The dissolute tendencies of society under the early Empire induced the promulgation of laws which imposed a penalty on celibacy, and granted privileges to those citizens who were fertile in offspring. Legal incapacity to inherit was inflicted on a bachelor, whilst in the division of an estate larger amounts were assigned to the heirs in proportion to the number of their children.[823] With the introduction of Christianity and asceticism, qualities of this kind began to occupy reversed positions; and, if marriage did not fall altogether into disrepute, second nuptials, at least, were ranked almost as a crime deserving to be visited with penalties comparable to those decreed against heretics.[824] Justinian modified this stringency, remarking that natural passion might fairly lead persons of both sexes to re-marry, and that free procreation of children was ultimately for the benefit of the state.[825] Legitimation of children by subsequent marriage had long been recognized, and Justinian extended the principle by a decree that a woman seduced under promise of marriage could compel her lover to complete the contract, or, in default, to endow her with a quarter of his property.[826] By a law of Anastasius, illegitimate children were called on to inherit the estate in the case of an intestacy without legal offspring, but in the second year of Justin this rule was abrogated. At the beginning of his reign, however, Justinian restored the former claim to the extent of one half, and later he supplemented it by enacting that a father could leave all his possessions to his natural children if he had none who were legitimate.[827]
From the first ages of the Republic liberty to divorce his wife was considered to be the inalienable right of every Roman, but the privilege was rarely, if ever, taken advantage of in the primitive community. This strict attachment, however, to the conjugal contract gradually disappeared, and in Imperial times the marriage bond was tied and loosed on many occasions in their lives by persons of unstable character. Not until the fifth century did the Christian emperors attempt to impose any stringency on the freedom of divorce, when the younger Theodosius published a list of offences, in the absence of one or more of which repudiation of the nuptial tie by either husband or wife would be legally insufficient.[828] From the moment of his accession Justinian began to elaborate legislation of this kind,[829] and in 541 went so far as to forbid the dissolution of marriage by mutual consent,[830] a right with which no previous emperor had ventured to interfere. The restriction, however, was probably inoperative and highly unpopular, and one of the first acts of his successor was the repeal of the obnoxious measure.[831]
The difficulties which in this age beset the practice of the law courts, owing to the confused condition of legal literature and the consequent absence of attainable information, on forensic questions, has already been adverted to. The pressing need of rescuing the elements of jurisprudence from the two thousand volumes in which they were entombed had been felt by previous emperors, but, if they apprehended the possibility of executing it, they shrunk from the magnitude of the task. No sooner, however, was Justinian seated on the throne than he engaged in this enterprise and nominated a commission of ten jurists to prepare a code in which all extant and effective Acts of various emperors should be repeated and arranged in lucid order. Tribonian was included among these commissioners, as an adjurant rather than as a principal, but during the execution of the work it is certain that he proved himself to be the master spirit of the undertaking. The materials which had to be manipulated consisted of the Theodosian Code, in sixteen books, composed under the auspices of that feeble-minded prince, whose simple piety assumed that all but the laws of Christian emperors should be expunged from the statute book. This ineffective performance, therefore, left unnoticed all legislation previous to Constantine, but there were two other extensive compilations, the Gregorian and Hermogenian Codes, of private origin, in which had been amassed a multitude of Imperial constitutions, beginning with those of Hadrian. The work was begun in February, 528, and finished by April of the following year. It was then announced to the Praefect of the East as the "Justinian Code," to which alone for the future reference was to be made in order to ascertain the law of the Empire; and he was directed to give it effect from the next month. If, the Emperor added, certain enactments were found to have been altered in tenor by additions, detractions, or verbal changes, such modifications had been necessitated by the exigences of the age; and it was forbidden that anyone should thereafter cite such passages as they appeared in previous books, with the view of inducing decisions not in conformity with the new Code.[832]
The capacity and erudition of Tribonian, which had been revealed during the preparation of the Code, inspired Justinian to undertake in the next year a work of much greater magnitude, which it was anticipated would demand fully ten years for its achievement. It was proposed to extract all the essential pronouncements of jurisprudential law to be found in the two thousand volumes, which emanated from the recognized legal luminaries of the previous fourteen centuries, and dispose them categorically in fifty books, so that they should be readily available for forensic consultation. The Constitution which enjoined the preparation of this comprehensive work, to be called the "Digest," or "Pandects," was addressed to Tribonian alone, and he was left untrammelled in the choice of coadjutors in the stupendous task.