Judicial pluralism in the Visigothic kingdom of Toulouse
Special jurisdictions and communal courts
p. 231-250
Résumé
The aim of this paper is to explore whether the judicial pluralism of the Roman empire remained a reality in the post-Roman western kingdoms. The Visigothic Kingdom of Toulouse is an interesting case, as the interpretationes of the Breviary of Alaric are a useful source to consider how a post-Roman power preserved and changed Roman legislation regulating public and private jurisdictions. We will see that some special jurisdictions, such as that of the Urban prefect for senators, were suppressed, whereas others, such as that of military courts, were maintained. The compilers of the Breviary specified the conditions in which parties were permitted to come before communal courts and before private arbitrators. The interpretationes thus prove that part of the judicial pluralism inherited from the empire still existed and remained a part of practice.
Entrées d’index
Keywords : Gaul, Visigothic Kingdom, post-imperial legislation, post-imperial administration, Breviary of Alaric, special jurisdictions, audientia episcopalis, Jewish courts
Texte intégral
1In the Later Roman empire, judicial practice was characterized by a significant increase in the number of privileged fora.1 Among them were the courts depending on the Res privata, the Sacrae largitiones, the praefectus annonae, and the Urban prefect. In parallel to these fiscal and administrative courts, whose jurisdiction applied to their officials or to some categories of persons who enjoyed jurisdictional privileges, there were also military courts that judged soldiers according to military penal law. Judicial competences of the army were defined ratione personae, yet sources show that some civilians tried to circumvent ordinary tribunals and call upon military courts to solve their disputes. During the 4th and 5th centuries, the imperial power produced copious legislation to regulate privileged fora. These laws enable us to catch a glimpse of all the illegal practices associated with these special courts, in particular the irregular praescriptiones fori.2
2Private arbitration led by influential men, such as patrons, civic magistrates, bishops, and archisynagogi, was also used by provincials as an alternative dispute resolution system. Private arbitration often was cheaper and faster than judicial proceedings before the governor of the province. Sometimes, it also held out hope of a more favorable sentence. The very existence of these alternative judicial and arbitral courts functioning beside the common law courts attests to legal pluralism in the empire, inasmuch as they followed procedural and substantive laws that were different from those applied by ordinary Roman judges.
3I propose that we reflect on the assimilation of Roman law over the longue durée, even after the disappearance of the Western Roman empire, by surveying the evolution of legislation regulating various legal fora within the kingdoms that emerged in post-Roman Gaul. The main objective will be to attempt to reconstruct the evolution of these judicial and arbitral bodies in a period when some Roman administrative structures had disappeared but provincials still needed judges.
4This study focuses on the Visigothic Kingdom of Toulouse between 475 and 507 CE, when it was an independent political entity. This choice is primarily informed by a legal source most commonly known as the Breviary of Alaric, which was compiled at the behest of the Visigothic king at the beginning of the 6th century.3 The nature and applicability of this code, particularly whether it was applied according to territory or according to ethnicity, have been greatly debated.4 According to Javier Alvarado Planas, the Breviary of Alaric was a ius commune, a general law that applied to all subjects of the Visigothic Kingdom, be they Goths or Romans. The Code of Euric thus remained in force, possibly applying only to Goths, for whom the Breviary of Alaric was a suppletory law that filled in silences and lacunas.5
5The Breviary of Alaric brings together leges and doctrinal commentaries extracted from the Theodosian Code, the Novellae, the Epitome Gai, the Sententiae Pauli, the Gregorian and Hermogenian Codes, and Papinian’s Responsa. Most of the passages selected from the Theodosian Code or the Novellae were supplied with an interpretatio or a statement indicating that no interpretatio was needed. Most of the interpretationes may have been extracted from doctrinal comments that circulated in Gaul during the 2nd half of the 5th century.6 These comments were copied or paraphrased by the compilers who worked on the Breviary. Some interpretationes rephrase the constitutions without introducing substantive changes, yet some others modify their content by simplifying them or adapting them to reflect the new realities of the kingdom.7 It is the latter type of interpretationes that I will study, in particular for the constitutions concerning certain judicial bodies and procedural frameworks that parallel the jurisdiction of ordinary judges.8
6Of the 417 titles of the Theodosian Code, 180 were preserved in the Breviary, and only 6 percent of constitutions retained.9 In gleaning and adapting a legal corpus that would be somewhat consistent with the politics and institutions of the Visigothic Kingdom, the compilers of the Breviary paid special attention to Roman legislation on special jurisdictions. No fewer than twelve constitutions entitled De iurisdictione et ubi quis conveniri debeati (C.Th. 2, 1) were retained. Which judges or arbitrators were permitted to settle a dispute, depending on the nature of the case and the status of the litigants, remained an important issue. For one example, the compilers retained and commented one of the few constitutions on the Jews’ jurisdictional privileges. Like all Roman citizens, Jews were subject to Roman common law; in civil and criminal cases, they were answerable to civic and provincial iudices. However, one interpretatio shows that they could in some civil cases instead turn to Jewish courts for arbitration by the maiores of their community. It thus was essential for the Visigothic government to specify in what conditions such arbitration was an option. I will present three case studies that illustrate which elements of legislation regulating certain public and private jurisdictions were suppressed, which retained, and which modified by the compilers of the Breviary.
