IV. THE CODE OF JUSTINIAN

History rightly forgets Justinian’s wars, and remembers him for his laws. A century had elapsed since the publication of Theodosius’ Code; many of its regulations had been made obsolete by changing conditions; many new laws had been passed which lay in confusion on the statute books; and many contradictions in the laws hampered executives and courts. The influence of Christianity had modified legislation and interpretation. The civil laws of Rome often conflicted with the laws of the nations composing the Empire; many of the old enactments were ill adapted to the Hellenistic traditions of the East. The whole vast body of Roman law had become an empirical accumulation rather than a logical code.

Justinian’s unifying passion resented this chaos, as it chafed at the dismemberment of the Empire. In 528 he appointed ten jurists to systematize, clarify, and reform the laws. The most active and influential member of this commission was the quaestor Tribonian, who, despite venality and suspected atheism, remained to his death the chief inspirer, adviser, and executant of Justinian’s legislative plans. The first part of the task was accomplished with undue haste, and was issued in 529 as the Codex Constitutionum; it was declared to be the law of the Empire, and all preceding legislation was nullified except as re-enacted herein. The proemium struck a pretty note:

To the youth desirous of studying the law: The Imperial Majesty should be armed with law as well as glorified with arms, that there may be good government in times both of war and of peace; and that the ruler may … show himself as scrupulously regardful of justice as triumphant over his foes.21

The commissioners then proceeded to the second part of their assignment: to gather into a system those responso, or opinions of the great Roman jurists which still seemed worthy to have the force of law. The result was published as the Digesta orPandectae(533); the opinions quoted, and the interpretations now given, were henceforth to be binding upon all judges; and all other opinions lost legal authority. Older collections of responsa ceased to be copied, and for the most part disappeared. What remains of them suggests that Justinian’s redactors omitted opinions favorable to freedom, and by impious fraud transformed some judgments of ancient jurists to better consonance with absolute rule.

While this major work was in process, Tribonian and two associates, finding the Codex too laborious a volume for students, issued an official handbook of civil law under the title of Institutiones (533). Essentially this reproduced, amended, and brought up to date the Commentaries of Gaius, who in the second century had with admirable skill and clarity summarized the civil law of his time. Meanwhile Justinian had been issuing new laws. In 534 Tribonian and four aides embodied these in a revised edition of theCodex; the earlier issue was deprived of authority, and was lost to history. After Justinian’s death his additional legislation was published as Novellae (sc. constitutiones)—i.e., new enactments. Whereas the previous publications had been in Latin, this was in Greek, and marked the end of Latin as the language of the law in the Byzantine Empire. All these publications came to be known as the Corpus iuris civilis, or Body of Civil Law, and were loosely referred to as the Code of Justinian.

This Code, like the Theodosian, enacted orthodox Christianity into law. It began by declaring for the Trinity, and anathematized Nestorius, Eutyches, and Apollinaris. It acknowledged the ecclesiastical leadership of the Roman Church, and ordered all Christian groups to submit to her authority. But ensuing chapters proclaimed the dominion of the emperor over the Church: all ecclesiastical, like all civil, law, was to emanate from the throne. The Code proceeded to make laws for metropolitans, bishops, abbots, and monks, and specified penalties for clerics who gambled, or attended the theater or the games.22 Manicheans or relapsed heretics were to be put to death; Donatists, Montanists, Monophysites, and other dissenters were to suffer confiscation of their goods, and were declared incompetent to buy or sell, to inherit or bequeath; they were excluded from public office, forbidden to meet, and disqualified from suing orthodox Christians for debt. A gentler enactment empowered bishops to visit prisons, and to protect prisoners from abuses of the law.

The Code replaced older distinctions of class. Freedmen were no longer treated as a separate group; they enjoyed at once, on their emancipation, all the privileges of freemen; they might rise to be senators or emperors. All freemen were divided into honestiores—men of honor or rank—and humiliores—commoners. A hierarchy of rank, which had developed among the honestiores since Diocletian, was sanctioned by the Code: patricii, illustres, spectabiles (hence our respectable), clarissimi, and gloriosi; there were many Oriental elements in this Roman law.

The Code showed some Christian or Stoic influence in its legislation on slavery. The rape, of a slave woman, as of a free woman, was to be punished with death. A slave might marry a free woman if his master consented. Justinian, like the Church, encouraged manumissions; but his law allowed a newborn child to be sold into slavery if its parents were desperate with poverty.23 Certain passages of the Code legalized serfdom, and prepared for feudalism. A freeman who had cultivated a tract of land for thirty years was required, with his descendants, to remain forever attached to that piece of land;24 the measure was explained as discouraging the desertion of the soil. A serf who ran away, or became a cleric without his lord’s consent, could be reclaimed like a runaway slave.

