JUSTINIAN THE LEGISLATOR
Chapter 7
JUSTINIAN THE LEGISLATOR
So far this book has been concerned with ‘famous trials’ primarily from the viewpoint of the historian (Livy, Tacitus, and Ammianus), of defence counsel (Cicero and Pliny) and prosecuting counsel (Pliny), and of the victims (ACM). In the absence of adequate evidence for the course of any fifth- or sixth-century trial, we must move away from trials, and consider finally the legislator, the Emperor Justinian (527–65). Legislative sources have been used in previous chapters, but largely as supplementary to the literary ones; there were the SCC which dealt with the Bacchanalians and with Piso, and, of course, the Theodosian Code, a witness to legal attitudes in the fourth century. However, Justinian’s legislation, in both wide and narrow senses, is particularly important for the understanding of Roman law; in its light, as well as that of some less juridical sources, one may consider how far theories of punishment explain penal policy.
Justinian and the Corpus Iuris Civilis
In the wider sense Justinian is the creator of the Corpus Iuris Civilis. He did not write the texts of Digest, Institutes or Code, but he (through Tribonian and the other compilers) preserved them, edited them, arranged them. A code, if no more, must have been a project he had already been meditating while heir to Justin, for he became emperor in 527 and the first edition of his Code was published in 529. The works comprising the Corpus give us his view of law as it should be known to the lawyers of his Empire, to the law schools, to the courts and their clients. Almost all our knowledge of the Roman legal sources1 comes to us through Justinian. The Corpus has affected all subsequent law in Europe and in the wider world influenced by Europe. Roman criminal law was less influential than Roman private law, but it was still important, and it also had an indirect influence on later developments through the canon law. So, while our main purpose is to look at Justinian’s attitudes, as well as those of other Romans, to penal practice and policy, we must not forget that he passed his views and his principles to our ancestors, and thus helped shape our attitudes to criminal jurisprudence. Some of his views on interrogation and punishment took an unfortunately long time to disappear. Of course, the views he passed on were not precisely the attitudes of his day, but a composite of earlier and existing Roman attitudes, with input from the first century of the Empire onwards.
It seems likely that it was the compilation of the Digest that led Justinian to order a revised version of the Code. Since the enactments in each title of the Code were arranged chronologically, new legislation did not need a new Code, merely the addition of new laws at the ends of titles, a scribal task. But the system used in the Digest may well have led to the introduction of the titles on the crimina extraordinaria in Book 9 of the revised Code. Justinian actually says in Tanta, the Latin form of the enactment publishing the Digest:
Next there are two terrifying books on delicts and private crimes and then public crimes, which describe the whole severity and harshness of penalties. With these are mingled the provisions that have been made concerning audacious men who try to hide themselves and display themselves as contumacious, and also the penalties that are inflicted on – or remitted to – condemned persons and their property.2
The juxtaposition of the contents of Digest Books 47 and 48 was thus quite deliberate. The only major delict not included in Book 47 was liability for damage to property under the lex Aquilia,3 and this was presumably excluded because it was essentially treated by the jurists in terms of negligent fault (culpa), not malice (dolus).
