No More Learning

A company continues to
exist irrespectively of the change or decease of the members, regulates
its own membership and proceedings, has a common chest and a common
representative, holds, acquires and alienates its property as an individual.
In Rome such corporate character and rights were only gradually
granted and recognised, each particular privilege being conceded to this
or that institution or class of institutions as occasion required.
Towns and other civil communities had common property and a


## p. 96 (#128) #############################################

96 Companies. Mandate
common chest, could manumit their slaves and take legacies and inheri-
tances. They usually acted through a manager; their resolutions
required a majority of the quorum, which was two-thirds of the whole
number of councillors (decurkmes). They are said corpus habere, " to be
a body corporate. "
Other associations for burials or for religious or charitable purposes,
often combined with social festivities, were allowed to exist with statutes
of their own making, if not contrary to the general law. But without
express permission they could not have full corporate rights. Guilds
or unions of the members of a trade, as bakers, are found with various
privileges. Such authorised societies or clubs were often called collegia
or sodalitates. They were modelled more or less on civic corporations:
Marcus Aurelius first granted them permission to manumit their slaves.
The large companies for farming the taxes (publicani) or working
gold or silver mines had the rights of a corporation, but probably not so
far as to exclude individual liability for the debts, if the common chest
did not suffice.
Mandate differs from the three other contracts, which are based on
simple agreement. There are no reciprocal services and no remuneration
or common profits. It is gratuitous agency: not the agency of a paid
man of business; that would come under the head of hiring. Nor is it
like the agency of a slave; that is the use of a chattel by its owner. It
is the agency of a friend whose good faith, as well as his credit, is at
stake in the matter. The mandatee is liable to the mandator for due
performance of the commission he has undertaken, and the mandator is
liable to him only for the reimbursement of his expenses in the conduct
of the matter.
Similar agency but unauthorised, without any contract, was not
uncommon at Rome, when a friend took it upon himself to manage some
business for another in the latter's absence and thereby saved him from
some loss or even gained him some advantage. The swift process of the
law courts in early days seems to have produced and justified friendly
interference by third parties, which required and received legal recogni-
tion. The person whose affairs had thus been handled had a claim upon
the interferer for anything thereby gained, and for compensation for any
loss occasioned by such perhaps really ill-advised action or for negligence
in the conduct of the business, and was liable to reimburse him for
expenses, and relieve him of other burdens he might have incurred on the
absentee's behalf. Such actions were said to be negotiorum gestorum,
"for business done. 11
But in Rome the usual agent was a slave; for anything acquired bv
him was thereby ipso facto acquired for his master, and for any debt
incurred by him his master was liable up to the amount of his slave's
peculium; and if the business in question was really for the master's
account or done on his order the master was liable in full. And though


## p. 97 (#129) #############################################

Agency. Equitable interpretation 97
in general when the master was sued on account of his slave (de peculio)
he had a right to deduct from the peculium the amount of any debt due
to himself, he had no such right when he was cognisant of the slave's
action and had not forbidden it; he could then only claim rateably
with other creditors. A son or daughter under power was for these
purposes in the same position as a slave.
It was rarely that the Romans allowed a third party who was a
freeman and independent to be privy to a contract. The freeman
acquired and became liable for himself, and the principals to the
contract in case of such an agent had to obtain transfers from him of
the rights acquired: they could not themselves sue or be sued on the
agent's contract. But two cases were regarded by Roman Law as
exceptional. When a person provided a ship and appointed a skipper
in charge of it, he was held liable in full for the skipper's contracts in
connexion with it, if the person contracting chose to sue him instead of
the skipper. And the like liability was enforced, if a man had taken a shop
and appointed a manager over it. In both cases the rule held, whether
the person appointing or appointed was man or woman, slave or free,
of age or under age. The restriction of the owner's liability to the
amount of his slave's peculium disappeared, and the privity of contract
was recognised against the appointer, although the skipper or manager
who actually made the contract was a free person acting as mediary.
But this recognition was one-sided: the principal did not acquire the
right of suing on his skipper's or manager's contract, if the latter were
free; he must, usually at least, obtain a transfer of the right of suit from
him, the transfer being enforced by suing the skipper or manager as
an employee or mandatee.
At one time there was a marked difference between the consensual
contract along with most of those arising re on the one hand, and on the
other hand stipulation and cash-loan (mutuum). In actions to enforce
the former the judge had a large discretion, and the standard by which
he had to guide his decisions or findings was what was fairly to be
expected from business men dealing with one another in good faith. In
actions to enforce the latter the terms of the bargain were to be observed
strictly: the contract was regulated by the words used: the loan was to
be repaid punctually in full. Gradually these latter contracts came to
be treated similarly to the former so far as their nature permitted, and
by Justinian's time the prevalence of equity was assured: the intention
of the parties was the universal rule for interpretation of all contracts,
and reasonable allowance was made for accidental difficulties in their
execution, when there was no evidence of fraud.
Two modes were adopted in classical times for dealing with the
engagements or position of parties where the terms and characteristics of
C ilKD. B. VOL. II. Oil. III. 7


