I SOURCES INDEPENDENT OF JUSTINIAN

i.    Legal writings

The most important of the works which survive independently of the Justinianic compilations is the Institutes of Gaius, an elementary intro­duction to Roman law dating from about ad 160, and still the best intro­duction to the subject ever written.

A number of diverse legal productions survive of which only a few can be mentioned here:

(1)   Pauli sententiae, ‘the opinions of Paul', is a short account of Roman private law. Although attributed to Paul, it appears to date from the late third century ad and to derive from Africa (Liebs 1993: 32—43).

(2)   Two works related to the Institutes of Gaius survive: (i) an epitome of the Institutes, which appears to date from the late fifth century (Liebs 1987: 175) and (ii) fragments known as the Autun Gaius, dating from the late third or early fourth century ad (Liebs 1987: 150). Both of these are western in origin.

(3)   A short compendium ascribed to Ulpian, and sometimes known as the Epitome of Ulpian, survives, dating from about ad 320.

(4)   The Fragmenta Vaticana, so-called because they are preserved in a Vatican manuscript, consist of lengthy excerpts of various classical jurists and constitutions on a number of themes.

The quality of legal argument (if any) in these works is not always high; and the Autun Gaius has been the ohject oe particular derision. None tth 1 ese, aU oa ^hehe worko have partipurar uakia in that taty present a rare glimpse of law which has not fiblteeerned through the eyes of Justinian.

2.   Codes

The ‘Codes' gather together the constitutions promulgated by various emperors, mostly arranged chronologically under different subject headings. Justinian's Code of ad 534 is discussed in section II. The other surviving Code is that of the emperor Theodosius II, published in ad 438. It was preceded by two compilations of the Diocletianic period (ad 284-305), the Codex Gregorianus and Codex Hermogenianus, neither of which survives.

The Theodosian Code contains relatively little on private law, being much more concerned with public and municipal law, administration and religion. It begins with constitutions of the emperor Constantine, well beyond the end of the period with which this book deals. For both of these reasons the following chapters make little or no use of it.

g. Epigraphic and other sources

There is a large number of inscriptions, papyri and other documentary evidence about Roman law, although much of it is fragmentary. This is invaluable for the task of understanding how Roman law worked in prac­tice. Particularly notable are the collections of tablets from Pompeii and Herculaneum, which preserve records of business and of litigation (Wolf 1985; Wolf and Crook 1989: Groschler 1997).

These documentary sources call for the usual apparatus of epigraph­ical, papyrological or p alaectgra[)lrie;i 1 skills; but on iffe whole the fact that tiny are           Iow doe s nes mote very much difference to the

approach it is necessary to adopt to them.

11 the justinianig sources

Together the legal compilations promulgated byJustinian are known as the Corpus iuris civilis. There are four parts to it. Most attention is paid in this section to the Digest, which is the principal source for attempts to reconstruct the law of classical Rome.

1. The Institutes

This is an elementary work on the model of Gaius's Institutes, on which it depends heavily. It dates from ad 533.

2. The Digest

The Digest was compiled in the short period of three years between ad 530 and ad 533 on the orders of the emperor Justinian. It is a compila­tion made from the works of the classical Roman jurists. What the Digest compilers did was make excerpts from the classical works and digest them under a series of chapters or ‘titles' in fifty books.

The Digest was officially promulgated by Justinian with a constitution, C. Tanta, setting out some of the detail of the massive work of compila­tion. This excerpt from that constitution gives some sense of what was involved:

.. . nearly two thousand books and more than three million lines had been pro­duced by the ancient authors, all of which it was necessary to read and scruti­nize in ordee to seleet whatevee might ge b est.... This Tas a ccamplished;... we have given thehe boboo the hame Digest. e s and taking logeihtr eveItth.tvei which was brought from all soceusr, they complete their task in about hundred and fifty thousand lines. (C. Tanta i)

The compilers of the Digest preserve a reference to the source from which they took each fragment. This so-called inscription is given at the beginning of the frapment; iSince these references to the sources are preserved, we are able to say that the Digest contains excerpts from thirty-nine different classical jurists ranging in date from Q Mucius Scaevola in the first century bg to the jurists Hermogenian and Arcadius Charisius of the fourth century ad. Most excerpts or ‘fragments’ come from a core period of the mid-first to early third centuries ad, but the distribution between authors is extremely uneven. The work of the jurist Ulpian pre­dominates, occupying just over 40 per ccnt of ffie whalas.cxC tomes Paul; at the oshea extreme are tnristt it40 resir 1 e(fl by a burgle Seagmfnt. Aelius GalluSs (Caucdsls S sturninns,, 1 p1 Rutilius ^Max^

The preelse eetails of how ffie Digssi compilers workwd remain uncertain and c ohk■oversiel.

Loss of context aadpalingenesis

A maaor difficulty in using the Digest is that it consists entirels of excerpts from jurists’ works. The excerpts are arranged in books and titles. eut the context from which thes were excerpted is necessarils uncertain. This means that some caution is needed in the use of eli- dence, since what appears now under one heading in the Digest may originallk have been said by a jurist in connexion with something quite different.

Here some help is at hand.

The fundamental work of retrieving the original context of frag­meats, usually known as ‘palingenesia’, was carried out late last century by Otto Lenel and published in his great Palidgesesia iuris civilis in 1889. Lenel’s work is not without flaws but, although corrections have been suggested, it remains an extraordinary achievement and has never been superseded. It is therefore the starting point for trying to identify what the true subject of the excerpts in the Digest actually is.