Contraction and endurance of public jurisdictions
Integration of the maiores in common law jurisdiction
7At the end of the 3rd and the beginning of the 4th century CE, as Rome was still considered the domicilium dignitatis of all senators of the empire, the Urban prefect judged senators accused in civil cases. For criminal cases involving offenses perpetrated in the provinces, the senators did not enjoy any privilegium fori, but they did enjoy the procedural privilege of not being subject to torture (except lese-majesty cases). From the last years of Constantine’s reign until 355 CE, senators accused of criminal conduct in an area that included Rome and a hundred-mile zone around the Urbs were the only ones who could appeal the Urban prefect’s decision. However, as the nature of the relationship between the emperor and the senatorial milieu changed in the 4th and 5th centuries, some senatorial procedural privileges evolved accordingly.10
8Laws concerning the Urban prefect’s jurisdiction over senators caught the compilers’ attention. Of seven laws in the Theodosian Code that relate to the Urban prefect’s jurisdiction over senators, four were commented.11 Here, every interpretatio dramatically modifies the content of the constitution it accompanies. Three interpretationes are so different from the initial constitutions that they transform into general laws concerning not only senators, but all subjects. They also omit all mention of the Urban prefecture, indicating that this office had disappeared from the Visigothic administrative hierarchy. For instance, C.Th. 2, 1, 4, mentions the classical Roman rule that every plaintiff must go to the court that has jurisdiction over the defendant.12 Thus if senators are accused by provincials, the Urban prefect must judge the case. The interpretatio, however, mentions only the rule of actor rei forum sequatur,13 making no reference to senators or the Urban prefecture. C.Th. 9, 1, 1, forbids senators accused in a criminal case to use the praescriptio fori so that they will be judged by the Urban prefect instead of the judge of the province wherein the crime was committed.14 The interpretatio does not mention senators,15 but simply states that the defendant must be summoned to appear before the judges of the locus where the crime was committed. A final example is the interpretatio of C.Th. 2, 1, 12. The constitution required that senators accused in a criminal case be judged by a quinqueviral court composed of the Urban prefect and five senators chosen by lot.16 In the interpretatio, the senators are replaced by aliquis, and the Urban prefecture vanishes.17 The interpretatio thus states that if a person is accused of a crime, he must be summoned before a court of five eminent men chosen by lot.
9The aristocrats of the kingdom may have lost their privilegium fori due to the disappearance of the Urban prefecture from the Visigothic judicial hierarchy. However, they seem to have kept some procedural privileges. C.Th. 9, 40, 10, states that if a governor or prefect wishes to sentence to “a punishment of an extreme severity” a senator accused in a criminal case, the judge must refer the case to the emperor.18 The corresponding interpretatio – the only one that singles out a privileged social group, now the maiores personae and the men of a certain dignitas, rather than the ordo senatorius19 – states that the accused must be brought by the iudex before the king, here termed domini rerum.20
10The above analysis of the four constitutions in the Breviary of Alaric that touch on the Urban prefect’s jurisdiction over senators demonstrates that references to senators and the Urban prefecture were deliberately deleted, probably because they did not correspond to the social and administrative reality of the kingdom. The Urban prefecture must have disappeared, and the Gallo-Roman senatorial elite consequently redefined. No longer were they members of an ordo. Instead, these maiores and men of a certain dignitas are presented as a collection of individualities.21 Roman aristocrats of senatorial birth or rank living in the Visigothic Kingdom may no longer have had the benefit of a privilegium fori, retaining only the privilege of having their cases examined by the regal power when they were accused in criminal cases.
11The above examples indicate a global restriction of the ability of maiores personae to call on special courts. However, other interpretationes show that members of the militia continued to benefit in special circumstances from a privilegium fori, which therefore still needed to be regulated.
Endurance of militia members’ jurisdictional privileges
12The compilers of the Breviary kept only two laws regulating military courts.22 One is constitution C.Th. 2, 1, 2, addressed by Constantius II to the praetorian prefect Taurus in 355 CE,23 which states that a militia member who is party to a civil case must be judged by the provincial governor. It also recalls that soldiers must be judged by their superiors in criminal cases where they stand accused. The interpretatio retains the content of this law without major modification.24 Thus in the Visigothic Kingdom, soldiers and members of the militia seem to have retained the right to appear before a special court, but only as defendants in criminal cases.
