the Code. An old Latin
Version of many of the Novels, probably prepared in Justinian's lifetime,
is often quoted by old lawyers under the name of Authenticum. It is a
significant fact that only eighteen of the Novels, and those almost
wholly administrative, are dated after the year of Tribonian's death (546),
though Justinian survived him nearly twenty years. One may be sure
that it was Tribonian who suggested and organised this great reform of
the law, though no doubt it owed much also to the good sense and
persistence of the Emperor.
It would not be practicable to give anything like an adequate
summary of Justinian's law books within the limits which can be
assigned to it in a general history. His own Institutes contain an
authoritative and readable account, which however on some matters,
especially marriage and inheritance, requires correction from the Novels.
But summary information may be given here on such topics as the
position of slaves, freedmen and serfs; of the power of the head of a
family; of marriage, divorce, and succession to property; of some
leading principles of contract, of criminal law and of procedure.
In Rome the household comprised slaves as well as free men, and
slaves gave occasion to a great deal of legal subtlety. Theoretically
they were only live chattels, without property or legal rights, absolutely
at the disposal of their owner, who had full power of life and death over
them. But at all periods, more or less largely, theory was modified in
practice, partly by natural feeling towards members of the same house-
hold, partly by public opinion. Antoninus Pius, either from policy or
philosophic pity, so far interfered between master and slave as to make
it a criminal offence for a master to kill his own slave without cause, and
he required one who treated his slave with intolerable cruelty to sell him
on fair terms. Constantine (819) went still further and directed any
master who intentionally killed his slave with a club or stone or weapon
or threw him to wild beasts or poisoned or burnt him to death to be
charged with homicide. But discipline was not to suffer, and therefore
1 On a rough estimate the Corpus Juris would fill about four such volumes (of
800 pages) as this History: and of the four the Digest would fill more than
half. It is the Digest that cornea nearest to the popular notion of Justinian's
Code.


## p. 63 (#95) ##############################################

Slaves. Freedmen 63
by another law (326) chaining or beating in the ordinary way of correc-
tion for offences, even if the slave died of it, was not to justify any
inquiry into the master's intentions or to found any charge against him.
Justinian in his Code reproduced only the former constitution, and
retained in the Digest the duty imposed on the city praefect and
provincial governors of hearing the complaints of slaves who had fled
from cruelty, starvation or indecency, to the refuge of the Emperor's
statues. To give such protection, said Antoninus (152), was required by
the interests of masters, whose full command over their slaves should be
maintained by moderate rule, sufficient supplies, and lawful tasks. On
the other hand any offences of slaves which came under the animadversion
of the State were visited with severer punishments than those of a
freeman.
The economical position of slaves requires some notice also.
In
theory they were simply instruments of their master; what they acquired
passed at once to him; they were not capable of having property of
their own, he was responsible for them as he was for any other domestic
animal that he kept. But in practice slaves were usually allowed to
accumulate property out of their savings or from gifts, and the law by a
fiction allowed them to use it in purchasing their own freedom. Such
quasi-property was called their peculium (" petty stock "): it existed only
so long as their master chose; he could withdraw it, but rarely did so,
except for grave offences. But so long as it existed and his master gave
him a free hand, a slave could trade with it and enter into all kinds of
business transactions ostensibly for himself, but in the eye of the law for
the master's account. He could not however give away anything,
and he had no locus standi in court: he could sue and be sued only in
the name of his master. If he was freed by his master when living, the
peculium was deemed to accompany him, unless expressly withdrawn.
But if he was freed by will or alienated, it did not pass with him unless
expressly granted.
The law of persons was greatly simplified by Justinian's legislation.
There were now only two classes of persons, slaves and freemen, though
freemen were not all treated alike by the law. Besides some discrimina-
tion in favour of persons of high rank, freedmen and serfs were in a very
inferior position.
Freedmen were manumitted slaves and retained traces of their former
servile condition. In earlier times, besides the regular forms of manu-
mission by a ceremony before the praetor or by last will, some legal
effect used to be given to informal expressions of the master's will. The
slave so informally emancipated became free in fact during his life, but
his property on his death did not pass as a freeman's by will or to his
relatives, but remained like a slave's peculium to his former master or
master's representatives. Such half-freemen were called Latins as not
being complete citizens. Justinian (531) allowed the informal acts
CH. HI.