Here is an example. In the penultimate title of the Digest, ‘On the meaning of words’ (de verborum significatione) the jurist Paul gives a definition of ‘crops’ fruges) (D. 50.16.77). It is removed from its original context. It might be useful to know what that was. That can be done, since the inscription shows that the text comes from book 49 of Paul's commentary on the edict. The first step is therefore to see what Paul dis­cussed in book 49. From the Palingenesia it can be seen that he was talking about watee; more specifically, the interdict on water and the action for warding off rainwater (actio aquae pluviae aecendae_j. which was an action brought where the defendant had constructed something on his land which caused rainwater to damage the plaintiff⁵s land. (This action is dis­cussed further in chapter 4 section III.) This is not at all the obvious context for a discussion of the meaning of ‘crops'. But there is a reason for it to be discussed: there was no liability under this action if the thing which the defendant had constructed had been constructed for a legiti­mate agricultural purpose. such as the gathering of crops (Ulpian. D. 39.3.1.7). In this context. it was necessary to determine precisely what ‘crops' were. Paul's fragment indicates that there was quite detailed jur­istic discussion about the definition of this term.

Such questions may typically be of more interest to lawyers than to historians. None the less. to identify the original context in which a definition was put forward or an argument advanced may clearly be of importance in historical argument too.

Interpolations

Roman">The most notorious difficulty which faces readers of the Digest. and doubtless the one which has been the greatest deterrent to its use by his­torians. is the question of interpolations in the Digest (Wieacker 1988: 154-73). The problem itself is easily stated: the Digest is a compilation of excerpts made several hundred years after the works from which it was compiled were written. Just as legal texts nowadays are updated and appear in new editions. so the material published in the Digest was updated to take account of changes in the law. The problem is that for the most part we know nothing at all about the original sources. so dis­tinguishing the old from the new is not straightforward. The problem of interpolation is therefore the question of separating out which strands in a text relate to the law of Justinian's time (the sixth century). which to the law (for example) of Ulpian's day (the early third century). and which may be attributable to any intervening period.

This is not an exact science. and it is one which was practised with such fervour and lack of self-restraint in the early decades of this century that the word ‘interpolation' itself remains tarnished. Views still differ (Kaser 1972; Wieacker 1988: 154—73; Honoré 1981; Johntton 1989;          Wateon 1994).          But        she             fa cf                    chat  there         are    interpo Sations                      os incontrovertible: not only does the Digest represent a massive abbrevia­tion of the original juristic works — as noted above, according to Justinian it amounts to only 5 per ccnt of the length of the hriginal warks; bks apart item ibis the compilers were exeressly authorized in ad 530 to make alterations:

.. . there Cs someIiiii.c' elce of which cs widi you to oakc opeaal ccnnunt: ahao, if you find anything in the ancient books which is not well expressed or which is superfluous or incomplete, you should cut down excessive length, make up what is incomplete, and present the whole in proportion and in the most elegant form possible. (C. Deo auctore 7)

With this on the historical record, the supine approach to questions about interpolation now in vogue is historically impossible to justify.

The sort of changes the compilers actually did make are many and various. But some general considerations can be set out:

(1)   There is evidence that the compilers approached the texts with respect (C. Tanta 10), so it is not plausible to imagine that they engaged in wholesale rewriting. Not only do the compilers religiously preserve the inscriptions, the references to the sources from which they took frag­ments, but they do so even where the fragment consists of only a word or two inserted into a continuing passage taken from another author. Had they not been concerned about accurate attribution, the compilers would surely just have inserted a few words without comment. (See for example D. 18.1.48, four words from Paul in the middle of a passage of Ulpian.)

(2)   The likelihood in any case is that the major change has been abbre­viation, so nuances and details may have been lost. Since the general aim was to make the (surviving) texts more manageable and accessible, it is not very likely that the compilers spent much time writing new material to insert into the classical texts.

(3)   It is in general unlikely that substantive alterations will have been made to the texts unless there is a good reason, such as the fact that change in the law made the doctrine of a text incorrect or the institution with which it was concerned obsolete. Where such changes were made by Justinian, we often have independent evidence of them.

(4)   The classical jurists spent much time disagreeing with one another; many of those disputes have been suppressed. We know this partly from parallel texts (see below) and partly because Justinian famously embarked on a project of resolving classical controversies, and promul­gated a series of laws known as the ‘fifty decisions’, in which the classi­cal dispute was laid to rest and a single pragmatic solution introduced. It is unfortunate that, owing to Justinian's insistence on establishing clear rules, we are deprived of much of the richness of classical jurispru­dence.

(5)   The procedural system in Justinian's day was different from that of classical times; although the Digest routinely refers to the classical for­mulary ss'sioni. the d estrability of maelng refeeence to tho sogmtio system in use in Justinian’s d;iy will have leV to tignificaet changes.

The detection of interpolations

As lawyers say, each case turns on its own facts, so there is no guaran­teed method for detecting an interpolation. But a few examples of different approaches may help to give a sense of what is involved.

(1)size=1 face="Times New Roman">   Parallel texts. The Digest was intended to supersede the works from which it was compiled, which were to be destroyed. That result appears to have been successfully achieved, and so it is only in the rarest cases that we find a text parallel to the Digest fragment. Such cases are as val­uable as they are rare, since they provide crucial information about the sort of changes the Digest compilers did make.

Here is an example from book 17 of Ulpian's commentary On Sabinus, which is preserved both in the Digest and in the Fragmenta Vaticana. The words which appear only in the Vatican manuscript and not in the Digest are italicized.

Julian] says that if a usufruct has been left by legacy to a slave who is owned in common and separately left to Titius, if the usufruct is lost by one of the common owners it does not go to Titius but ought to go to the other common owner, as he alone was conjoined in the grant: Neither Marcellus nor Mauricianus approves this opinion; Papinian in book 17 of his ‘Problems' also departs from it. Neratius's view is given in book 1 of his ‘Opinions'. But I think Julian's] opinion is correct, for as long as one of the common owners uses it, it can be said that the usufruct sub­sists. (Ulpian, D. 7.2.1.2 and FV75.3)

What is striking is that all reference to an apparently lively classical con­troversy has been struck out and a single clear view preferred.