## p. 98 (#130) #############################################

98 Quasi-contracts. Transfer
a proper contract in due form were not found. One was to treat the
matter on the analogy of some contract the incidents of which it
appeared to resemble. Thus money paid on the supposition of a debt,
which however proved not to have existed, was recoverable, as if it had
been a loan. Money or anything transferred to another in view of some
event which did not take place was recoverable, as if paid on a con-
ditional contract, the condition of which had not been fulfilled.
Another mode was for the complainant, instead of pleading a
contract, to set forth the facts of the case and invite judgment on the
defendant according to the judge's view of what the equity of the case
required. Thus barter was not within the legal conception of purchase
and sale, for that must always imply a price in money, but it had all
other characteristics of a valid contract and was enforced accordingly
on a statement of the facts. If a work had to be executed for payment
but the amount of payment was left to be settled afterwards, this was not
ordinary hire, which is for a definite remuneration, but might well be
enforced on reasonable terms.
Transfer of Obligations. Before leaving contracts, which are the
largest and most important branch of obligations, it is as well to point
out that the transfer of an obligation, whether an active obligation, Le.
the right to demand, or a passive obligation, i. e. the duty to pay or
perform, is attended with difficulties not found in the transfer of a
physical object, whether land or chattels. An obligation being a
relation of two parties with one another only, it seems contrary to its
nature for A, who has a claim on B, to insist on payment from C instead;
or for D to claim for himself B\ payment due to A. With the consent
of all parties, the substitution is possible and reasonable, but the
arrangement for transfer must be such as to secure D in the payment by
B, and to release B from the payment to A. Two methods were in use.
At ^'s bidding D stipulates from B for the debt due to A: B is thereby
freed from the debt due to A and becomes bound to D. This was called
by the Romans a novation, i. e. a renewal of the old debt in another form.
Similarly A would stipulate from C for the debt owed by B to A. This
being expressly in lieu of the former debt frees B and binds C. These
transfers being made by stipulation require the parties to meet. The
other method was for A to appoint D to collect the debt from B and keep
the proceeds, the suit being carried on in A's name, and the form of the
judgment naming D as the person entitled to receive instead of A.
Similarly in the other case C would make A his representative to get
in Bfs debt. In practice no doubt matters would rarely come to an
actual suit. The method by representation was till 1873 familiar enough
in England, a debt being a chose in action and recoverable by transferee
only by a suit in the name of the transferor.
Gradually from about the third century it became allowable for the
agent in such cases to bring an analogous action in his own name.


## p. 99 (#131) #############################################

Delicts. . Lex Aquilia 99
Delicts. The other important class of obligations besides contracts
are delicts or torts. They arise from acts which without legal justification
injure another's person or family or property or reputation. Such acts,
if regarded as likely to be injurious not only to the individual but to
the community, become subjects for criminal law'; if not so regarded,
are subject for private prosecution and compensation. In many cases
the injured person had a choice of proceeding against the offender
criminally or for private compensation. The tendency in imperial times
was to treat criminally the graver cases, especially when accompanied
with violence or sacrilege.
The principal classes of delicts were: theft, wrongful damage, and
insult (injuriarum). Theft is taking or handling with a gainful intention
any movable belonging to another without the owner's consent actual
or honestly presumed. Usually the theft is secret: if done with
violence it is treated with greater severity as robbery (rapina). Any
use of another's thing other than he has authorised comes under this
tort, and not only the thief but anyone giving aid or counsel for a theft,
is liable for the same. Not only the owner, but anyone responsible for
safekeeping can sue as well as the owner. The penalty was ordinarily
twofold the value of the thing stolen, but, if the thief was caught on
the spot, fourfold the value. If the offence was committed by a slave
the master could avoid the penalty by surrendering the slave to the
plaintiff. In early days such a surrender of a son or daughter in their
father's power was possible, but probably rare. Robbery was subjected
to a penalty of fourfold the value. Cattle-driving was usually punished
criminally. Theft from a man by a son or slave under his power was a
matter of domestic discipline, not of legal process. Theft by a wife was
treated as theft, but the name of the suit was softened into an action
for making away with things (rerum amotarum).
Wrongful damage rested even till Justinian's time on a statute (Lex
Aquilia) of early republican date which received characteristic treatment
from lawyers' interpretations extending and narrowing its scope. It
embraced damage done whether intentionally or accidentally to an}
slave or animal belonging to another, or indeed to anything, crops, wine
nets, dress, etc. , belonging to another, provided it was done by direct
physical touch, not in self-defence nor under irresistible force. If the
damage was caused by defendant but not by corporal touch, the Romans
resorted to the device of allowing an analogous action by setting forth
the facts of the case, or by express statement of the analogy. The
penalty was in case of death assessed at the highest value which the
slave or animal had within a year preceding the death; in case of
damage only, the value to the plaintiff' within the preceding thirty days.
But condemnations under this head of wrongful damage did not involve
the infamy which belonged to theft; that was purposed, this was often
the result of mere misfortune. Surrender of a slave who had caused the
CH. in. 7—2