## p. 64 (#96) ##############################################

64 Freedmen
which had this imperfect effect to confer in future full freedom, so that
a letter to the slave subscribed by five persons as witnesses, or a declara-
tion similarly witnessed or recorded in court, or the delivery to the slave
before five witnesses of his master's documents of title, or the slave's
attendance on the bier of the deceased master by his or the heir's
direction, or the giving a female slave in marriage to a freeman with a
dowry settled in writing, or addressing a slave in court as his son, were
acts sufficient without further formality to make the slave a freedman or
freedwoman. So also, by an edict of Claudius, ejection of a sick slave
from the master's house without making provision for him, or prostitution
of a female slave in breach of a condition of her purchase, forfeited the
master's rights, and full freedom now ensued; and other cases of freedom
by operation of law are mentioned. Further Justinian repealed the
laws which required a master to be twenty years old before he could
emancipate slaves by will, and restricted the number. Constantine
confirmed (316) a custom of giving freedom in church before the priests
and congregation, a record of the matter being signed by the former;
and he allowed clerics to confer freedom on their slaves by any form of
words without witnesses, the freedom to take effect on publication of the
document at the master's death.
A freedman did not however by the act of manumission lose all trace
of his former condition. He remained under limited control of his
former master or owner, now patron, and patron's children. A patron
could claim respect (obsequium), services, and the succession to some or
all of his property at death if he left no children as heirs. From services
he could be exempted by a special grant by the Emperor of the right
of wearing gold rings, and by a like grant (restitutio natalium, " restora-
tion of birtb ") from the patron's claim to his estate. Such grants were
rarely made without the patron's consent. Justinian dispensed with the
formality of special grants and made the removal of the patron's claim
to services and inheritance follow of itself on a manumission. But unless
the master then, or by way of trust in his will, made a declaration to
that effect, this automatic grant did not exempt a freedman from the
duty of due respect, to his patron. He was punishable for using
abusive language to him: he could not sue him or his children except
by consent of the proper authority: and any suit which he brought had
to shew formal respect by the complaints being couched in a mere
statement of the facts without casting any imputation. Constantine
allowed freedmen guilty of ingratitude or insolent conduct, even though
not of a grave character, to be remitted into their patron's power. A
patron in need could claim support (alimenta) from his freedman.
Claims to the status of freeborn, when disputed, were reserved for the
decision of the city praefect or governor: claims to the status of freed-
man were reserved likewise for the same high officials, or if the
treasury was a party, then for the chief officer of that department.