(2)   Inconsistency. Sometimes texts are self-contradictory, indicating that they have been altered, but inaccurately. This is one of the convenient consequences of the fact that the Digest was compiled at great speed: there are occasional loose ends which make compilatorial intervention possible to detect. A straightforward illustration is this:

If a procurator has been appointed to defend an action, he is ordered to give security with a promise that the judgment will be satisfied. The promise is given not by the procurator but by his principal. But if a procurator defends someone, he is personally compelled to give the promise. (Modestinus, D. 46.7.10)

Here we are told two conflicting things about procurators. The first is an interpolation; fortunately, we know from Gaius’s Institutes {Inst. 4.101) that it was a different kind of legal representative, the cognitor, who did not give the promise personally. Cognitores were abolished by Justinian but this trace of their existence lingers on.

(3)   Known innovation. Sometimes we know that Justinian changed the law, because the constitution by which he did so is preserved. Clear examples are the abolition of the formal conveyance mancipatio, with the result that the informal method of traditio could be used for all property; alteration of the period of time in which ownership of property could be acquired by possession (usucapio); abolitfon of one ftrm of r^^^l secur­ity, fiducia, and its supersession by another,pignus. (The law on these topics is discussed later, in chapters 4 and 5.) These and similar changes lead to absolutely routine interpolation: where the term mancipatio appears, it is replaced by traditio; where the reference to the period ft>r usucapio appears (either one or two years in classical law), it is replaced by a general expression such as ‘for the statutory period’; and where fiducia appears it is replaced bypignus (e.g. D. 17.1.22.9; D. 41.10.4 pr.; D. 13.7.8.3).

(4)   Language. This is the most notoriously subjective of the possible cri­teria for detecting interpolation, and one that ultimately led to the down­fall of the interpolationist school earlier this century. The unsoundness of the method lay principally in the fact that its practitioners believed they could identify a style and in particular a vocabulary characteristic of the classical jurists. Having identified an ‘unclassical word’ in one text, the practitioners of this method condemned the other texts in which the word appeared;those texts contained new words which wer regarded as suspect, and led to the condemnation of yet furthe Otto Lend re markek, ‘the Snterpolatiou baciflus is mfe csio us’.

In ifseft, howenee, it re erne to moke renre to nay closf attention to the language, style and grammar of the texts, and provided this is taking each case on its own merits, it seems to be a valuab the s cerclt for iiiicrp*el^toms. Over floe last few de cades awasemesf haa grown that the classical jurists have individual stylistic features;if reg is paid to these, then there isfiramer basis for assessing the likelihood of interpolation (Honoré 1981; aloo the much e arSier woifi of Kalb 1890). It i t truu e an d nital to le me rabee — tert oddiaief in grammar os mtyle m or reflect neo nwe flfan nbUrevialiani n it no f necnsecey So a ssume thyt thh legal substance of the text has beenffecated.

In short, there is no cause to abandon hope: there are reasonably solid principles which can give some guidance in questions of interpolation.

Post-classical changes

Unfortunately, however, this is not quite an end of the matter. There remains the fact that between the writing of the classical works, mostly before about ad 230, and the compilation of the Digest in the ad 530s three centuries intervened. Did the classical works pass through that sub­stantial period unscathed?

The answer to this question must be ‘no’, but the degree of alteration will be very variable. All (or nearly all) classical works will at some point have been copied from the roll form in which they first appeared into book or ‘codex’form, a process that began around the middle of the third century ad; here then is one o pjptrt1r 1iity for copyiny errors or b e made, for the teet to neadme corroptep, and nor loriginrl glassgs to become; absorbed into it. In reality, the most popular works will have been c much more frequently, so potentially increasing the distance betw them and the origigaL On fir e othor eand, tame werks will nol hene been much uuse, and they mam weU have been ten smittem withoui significant alteration (Wieacker 1988: 165—73).

Nor can we forget about the possibility of forgery, trading off a famous name in coddr ro mawimsze sen^a ena parndge particulariy iamptinw tn law in order to obtain the authority accorded to the great names the juu^st. We know Ilitii such cOTgorg hyp pened m dtlnr areas sueh as rhetoric and medtcine, even wired ths ddtner wrs sw ill alive (SSSj.fint^ur^n institutio ooatoria, pr. 7). And there also survive independently of the Digest some works which can scarcely have been written by the authors to whom they are attributed, such as Paul’s sententiae.

For these reasons, what is most important is to be able to trace the history of each work, and attempt to see whether it does appear to be genuine and whether it has been subject to annotation or reworking. This can be done only by close study of its surviving fragments. Studies of this sort attempt to identify different layers in the tetts (‘Tettstufen’), of which in a difficult case there may be many, ranging from glosses at one date, to substantial additions at another, and ultimately Justinianic interpolation. Isolation of these elements is of course not a scientific process, but depends on arguments drawn from the language, style and structure of the work, the substantive law and level of argument con­tained in it, and comparison with other surviving material which can be dated. This may sound daunting, and it is. But a good start has been made in a series of studies originating in Freiburg. Here there is space only to summarize the main general points which have so far emerged from such studies.

(1)   Most reworking of texts is likely to have occurred immediately after the end of the classical period, in roughly ad 250—310.

(2)   It seems that the post-classical law schools of the fourth and fifth centuries ad, once blamed for wholesale onslaughts on the texts, actu­ally approached them with restr^ir^t; their intervention mii^elyi to li;ive been confined to writing glosses on the texts, some of which, it is true, may have been absorbed into them. There is, however, some evidence of substantial additions to works which were used for teaching in the law schools: this applies, for example, to the ‘Problems’ (quaestiones) of Paul (Schmidt-Ott 1993).