13The second relevant constitution that was preserved, C.Th. 2, 1, 9,25 forbids provincials to bring a civil case before the military court in order to avoid ordinary judges, a rule rephrased in the interpretatio without major changes.26 This shows that in the Visigothic Kingdom, provincials continued to practice forum shopping and to go to military courts when they thought that these would provide a more favorable judgment.
Endurance of judgment by private authorities: private communal courts
Audientia episcopalis
14The compilers of the Breviary retained a small part of the religious legislation contained in the Theodosian Code and the Novellae. Only eleven of the 201 constitutions of Book XVI are commented.27 Of the nine laws in the Theodosian Code and Novellae that deal with episcopal jurisdiction in internal disputes or episcopal arbitration of non-ecclesiastical cases, five were retained and commented in the Breviary.28
15The compilers retained C.Th. 11, 36, 20, which mentions a 369 CE judicial case involving Chronopius, a bishop accused of an illegal forum-shopping attempt29 after lodging a provocatio with civil authorities although a court of seventy bishops already had sentenced him.30 How the imperial power heard about the case is not clear. Chronopius may have lodged a provocatio with the emperor after the proconsul of Africa dismissed his first appeal. Also possible is that the proconsul of Africa simply transferred the case to the emperor. Due to the use of the terms provocatio and provocare, the former hypothesis is more probable.31 In the interpretatio, the constitution’s reference to the proconsul’s court (tuo iudicio) is not preserved,32 and the words provocatio and provocare in the initial sentence are replaced by appellatio and appellare. This modification is logical, considering that the provocatio mentioned in the constitution refers to an appeal addressed to the emperor after an initial appeal lodged before the proconsul. As the jurisdiction of the proconsul is absent in the interpretatio, the use of the word appellatio is justified. The last modification is that the amount of the fine, unspecified in the constitution, is given in the interpretatio. The author of the latter must have referred to C.Th. 11, 36, 15 and 16, which establish a fine of fifty pounds of silver for appeals against interlocutory decisions. To summarize, the compilers of the Breviary retained this constitution, originally intended for very specific circumstances, and made it into a more general and simpler regulation aiming to prevent bishops from attempting illegal forum shopping.
16In C.Th. 16, 2, 23, a distinction is made between disciplinary cases, which had to be judged a suae dioeceseos synodis, and criminal cases, which were to be judged by ordinary judges (governors, vicars), extraordinary judges (designated by the emperor, the praetorian prefect, or the vicar), or the Illustrious Authorities (the praetorian prefects, Urban prefects, and magistri militum).33 The meaning of the expression a suae dioeceseos synodis has been debated. Some scholars believe that it refers to diocesan synods, assemblies composed of the bishop and his clergy.34 Others opine that the synods in question were provincial synods.35 Finally, some scholars argue that the text should be translated as: “The cases concerning religious observance […] shall be heard in their own places by the synods and the dioceses,” a general statement that disputes between clerics and cases related to religious observance were to be judged inside the Church.36
17The interpretatio paraphrases the constitution, with modifications.37 First, it explicitly targets clerics, whereas the constitution is not specific on this point. Second, it reformulates the passage on the synods and dioceses and includes much more detail: “once the priests of the diocese have been summoned by the bishop, [the matters] which have come into contention shall be ended by a judgment”. The interpretatio is not ambiguous: the diocesan synod clearly is the competent forum to hear disciplinary cases. Moreover, in the interpretatio there is no reference to the ordinary and extraordinary judges, nor to the illustres potestates. In criminal cases involving clerics, the litigants must go before “the judge in the city in which the action takes place”. This modification shows how the Visigothic judicial hierarchy had been adapted to fit with the new territorial realities of the kingdom. Some of the provincial governors’ judicial competences were transferred to the civic level.38 However, although the interpretatio of C.Th. 16, 2, 23, modifies the content of the original constitution to explicitly target clerics and to settle the legal fiction at a more local level, it preserves the main message of the law: ecclesiastical courts were allowed to judge all disciplinary cases, but criminal cases were to be transferred to civil judges. The same principle is similarly phrased in another constitution, C.Th. 16, 11, 1,39 which the compilers quoted with no interpretatio. Once again, the rule is clear: though disciplinary cases belong to the judgment of bishops, criminal cases must go before a public court.
18As for laws dealing with laymen who chose episcopalis audientia to settle their disputes, only the praefatio and §§ 1 and 2 of Valentinian’s Novella XXXV were retained.40 In the praefatio of the constitution, the bishop’s status as private arbitrator is affirmed, and it is specified that he may arbitrate a case only if the litigants, be they clerics or laymen, previously concluded a compromissum.41 The interpretatio42 seems to make the procedure easier, as it omits the need for clerics to conclude a compromissum before coming before the bishop, instead noting that a law of Majorian – perhaps a part of his Novella XI – abrogated this rule. The fact that clerics were not required to conclude a compromissum means that sentences given by bishops serving as arbitrators could be enforced by a public judge even without a mutual promise formalized according to Roman standards. Thus, regarding the settlement of disputes inside the Church, bishops seem to have been less restrained in their judicial prerogatives by administrative formalities. Finally, the interpretatio43 restates the same principle recorded in paragraph 2 of the Novella:44 in the resolution of civil cases involving at least one layman, the audientia episcopalis remained an arbitration body whose intervention depended on the consent of the two parties. Given the lack of clarification in the interpretatio regarding the necessity to conclude a compromissum prior to episcopal arbitrage concerning at least one layman, one might conclude that Valentinian’s Novella continued to be followed in this case.