## p. 100 (#132) ############################################

100 Actio iryuriarum. Procedure
damage was allowed to free the defendant as in the case of theft. Damage
done to a freeman's own body was hardly within the words of the statute;
and compensation could be obtained only by an analogous action.
The third class was confined to cases of malicious insult but had a very
wide range. It included blows or any violence to plaintiff or his family,
abusive language, libellous or scandalous words, indecent soliciting,
interference with his public or private rights. Not only the actual
perpetrator of the insult, but anyone who procured its doing, was liable.
The character of the insult was differently estimated according to the
rank of the person insulted and the circumstances of the action. The
damages on conviction were, under a law of Sulla which in principle
remained till Justinian, assessable by plaintiff subject to the check of
the judge. Many of these acts, especially when of an aggravated
character, were punished criminally, even by banishment or death.
A fourth class of torts (sometimes called quasi ex delicto) makes
defendant liable not for his own act but for injury caused by anything
being thrown or falling from a room occupied by him near a right of
way, or for theft or injury perpetrated in a shop or tavern or stable under
his control. The penalty is put at double the estimated damage, except
that, if a freeman is hurt, no estimate of damage to a free body was held
possible, and the penalty was therefore the amount of medical expenses
and loss of work: if he was killed, it was put at fifty guineas (aurei).
Procedure. In classical times the parties after summons approached
the praetor and asked for the appointment of a judex to hear and decide
the suit. Instructions proposed by plaintiff and sometimes modified by
the praetor at the request of the defendant were agreed to by the
parties, who then joined issue, and the formula containing these instruc-
tions was sent to the judex named. The judex heard and decided the
case, and, if he found against the defendant, condemned him in a certain
sum as damages. But in some few matters the praetor, instead of
appointing a. judex in the ordinary course, kept the whole matter in
his own hands. This extraordinary procedure became in Diocletian's
time the ordinary procedure, and the praefect or the governor of a
province or the judex appointed by them heard the case from the first
without any special instructions. In the fourth century the case was
initiated by a formal notice (litis denuntiatio) to the defendant; but
in Justinian's time by plaintiff's presenting to the Court a petition
(UbeUus) containing his claims on the defendant, who was then summoned
by the judge to answer it. If he did not appear, the judex after further
summons examined and decided the matter in his absence.
Either party before joinder of issue had the right of refusing the
judex proposed by the governor, etc. Three days were then allowed
them to choose an arbitrator, and in case of disagreement the governor or
other authority appointed. Jews' suits whether relating to their own


## p. 101 (#133) ############################################

Procedure. Proof 101
superstition or not could be heard by the ordinary tribunals, but by
consent they might have the case heard by an arbitrator who was a Jew.
Soldiers and officials were not exempt from being sued before the civil
tribunals on ordinary matters. Constantine in a constitution of 833 (if
genuine) gave either party the right even against the will of the other
to have the case transferred to the bishop at any stage before final
judgment. But Arcadius in 398 repealed this and required the consent
of both parties, so that the bishop was only an arbitrator and his
judgment was executed by the ordinary lay officers.
The judical were to act on the general law, said Justinian (541), and
during their task were not to expect or accept any. special instruction for
deciding the case. If any application were made to the Emperor, he
would decide the matter himself and not refer it to any other judex. A
judex was authorised, if in doubt about the interpretation of a law, to
apply to the Emperor.
No suits excepting those touching the Crown (ji&cus), or public trials
were to be extended beyond three years from the commencement of the
hearing. When only six months remained of this period, the judex was
to summon either party, if absent, three times at intervals of ten days,
and then to examine and decide the matter, the costs being thrown on
the absentee (531).
The courts were open all the year, with the exception of harvest
and wine-gathering (sometimes defined as 24 June to 1 August, and
23 August to 15 October), also seven days before and after Easter,
also Sundays, Kalends of January, birthdays of Rome and Constantinople
birthday and accession of Emperor, Christmas, Epiphany and time of
commemoration of the "Apostolical passion" (Pentecost). Neither law
proceedings nor theatrical shows were allowed on Sundays; but Con-
stantine exempted farmers from observance of Sundays. No criminal
trials were held in Lent.
Private suits and questions of freedom were to be tried at defendant's
place of residence, or of his residence at the date of the contract. So
Diocletian (293) following the old rule, actor ret Jorum sequatur. Suits
in rem or for a jideicommwsum or respecting possession should be
brought where the thing or inheritance is.
Justin (526) forbad any interference with a burial on the ground of
a debt due from deceased; and invalidated all payments, pledges and
sureties obtained in these circumstances. Justinian (542) forbad anyone
within nine days of a person's death to sue or otherwise molest any
of his relatives. Any promise or security obtained during this period
was invalid.
Proof. The person who puts forth a claim or plea has to prove it.
The possessor has not to prove his right to possess, but to await proof to
the contrary. Thus one who is possessed of freedom can await proof by
a claimant of his being his slave. But one who has forcibly carried off