Justinian’s own legislation in Code, Book 9
In the narrow sense Justinian’s legislation is to be found in (the second edition of) his Code, and in the subsequent Novels. There are seven of his laws in Book 9 of the Code, the Book devoted by his compilers to criminal law, five of them dated to 529. The first, in Greek, to Mena the Praetorian Prefect and dated 18 January, is concerned with issues of procedure, with the preliminaries to a trial. It restricts to the higher magistrates at Rome, and to governors and defensores civitatis in the provinces, the power of remanding an accused in custody. It lays down that it is the bishop’s duty to visit prisons weekly to discover the charges made against the prisoners, whether they are slave or free, whether they are there for debt or for some criminal charge. Slaves must be brought before the court within twenty days, and either punished or returned to their owners; if no owner appears, they are to be let go. A free man on remand on a criminal charge is to be freed on giving sureties; if he cannot provide security he may be held six months, or at most a year, within which time the case, unless it is capital, must be decided. Someone accused not by a private citizen but ex officio cannot get bail, but the case must still be heard within six months. No bail is to be granted, however, where there is a presumption of guilt (cum autem praesumptio extiterit eos obnoxios esse). Magistrates and their office staffs who fail to observe these regulations are to be liable to a fine of 10lb of gold; it is for the local bishop to denounce them.4
A longer law, separated in the Code from the one just cited but presumably issued originally as part of one complex Novel since it has the same date and addressee, was concerned with regulating the penalty of exile, in particular exile to a designated place. This forbade those sent into exile to be kept imprisoned in the places to which they were sent, and forbade anyone to be relegated to the fortress of Gypsus (a mining town in Egypt) or to other garrisons (praesidia). Those exiled for a capital crime, whether to perpetual or temporary exile, were also not to be kept under prison conditions but sent to the province specified by the judge, with the right to live in any part of that province; they were not, however, allowed to leave it, or to act turbulently 
while remaining within it. For such turbulent behaviour the exile was to suffer the death penalty, imposed by the governor either of the first province or of the province to which he fled. Those thrown into prison in the capital were not to remain there longer than the six months or year already specified.5 In the provinces too inquiries into crimes should not be delayed; if anybody seemed deserving of exile, he should not be imprisoned but relegated at once to one of the permissible provinces, on terms again that he was to suffer the ultimate penalty if he fled the province or acted turbulently therein. Only the governors of Alexandria and the Thebais were permitted to relegate to Gypsus or the Great Oasis, and then only for six months, or at most a year; thus these could not be used for perpetual exile. The office staff of each court was to keep the governor reminded that nobody was to be held beyond the fixed period of his exile but to be released immediately, without loss or delay; anybody who had dared to accept something (perhaps as a bribe for the due release) must restore it fourfold. The local bishops were responsible on behalf of those relegated, whether temporarily or in perpetuity, for seeing that these regulations were observed.6
Private prisons, whether in town or country, were totally prohibited in another law (originally, one presumes, also part of the same long Novel), again addressed to Mena the Praetorian Prefect and dated 18 January. Anyone establishing a private prison, whatever his status, was to serve as many days in the public prison as persons had been shut up in his private prison; further, he was to forfeit his case against anyone thus illegally imprisoned. The bishop and the governor were to see to this, and a governor who neglected his duty was at risk for both his property and his personal safety (salutis).7 The first law in this title of the Code is dated 486, from the Emperor Zeno, again to the Praetorian Prefect. Nobody was to run a private prison in Alexandria or Egypt or anywhere else in the empire, whether in the country or at his private house; it was the duty of the Prefect of Egypt and other provincial governors to check the arrogance of such wicked men.8 If they did not punish them as treasonable, it would be held akin to treason in them too, and the senior members of the office staffs were under the same threat. The penalty for keeping a private prison was, as for treason, the aggravated death penalty (ultimum supplicium).9 It is possible that Justinian, like Zeno, was thinking particularly of conditions in Egypt, since the part of the law regulating exile seems particularly concerned with Egypt. So Justinian retained Zeno’s law, with its minatory approach, in the Code, but his own penalty was considerably more realistic, and probably more deterrent. Perhaps the governor had the discretion to apply Zeno’s penalty in aggravated circumstances.
Another law, again addressed to Mena – this one is in Latin – but dated 1 April, also deals with procedure, in this instance with the time to be taken to bring a case to a conclusion. It requires the whole criminal process following litis contestatio to be completed within two years, with no further postponements; if the matter had not been concluded by then, the accused was to be released. Judges and their staffs who allowed litigants to prolong matters were liable to a fine of 20lb of gold.10 The one-year period laid down by Honorius and Theodosius had clearly been found too short;11 in Justinian’s Code, in which that enactment is preserved but edited, the reference is only to ‘the fixed time’.12 Older laws on procedural time limits had largely been aimed at preventing the parties, particularly the defence, prolonging matters indefinitely; Justinian seems more concerned with the judges’ minding their duty.