## p. 65 (#97) ##############################################

Serfs 66
Serfs though free were in some respects not far removed from slaves.
They were found usually in country districts in the provinces, and were
often included under the general term "cultivators" (coloni), which was
also applied in republican and early imperial times to small farmers, who
were freemen not only in law but in practice. The origin and history of
this serfdom is not clear. It may very possibly have been developed on
the example of Marcus Aurelius' settlement in Italy of numbers of
the peoples conquered in the Marcomannic War, and possibly on the
example of the German "Liten" (laeti), settled on the Gallic border.
But besides conquered tribes retained in their own country or settled
in other countries, voluntary contract under pressure of poverty and
statutes against beggary probably added to the number. The main-
tenance of the land tax introduced by Diocletian made the retention of
the cultivators on the several estates a necessity.
The characteristic of a serf was that he and his descendants were
inseparably attached to the land, and as a rule to one particular farm,
specified in the government census, and held under a lord. If this
particular part of the lord's estate was over-supplied with cultivators, he
might transfer serfs permanently to another part which was under-
supplied, in accordance with the purpose of the institution—that of
keeping the land under due cultivation and enabling it to bear taxes.
But except in such a case the serfs could not be separated from the farm
nor the farm from them. They were part of its permanent stock. If
the lord sold a part of the land, he must convey with it a proportionate
number of the serfs belonging. If a serf wandered or was stolen, or
became a cleric without his lord's consent, he could, whatever was the social
position to which he had attained, be reclaimed by his lord just as if he
were a runaway slave. And for some offences, e. g. marrying a freewoman,
he was liable by statute, like a slave, to chains or stripes. He was not
admissible to the army, but as a free man he paid poll tax. He could sell
the surplus produce of his farm, and his savings, called his peculium, were
in a sort his property but were inalienable except in the way of trade;
on his death, (e. g. as a monk) childless and intestate, they passed to his
lord, but usually would pass to his children or other successors on his
farm. He might (apparently) own land, and would be entered in the
Register as its holder and be liable for the land tax, whereas the tax on
the farm to which he was attached as a serf would usually be collected
from the lord. A serf was bound to pay a rent to his lord but the rent
was certain, usually a fixed portion of the produce but sometimes a sum of
money. Against any attempt of the lord to increase the rent, he could
bring the case into court, but on all other grounds he was disabled from
suing his lord. The rent was called canon or permo.
The union of serfs was held to be a marriage and accordingly the
children were serfs, and even the children of a serf by a freewoman or a
slave followed the condition of the father, until Justinian pressed by the
C. MED. H. VOL. II. CH. III. A


## p. 66 (#98) ##############################################

66 Patria potestas
analogy of the rule regarding slaves' unions, first made a serfs offspring
by a slavewoman to be slave (530), and afterwards from the love of liberty
made a serfs offspring by a freewoman to be free (533). He confirmed
this again in 537 and 539, though, by the later law, he required the
children, though free and retaining their property, to be permanently
attached to the farm. Finally in 540, influenced by representations of
the danger of thus depleting the land of its proper cultivators, he restored
the old law and made the children serfs, without affecting the mother's
status as a freewoman. His successors made such children personally free.
It was difficult for a serf to improve his status. Justinian abolished
(c. 531) any claim to throw off serfdom by prescription, but allowed
anyone who had been consecrated as a bishop to be free from serfdom as
from slavery (546). Orthodoxy however was essential, and any serf who
encouraged Donatist meetings on his land was to be beaten, and if he
persisted was fined one-third of his peculium.
Serfs were sometimes called originarii from being in the class by
birth; censiti from being enrolled in the census-register; usually adscripti
or adscripticii from being enrolled as of a certain farm; tributarii from
paying poll tax. Another term, inquilini, which appears in the Digest
in the begining of the third century, and in earlier inscriptions, appears
to denote a similar class, possibly serfs living in huts on the land and
employed either as cultivators or herdsmen or otherwise. The clear
recognition of serfs as half-free is seen chiefly in laws since Constantine.
After Justinian there is little said of them.
Patria potkstas. The father (or grandfather) when regularly
married, as head of the family (paterfamilias), had in early times
absolute power over the other members whether sons or daughters.
And his wife, if married by the ancient forms, ranked as a daughter.
In imperial times this relation was largely modified. She remained out-
side her husband's family, who instead of taking her whole property,
received only a dowry of which he was rather the accountable manager
than the beneficial owner. The children unless emancipated had no
property of their own, any more than slaves had. Whatever came to
them, from any source, passed in strict law at once to the father, who
could do what he liked with it. This "fatherly power1' endured
irrespectively of the age or social or political position of his sons and
daughters. A man of full age, married, with children and occupying a
high office was, unless formally emancipated, still under his father's power
and had only a peculiurn like slaves. He could sue and be sued only in
his father's name and in law for his father's account. Nor could he
compel his father to emancipate him, and if emancipated himself he did
not thereby carry his children with him, unless expressly included in the
emancipation. If his father died, his children fell into his own power;
if he died first, his children remained under his fathers power. Loss of
citizenship had the same effect as death.