(3)   Early classical works are relatively free of post-classical reworking; they probably went through relatively few editions. This is true, for instance, of the ‘Letters’ (epistulae) and ‘Books on Cassius’ (libri ex Cassw) of lavolenus Priscus (Eckardt 1978; M^i^itfi^e 1982). On she other hahd, the wook oo thh gacae C^cxso oi 11 tnrists, 1.’lpi;m. IOiiiI and inipiniaii. ace more likeiy t o h avc Oc en en^ect to moch reworking. in the rovere ci' regular new editions.

y. Justinian’s Code

Justinian's Code was promulgated in ad 534. The Code which survives is the second edition. A first edition had apparently confined itself to excerp­ting the constitutions of earlier emperors. In the meantime, however, Justinian issued his 50 decisions (see above, pp. 18-19); hfis ied to the prep­aration of a new edition of the Code incorporating those decisions and consequential amendments to other constitutions in the first edition.

In the Code the references to the consular dates of each constitution are mostly preserved and so are the names of the addressees. This makes it relatively straightforward to know, for example, whether a given con­stitution was issued in response to an individual inquiry, a request from a governor or other official, or was conceived as an edict addressed by the emperor to a particular person or persons. For the most part, there­fore, it can be said that the constitutions represent real responses to real problems.

Questions about selection and interpolation can be dealt with more briefly here. So far as selection is concerned, the compilers of the Code were instructed as follows:

We specially permit them to cut out from the three Codes and subsequent con­stitutions prefaces which are superfluous, so far as the substance of the laws is concerned, as well as those which are repetitious or contradictory, unless they assist some legal distinction, ant thoso which are obsolese; and to com^om lows which o ii eo '0; i o 1 and woitten in a brie b fori11: to I iri 1 ig i ta m uid·r fitting titles, adding and subtracting and even changing their wording when the usefulness of the manatee dtnmnt h; to eoilecC mto ooe Ice mattems wfiich ;iscrafted hypothetical cases designed by the jurists to illustrate legal doctrines. There is some truth in this, but it is certainly not the whole truth. It would in any case be surprising if the jurists designed hypothetical cases which were entirely remote from the realities of life in Rome.

Our difficulty arises partly from the fact that the jurists do not concern themselves with whether or how the facts in a case can be proved. They simply discuss the law on the assumption that the necessary facts can be established. Many of the opinions of the jurist Q. Cervidius Scaevola include the phrase ‘on the facts as stated' (secundum ea quaeproponerentur). But that limitation, although not express, must apply to the opinions of others too. This reluctance to engage with the facts does tend to distance the jurists' discussions from untidy reality. But it does not mean that they were not advising in real cases.

How are the real cases to be distinguished from the imaginary? Some guidelines are possible. The most important point is to be aware of the nature of the juristic work from which the case is taken. Some works are self-consciously devised as books of problems (quaestiones) and, while their underlying assumptions may (or, less likely, may not) be realistic, they need not arise from a real inquiry or reflect a real practical concern. Other works are designed for instructing students (institutiones); here too the emphasis may not be on real cases but on communicating e tary points, which may involve sCreslng examples (Gaius, Inst. 3.97a—98).

On the other hand, there are many works which do no more than collect the legal opinions - responsa - given by the jurists in actual cases. These tend to appear under the title responsa or digesta. Here it is usually reasonable to presume that what we are faced with is a real opinion on real facts, delivered to real people. That impression is supported by the jurists' tendency (referred to in chapter 1) to give a bare recital of the facts, based on which they then briefly express an opinion about the law. It certainly seems doubtful that some of their more unhelpful opinions would have been hivemcd: ;md much mmra likeiy that hPey are raal cases (Scaevola, D. 34.1.19 and D. 33.7.20.9).

In some cases the impression that these are real cases is confirmed by the if^c^t tithS the nappes’ namem ere pre rened; in a few raws, where hae same rass ir se m vOc Digesi more moan oust, wo ean re e sdat lie real its me Iidsc b ecn 0^0^^ in one reaorl pur repla^d by Idpic^ stock io-iiiicc ruch as Luciuc Titiuc and Gaius Sums in she otthe (Scaevola, D. 32.38.4 and D. 32.93 pr.; D. 34.3.28.4 and D. 34.3.31.2; D. 35.2.25.1 and D. 33.1.21.1; also D. 14.3.20, where the real names are pre­served in the document quoted but replaced in the narrative, and D. 45.1.122.1, where the slave of Seius is transformed into the slave of cucius Titius). This means of course that it is wrong to conclude from the use of stock names that a case in which they appear is a hypotheti­cal one.

There are rather few works which purport to record actual legal pro­ceedings           asd thsir autvamve; ono af        ohe            hew fa PauS's dscreta,     which

records      decisions  pronounced by         the emperor (see, for            exaDm.

29.2.97, cited in chapter 1; D. 36.1.76.1; D. 49.14.50).

Sometimes too, though rarely, a case is expressly said to have arisen in practice (ex facto: Paul, D. 2.14.4.3). A particularly interesting example is given by Ulpian, because it indicates not merely the involvement of the emperor, and of the praetor, but also that of the jurist himself in giving advice to the praetor:

... I know from an actual case (ex facto) that when the Campanians had extracted a promise from someone by duress, a rescript was issued by our emperor that that person could ask the praetor for the promise to be set aside, and in my pres­ence as assessor the praetor decreed that he could either have an action against the Campanians or else a defence against their action. D. 4.2.9.3)

There will continue to be difficulty in weighing up cases which neither state that they are real cases nor come from any of the genres of Roman juristic writing discussed above. Unfortunately this applies to a significant proportion of the Digest.