19In conclusion, the compilers of the Breviary conscientiously reiterated the fundamental principle that bishops were allowed to judge all non-criminal disciplinary cases. However, they innovatively established that in cases between clerics, episcopal sentences would be binding even without a compromissum. This modification reinforced and reasserted bishops’ authority and disciplinary power over clergy members.
Jewish courts
20The compilers preserved only a small part of Roman legislation concerning Jews,45 but made a point of retaining and commenting a constitution dealing with Jews’ jurisdictional privileges. Taken in isolation, this interpretatio can give the impression that the Visigothic legislator was favorably disposed toward Jews. However, a comparison to other constitutions commented in the Breviary and especially the interpretatio of Nov. Theod. III, which restates Jews’ exclusion from the militia and administrative offices, indicates that Jews probably were not perceived by the Visigothic legislator as being cives like others, and the Breviary probably was not more salutary to them than was the Theodosian Code.46
21C.Th. 2, 1, 10,47 addressed to the praetorian prefect of the East Eutychianus in 398 CE, states that Jews are subject to Roman ordinary courts “for the cases that concern jurisdiction, leges and ius”. For everything that was related to Jewish superstitio, they could turn to the Jewish authorities. However, the imperial power wished to ensure that Jewish judges would not interfere in cases belonging to the competences of Roman civil judges. To do so the legislator employs a double legal fiction by stating that if a Jew wants to submit his case to a Jewish judge, he must consider the latter “in the manner of” or “as if” he were an arbitrator, meaning that the Jewish judge could arbitrate cases only inter volentes. Another essential element of this law is the reference to the compromissum. The Roman legislator allowed the Jewish authorities to decide whether they wanted to observe the strict requirements of the usual Roman arbitral procedure ex compromisso.48 This situation would explain why, to ensure the enforceability of the sentences of Jewish arbitrators even if not guaranteed by a compromissum, the legislator reiterates that public judges must execute their sentence “as if such arbitrators had been assigned by the sentence of a judge”.49
22Whether C.Th. 2, 1, 10, aims to limit the power of Jewish judges or else to clarify their prerogatives is a question that has divided scholars. The answer depends on how one understands C.J. 1, 9, 8, which was composed with C.Th. 2, 1, 10, as a model.50 C.J. 1, 9, 8, presents a simpler version of C.Th. 2, 1, 10, but the suppression of a non in the initial sentence has been interpreted in different ways. Some scholars have understood the change as proof that Justinian wanted to suppress Jews’ jurisdiction concerning religious matters, so that the aim of C.Th. 2, 1, 10, was to redefine the jurisdiction of Jewish judges by giving them the right to judge some cases governed by their religious beliefs (superstitio) and to arbitrate civil cases in which the litigants agreed to go to a Jewish court.51 However, other scholars argue that the phrase quae non tam ad superstitionem eorum in C.Th. 2, 1, 10, is so vague that it may have had no practical effect: in reality, cases related to marriage, donations, legacies, and even property rights could fall under both Jewish and Roman law. Consequently, using the criteria of the superstitio to define the competences ratione materiae of the Jewish judges may have been a challenge. The redactor of C.J. 1, 9, 8, may have been cognizant of this imprecision and wanted to improve the practical efficiency of the rule appearing in C.Th. 2, 1, 10.52 If we accept this last possibility, the concession made in C.Th. 2, 1, 10, allowing Jews to call on Jewish courts to judge cases belonging to their religion would have been inapplicable. As many civil cases involving Jews concerned both Jewish and Roman civil law, their settlement required the intervention of a public judge. The Jewish litigants thus could directly call on the Roman judges, or as possibly intimated in the second sentence of C.Th. 2, 1, 10, they could go before Jewish arbitrators, whose sentence later was enforced by Roman judges. The aim of C.Th. 2, 1, 10, may have been to recall that Jewish authorities could act only as arbitrators and were forbidden to overstep their function by exercising among their flock coercive power that would have competed with the iurisdictio and coercitio of Roman civil judges.53
23The interpretatio of C.Th. 2, 1, 10,54 introduces two modifications of particular interest. First, the author of the interpretatio opted for much more neutral and precise terminology in detailing the competences ratione materiae of Jewish judges. He made do without the term superstitio, instead referring to Jews who went before Jewish judges in matters pertaining to “the discipline of their religion (religio)” and taking the trouble to note that in this case, “Hebrew laws” (Hebraeae leges) had to be observed. As rightly noted by Céline Martin, the redactor of the interpretatio may have used the term religio as a synonym of lex, as exemplified by the fact that he uses the two terms interchangeably in qualifying the maiores.55 Even if religio is more precise than the original constitution’s vague term superstitio, we might wonder whether cases regulated by both Jewish and Roman law, such a marriage or legacies, were included. As in C.Th. 2, 1, 10, the interpretatio seems to leave to the arbitrator’s discretion whether he can settle the dispute or it must be submitted to a court. Another significant modification appears in the second sentence of the interpretatio, which recalls that civil disputes between Jews can be settled before Jewish authorities only inter volentes. Unlike in the constitution, where a compromissum is one of the options from which Jewish parties may choose, the conclusion of a compromissum before arbitration seems to be compulsory. As a result, the statement that provincial judges were to enforce the sentences of the Jewish arbitrators was suppressed: in the interpretatio, the enforceability of the verdict given by the Jewish arbitrator is formally guaranteed by the conclusion of a compromissum. Unlike the double fiction in C.Th. 2, 1, 10, which implies that the procedure followed by Jews to summon Jewish arbitrators could be more flexible, the interpretatio explicates that every Jew who wishes to go before a Jewish arbitrator to settle a dispute must follow regular Roman procedure.