In September 529, in another law again addressed to the Praetorian Prefect, here Demosthenes, the slaves of a disputed inheritance, including those freed in the testator’s will, were permitted to be tortured to reveal any unknown facts, including the whereabouts of corporal property in their charge; not only were they to be tortured, but upon oath.13 The reference to the torture of slaves is presumably why this is placed in Book 9, but the context is really the private law; the rest of what seems to be the same law is elsewhere in the Code, in the title on the oath against calumny, where it is stated that torture is only to be used when other proofs fail.14 The presence in Book 9 of a law of October 532, when John is the Praetorian Prefect addressed, probably has the same rationale. On the occasion of a divorce for adultery, the slaves of both spouses and of their parents are to be in effect sequestered for two months in case their evidence – under torture – is needed; this is also to apply after a wife’s death, in case an allegation of adultery should affect the dotal actions.15
There was, however, one innovatory enactment issued by Justinian in 533 concerned with the substantive law, de raptu virginum et viduarum.16 Raptus is an ambivalent term; it connotes plundering and carrying away. It seldom means rape in the modern criminal sense, which probably fell between stuprum and vis, but there is an element of violence which makes ‘ravishing’ a rather more suitable translation than ‘abduction’ – ‘if anyone … ravishes a woman against her will or abducts a willing one’.17 It was, however, sometimes linked with abduction-marriage.18 This law of Justinian’s did not introduce a new crime, but a radically new treatment. The earlier legislation, appearing under the same rubric in the Theodosian Code, laid down that if a man, without previously having come to an agreement with a girl’s parents, ravished or abducted her with a view to acquiring her patrimony, and hoped to obtain protection by her consent, this would avail him nothing, even if she did then agree to marry him, because of women’s frivolity and fickleness; rather she was to be punished as his accomplice. Corrupted nurses or attendants were to have their throats stopped with molten lead. The girl was to be punished with the same severity as the ravisher if she had agreed to his advances; if it was against her will, she ought to have stayed at home and, if the doors were broken open, to have screamed for the neighbours, but she was to be punished more lightly, simply denied the right of inheritance to her parents. A ravisher convicted beyond doubt – indubitate convictus, a loaded statement – was to have no right of appeal. A slave who revealed an abduction which had been covered up or compromised was to get his freedom as a Junian Latin (with citizenship for one who was already a Latin), and the parents were to be deported. Accomplices were to be capitally punished, being burned if servile.19 Constantius had modified the penalty to simple capital punishment, while retaining the flames for any slaves.20 Valentinian, Valens and Gratian dealt specifically with abduction-marriage; they allowed a five-year period from the deed within which to bring an accusation, after which the right lapsed, and any children must be held legitimate.21
Justinian chose to exclude these laws from his Code, although retaining in his own words certain of their provisions. His is the only constitution under this rubric. The original law seems to have been much longer; one part of it dealt specifically with the ravishing of consecrated virgins and deaconesses,22 and another with the constitution of marriage, even without a dowry, and the dotal consequences of both unjustified and justified divorce by the man.23 In the law as published in Book 9 of the Code, the ravisher was to be pursued wherever he fled throughout the Empire. He was denied the right of appeal, explicitly following Constantine’s model, but the charge against him must be properly proven;24 the penalty was death and confiscation of all property. A freeborn victim acquired the entire confiscated property of her ravisher, which could be added to her dowry or remain in her full ownership. This reward was Justinian’s particular innovation, but freedwomen or slaves did not benefit from it. The victim was to be allowed to marry whomsoever her parents wished, except the ravisher. The ravisher’s active accomplices like him suffered confiscation and death, but indirect accomplices, male or female, although also put to death, could leave their property to their families. Parents who tried to cover up the affair were to suffer deportation; treacherous slave attendants were to be burned, regardless of sex, as Constantine had laid down. The law explicitly abrogated the lex Iulia (presumably referring to Augustus’ marriage legislation generally) and later legislation on rape and ravishment,25 perhaps including the five-year prescription on bringing an accusation. The woman’s consent was no defence, but Justinian did not seem inclined to blame her.