## p. 67 (#99) ##############################################

Limitation of father's claim to peculium 67
Constantine in 319 made an important innovation. He enacted that
the father's full right over what came to his children should be restricted
to what came from himself or his relatives; and that in anything that
came from their mother, the head of the family should have only the
usufruct and the administration, but with no right of alienation or
mortgage. If the children died, (it was enacted in 439) their property,
apart from the usufruct, passed to their children, or, if there were none,
to their father as next heir, not to the grandfather, who if alive would
be enjoying the usufruct. When the head of the family emancipated a
child, he lost the usufruct, but was authorised to take one-third of the
property. Justinian (529) repealed this and gave instead to the father
(or other head of the family) the right to retain one-half of the usufruct.
Further this arrangement was made to apply not only to what came
from the mother but (excepting, as we shall see, c&vrvp-peculium) to every-
thing which the children acquired by their own labour or by gift or will
from other than their father's relatives. The administration which
accompanied the usufruct was not subject to any interference or impeach-
ment by the children, who however were to be supported by their father.
The father retained the usufruct, even if he married again.
Soldiers from the time of Augustus were privileged to treat as their
own property, disposable as they chose in their life or by their will, all
gains made while in the army and in connexion therewith, including
gifts from comrades. Such acquisitions were called their castrense-
pecuUum. On this analogy Constantine (326) granted the like privilege
to the court officials (palatini), and later Emperors extended it to
provincial governors, judicial assessors, advocates and others in the
imperial service (which was often called militia); and eventually (472)
to bishops, presbyters and deacons of the orthodox faith. Wills
disposing of such castrense, or quasi-castrense peculium, were specially
exempted from challenge by children or parents on the ground of failure
in due regard. In case of intestacy, before Justinian altered the law in
548, the intestate's c&mp-peculium passed to the father as if, like any
other peculium, it had been his all along.
As regards the persons of (free) children the father had the power
and duty of correction and in early times presumably could sell or kill
them, as he could slaves. But this right was rarely exercised, at least in
historical times, though not until Constantine (319) was killing a son
formally forbidden and ranked as parricide. Sale (with a right how-
ever of redemption) was possible only in case of a newly-born child,
under pressure of extreme poverty. Exposure of a child, at least after
the second century, made the parent liable to punishment. Exposed
children of whatever class could not be brought up as slaves or serfs or
freed, but were to be deemed freeborn and independent (529). Previously
to this law of Justinian it was left to the bringer-up to make them slave
or free at his choice.
ch, i'i. 5—2


## p. 68 (#100) #############################################

68 Adoption. Guardianship
The dissolution of the natural father's power over his children,
whether in order to make the child independent (mi juris), or to give
him by adoption into another's power, was in old times effected by a.
complicated ceremonial. This was abolished by Justinian (531), who
substituted in the case of adoption a declaration before a competent
magistrate, both parties being present, and, in the case of emancipation,
either the like simple declaration, or, according to a law of Anastasius
(502), if the son or daughter were of age and not present in court, a
declaration, supported by a petition to the Emperor, with his grant of the
prayer and the consent of the child, if not an infant.
By adoption in older times a person passed under the fatherly power
of one who was not his natural father. If he was not independent, he
passed entirely from one family to another: his natural father no longer
controlled him or was responsible for him, the son's acquisitions did not
pass to him, nor had the son any right to his inheritance. The adoptive
father stood in the natural father's place, and could retain or emancipate
him. Justinian (530) altered this in all cases where the adopter was an
outsider. The adopted person retained all his rights and position in
his natural father's family, and simply acquired a right of succession to
the adopter if he died intestate. But if the adopter was the grandfather
or other ascendant either on the father's or mother's side, the effect of
adoption remained as of old.
Adoption of a person who was mi juris was often called adrogation,
and required a rescript from the Emperor. If the person to be adopted
was under age (impubes), inquiry was made whether it was for his
advantage, and the adopter had to give security to a public officer for
restoration of all the adopted's property to his right heirs, if he died
under age. If he emancipated him without lawful cause, or died, he was
bound by a law of Antoninus Pius to leave him one-fourth part of his
property, besides all that belonged to the adopted person himself. If a
person adrogated had children, they passed with him under the power
of the adopter. In all cases it was required that the adopter should be
at least eighteen years older than the adopted.
Guaudianship. In the old law guardians (tutores) were required not
only for young persons for a time, but for women throughout their life,
though the authority they exercised was often nominal. Guardianship
for women was criticised by Gaius as irrational, and it ceased probably
before Constantine. By Justinian's time, guardianship affected only
impuberes. He fixed the age for puberes at fourteen for males, twelve
for females. Up to that age, if their father or other head of the family
was dead, or if they were freed from his power, they required a guardian
to authorise any legal act which was to bind them. Without such
authority they could bind others but not themselves, the rule being that
they could improve but could not impair their estate. After the age of
puberty the law regarded them as capable of taking the responsibility