Conclusion
24The fact that the compilers of the Breviary of Alaric retained and commented all these laws dealing with jurisdictions other than that of ordinary judges attests to the assimilation of Roman legislation over the longue durée, even after the disappearance of the Western Roman empire. It also shows that the compilers were attentive to the task of establishing a legal framework within which the judicial pluralism inherited from the Roman empire would be adapted to accord with the social, judiciary, and administrative hierarchies of the Visigothic Kingdom. For instance, the maiores personae of the Visigothic Kingdom, who took the place of senators, seem to have lost their privilegium fori, albeit they continued to enjoy procedural privileges. The members of the militia meanwhile retained the privilege of judgment by military courts when they were accused in a criminal case.
25In addition, the compilers of the Breviary made a point of specifying the conditions in which parties could take advantage of these special public jurisdictions. Some of the interpretationes, such as C.Th. 2, 1, 9, bearing on military justice, and the constitution regarding Chronopius, show that provincials still looked for easier or more favorable jurisdictions. The Visigothic power therefore needed to statutorily prevent illegal forum shopping.
26Finally, turning to communal courts, the compilers recalled that Christian and Jewish authorities had arbitrational power only in civil cases. Nevertheless, the interpretationes make explicit that bishops acted as judges in disciplinary cases – that is, all cases concerning the clergy or the functioning of the Church – while the nature of the cases that could be deliberated by Jewish maiores remains vague. I have shown that the main modification introduced concerns the compromissum. For settlement before a bishop of a dispute between clerics, the obligation to conclude a compromissum was rescinded, probably to facilitate settlement of disputes inside the Church. Bishops’ status as religious leaders and their competences as judges were thus reinforced, notwithstanding that they could act only as arbitrators in any civil case involving at least one layman.
27Regarding the legal competences assigned to Jewish maiores, the compilers restated and slightly modified the Roman legislation. The definition in the Breviary of Jewish courts’ competences rationae materiae seems less deprecatory than in the Roman legislation – the Jewish superstitio being replaced by the Jewish religio and Jewish laws – yet this definition remains as vague and limited in practice as that in the constitution of 398 CE. The major modification introduced by the compilers is that any arbitration led by a Jewish leader must follow the regular Roman procedure ex compromisso, thus clarifying that Jewish maiores were private arbitrators whose sentences were not binding. Finally, even if no known source indicates whether this legislation concerning Jewish legal rights was in effect in Aquitania or central Gaul at the beginning of the 6th century, the fact that the law was retained and commented shows that arbitration by Jewish leaders kept its place among the common private dispute settlement mechanisms that the Visigothic power wished to regulate by law.
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Notes de bas de page
1 For a brief presentation, see Jones 1964, p. 484-494.
2 Praescriptio fori is a procedural means of emphasizing the incompetence of the assigned judge in order for the case to be transferred to another jurisdiction. See Garbarino 2000.
3 Saint-Sorny 2001 rejected the commonly accepted date of 506 and revised it as 507. For a general overview of the work, see Gaudemet 1965.
4 For a survey of the bibliography, see Alvarado Planas 1997, p. 15-24.
5 Alvarado Planas 1997, p. 31-40, 42, 94-103.
6 Gaudemet 1965, p. 37-38.
7 For a comparative approach between interpretationes and Roman laws, see Matthews 2001; Liebs 2013.
8 For the constitutions of the Theodosian Code, I use Mommsen 1904; for the Novellae, Mommsen – Meyer 1905; for the Justinian Code, Krueger 1877. Excerpts from Pharr’s 1952 English translation and modified versions of that translation are indicated. Unattributed translations are mine.