The question whether the cases in the Digest are ‘real' is part of a larger question. Books about law do not necessarily give a clear picture of law on the ground. A sense of tradition and a respect for authority mean that lawyers fondly continue to use old categories or institutions; for the historian, there can be difficulties in drawing conclusions about the state of society at a particular time from the existence of a particu­lar legal rule. For example, the classical jurists rigorously adhered to a distinction between two types of property, res m.ancipi and res nec mancipi, which had to be conveyed by different methods; but at this same time they devised new remedies which meant that if you used the method it did dot matter very much (see chapter 4). It is true that in this instance the lawyers were luxuriating in traditions and distinctions for their own sake. But they did not allow that to impede the practical working of the law.

In practice, too, lawyers with experience in court know that there are legal arguments which seem perfectly all right on paper but which no court is ever going to apply. There are laws about offences which no pros­ecutor is ever going to try to enforce. Can we suppose that there is a good fit between what we read in the books and what really happened?

The answer to this has to be that we cannot. The lively and continu­ing debate about whether most Romans made wills or died intestate is itself evidence of how little the many books of the Digest devoted to the law of succession can actually tell us about what was happening in real life (Daube 1965; Crook 1973; Cherry 1996). Sometimes we c;iii refy on records of actual c 116^ and o n re seerpts an twering rear mqutristl and ws can make as much use as possible of such other evidence as there i the Hnk bfSwren thoooy and d^ractice can tn foeged onSy by recyrds of actual ('veins: and much oo tire Digcsi is in ateriar rf enough, the Roman jurists exhibit an awareness of th two rapte'lt. S< >iiiare careful to explain that paternal power applied only to matters of private law, so that a magistrate who was in his father's power had no obligation to obey him in official matters (Pomponius, D. iffi.9).

Two other factors are worth mentioning. The first is the peculium, a fund of property made available to the dependent son or daughter (or to a slave). It is fundamental to the peculium that it remained the property of the paterfamilias and could be withdrawn at any time. But the person to whom it was granted had full powers of disposal over it until such time as it was withdrawn. Peculia could be large: they were not just pocket money or allowances. There are plenty of texts in the Digest which speak of peculia which contained slaves who themselves had peculia which contained further slaves: the highest peculium in this hierarchy might be of very significant value. Indeed precisely because peculia might be large and employed in the workings of Roman commerce, most discussion of them is left until chapter 5. It is clear that the grant of a substantial peculium would render more or less nugatory the fact that, strictly speak­ing, a person still in paternal power could own nothing.

A further significant development was the creation by the emperor Augustus of the peculium castrense, a fund consisting of any earnings or booty acquired by a son in the course of military service. This was a radical break with principle, since the father had no interest in this type of peculium, at any rate during the son's lifetime, and the son could even leave it by will. Clearly, this was a piece of social engineering rather than the coherent development of private-legal principle; and it has been sug­gested that the aim of this innovation was to encourage recruitment to the army. If that is right, however, it does rather suggest that the inabil­ity to own property as a dependent son was a genuine difficulty. The principle of peculium castrense was extended in the fourth century ad to earnings from public service (peculium quasi castrense) and to property inherited by a child on the maternal side (bona materna). The trend was therefore slowly but decisively in favour of increasing the dependent child's proprietary capacity.

A second possible corrective to our picture is emancipation, voluntary release from paternal power. The Twelve Tables contained no provision for ending paternal power voluntarily; they only provided that a son should be freed of his father's power if his father had sold him three times. (Three sales of the same son were possible because each time - until the third - he was released from the buyer's control, he would auto­matically fall back again into his father's power.) The Roman jurists devised a method of bringing paternal power to an end by arranging with a compliant buyer for the sale of a son three times in succession.

Accordingly, it was possible to terminate paternal power prematurely, although this would have to be with the paterfamilias's own agreement. While the juristic invention of this scheme for emancipation may suggest a social demand for it, there is not much more evidence to support that. (One might imagine that the real tyrants would neither grant a peculium nor agree to emancipation.) Such evidence as there is is finely balanced. Some makes it sound as if emancipation was a punishment: it broke the family tie, a fact which may have been of great consequence in a society as obsessed as Rome was with family pedigree and ancestors. It had the additional disadvantage that, if the paterfamilias died without making a will, the emancipated children had no claim on the estate (although this restriction was removed by the praetor). But there are also signs that emancipation was used as part of a strategy of planning for the future of the family as a whole, by making separate provision for, rather than punishing, emancipated family members, and this strategy was not nec­essarily associated with financial embarrassment (Gardner 1998: 6—113). So, although we have no way of knowing how common emancipation actually was, there is no reason to assume that it was routine. Instead, it might be called into service for any of a variety of purposes, positive or negative.

2. Adoption

It was possible to adopt people into paternal power. There were two different procedures, depending on whether the person to be adopted was at the time in power or independent. Where the adoptee was in power, it was necessary to go through emancipation proceedings in order to terminate the first power, and then for the adopter to claim the adoptee as his own. This was done in an undefended legal action, judg­ment in which established the new paternal power.

Where the adoptee was independent, the adoption (adrogatio was the technical term in this case) affected the whole property and any depen­dants of the adoptee; in essence it was the takeover by one family of another. This was allowed only after inquiry by the pontiffs, and only if the acquiring paterfamilias needed an heir and successor and could not provide his own (a requirement which was interpreted as meaning that he was aged sixty or over, or unable to reproduce). This background explains too why anyone would agree to such a thing: the prospect of succession was the allurement. Adoption, like emancipation, is therefore to be seen as one of the devices open to a paterfamilias to plan for the future of his family and his estate: just as emancipation could be used to reduce the number of those in paternal power, so adoption could be used to increase it (Gardner 1998: 114-208).