## p. 102 (#134) ############################################

102 Evidence on oath
or imprisoned another, whom he claims to be his slave, cannot on the
ground of this forcible possession throw the burden of proof on his
opponent. To prove a purchase it is not enough to produce a document
describing the fact, but there must be shewn by witnesses the fact of
purchase, the price paid, and possession of the object formally given.
To prove relationship, the fact of birth and the parents'' marriage, or
adoption by them must be shewn: letters between the parties or appli-
cation for an arbiter to divide the family inheritance are not sufficient
Persons who have admitted a debt in writing cannot prove payment
without a written receipt, unless they produce five unimpeachable
witnesses to the payment in their presence. But as a general rule
they are not bound by a statement in the document of debt of their
having originally received the money, wholly or partly, if they can
prove within 30 days after the production of the document that the
stated money had not been paid them.
All witnesses must be sworn. One suspected of giving false evidence
can be put to the question at once, and, if convicted, can be subjected
by the judge hearing the case to the penalty to which the defendant
was liable against whom he had given the false evidence. A single
witness without other evidence proves nothing, and Constantine enacted
(334) that he should not be heard in any suit. All persons (enacted
Justinian 527) with like exceptions as in criminal causes are compellable
to give evidence. Slaves were sometimes examined under torture.
No judge was to commence the hearing until he had the Scriptures
placed before the tribunal, and they were to remain there until judgment.
All advocates had to take an oath, touching the Gospels, that they would
do what they could for their clients in truth and justice, and resign
their case if they found it dishonest (530). Both plaintiff and defendant
had to take an oath to their belief in the goodness of their cause (531).
Justinian among other rules respecting documents enacted these:
All persons are compellable to produce documents who are com-
pellable to give evidence. The production is to be in the court, at
the expense of the person requiring it. Anyone declining to produce
on the ground that he will be injured thereby, must, if this is contested
by the other party, make oath of his belief and also that it is not any
bribe or fear or favour of someone else that deters him.
All documents were to be headed with year of Emperor, consul,
indiction, month and day.
Contracts of sale, exchange and gift (if not such as must be
officially recorded), of earnest and compromise and any others arranged
to be in writing, were not valid, unless written out fair and subscribed
by the parties; if written by a notary, he must complete and sign them
and be present himself at their execution by the parties (528 and
536). In 538 it was directed that contracts of loan or deposit or
other should, even when written, have at least three witnesses to their


## p. 103 (#135) ############################################

Oaths in lieu of proof . Criminal law 103
completion, and when produced for proof be confirmed by oath of the
producer.
In lieu of proof by witnesses or documents, oaths were sometimes
resorted to. The judge might propose to one of the parties to support
his allegation by an oath, and, if the oath was taken, the judge would
naturally decide that point in his favour. But either party might
challenge the other, either before trial or in the course of it, to swear
to some particular matter, and if the party so challenged swore in the
terms of the challenge, the matter would be held to be decided as much
as by a judgment, and in any further dispute between the parties or
their sureties or persons joined with them the oath if relevant could be
pleaded or acted on as decisive. And the same result ensues, if the
party to whom the oath is tendered declares his readiness to swear and
the other then waives the demand. The party called on to swear may
instead of taking the oath retort the demand, and the other party is
then in the same position as if the oath had been originally tendered to
him. In earlier times probably such tender of oath could be declined
in most cases without prejudice, but Justinian apparently makes no
restriction, and a defendant for instance to an action for money lent,
if plaintiff tendered him an oath whether it was due or not, had no
choice except either to take the oath or admit the debt, unless indeed
he retorted the tender. Plaintiff, if he accepted the retort, would have
first to swear to his own good faith and then could establish his claim
by the oath. In all cases the oath, if it is to carry the consequence
stated, must not be volunteered, but taken in reply to the challenge and
must conform precisely to the terms.
The requirement of an oath was also resorted to in some cases by
the judge in order to compel obedience, wrongly refused, to an inter-
locutory decision. The plaintiff was allowed to fix the damages himself,
by an oath of the amount due. This was called in litem jurare, "to
swear to the disputed claim. '"
Criminal Law. The criminal law was put in force either on the
magistrate's own initiative or by private persons. Women and soldiers
were not admitted as accusers, unless the crime was against themselves,
or their near relatives. Anyone desiring to bring an accusation had to
specify the date and place of the crime and to give a surety for due
prosecution. Laws of Constantine, and Arcadius, retained by Justinian,
directed that any servant (familiaris) or slave bringing an accusation
against his master should be at once put to death before any inquiry
into the case or production of witnesses. And the like was enacted
(423) in the case of a freedman accusing his patron. Excepted from
this rule were cases of adultery, high treason and fraud in the tax-return
(census). An accuser not proving his case was (373) made subject to
the penalty belonging to the crime charged. A like rule of talion was
prescribed in some other cases.


## p. 104 (#136) ############################################

104 Imprisonment. Admissible witnesses
A law of 320 prescribed that in all cases, whether a private person or
an official was prosecuting, the trial should take place immediately. If
accuser were not present or the accused's accomplices were required, they
should be sent for at once, and meantime any chains that were put on
the accused should be long ones, not close-fitting handcuffs; nor should
he be confined in the inmost and darkest prison but enjoy light, and at
night, when the guard is doubled, be allowed in the vestibules and more
healthy parts of the prison. The judge should take care that the
accusers do not bribe the gaolers to keep the accused back from a
hearing and starve them: if they do, the officers should be capitally
punished. The sexes were to be kept apart (340). Justinian in 529
forbad anyone being imprisoned without an order from the higher
magistrates, and directed the bishops to examine once a week into the
cause of imprisonment, and to ascertain whether the prisoners were slave
or free and whether imprisoned for debt or crime.
Debtors were to be
let out on bail: if they had no bail they were to have a hearing and be
let out on oath, their property being forfeited if they fled. Freemen
charged with lesser crimes to be let out on bail, but if the charge were
capital and no bail was allowed, imprisonment was not to extend beyond
one year. Slaves to be tried within 20 days. The bishops, as ordered
by Honorius, had to report any remissness in the magistrates. Private
prisons were forbidden altogether by Justinian (529).
The accused was examined by the judge. If a slave was accused,
torture was sometimes applied to elicit a confession. In republican times
a freeman was not liable to this. Under the Empire the rule was
broken, but persons of high rank were exempt, except where the charge
was treason (majestas) or magical arts.
The judge could compel anyone to give evidence except bishops and
high officers and old and sick persons or soldiers or attendants on
magistrates at a distance. A private accuser had similar powers, but
for a limited number. Defendant could call witnesses, but had no
power of compulsion.
Parents and children were not admissible as witnesses against one
another, nor were other near relatives; nor freedmen against their
patron. Slaves were not admissible to give evidence against their
master, except in cases of treason, adultery or fraud on the revenue.
As a rule slaves were used as witnesses only in default of others. They
were examined, and if their statements were not satisfactory, torture was
applied.
If after trial the accused was acquitted, the old practice (retained by
Justinian) was for the judge to examine into the conduct of the accuser,
and, if he found no reasonable ground for the accusation, to hold him
guilty of calumny. For collusion with the accused he might be held
guilty of prevarication. Nor was an accuser allowed to withdraw from
an accusation once undertaken, especially if the accused had been long