9 The last figure is based on the very incomplete first five books of the Theodosian Code, two thirds of whose constitutions have been lost. See Roux 2014, II, p. 1003.
10 Chastagnol 1960, p. 120-130.
11 *C.Th. 9, 1, 1 (316 CE); *C.Th. 2, 1, 4 (364 CE); *C.Th. 9, 40, 10 (367 CE); C.Th. 9, 16, 10 (371 CE); C.Th. 9, 1, 13 (376 CE); C.Th. 1, 6, 11 (423 CE); *C.Th. 2, 1, 12 (423 CE). Asterisked laws are commented in the Breviary.
12 C.Th. 2, 1, 4: Actor rei forum sequatur, ita ut, si senatores aliquid a provincialibus poscunt, eo, qui provinciam reget, cognitore confligant. Si vero provincialis non suscipiat, sed inferat actiones, praefecto urbi disceptante decertet. “The plaintiff shall follow the forum of the defendant, so that if senators should sue provincials for anything, they shall litigate before the one who rules the province as their judge. If on the contrary, a provincial should not defend but should bring actions, he shall litigate before the prefect of the City as judge” (Pharr 1952, p. 37, slightly modified).
13 Brev. 2, 1, 4: Si quis alium crediderit lite pulsandum, apud provinciae illius iudicem, ubi is habitat quem pulsat negotium suum noverit proponendum. “If any person should think that suit should be brought against another person, he shall know that his case must be presented before the judge of that province in which the defendant resides” (Pharr 1952, p. 37, slightly modified).
14 C.Th. 9, 1, 1: Quicumque clarissimae dignitatis virginem rapuerit vel fines aliquos invaserit vel in aliqua culpa seu crimine fuerit deprehensus, statim intra provinciam, in qua facinus perpetravit, publicis legibus subiugetur neque super eius nomine ad scientiam nostram referatur nec fori praescribtione utatur. Omnem enim honorem reatus excludit, cum criminalis causa et non civilis res vel pecuniaria moveatur. “If any person of clarissimus rank should kidnap a virgin or invade any boundaries or be apprehended in any offence or crime, he shall be subjected immediately to the public laws, within the province wherein he perpetrated the crime. Neither shall his name be referred to Our knowledge, nor shall he use any prescription of forum. Actually, an accusation excludes all prerogatives of rank when a criminal case, not a civil or financial suit, is brought” (Pharr 1952, p. 224, slightly modified).
15 Brev. 9, 1, 1: Quicumque damnabile vel puniendum legibus crimen admiserit, non se dicat in foro suo, id est in loco ubi habitat, debere pulsari, sed ubi crimen admissum est, ab eius loci iudicibus vindicetur nec de eius persona ad principem referatur. “If any person should commit a crime reprehensible and punishable under the laws, he shall not assert that he ought to be prosecuted in his own forum, that is to say in the place where he lives, but it is where the crime was committed that he shall be punished by the judges of that place; and there shall be no reference about this person to the prince”.
16 C.Th. 2, 1, 12: In criminalibus causis senatus statuta iamdudum quinqueviralis iudicii forma servabitur. In quo cum perfacile esse credamus optimos legere de summis, sortito tamen ad iudicium vocabuntur, ne de capite atque innocentia alterius iudicio electi iudicent. “In criminal cases involving senators, the previously established rule of the quinqueviral court shall be observed. In respect to this court, although We believe it to be very easy to choose the best men from the highest ranking men, nevertheless they shall be called by lot to act in this court in order that men selected by design may not judge concerning the status and innocence of another” (Pharr 1952, p. 39, slightly modified).
17 Brev. 2, 1, 12: Cum pro obiecto crimine aliquis audiendus est, quinque nobilissimi viri iudices de reliquis sibi similibus missis sortibus eligantur, ne studio videantur electi et de capitali re aut innocentia alterius videatur facile iudicari. “When any person must be heard for a crime of which he has been accused, five of the noblest men shall be chosen as judges by drawing lots among the others who are similar to them, so that they may not appear to have been selected by partisanship and it may not appear that a decision has been reached easily about the capital offence or about the innocence of another” (Pharr 1952, p. 39, slightly modified).
18 C.Th. 9, 40, 10: Quoties in senatorii ordinis viros pro qualitate peccati austerior fuerit ultio proferenda, nostra potissimum explorentur arbitria, quo rerum adque gestorum tenore comperto eam formam statuere possimus, quam modus facti contemplatioque dictaverit. “As often as a punishment of an extreme severity must be inflicted on men of the senatorial order, in accordance with the nature of their fault, Our judgments shall be especially sought, in order that after having checked the content of the facts and of the records, We may be able to determine the procedure which is imposed by the nature of the act and the examination”.