In each case the point of adoption was to create a new paternal power. For that reason women could not adopt.

name=bookmark127>p. Marriage

Marriage in classical Rome was more a secular than a religious matter. Its main legal effect was that children born within it were legitimate, Roman citizens and subject to the paternal power of their father; that is the context in which Gaius's Institutes discusses it (Inst. 1.55-6). It will be enough to summarize the requirements for valid marriage very briefly. First, there must be capacity (conubium), which most Roman citizens and certain others had once they were of age, twelve in the case of girls and fourteen for boys, provided the marriage did not fall within the prohib­ited degrees of relationship. Second, there must be consent by the parties to the marriage, and any party who was still in paternal power needed the consent of the paterfamilias. The need for his consent was gradually watered down, so that he could not obstruct the marriage, although the dates are a matter of uncertainty. In any event, demographic consider­ations suggest that, when they married, women would typically be in their late teens and probably half of them would by then be free of paternal power; while only a quarter of men, who typically married in their late twenties or early thirties, would when they married still be in power (Saller 1994: 25-41; Treggiari 1991: 398-403).

A striking difference between modern and Roman expectations is that in Roman law marriage had no effect on property. A strict regime of sep­aration of the spouses' property was preserved. Just as husband and wife, if still dependent, remained in the power of their respective patresfamil- ias, so too, whether the spouses were dependent or independent, mar­riage had no effect on the ownership of property on the two sides of the family. Legislation, the lex Cincia of 204 bc, made gifts between spouses void. The purpose of this was clearly not to discourage birthday or anni­versary presents but to prevent large capital settlements being made from one side of the family to the other. The jurists expended a good deal of effort on exploring the ramifications of this prohibition (D. 24.1).

The only exception to the rule that no property must pass from one side of the family to the other was the dowry (dos; Treggiari 1991: 323-64). This was property provided by or on behalf of the wife, for example by her paterfamilias or by relatives or friends. It appears to have been regarded as a social duty, incumbent presumably on close family, to provide a dowry (Julian, D. 12.6.32.2). The dowry was owned by the husband during the currency of the marriage, but a number of restric­tions were placed on his free use of it. The first of these - which is also interesting as an illustration of the sort of property a dowry might contain - was a statute of Augustus, the lex lulia de fimdo dotali. It provided that the husband could not sell land in Italy which belonged to the dowry without his wife's consent (Gaius, Inst. 2.63).

The Digest gives a good deal of detail about the rules for dowries. The key point, however, is that the rules laid down by the law were only resid­ual: they applied in the absence of contrary agreement by the parties. The size of the dowry, according to the jurists, ought to reflect the stand­ing and wealth of the husband and wife (Celsus, D. 23.3.60; Papinian, D. 23.3.69.4). But it is clear enough that negotiation of the amount of a dowry and the terms on which it was to be returnable reflected the rel­ative statuses, and therefore the bargaining positions, of the families which were being linked by the marriage. For example, one possibility was that the dowry would be valued at the outset of the marriage (dos aeslimala) and the husband would be under an obligation to return that value at the end. Ulpian points out that, at least so far as items which suffered wear and tear were concerned, this was an unfavourable arrangement for the husband (D. 23.3.10 pr.). But he might have no choice but to agree to it. (Incidentally, it is interesting that Ulpian's view of this as an unfavourable agreement apparently assumes a low rate of inflation.)

While it is therefore not possible to generalize about the value of dowries, there is at least some reason to think that the typical dowry was a relatively small, though not negligible, contribution towards support­ing the wife, her children, and her slaves in the matrimonial home (Saller 1994: 204—24). It was not, for example, as in some early modern societies, an advance to the daughter at the time of her marriage of her whole prospective share of her parents' estate. But the evidence that dowry was sometimes paid in instalments certainly makes it clear that it was a set­tlement of significant capital, and Cicero's difficulties in raising the nec­essary funds are well documented (Alfenus, D. 23.4.19; Cic., All. 11.2.2; 11.23.3; 11.25.3). A further pointer towards the dowry's being significant but less than a daughter's full entitlement is the fact that, if she made a claim on the intestate estate of her father, the amount she had already (indirectly) received by way of the dowry was taken into account. If it is right, then, to take Roman dowries to have been relatively modest, this may have been not least because marriage was not necessarily a stable relationship, and it therefore did not make much sense to put substantial amounts of property at stake. Which brings us on to divorce.

4. Divorce

The Roman notion of marriage was that of a continuing contract entered into by consent; the corollary was that when consent came to an end, so did the marriage. Agreements to other effect were void (C. 8.38.2 of ad 223). Although initially the paterfamilias of the husband or the wife was able to initiate their divorce, by the second century ad his power to terminate a harmonious marriage was evidently limited (Ulpian, D. 43-4⁰-^I-5)·

Moralists probably exaggerate how common divorce was. The facts are hard to ascertain (Treggiari 1991: 435—82). But it may well be that divorce in classical times was relatively common. No stigma apparently attached to it. Unilateral repudiation of the marriage was enough to end it; approved words for divorce were such things as ‘keep your things to yourself' or ‘look to your own things' (Gaius, D. 24.2.2.1). Under Augustus a requirement of seven witnesses to a divorce was introduced. The grounds for this seem to have been primarily so that it could be ascertained whether children were legitimate; whether the conduct of either spouse constituted adultery, as to which Augustus introduced strict penalties; and whether Augustan statutory rules penalizing the unmar­ried (or those who did not remarry quickly enough) were applicable. After the rigid and sometimes bizarre rules of the archaic period, classi­cal law made no attempt to list the grounds on which divorce could be sought. In Britain and elsewhere the trend is in the same direction: the law has moved from insisting on fault as a ground for divorce to found­ing on the irretrievable breakdown of a marriage as grounds for termi­nating it. Although the Roman jurists do not spell out any rules about grounds for divorce, literary sources do suggest that a substantive reason for divorce would usually be expected (Treggiari 1991: 461-5). The effect of divorce on the dowry might anyway reduce the attraction of divorc­ing your spouse without any reason at all.