[833] Nowhere throughout the Empire, indeed, was there known to be a legal library which contained all the books necessary for the compilation of the Pandects, except in the collection which had been formed with vast pains and accurate judgment by Tribonian.[834] He now made choice of sixteen associates, and all engaged assiduously on the materials at their disposal. To their surprise, they found that the work advanced much more rapidly than had been expected, and at the end of three years they were able to announce that the Digest had assumed a practical shape. The three million sentences had been reduced to one hundred and fifty thousand, which were distributed in an orderly manner throughout the fifty books in seven categories. Among these were to be found all the matter required to enlighten the hesitating lawyer as to official duties, judicial functions, pledges, contracts, usury, nuptials, wills and codicils, legacies and trusts, relations of slaves and freemen, heirship, intestacy, liabilities of those occupying land and dwellings, crimes and punishments in "two terrible books," public works, and miscellaneous definitions.[835] Having achieved this great work Justinian became apprehensive that it would be corrupted by copyists, wherefore he ordained that no abbreviations should be used in writing out the original or reproductions. But he was still more alarmed lest his concentrated text should be overwhelmed by commentators, so that after the lapse of a certain period there might be a return to the former state of things, when administrators of the law should again suffer bewilderment amid the overplus of legal literature. Commentaries, therefore, were forbidden, and, should any persons attempt them, they were warned that they would be considered as perverters and falsifiers of the law. Should any doubts arise, reference was to be made to the Emperor, as the sole legislator and interpreter of the law.[836]
When the Pandects were approaching completion, Justinian decided on the issue of a third work, which should form a handbook for the law-student and ground him in the principles of Imperial jurisprudence as set forth in the two ponderous Codes. Under the name of the Institutes this little treatise soon took shape in four books, being for the most part a remodelled edition of a similar work by a certain Gaius, which had been in circulation for several centuries. This compendium was then announced to the student as furnishing him with as much legal information in a small compass as he could have attained to previously after a four years' investigation of the diffuse compositions to which he was obliged to have recourse. "Take these our laws," said the Emperor, "and study them assiduously, encouraged by the bright hope that your proficiency will one day enable you to govern our Republic in some province which may be entrusted to your care."[837] At the same time Justinian mapped out the work of the class-rooms for legal education, in which the new law books were to supersede all texts previously placed before the student during his five years' course. The first year was to be devoted to the Institutes, the next three to Pandects, and the last to the Code. He also directed that the freshmen were henceforward to discard their ridiculous cognomen of Dupondii, and enter on their career under the dignified title of "New Justinians." He also sternly prohibited the rough games which students had been wont to play off on one another, on rude novices, and even on professors, such reckless proceedings having sometimes eventuated in actual crimes. Finally he decreed the abolition of the law schools of Alexandria, Caesarea, and elsewhere, since he had heard that in those places unskilful men with insufficient licence had been engaged in imbuing their disciples with adulterated doctrine. For the future, as previously, Berytus was to be the chief academy of jurisprudence, but the Royal Cities of Rome and Constantinople were also sanctioned to continue as centres of legal instruction.[838]
No sooner had Justinian completed his reintegration of the legal profession than he entered on an active career of new legislation which rendered much of his former work obsolete. The close attention paid to law during the preparation of the Digest had revealed a number of disputed questions, and these the Emperor determined to decide once for all by virtue of his own Imperial inspiration. When they had accumulated to the number of fifty the list seemed to be exhausted, and thereupon a fasciculus of "Fifty Decisions" was published to settle the law on these moot points. This supplement seemed to antiquate the Code, and hence it was resolved to abolish it in favour of a revised edition, which should be perfected by the inclusion of all more recent legislation. A new Code was, therefore, published in 534 with an injunction that the first should be consigned to oblivion, and never again opened in the law courts.[839] Still, however, Justinian found an unlimited field for his legislative proclivities, and every year saw the promulgation of new Acts, until his energy began to succumb to senility. Most of the new enactments were called Novels, and many of them were elaborated at great length. For these compositions the Greek language was almost invariably used, but a contemporary Latin translation was made. More than one hundred and sixty of them remain, but some of them are in a fragmentary condition. In addition thirteen other pronouncements, named Edicts, are extant, and also the Pragmatic Sanction, of which an analysis has been given in connection with the annexation of Italy. Such are the four complements of Justinian's legislation, of which in bulk his own productions constitute about one fifth, but some considerable portion of the latter has probably been lost.[840]
[769] Pand., I, i, 1; Instit., i, 1.
[770] See p. 241.
[771] Pand. XLVIII, viii, 11, etc. Illustrated by the story of Androcles and the lion; Aulus Gel., v. 14.
[772] Suetonius, Claudius, 25.