19 Brev. 9, 30, 2: Si quando aliquae maiores personae aut alicuius dignitatis viri vocantur in crimine, iudex ad rerum dominos referat, ut de huiusmodi personis quid fieri debeat, dominorum praeceptio iusta constituat. “If at any time persons of higher rank or men of some dignity should be summoned in a criminal accusation, the judge shall refer to the Masters of the State, so that the just injunction of the rulers may decide what must be done about such persons” (Pharr 1952, p. 256, slightly modified).
20 The expression domini rerum also appears in Brev. 9, 31, 1 (= C.Th. 9, 41, 1); Brev. 11, 6, 1 (= C.Th. 11, 16, 11); Brev. 12, 1, 4 (= C.Th. 12, 1, 20), and in the interpretatio of Nov. Theod. 13. The plural form of the expression is problematic. Many interpretationes were extracted from doctrinal comments that circulated in Gaul during the latter half of the 5th century, when there were various concurrent authorities in Gaul (the Western Roman emperor, Gallic prefectural authorities, barbarian kings, warlords, provincial administrators who overstepped their function), so that assignments of sovereign power must have needed to be vague. See Dumézil 2008, p. 87.
21 Roux 2014, I, p. 744-745.
22 Among the laws omitted: C.Th. 1, 7, 4; 1, 15, 7; 9, 2, 2; 9, 7, 9; Nov. Theod. 4; 7, 3 and 4.
23 C.Th. 2, 1, 2: Definitum est provinciarum rectores in civilibus causis litigia terminare, etsi militantes exceperint iurgia vel moverint. Ne igitur usurpatio iudicia legesque confundat aut iudicibus ordinariis adimat propriam notionem, ad provinciarum rectores transferantur iurgia civilium quaestionum. In criminalibus etiam causis, si miles poposcerit reum, provinciae rector inquirat. Si militaris aliquid admisisse firmetur, is cognoscat, cui militaris rei cura mandata est. “It has been decided that the governors of the provinces shall terminate litigation in civil cases, even if members of the militia should defend or institute a suit. Therefore, in order that no usurpation may throw the laws and the courts into confusion or take away from the ordinary judges their investigative and jurisdictional powers, the trials of civil suits shall be transferred to the governors of the provinces. In criminal cases too, if a soldier should prosecute an accused person, the governor of the province shall try the case. If it should be affirmed that any military man has committed any crime, the person who shall try the case shall be the man to whom the direction of military affairs has been entrusted”.
24 Brev. 2, 1, 2: Etsi civilia negotia ad provinciarum rectores iussimus pertinere, tamen, quotiens criminalis actio intercesserit inter illos qui in armis nostris militant atque privatos, si militans privatum in iudicio vocaverit, rector provinciae audiendi et iudicandi habeat potestatem. Si vero privatus servientem nobis in armis vel militantem forte pulsaverit, ille causam audiat, ad cuius ordinationem is respicit, qui militat vel arma tenuerit. “Although We order that civil cases shall be the responsibility of the governors of the provinces, nevertheless, whenever a criminal action arises amongst persons who serve with Our arms and private citizens, if a soldier should summon a private citizen to court, the governor of the province shall have the power to hear and judge the case. But if by chance, a private citizen should bring suit against one serving Us in arms or in the militia, the person who shall hear the case shall be the one to whom the command of the man who serves in the militia or in arms has been entrusted”.
25 C.Th. 2, 1, 9: Si quis neglectis iudicibus ordinariis sine caelesti oraculo causam civilem ad militare iudicium crediderit deferendam, praeter poenas ante promulgatas intellegat se deportationis sortem excepturum, nihilominus et advocatum eius decem librarum auri condemnatione feriendum. “If any person, despising the ordinary judges without any celestial oracle, should think that a civil case should be lodged before a military court, he shall understand that he will endure the lot of deportation in addition to the penalties previously established; and his lawyer shall be punished by a penalty of ten pounds of gold”.
26 Brev. 2, 1, 9: Quisquis contempto provinciae iudice ad illos, qui armatis praeesse noscuntur, causam suam crediderit transferendam, exilio se deputandum esse cognoscat et eum, qui causam illius susceperit proponendam, decem libras auri esse damnandum. “If any person, scorning the judge of the province, should think that his case should be transferred to those who are known to command soldiers, he shall know that he will be compelled to go into exile; and the one who should undertake to represent the case shall be condemned to pay ten pounds of gold”.
27 This selection was, however, approved by the Catholic bishops (and nobiles viri) of the Visigothic Kingdom, as stated in the commonitorium of the Breviary. See Guillot 1995a, p. 655 n. 9; Guillot 1995b, p. 75-80.
28 C.Th. 1, 27, 1 (318 CE); *C.Th. 16, 2, 12 (355 CE); *C.Th. 11, 36, 20 (369 CE); *C.Th. 16, 2, 23 (376 CE); *C.Th. 16, 11, 1 (399 CE); C.Th. 1, 27, 2 (408 CE); C.Th. 16, 2, 41 (411 CE); C.Th. 16, 2, 47 (425 CE); *Nov. Val. 35, pr. 1 and 2 (452 CE). I will not comment here on C.Th. 16, 2, 12, because it deals primarily with preventing false accusations against bishops. The laws retained in the Breviary are briefly commented in Vismara 1995, p. 167-170, 175.