## p. 105 (#137) ############################################

Crimes 105
in prison or had been subjected to blows or chains. But if the accused
consented or had not been harshly treated, withdrawal (abolitio) was
generally permitted, except on charges of treason or other grave crimes.
An accuser, once desisting, could not take the charge up again.
A general indulgence, by which all persons accused (with certain
exceptions) were released, was decreed by Constantine in 322 on account
of the birth of a son to Crispus. In later years the like indulgence was
granted at Easter, and apparently in 885 it was made a standing rule.
Persons charged with poisoning, murder, adultery, evil magic, sacrilege
or treason, and sometimes other offenders, were excepted.
Most of the legislation on crime goes back to the Republic or to
Augustus. The law of treason {majestas) is based on a law of the latter.
Treason consists in doing anything against the Roman people and
includes all assistance to the enemy, attacks on Roman magistrates,
intentional injury to the Emperor's statues, collecting for seditious
purposes armed men in the city, refusal to leave a province on the
appointment of a successor, making false entries in public documents,
etc. Abuse or other insult to the Emperor required careful inquiry as
to the motive and sanity of the accused; punishment was to await a
report to the Emperor. If an accuser failed to establish his charge, he
was liable to be examined by torture himself, notwithstanding any privilege
from military service, birth or dignity. The punishment for treason
was death and forfeiture of property. Conspiracy to compass the death
of the Emperor's councillors subjected even the sons of the criminal
to incapacity for succession to any inheritance or legacy, and to be
reduced to such want that "death would be a comfort and life a
punishment "(397).
By a law of Sulla, maintained and developed by the Emperors,
murder, magical arts, nocturnal incantations or rites to exert unholy
influence over persons, desertion to the enemy, stirring up seditions or
tumult, bribing witnesses or judges to act falsely were punished with
death in the case of all but the privileged class. So also consulting
soothsayers (haruspices) or mathematicians respecting the health of the
Emperor, introduction of new sects or unknown religions to excite men's
minds, forgery or suppression of wills, forgery of seals, coining, melting
or mutilating coinage were sometimes punished capitally. Coining was
regarded as treason (326).
Constantine (818) forbad under pain of burning any soothsayer from
crossing the threshold of another person, even though an old friend, but
in the case of magical arts distinguished between those directed against
another's safety or chastity, and remedies for disease or country spells
against heat or rain upon the crops. Constantius (358) was also severe
against all divination, etc. Valentinian (364) forbad all nocturnal
religious rites, but relaxed this prohibition on the proconsul of Greece
representing that life then would be intolerable.


## p. 106 (#138) ############################################

106 Adultery
Adultery could be charged only by the nearest relatives: husband,
father, brother, uncle, first cousin. The husband had precedence for
sixty days, then the father having the woman in his power, then after
the like time outsiders, who however could not accuse her while married,
unless the adulterer had first been convicted.
A father was justified in killing his daughter (if in his power) if he
caught her in adultery at his or his son-in-law's house, and in killing the
adulterer also, but if he killed one and spared the other, he was liable
for murder. A husband was justified in killing his wife so caught, but
the adulterer only if he was a slave or freedman or pander or player or a
condemned criminal. The husband was otherwise bound to repudiate
his wife at once. Justinian (542) justified a husband's killing anyone
suspected of illicit intercourse with his wife, if, after sending her three
warnings supported by evidence of trustworthy persons, he found her
conversing with the adulterer in his own or her house or in taverns or
suburban places. For making assignations in church the husband after
like warnings could send both the wife and man to the bishop for
punishment as adulterers according to the laws.
A husband who retained a wife detected in adultery, or compounded
for her release, was guilty of pandering. So also was anyone who married
a woman convicted of adultery. One accused of adultery and escaping,
if he consorted with the woman again, was to be seized by any judge and
without further trial to be tortured and killed.
By a law of Augustus (Lex Julia) the punishment for adultery was
banishment, and for the man, forfeiture of half his property, for the
woman, forfeiture of half her dowry and a third of her property.
Constantine and Justinian made the punishment death by the sword for
the man. Justinian (566) sent the woman into a monastery after being
flogged. The like punishments were ordained for stuprum, i. e. , intercourse
with an unmarried woman or widow, who was neither in the relation of
concubine nor a person of disreputable life.
Anyone who without agreement with her parents carried off" a girl was
to be punished capitally, and the girl herself if she consented. A nurse
who persuaded her to do so was to have her throat and mouth filled
with molten lead. If the girl did not consent, she was still deprived
of right of succession to her parents for not having kept within doors or
raised the neighbours by her cries. The parents, if they overlooked the
matter, were to be banished: other assistants to be punished capitally,
slaves to be burnt. So Constantine in 320. Constantius limited the
penalty of free persons to death (349). Eventually Justinian punished
ravishers and their aiders with death and confiscated their property for
the benefit of the injured woman.
Punishments were not the same for all persons. Three classes of
persons were recognised in Justinian's Digest: honestiores, humiliores or
tenuiores, serxn.