To clarify some points he revised the law in a Novel of 563. The victim was not permitted to marry the ravisher in any circumstances – he ought, of course, to have been executed; if her parents consented to such a marriage they were to be deported. If she married him against her parents’ will, they received the ravisher’s entire estate; if they were dead it was to be claimed for the fisc as ultimus haeres. The law was to have retroactive effect.26 In pre-Justinianic legislation the victim is presumed to be responsible for her fate; to judge from the rhetoric, Constantine’s main concern seems to have been the punishment of the woman who was seduced. Justinian’s attitude was not directed against the unfortunate women, but aimed to ensure the transfer of the property of the ravisher or would-be ravisher to the victim, or, in the case of consecrated women, to the appropriate religious establishment, which is presumably why that part of the law was placed in Book 1, not Book 9, of his Code.
Justinian’s legislation on criminal matters in his Novels
In his legislation subsequent to the publication of the (second) Code in 534, that is, in his Novels, Justinian introduced little of substance into the penal law or its procedure. Most references to matters criminal were simply laying down what constituted just grounds for divorce or disherison, or giving orders in generalized terms to officials to repress wrongdoing in their provinces.27 Where there was something more specific, it is clear that Justinian’s particular concern was with offences against morals, sexual offences. We have already mentioned Novel 143 (= 150), an amending statute on ravishment. There are three Novels on incestuous marriages.28 In Novel 12 of 535, addressed to Florus, count of the privy purse (comes rerum privatarum), Justinian deplores the lax attitude taken by earlier emperors, and insists on the punishment of the guilty. Yet he seems primarily concerned with the rights of any legitimate children from a previous marriage; their existence gives them succession to the whole estate, which otherwise is confiscated.29 The man in the union is to be deprived of any office and sent into exile, after being flogged, if of humble status; the woman too is liable if she knew the law.30 Those truly ignorant of what counted as incest are merely deprived of their property, of which a quarter goes to the fisc and three-quarters to any children.31 In spite of the preamble, although the tone of this Novel is harsher, the ruling is not so different from earlier enactments. Novel 139, addressed to the same Florus and undated, remits the penalty for illicit marriage to certain inhabitants of Sinde (a village a couple of miles from Tyre) and to the Jews of Tyre. They had not paid the fine of a quarter of their property; nevertheless, he allows their entreaty that they be allowed in their old age to retain their wives, and that their children should be their legitimate heirs, but for this concession each must pay 10 lb of gold. This lenient treatment is not, however, to set a precedent.32 The third, also to Florus and undated, dealt with a shocking, but unspecified, rumour about illicit marriages in the provinces of Osroene and Mesopotamia; it was hard to believe that the inhabitants dared violate the laws of the Romans, but they were rustics who had endured many invasions, therefore inquiries into the past would not be made. But for the future anyone, whatever his status, who contracted an illicit marriage was to be punished by the loss of all his property and a portion of his body, and in specially serious cases by death.33
There is quite a long Novel on pimps (lenones), addressed in 535 to the citizens of Constantinople.34 This also dealt with prostitutes, showing some sympathy for the girls caught up in the trade. The pimps were accustomed to go round the provinces, luring the wretched girls with promises of slippers and fine clothes, and then shutting them into brothels in the city; they enticed even girls under ten years old in order to prostitute them. Justinian urged women to prefer chastity to luxury; he wanted to protect both freeborn and slave. Any guarantees or promises they had given to the pimps were henceforward invalidated. Pimps were to be flogged and expelled from the city. The trade of prostitution was forbidden.35 Procopius tells us that on one occasion more than 500 prostitutes in Constantinople were rounded up and enclosed in a convent on the other side of the Bosphorus; he adds that some of them threw themselves from the parapet at night, and so escaped enforced virtue.36 A Novel of the following year, addressed to John the Praetorian Prefect, was really a supplement, since it was concerned with releasing actresses from any security they might have given to their employers for the provision of sexual services. They could withdraw from such immoral contracts without running any risk of perjury, a risk now borne by anyone claiming the fulfilment of the contract. Any pimp making such a claim was to be fined 10 lb of gold, as was anyone knowingly permitting prostitution from his house; the fines were to go to the woman to help her start a new and more moral life.37