The status of woman was moderately improved by the Code. Her subjection to lifelong guardianship had been ended in the fourth century, and the old principle that inheritance could pass only through males had become obsolete; the Church, which often received legacies from women, did much to secure these reforms. Justinian sought to enforce the views of the Church on divorce, and forbade it except when one of the parties wished to enter a convent or monastery. But this was too extreme a departure from existing custom and law; large sections of the public protested that it would increase the number of poisonings. The later legislation of the Emperor listed a generous variety of grounds for divorce; and this, with some interruptions, remained the law of the Byzantine Empire till 1453.25 Penalties imposed by Augustus upon celibacy and childlessness were removed in the Code. Constantine had made adultery a capital crime, though he had rarely enforced the decree; Justinian kept the death penalty for men, but reduced the penalty for the woman to immurement in a nunnery. A husband might with impunity kill the paramour of his wife if, after sending her three witnessed warnings, he found her in his own house, or in a tavern, conversing with the suspected man. Similarly severe penalties were decreed for intercourse with an unmarried woman or a widow, unless she was a concubine or a prostitute. Rape was punished with death and confiscation of property, and the proceeds were given to the injured woman. Justinian not only decreed death for homosexual acts, but often added torture, mutilation, and the public parading of the guilty persons before their execution. In this extreme legislation against sexual irregularities we feel the influence of a Christianity shocked into a ferocious puritanism by the sins of pagan civilization.

Justinian made a decisive change in the law of property. The ancient privilege of agnate relatives—relatives through the male line—to inherit an intestate property was abolished; such inheritance was now to descend to the cognate relatives in direct line—children, grandchildren, etc. Charitable gifts and bequests were encouraged by the Code. The property of the Church, whether in realty or movables, rents, serfs, or slaves, was declared inalienable; no member, and no number of members, of the clergy or the laity could give, sell, or bequeath anything belonging to the Church. These laws of Leo I and Anthemius, confirmed by the Code, became the legal basis of the Church’s growing wealth: secular property was dissipated, ecclesiastical property was accumulated, in the course of generations. The Church tried, and failed, to have interest forbidden. Defaulting debtors could be arrested, but were to be released on bail or on their oath to return for trial.

No one could be imprisoned except by order of a high magistrate; and there were strict limits to the time that might elapse between arrest and trial. Lawyers were so numerous that Justinian built for them a basilica whose size may be judged from its library of 150,000 volumes or rolls. Trial was to be held before a magistrate appointed by the emperor; but if both parties so wished, the case could be transferred to the bishop’s court. A copy of the Bible was placed before the judge in each trial; the attorneys were required to swear on it that they would do their best to defend their clients honorably, but would resign their case if they found it dishonest; plaintiff and defendant had also to swear on it to the justice of their cause. Penalties, though severe, were seldom mandatory; the judge might mitigate them for women, minors, and drunken offenders. Imprisonment was used as detention for trial, but seldom as a punishment. The Justinian Code retrogressed from the laws of Hadrian and Antoninus Pius by permitting mutilation as a penalty. Tax collectors falsifying returns, and persons copying Monophysite literature, could suffer the loss of a hand, on the theory that the offending member should pay for the crime. Amputation of nose or throat is frequently decreed in the Code; later Byzantine law added blinding, especially as a means for disqualifying heirs or aspirants to the throne. The death penalty was carried out on free persons by beheading, on some slaves by crucifixion. Sorcerers and deserters from the army were burned alive. A condemned citizen might appeal to a higher court, then to the Senate, finally to the emperor.

We can admire the Code of Justinian more readily as a whole than in its parts. It differs most from earlier codes by its rigid orthodoxy, its deeper obscurantism, its vengeful severity. An educated Roman would have found life more civilized under the Antonines than under Justinian. The Emperor could not escape his environment and his time; and in his ambition to unify everything he codified the superstition and barbarity, as well as the justice and charity, of his age. The Code was conservative, like everything Byzantine, and served as a strait jacket for a civilization that seemed destined never to die. It soon ceased to be obeyed except in a narrowing realm. The Eastern nationalist heretics whom it flayed opened their arms to the Moslems, and prospered better under the Koran than under the Code. Italy under the Lombards, Gaul under the Franks, England under the Anglo-Saxons, Spain under the Visigoths, ignored the edicts of Justinian. Nevertheless the Code for some generations gave order and security to a motley assemblage of peoples, and allowed, across the frontiers and along the streets of a dozen nations, freer and safer movement than the same regions enjoy today. It continued to the end the code of the Byzantine Empire; and five centuries after it disappeared in the West it was revived by the jurists of Bologna, accepted by emperors and popes, and entered like a scaffolding of order into the structure of many modern states.

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