## p. 69 (#101) #############################################

Guardians and Curators 69
of their own acts, but practically they had not the requisite knowledge
and discretion. No one could deal safely with them, because of the risk
of the contract or other business being rescinded, if the praetor found
that it was equitable to do so. To meet this difficulty a curator was
often appointed to guide young persons in the conclusion of particular
business, and eventually was appointed to act regularly in matters of
business until the ward became 25 years old. It was the analogy of
madmen, etc. (mentioned below), which probably suggested this course.
From the third century allowance of age (venia aetatis) could be obtained
from the Emperor by youths of 20 years, women of 18, on evidence
of fitness. Justinian however (529) restrained them from all sale or
mortgage of land, unless specially authorised.
A guardian was appointed by the father's will. In default of such
appointment, the mother or grandmother had the first claim by Justinian's
latest legislation, and then the nearest male in order of succession to
the inheritance. If such were disqualified, the praetor at Rome,
the governors in the provinces, and if the estate was small, the town-
defenders, made the appointment of both guardians and curators.
Guardianship was regarded as a public office, and no one was excused
from undertaking it, except for approved cause. Guardians and curators
were liable for any loss caused by their act or neglect. They could
rot marry their wards, unless approved by the ward's father or by
his will.
Mothers had been allowed (since 390) to act in these capacities for
their own children, but by Justinian's final legislation, had to renounce
the right of re-marriage and the benefit of the Velleian Senate's decree
(see below). If they broke their promise, they incurred infamy and
became incapable of inheriting from any but near relatives, besides
losing part of their property.
Severus (195) prohibited all sale of a ward's land in the country or
suburbs unless authorised by the father's will or by the praetor. A
subsequent edict directed everything else to be sold and reduced into
money. Later Emperors (326 and after) reversed this direction, and
partly on the ground of probable attachment of the ward to the family
house, and the utility of old family slaves, and partly from the difficulty
of finding good investments, ordered all the property to be preserved,
unless land had to be purchased or loans made in order to supply the
ward's needs.
Madmen and spendthrifts, pronounced such by the praetor, were by
the XII Tables under the care of their agnates (relatives through males)
but in practice under a curator appointed by the praetor or provincial
governor. So also a curator was appointed, without limit of age in the
ward, for the demented, or deaf and dumb, or for persons incapacitated
for business by chronic disease. The practice of making contracts by
oral stipulation brought deaf and dumb into this category.


