Ch. 1.3. Primary Source: Due Process, Equality, and Slavery in Later Roman Law
Roman Law under the Empire: Roman law is documented most fully from the period of monarchical rule known as the Roman Empire (31 BCE to ca. 500 CE/AD). This legal system, which employed such professionals as judges, lawyers, notaries, went out of use in Western Europe ca. 500 CE, when the Empire fell apart. Yet as a body of legal learning it continued to influence both the Roman Catholic Church’s Canon Law and medieval custom.
Rediscovery of the Body of Civil Law: Roman law found new influence after ca. 1100 CE, when western legal scholars re-discovered the compilation of Roman law that was made ca. 535 CE by the Eastern Roman (or Byzantine) Emperor Justinian. This massive compilation, known as the Body of Civil Law (or Corpus Iuris Civilis), consists of four parts: 1) the Code, a collection of earlier Roman laws; 2) the Digest, a voluminous selection of excerpts from the writings of Roman jurists, or legal experts; 3) the Institutes, a beginner’s textbook; and 4) the Novellae, a collection of more recent laws from Justinian’s own times.
The nine selections below include eight items from the Body of Civil Law, which concern justice, due process and the types of law, and slavery. The final selection instead comes from the theologian Augustine, and may be considered a part of the Roman Catholic Church’s law, known as ‘canon law.’
- Justice: “Justice is the constant and perpetual desire to give to everyone that to which he is entitled. The precepts of the law are the following: to live honorably, to injure no one, to give to everyone his due” (Digest, 1.1.10).
2. Burden of Proof: “Proof is incumbent upon the party who affirms a fact, not upon him who denies it” (Digest, 22.3.2). “Accusers should not bring criminal charges unless they can be proven by proper witnesses, by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day” (Code, 4.19.25).
3. Criminal Intent: “A distinction must be made in more serious crimes, that is whether they have been committed intentionally or accidentally. Indeed in all offenses this distinction should either induce a penalty to be inflicted in strict compliance with the law, or allow for moderation” (Digest, 48.19.5).
4. Confessions: “If anyone voluntarily confesses a crime, faith should not always be reposed in him; for sometimes one makes a confession through fear” (Digest, 48.18.1).
5. Legal Penalties: “Some criminal offenses are capital, and some are not. Capital crimes entail the penalties of death, the loss of civil rights, or servitude. For capital crimes, the most extreme penalty is death by hanging, or burning alive. The next most severe penalty is labor in the mines. After that comes deportation to an island… Crimes which are not capital entail penalties that are either pecuniary or corporeal. It is not customary for all persons to be whipped, but only men who are free and of inferior station…” (Digest, 48.1.2; 48.19.2, 28). “In civil suits the penalty is a sum of money…, but in criminal cases the judge determines the offender’s extraordinary punishment” (Institutes, 4.4.10).
6. Torture: “Judges should not begin the investigation by resorting to torture, but should first examine all the evidence. If, after having done so, they think that torture should be applied to ascertain the truth, they should resort to it only where the rank of the persons involved justifies such a course… Slaves can be put to torture not only in criminal cases, but also in those involving the payment of money… When a gladiator or some person of this kind must serve as a witness, his evidence is not to be believed, unless he is subjected to torture” (Code, 9.41.8, 15; Digest, 22.5.21).
7. The Law of Persons: “The chief division in the rights of persons is this: that all men are either free or slaves. Some persons are legally independent (sui juris), while some are subject to the power of others. Slaves are subject to the power of a master… Our children, born from a lawful marriage, are in our power” (Institutes, 1.8-9).
8. Slavery & Equality: “Manumissions are part of the Law of Nations, because according to natural law all persons were born free, and manumission was not known, as slavery itself was unknown. But after slavery was admitted by the Law of Nations, the benefit of manumission followed” (Digest, 1.1.4). “So far as the Civil Law is concerned, slaves are not considered persons, but this is not the case according to natural law, because natural law regards all men as equal” (Digest, 50.17.32).
9. The Origin of Slavery (and Inequality). Augustine, Bishop of Hippo, in North Africa, was the most influential early Christian theologian and philosopher in the West. He combined Roman and Christian ideas to provide the following explanation for the origins of slavery (and inequality more generally):
“God did not intend that his rational creature, who was made in his image, should have dominion over anything but the irrational creation— not man over man, but man over the beasts. And hence the righteous men in primitive times were made shepherds of cattle rather than kings of men. For it is with justice, we believe, that the condition of slavery is the result of sin. And this is why we do not find the word slave in any part of Scripture until righteous Noah branded the sin of his son with this name [Genesis 9:20-27]. It is a name, therefore, introduced by sin and not by nature.
“The origin of the Latin word for slave [servus] is supposed to be found in the circumstance that those who by the law of war were liable to be killed were sometimes preserved by their victors, and were hence called servants [servi]. And these circumstances could never have arisen save through sin. The prime cause, then, of slavery is sin, which brings man under the dominion of his fellow, and which does not happen save by the judgment of God. But by nature, as God first created us, no one is the slave either of man or of sin. This servitude is, however, penal, and is appointed.
“And therefore the apostle admonishes slaves to be subject to their masters, and to serve them heartily and with good-will [Ephesians 6:5], so that, if they cannot be freed by their masters, they may themselves make their slavery in some sort free, by serving not in crafty fear, but in faithful love, until all unrighteousness pass away, and all principality and every human power be brought to nothing, and God be all in all” (The City of God, ca. 420 CE, ch. 19.15).