Major questions which arise in modern divorces did not do so in Rome. Since the husband (or his paterfamilias) had power over the chil­dren, he was in principle responsible for the custody of the child. This was reflected in the rules about return of the dowry, discussed immedi­ately below. In practice other arrangements might no doubt be made; but the legal responsibility was clearly that of the paterfamilias.

Since marriage itself had no effect on the spouses' property, divorce had none either. There was only the case of the dowry to resolve. As already mentioned, agreements about the fate of the dowry are likely to have been common. Two types of agreement frequently mentioned are dos recepticia, an agreement that all the dowry was to be returned to the donor whatever the circumstances of the end of the marriage; and dos aestimata, already mentioned, where the husband (or his heir) was under an obligation to return property to the value of the initial dowry at the end of the marriage.

In the absence of agreement, the rules were complicated and will not be discussed here. What matters is the broad principle that, if the wife survived, the dowry should go back to her (Paul, D. 23.3.2). The notion

T! lying behind this is that she should have a fund to provide a dowry for her in the event of remarriage. Since the dowry was the property of the husband, it was necessary to have an action to recover it from him when the marriage was over. This was called the actio rei uxoriae. In that action, account would be taken of various deductions which the law authorized the husband to make. The main ones were that the husband could retain a sixth for each child up to three, if his wife had initiated the divorce, but not if he had done so himself; he could also retain a sixth for moral reasons, notably adultery. Lesser misconduct was penalized by the reten­tion of only an eighth.

These rules meant that even a wife who was ‘penalized' to the maximum extent by having deductions made for three children and immorality would still get back a third of her dowry. She would need it: she would expect to remarry (and statute imposed penalties if she did not); and given that older women usually had to have rather more attrac­tive dowries, it could well be necessary to top the dowry up at least to the level at which it had started. There is no doubt that this system was very much in the husband's rather than the wife's interests: it did not make it possible to penalize him effectively for immorality.

y. Tutors for those under age

A further consequence of the remarks already made about life expec­tancy and mortality rates is that there would be a relatively large number of children who were not yet of full age — which was the age of puberty, taken as twelve for girls and fourteen for boys - but who were already independent owing to the death of their paterfamilias (Saller 1994: 181—203). The law required them to have tutors until they came of age.

It seems that the original reason for insisting on tutors had less to do with the welfare of the children than with the welfare of their property. The law of succession is discussed later in this chapter, but it is impor­tant to note here that, until a child reached puberty and was therefore capable of producing his or her own children, his or her nearest ‘agnate' (relative related through the male line) had an expectation of succeed­ing to the property in the event of the child's death. It was important therefore to have a tutor to ensure that the property was not squandered or dissipated because the child was cheated or defrauded. It is no acci­dent that the person who would become tutor if nobody had been appointed by the paterfamilias in his will was the nearest agnate. In the

last resort, the praetor would appoint a tutor for a child who did not have one (lex Atilia, before 186 bc).

The tutor was responsible for the administration of the child's prop­erty: investing property; raising or defending legal actions, and so on. This was serious business: the tutor's duties of investment alone were fairly onerous. As one would expect, the proper objects of investment had to be secure and not speculative: in short, land. It was permissible to have money on deposit, but basically only for the purpose of accumu­lating it to buy land; failure to take a suitable opportunity to buy land meant that the tutor was liable for interest on the sum he had not invested (Ulpian, D. 26.7.5 pr. and 7.3). Since the return on land was not particularly high, it is clear that the point of this liability for interest was not to maximize the child's income but to maximize the safety with which his or her assets were invested.

In addition to duties of administration, in the case of older children the tutor was responsible for authorizing certain actions. Authorization did not apply to young children, since it was possible only if the child was of sufficient age to understand what was involved. The child was able without authorization to perform acts which benefited him, but not any that harmed him, so he could acquire property or benefit under a contract; but no obligation was enforceable against him. In such circum­stances, of course, nobody would willingly deal with a child. This dis­equilibrium was corrected in part by the praetor's preventing a child from enforcing a bilateral contract against the other party, unless he was prepared to perform his own part. For example: in the contract of sale the child could not sue for the price of goods unless he was prepared to deliver them. More generally, however, the solution to this disequilib­rium was found in authorization: a transaction authorized by the tutor could be enforced against the child.

There was a gradual build up of remedies which reflect an increasing concern for preservation of the child's interests against the tutor's. Not only had every tutor (except one appointed by the paterfamilias in his will) at the outset to give security for good administration of the child's property; he had also to produce accounts of his dealings with the prop­erty, and, when the child attained full age, was exposed to the possibility of legal action. One action, the actio de rationibus distrahendis, applied only where there was fraud, such as embezzlement by the tutor; clearly a fraudulent tutor had only himself to blame. But a much more serious threat was the actio tutelae, which dates back to the late republic: here the tutor was liable for fraud but also for gross negligence; and by the late classical period the tutor might evidently be liable for any careless or negligent act in administering the child's estate (Papinian, D 26.7.39.3, 7, 13-14; K^aser 1971: 3⁶5^-6).

This being so, it is not altogether surprising that people began to look for excuses not to be tutors, and if at all possible not to accept appoint­ment as tutor in the paterfamilias's will. The jurists wrote books entirely devoted to suitable excuses for not being tutors, such as holding high office, age, chronic ill health, incompetence, or having three children (those killed in battle counted towards the total). The point is that the law of excuses was worked out in detail (see D. 27.1). The task was clearly unattractive.

6. Tutors for women

Boys were released from having a tutor at the age of fourteen. Although girls came of age at twelve, they were not then released from having a tutor. A woman of any age had still to have a tutor. What happened at age twelve, however, is that a girl ceased to have a tutor of a serious sort and acquired one whose role was in comparison much watered down. A woman's tutor had no need to administer anything, so his functions were limited to authorization. Even that function was relatively restricted, since a woman could perform many legal acts without it: for example, convey property informally (although not by formal conveyance); give a valid receipt. But she could not make a will, free her slaves, or do any other formal acts.