## p. 107 (#139) ############################################

Punishments 107
I. The first class contained the imperial senators and their agnatic
descendants to the third degree; knights with public horses; soldiers
and veterans and their children; decurions. They were not liable to the
penalty of death except for parricide or treason or except by an imperial
order, nor to the mines or compulsory work or beating. The usual
penalty was deportation to an island, in some cases combined with
confiscation of part of their property. Deportation involved loss of
citizenship.
II. The second class were punished for grave offences by death,
more frequently by condemnation to the mines preceded by beating and
accompanied with chains. This punishment was usually for life and
involved loss of citizenship and property. It formerly involved loss
of freedom, but this was abolished by Justinian in 542. Banishment
(relegatio) might be for life or for a time, and citizenship was not
lost
The death penalty for free persons was usually beheading, in and
after second century by sword, not axe; rarely, and only for the gravest
offences, crucifying or burning. Beating or torturing to death, strangling
and poisoning, were forbidden.
Justinian in 556 enacted that for crimes involving death or banish-
ment the property of the criminals should not be confiscated either to
the judges or officials, or, as according to the old law, to the fisc, but
should pass to their descendants, or, if there were none, to the ascendants
up to the third degree. He also enacted that where the law ordered
both hands or both feet to be cut off, one only should be cut, and that
joints should not be dislocated. No limb should be cut off for theft,
if without violence.
Constantino (318) re-enacted the punishment assigned by old practice
to parricide, viz. , the criminal to be beaten with rods, sewn up in a sack
with a dog, cock, viper and ape, and thrown into a deep sea, if near, or
into a river. Justinian retained the law, but confined it to murderers
of father, mother and grandfather and grandmother, whereas it had
previously been applicable to many other relatives.
III. Slaves were punished for grave crime by beheading, sometimes
by crucifying or burning or exposure to wild beasts: for lesser crimes by
work in the mines. Flogging was usual in many cases, and regularly
preceded capital punishment. Imprisonment was not used as a punishment,
but only as security for trial.
Heretics were deprived by Constantine (326) of all privileges given on
the ground of religion and were forbidden (396) to occupy any place for
worship. In 407 Manichaeans and Donatists were ordered to be treated
as criminals; they forfeited all their property to their next of kin (if free
from heresy) and were incapable of succession, of giving, of buying and
selling, of contracting, of making a will; their slaves were to be held
guiltless only if they deserted their masters and served the Catholic Church.


## p. 108 (#140) ############################################

108 Punishment of heretics
In 428 Manichaeans were to be expelled from their towns, and given over
to extreme punishment, and a long list of heretics was forbidden to meet
and pray anywhere on Roman soil. In 485 Nestorians, in 455 the
followers of Eutyches and Apollinarius were to have their books burnt,
and were forbidden to meet and pray. In 527 heretics, Greeks, Jews,
and Samaritans were rendered incapable of serving in the army, of
holding civil office except in the lower ranks and then without a chance
of promotion; and were disabled from suing orthodox Christians for
private or public debts. Children of heretics, if themselves free from
the disease, might take their legal share of their father's property, and
their fathers were to support them and to give dowries to their daughters.
In 580 Montanists like other heretics were forbidden to assemble, to
baptise, to have Communion, and to receive charitable alms from law
courts or churches.
In suits against orthodox, whether both parties or only one be
orthodox, heretics and Jews were not good witnesses, but only in suits
among themselves. Even this was not applicable to Manichaeans,
Montanists, pagans, Samaritans and some others; for they being
criminals were incapable of bearing witness in judicial matters; they were
however allowed as witnesses to wills and contracts, lest proof should be
difficult.
A law of Augustus, confirming analogous republican practice, forbad
any Roman citizen who appealed to the Emperor being killed, tortured,
beaten or put into chains even by the governor or other high magistrate.
This is retained in Justinian's Digest.
Several constitutions at the end of the fourth century (398) were
directed against attempts of clergy or monks to prevent due execution
of sentences on criminals or debtors.