Some months earlier a Novel was issued, addressed to John the Praetorian Prefect, entitled ‘concerning the governor of Cappadocia’, but in fact dealing with a number of matters, including the principles of punishment. Harsh punishment was to be imposed for adulteries, ravishings, violences, murders and other crimes, specifically as a deterrent, ‘for by the punishment of a few, the remainder would be permanently restrained … This is not inhumane, but rather true humaneness, since by the chastening of a few, many are saved.’38
Some twenty years later, in 556, a Novel was issued, addressed to the Urban Prefect, which dealt with a wide range of topics, disciplinary as much as criminal; its rubric, in two of the versions, referred to adulterous women, although this was hardly the dominant theme of the law. In one chapter, on offences in general, it was laid down that governors were to pursue the actual offenders and not others vicariously, nor were the inhabitants of a district to be punished just because a crime had been committed in that locality. Whole villages were not to be punished, but the actual perpetrators should undergo the penalty of the laws; exile was to be the penalty for unjust judges.39 The next few chapters were also concerned with due procedure. Justinian strongly disapproved of prison for women, where they might be exposed to the abuse of their gaolers. The law laid down specifically that no woman was for any reason to be confined or held in a public prison. If a woman was faced with a criminal charge which would normally involve remand to prison, she could find security, or simply swear that she would appear; if it was a really serious charge, she might be required to live in a convent or under house-arrest under female supervision, but in the interests of chastity she was never to be put in the custody of men, in a prison or elsewhere.40 While adultery was still a capital offence (as it had been under Constantine), at least if it were repeated, the normal penalty for an adulterous woman was to be confined in a convent. There was a period of two years in which she could be reclaimed by her husband; if he did not do so, whether by choice or as a result of his death, she must stay there for life.41 This enactment implicitly abolished the liability of a husband for lenocinium in the form of condonation, since it permitted him to forgive his erring wife and continue the marriage. The final chapter of this law dealt with the penalty of mutilation; we shall return to this.
Luxuria, which included homosexuality, and blasphemy were crimes against nature, which, it was believed, could cause famine, earthquake and plague, occasioned by the wrath of God.42 Those guilty of such crimes were to incur the ultimate punishment. Procopius, in his Secret History, remarks on Justinian’s zeal against homosexuals and pederasts.43 In 559 the people of Constantinople were the recipients of another Novel on this topic. Here Justinian began with a brief disquisition on repentance and forgiveness; the emperor wished to see sinners, specifically male homosexuals, change their way of life. However, for those who continued in this practice, there were to be unspecified very harsh penalties,44 which, as we hear from Procopius, might include castration.45 Linked in the legislator’s mind with homosexuality was the practice of castration for sexual ends. Here the penalty was talio, castration for the wrongdoer (unless, of course, female), along with confiscation of property and perpetual exile; a castrated slave, even one castrated for medical reasons, was to receive his liberty.46 Presumably the eunuchs who had been a feature of palace life since the fourth century should now have disappeared from the scene, but the ruling of Constantine, more than two centuries earlier, that the making of eunuchs was a capital offence, had clearly had no great effect.47