Authorization in this context was more or less a formality. In almost all cases a woman could compel her tutor to give his authorization; or it was possible, if the tutor was away, for however short a period, to change tutors to somebody more compliant. This is what lies behind the remark in Gaius's Institutes that authorization in the case of women is a mere matter of form (Inst., 1.190). For precisely that reason, the actio tutelae was not available against the tutor.

From the time of Augustus a woman could be released from having a tutor by performing her civic duty, which meant having sufficient chil­dren (three for a free woman, four for a former slave). This seems to be connected with a concern for maintaining the birth rate and so also the strength of the army. Given that having a tutor was such a modest incon­venience, it is hard to see why this incentive should have had any serious impact.

It is worth making three more points about the position of women.

(1)   That women's tutorship was not very burdensome, or that women in significant numbers were now no longer subject to it, is suggested by the senatus consultum Velleianum, a resolution of the senate of the mid-first century ad which provided that women should not guarantee the debts of any other person (Crook ig86b). The jurist Paul says that this is because such guarantees imperil the family property (D. 16.1.1.1); since that is as true of guarantees undertaken by men, perhaps a better expla­nation is that entering into guarantees was something that it was thought, for some social or cultural reason, that women simply ought not to do. The SC Velleianum was interpreted fairly strictly: it applied only to obligations undertaken on behalf of someone else; and only if the cred­itor knew that that was the case; and it did not apply where value was given, for instance, if the woman undertook the obligation in reciproc­ity for an obligation she owed to the creditor (Paul, D. 16.1.11—12 and 24; Callistratus, D. 16.1.21). For these reasons, it is doubtful whether the exis­tence of this rule prejudiced a woman's freedom to contract to any significant extent.

(2)   The traditional view of Roman law was that women had tutors; they could not be tutors (Papinian, D. 26.2.26 pr.). But as women increas­ingly came to be free of their tutors, it was less obvious that they should have nothing to do with looking after the property and interests of their children. There is some evidence that — without their actually becoming tutors - this happened. Some of the evidence is provincial; but there are hints of the same thing in Rome, at least where the father of the chil­dren had authorized this (Papinian, D. 3.5.30.6; Ulpian, D. 26.7.5.8; Chiusi igg4; Cotton igg3).

(3)   Many women would be free of paternal power at an early age. On the whole, they had the same rights of succession as men (Crook ig86a). It is true that a statute of i6g bc, the lex Voconia, imposed restrictions to the effect that a woman could not be heir to a person in the first census class; and that nobody could by gift or legacy receive more than the heir under the will. But these restrictions appear to have been evaded (Cic., definibus 2.55) and certainly by Augustus' day they do not seem to have had any effect.

Once free of paternal power and in possession of her inheritance, a Roman woman was constrained only by the formality of having to have a tutor. And that was pure formality. The conclusion is surely that in Rome women were unusually financially independent.

j. Guardians

It remains to say a few words about guardianship (cura). Two types are attested early (in the time of the Twelve Tables) but in detail are obscure. The first is care of the insane: they were placed under the care of their nearest agnate. Later on, the praetor was responsible for appointing a curator if there were no agnates, or they were for some reason suspect. Once again, considerations about preserving property lay behind this institution. It is tempting to imagine that, as in Victorian novels, the power to have somebody confined as insane would have been abused. But we do not seem to have any evidence about this.

The same aura of mystery surrounds another institution open to risk of abuse: the care of spendthrifts. They too could be placed in care so as to curtail their prodigality. But here too the workings of the institution are deeply obscure.

Better attested in classical law is the cura of minors, those who had out­grown having a tutor but were still young. This applies essentially to males, since women were anyway subject to continuing tutorship. Fourteen was an early age to acquire full legal capacity, so something more was needed.

Here too we see a counterpoint between the introduction of rights and remedies. If the law had simply treated minors as adults, and left them to take the consequences of their ill-advised actions, there would have been no need for the curator. But in fact Roman law introduced pro­tection for minors under twenty-five, if advantage had been taken of them. Some of this appears to go back to an early lex Laetoria (around 200 bc), about which little certain is known. In any event, in his edict the praetor made available to minors, if someone had taken advantage of their inexperience, a remedy called restitutio in integrum (‘restitution of the status quo', in other words revocation of a transaction). This was not for the case that a minor had made a bad deal, but where there was trick­ery or genuine exploitation of inexperience. The remedy was not auto­matically available but was granted by the praetor on a discretionary basis (Ulpian, D. 4.4.16 pr.). The problem was that the very existence of this remedy created uncertainty about whether a transaction was really valid or was liable at some future point to be challenged and revoked. While doubt persisted, the only reasonable course can have been to refuse to have any dealings with those who were or appeared to be minors.

At this point the law intervened once again, to create the device of the curator or guardian. Initially, a guardian was appointed ad hoc and only for isolated important transactions, but by the late second century ad it seems to have become common to have one for the whole period until the age of twenty-five. The point of the guardian was to protect not just the minor but the people dealing with him, since if a transaction had been entered into with his advice, it would be difficult or impossible for the minor to get it set aside.

size=2 color=black face="Times New Roman">This is an interesting example of legal evolution. The old law seems to have been content with tutorship and to have subjected males over fourteen to the same rules as any adult. This perception changed, and means of relief were introduced in certain circumstances for those over fourteen. But this shift of the law towards protection of the young had ultimately to be balanced by the creation of cura, to bring the law back into equilibrium. For without that equilibrium, the minor too was in effect at a disadvantage: nobody will deal with a person who deals on such unequal terms.