## p. 109 (#141) ############################################

109
CHAPTER IV.
GAUL UNDER THE MEROVINGIAN FRANKS.
NARRATIVE OF EVENTS.
At the accession of Clovis, who succeeded his father Childeric about
the year 481, the Salian Franks had advanced as far as the Somme.
Between the Somme and the Loire the suzerainty of the Roman Empire
was still maintained. The various Gallo-Roman cities preserved a certain
independence, while a Roman official, by name Syagrius, exercised a kind
of protection over them. Syagrius was the son of Aegidius, the former
magister militum, and he held the command by hereditary right. After
the fall of the Roman Empire of the West in 476, he maintained an
independent position, having no longer any official superior. Failing
any regular title, Gregory of Tours designates him Rex Romanorum, and
the former Roman official takes on the character of a barbarian king,
free from all ties of authority. The seat of his administration was the
town of Soissons.
To the south of the Loire began the kingdom of the Visigoths, which
reached beyond the Pyrenees and across Spain to the Strait of Gibraltar.
The country south of the Durance, that is to say Provence, also formed
part of this kingdom. After having long been allies of the Roman Empire
the Visigoths had broken the treaties which bound them to Rome; more-
over since 476 there was no emperor in Italy, and they occupied these
vast territories by right of conquest. Euric, who had been king
since 466, had extended his dominions on every side and was quite
independent.
In the valley of the Saone and the Rhone, as far as the Durance, the
Burgundians had been enlarging their borders. Starting from Savoy,
to which Aetius had confined them, they had extended their possessions
little by little, until these now included the town of Langres. In 481
the kingship of Burgundy was shared by two brothers, of whom the
elder, Gundobad, had his seat at Vienne, the younger, Godigisel, at
Geneva. A third brother, Chilperic, who had reigned at Lyons, had
just died. The rumour ran that he had met a violent death, his brothers
having had him assassinated in order to seize upon his inheritance.
The Visigoths and Burgundians endeavoured to live at peace with


## p. 110 (#142) ############################################

110 Gaul at the Accession of Clovis [481
the Gallo-Romans and to administer their territories wisely. The former
subjects of Rome would willingly have submitted to them in exchange
for the protection which they could afford and the peace which they
could secure; they would willingly have pardoned them for dividing up
their territories; but between the Gallo-Romans and the barbarians
there was one grave subject of dissension. The former had remained
faithful to orthodoxy, the latter were Arians; and although the rulers
were willing to exercise toleration and to maintain friendly relations
with the members of the episcopate, their Gallo-Roman subjects did not
cease to regard them as abettors of heresy, and to desire their fall as
a means to the triumph of the true faith.
To the north of the Burgundian kingdom, the Alemans had made
themselves masters of the territory between the Rhine and the Vosges—
the country which was to be known later as Alsace—and they were
seeking to enlarge their borders by attacking the Gallo-Roman cities to
the west, the Burgundians to the south, and the Ripuarian Franks to the
north-west. They also continued to hold the country on the right bank
of the Rhine which had been known as the agri decumates, and they had
established themselves in force upon the shores of the Lake of Constance
and to the east of the Aar. The Ripuarian Franks remained in possession
of a compact State round about Cologne and Treves, and, near them,
the Thuringians had founded a little State on the left bank of the
Rhine. It should be added that small colonies of barbarians, drawn
from many different tribes, had established themselves here and there
over the whole face of Gaul. Bands of armed barbarians ranged the
country, seeking a home for themselves; Saxon pirates infested the
coasts, and had established themselves in some force at Bayeux.
Such was the general condition of Gaul at the time when Clovis
became king of the Salian Franks. For five years the youthful king—
he was only fifteen at his accession—remained inactive. He seems to have
been held in check by Euric, the king of the Visigoths. But in the year
following the death of Euric, 486, he took up arms and, calling to his
aid other Salian kings, Ragnachar and Chararic, attacked Syagrius.
The two armies came into contact with one another in the neighbourhood
of Soissons. During the battle Chararic held off, awaiting the result of
the struggle. In spite of this defection Clovis was victorious, and
Syagrius had to take refuge with the king of the Visigoths, Alaric II,
who had succeeded Euric. Alaric however surrendered him, on the first
demand of the Frankish king, who thereupon threw him into prison
and had him secretly put to death. After this victory Clovis occupied
the town of Soissons, which thenceforth ranked as one of the capitals of
the kingdom. It is in the neighbourhood of Soissons that we find the
principal villae of the Merovingian kings, notably Brennacum (to-day
Berny-Riviere). From Soissons he extended his sway over the cities of
Belgica Secunda of which Rheims is the metropolis, and he entered into


## p. 111 (#143) ############################################

481-496] Beginnings of Clovis 111
relations with llemi (Remigius), the bishop of this city. Then, gradually,
meeting with more or less prolonged resistance, he gained possession of
other cities, among them Paris—the defence of which was directed, so
the legend runs, by Ste Genevieve—and Verdun-sur-Meuse, which is said
to have received honourable terms, thanks to its bishop, Euspicius.
Thus, little by little, the dominions of Clovis were extended to the
banks of the Loire. In this newly conquered territory Clovis followed
a new policy. In occupying Toxandria the Salians had expelled the
Gallo-Roman population; here, on the contrary, they left the Gallo-
Romans undisturbed and were content to mix with them. The ancient
language held its ground, and the Gallo-Romans retained their pos-
sessions; there was not even a division of the lands, such as the Visigoths
and Burgundians had made. Clovis was no doubt still a pagan, but he
respected the Christian religion and shewed an extraordinary deference
towards the bishops—that is the only conclusion that can be drawn from
the well-known incident of the bowl of Soissons—and the prelates already
seemed to see before them a glorious work to be accomplished in the
conversion of Clovis to orthodox Christianity.
Not content with bringing the Gallo-Romans under his sway, Clovis
waged war also with the barbarian peoples in the neighbourhood of his
kingdom. In the year 491 he forced the Thuringians on the left bank
of the Rhine to submit to him, and enrolled their warriors among his
own troops. He also invited other barbarian auxiliaries to march under
his standards—Procopius calls them 'Ap/Sopt/^ot—as well as the Roman
soldiers who had been placed to guard the frontier, and in this way he
formed a very strong army.
The fame of Clovis began to spread abroad. Theodoric, king of the
Ostrogoths, who had almost completed the conquest of Italy, asked the
hand of his sister Albofleda in marriage, and Clovis himself, in 493,
espoused a Burgundian princess, Clotilda, daughter of Chilperic, who
had died not long before, and niece of the kings Gundobad and
Godigisel.
Clotilda was an orthodox Christian and set herself to convert her
husband—it would be possible to trace the influence of women in many
of those great conversions which have had important political con-
sequences. Half won-over, the king of the Franks allowed his children
to be baptised, but he hesitated to abjure for himself the faith of his
ancestors. He did not make up his mind until after his first victory
over the Alemans.
After his victory at Soissons, Clovis pushed his advance towards the
east. The Alemans, already in possession of Alsace, were endeavouring
to extend their territories towards the west, across the Vosges. It was
inevitable that the two powers should come into collision. The struggle
was severe. Clovis succeeded in crossing the Vosges, and, on the banks
of the Rhine, probably in the neighbourhood of Strassburg, he defeated