## p. 70 (#102) #############################################

70 Rescission of contracts. Postliminium
The protection of minors, mentioned above, was an interesting
feature of Roman Law but must often have been very embarrassing in
practice. Whatever business a minor had conducted, a sale, a purchase,
a loan, a pledge, acceptance of an inheritance, agreement to an arbitra-
tion, etc. , if it was shewn that he had been in any way deceived or
overreached or had suffered from want of due vigilance, application
might be made to the Court, to have the matter rescinded, provided he
had not acted fraudulently and there was no other remedy. The Court
heard the parties, and if it found the claim just, put the parties back,
so far as possible, into their old positions. This was called in integrum
restitutio. The application had to be made within (originally) one year
after the minor's completing his twenty-fifth year, and would be rejected
if after this age he had in any way approved his former act or default.
Justinian extended the period to four years.
A similar reinstatement was sometimes granted to persons of full age,
if it were shewn that they had suffered serious loss owing to absence on
the public service, or to captivity, or fraud, or intimidation. Or the
reverse might be the case: similar absence of others might have pre-
vented plaintiff from bringing a suit or serving a notice within the proper
time: reinstatement might then sometimes be obtained.
A person, who had been taken captive by the enemy and returned
home with the intention of remaining, was held to re-enter at once into
his old position, his affairs having been in the meantime in a state of
suspense. This was called the law of postliminium (reverter). His own
marriage was however dissolved by his captivity, as if he were dead,
though his relation to his children was only suspended till it was known
whether he would return.
Slaves and other chattels taken by the enemy, if brought back into
Roman territory, similarly reverted to their former owners subject to any
earlier claims which attached to them. Anyone who ransomed them
from the enemy had a lien for the amount of the ransom.
Marriage was often preceded by betrothal, that is by a solemn
mutual promise. The consent of the parties was required, but, if the
woman was under her father's power, she was presumed to agree to his
act unless she plainly dissented. The age of seven was deemed necessary
for consent. The restrictions on marriage applied to betrothal, and a
betrothed person was for some purposes treated in law as if married.
Betrothal was usually accompanied by gifts, as earnest from or on behalf
of each party to the other. If the receiver died, the giver had a right
to its return, unless a kiss had passed between them, when the half only
could be recovered (336). Breach of the contract without good cause,
such as lewd conduct, diversity of religion, etc. , previously unknown to
the other, at one time involved a penalty of fourfold (i. e. , the earnest


## p. 71 (#103) #############################################

Betrothal. Marriage 71
and threefold its value), but in the fourth century this was remitted
altogether, if the father or other ascendant of a girl, betrothed before
she was ten years old, renounced the marriage, and in the fifth century
(472) it was reduced generally to twofold. Delay for two years to fulfil
the promise was a sufficient justification for the girl's marrying another.
Marriage in Roman Law is the union of life of man and woman
for the purpose of having children as members of a family in the Roman
Commonwealth. Both must be citizens of Rome or of a nation recognised
for this status by the Romans; they must be of the age of puberty; if
independent, must give their own consent, if not, their father must
consent. Nuptias non coneubitus sed consensus factt was the dominant
rule of Roman Law. It was the avowed purpose of such a union and
public recognition that distinguished marriage from concubinage. In
earlier times the woman passed by one of several forms with all her
property into the power (manus) of her husband and occupied the
position of a daughter. Gradually a freer marriage was developed, by
which the woman did not become part of her husband's family, but
remained either under her father's power, or independent, and controlled,
with the aid of a guardian for a time, her own property, except so far as
she had given part as dowry. The ceremonials, which accompanied the
old forms of marriage, gradually went out of use and had apparently
ceased in or by the third century. The only external mark of marriage
was then the woman's being led into her husband's house, and thus the
paradoxical statement could be made that a woman could be married in
the absence of her husband, but a husband could not be married in the
absence of his wife. The settlement of a dowry grew to be, and was
made by Justinian, a decisive characteristic of marriage, though its
absence did not prevent a union otherwise legal and formed with the
affection and intention of marriage from being such in the eye of the law.
Marriage, and of course also betrothal, could take place only between
free persons, not of the same family, and not otherwise closely connected.
The old law was reaffirmed by a constitution of Diocletian (295), which
expressly forbad marriage of a man with his ascendants or descendants
or aunt or sister or their descendants or with step-daughter, step-mother,
daughter-in-law, mother-in-law or others forbidden by the law of old.
A woman was forbidden to marry the corresponding relatives. Such
marriages were incestuous. Relationship formed when one or both
parties were slaves was equally a bar. Constantius (342) also forbad
marriage with brother's daughter or grand-daughter and (in 855)
marriage with brother's widow or wife's sister—a prohibition repeated
in 415. The marriage of first cousins, forbidden with the approval of
St Ambrose by Theodosius about 385, was relieved from extreme penalty
(of fine) by his sons in 396, and expressly permitted in 405. Justinian
(530) forbad marriage with a god-daughter.