## p. 112 (#144) ############################################

112 Conversion of Clovis [496-607
his adversaries in a bloody battle (a. d. 496), but was unable to reduce
them to subjection. He began to perceive at this time what strength
he would gain by embracing Christianity. The bishops, who exercised
a very powerful influence, would everywhere declare for him, and would
support him in his struggles with the heathen tribes, and even against
the barbarians who adhered to the Arian heresy. His wars would then
assume the character of wars of religion—crusades, to use the term of
later times. It was doubtless from such considerations of policy, rather
than from any profound conviction, that he decided to be baptised.
The ceremony, to which numerous persons of note were invited, took
place at Rheims, whatever some modern historians may say to the
contrary. It was celebrated on Christmas day of the year 496. Three
thousand Franks went to the font along with their king. This conversion
produced a profound and widespread impression. Throughout the
whole of Gaul, in the kingdom of the Burgundians as well as that of
the Visigoths, orthodox Christians spoke of it with enthusiasm. Avitus,
bishop of Vienne, a subject of King Gundobad, wrote to Clovis, king of
the Franks: "Your ancestors have opened the way for you to a great
destiny; your decision will open the way to a yet greater for your
descendants. Your faith is our victory. 11 And he urged him in emphatic
language to propagate Catholicism among the barbarian peoples in
more distant lands, " which have not yet been corrupted by heretical
doctrines. 11 It was quite evident that if the Catholics of the Burgundian
and Visigothic kingdoms did not precisely summon Clovis to their aid,
they would at least not resist him if he came of his own motion.
Accordingly, four years after his baptism, in the year 500, Clovis
commenced operations against the Burgundians. Coming to an under-
standing with Godigisel, he made war on Gundobad, king of Vienne. He
first defeated him near Dijon, and then advanced along the Rhone as far
as Avignon. But that was the limit of his success. On Gundobad's
promising to pay tribute, Clovis retired. Gundobad, however, not only
broke his word, but attacked his brother Godigisel, slew him in a church
in Vienne and made himself master of the whole of Burgundy. Thus
the attack of Clovis had the consequence of making Gundobad stronger
than before. From the year 500 onwards Burgundy enjoyed a period
of prosperity. It was at this period that the so-called Lew Gundobada and
the Roman law of Burgundy were promulgated. Clovis, not being able
to subdue Gundobad, notwithstanding the secret support of the orthodox
clergy, came to terms with him, and later found him a useful ally in the
war with the Visigoths.
If Clovis did not push home his success against the Burgundians, it
was doubtless because his own kingdom wws menaced by the Alemans.
About this time, therefore, he decided to expel that nation from the
territories which they occupied; and from 505 to 507 he waged against
them a war of extermination. He not only seized the country afterwards


## p. 113 (#145) ############################################

500-507] Wars with Burgundians and Visigoths 113
known as Alsace, but pursued the Alemans up the right bank of the
Rhine and drove them to take refuge in the valley of the upper Rhine
(Rhaetia). At this point Theodoric the Great, the king of the Ostro-
goths, intervened in favour of the vanquished. Theodoric desired to
exercise a kind of hegemony over the barbarian kings and with that
view to maintain the balance of power among them. He wrote an
eloquent letter to Clovis, in which, while sending him a player on the
cither, he begged him to spare the remnant of the Alemans, and
declared that he took them under his protection. The Alemans, who
were now occupying the high valleys of the Alps, thus passed under the
dominion of Theodoric, and paid tribute to him. They formed a kind
of buffer-State between the kingdoms of the Franks and the Ostrogoths.
We shall see how Witigis, a successor of Theodoric, gave up these
remnants of the Alemans to the Franks (536).
As early as 507 Clovis was bending all his energies to the project of
wresting from the Visigoths the part of Gaul which they held. The
orthodox bishops were now tired of being subject to Arian rulers, and
besought the aid of the king of the Franks. Alaric II, who had
succeeded Euric in 486, was undoubtedly a tolerant ruler. He gave to
the Romans of his dominions an important code of law which is known
by the name of the Breviarium Alarici; and he allowed the bishops
more than once to meet in councils. Rut being obliged to take severe
measures against certain bishops, he was counted a persecutor. Thus,
two successive bishops of Tours, Volusianus and Verus, were driven from
that see, Ruricius of Limoges was obliged to live in exile at Rordeaux;
and all these bickerings made the bishops long for an orthodox ruler.