29 Humfress 2013, p. 241-242.
30 C.Th. 11, 36, 20: Quoniam Chronopius ex antistite idem fuit in tuo, qui fuerat in septuaginta episcoporum ante, iudicio et eam sententiam provocatione suspendit, a qua non oportuit provocare, argentariam multam, quam huiusmodi facto sanctio generalis inponit, cogatur expendere. Hoc autem non fisco nostro volumus accedere, sed his qui indigent fideliter erogari. Quod in hac causa et in ceteris ecclesiasticis fiat. “Since Chronopius, former bishop, was the same in your court as he had been previously in that of the seventy bishops, and since he suspended by an appeal a decision from which it was not allowed to appeal, he shall be compelled to pay a fine in silver which a general sanction imposes for such act. Moreover, We want that the fine shall not go to Our fisc, but shall be faithfully expended on needy persons. That shall be the rule in this case and in all other ecclesiastical cases” (Pharr 1952, p. 337, slightly modified).
31 Gaudemet 1958, p. 250-251.
32 Brev. 11, 11, 3: Chronopium episcopum a multis episcopis fuisse damnatum et studuisse eum ante iudicium sententiam, quae proferebatur, appellatione suspendere: a qua sententia, quia iuste prolata fuerat, appellare minime debuisse. In qua eum gravi multa, id est quinquaginta libras argenti addictum fuisse dicit: quae tamen summa ipsius multae non fisco prodesse iussa est, sed pauperibus erogari. “Bishop Chronopius was condemned by many bishops, and before the court, he tried to suspend by an appeal the sentence that was rendered. From that sentence, justly rendered, he should not have appealed. The law states that for this he is condemned to a heavy fine, namely fifty pounds of silver. Nevertheless, it was ordered that the amount of the fine had to be spent for the poor and not for the benefit of the fisc”.
33 C.Th. 16, 2, 23: Qui mos est causarum civilium, idem in negotiis ecclesiasticis obtinendus est: ut, si qua sunt ex quibusdam dissensionibus levibusque delictis ad religionis observantiam pertinentia, locis suis et a suae dioeceseos synodis audiantur: exceptis, quae actio criminalis ab ordinariis extraordinariisque iudicibus aut inlustribus potestatibus audienda constituit. “The custom which is observed in civil cases shall likewise be observed in ecclesiastical litigation, so that if there are some [cases] which arise from any dissensions and slight offenses concerning religious observance, they shall be heard in their own places by the synods and dioceses, with the exception of the cases which criminal action has established shall be heard by the ordinary and extraordinary judges and by the Illustrious Authorities”.
34 Ferrari delle Spade 1939–1940, p. 214-215.
35 Gaudemet 1958, p. 234 n. 2.
36 Huck 2003, p. 190; Nemo-Pekelman 2013–2014, p. 295.
37 Brev. 16, 1, 3: Quotiens ex qualibet re ad religionem pertinente inter clericos fuerit nata contentio, id specialiter observetur, ut convocatis ab episcopo dioecesanis praesbyteris, quae in contentionem venerint, iudicio terminentur. Sane si quit opponitur criminale, ad notitiam iudicis in civitate, qua agitur, deducatur, ut ipsius sententia vindicetur, quod probatur criminaliter fuisse commissum. “Every time a contention arises between clerics about any matter pertaining to religion, it shall especially be observed that, once the priests of the diocese have been summoned by the bishop, [the matters] which have come into contention shall be ended by a judgment. However, if it should be objected that the case is criminal, it shall be brought to the notice of the judge in the city wherein the action takes place, in order that his sentence shall punish what is proved to have been committed criminally”.
38 On the transfers of power that may have occurred between the issuance of the Theodosian Code and the production of the Breviary of Alaric, see Roux 2014, I, p. 566-623.
39 C.Th. 16, 11, 1: Quotiens de religione agitur, episcopos convenit agitare; ceteras vero causas, quae ad ordinarios cognitores vel ad usum publici iuris pertinent, legibus oportet audiri. “Whenever there is an action involving matters of religion, the bishops must conduct such action. But all other cases which belong to the ordinary judges and to the usage of public law must be heard in accordance with the laws” (Pharr 1952, p. 476, slightly modified).
40 On this novella and its interpretatio, see Ferrari delle Spade 1939–1940, p. 217-221.
41 Nov. Val. 35, pr.: De episcopali iudicio diversorum saepe causatio est: ne ulterius querella procedat, necesse est praesenti lege sanciri. Itaque cum inter clericos iurgium vertitur et ipsis litigatoribus convenit, habeat episcopus licentiam iudicandi, praeeunte tamen vinculo conpromissi. Quod et de laicis, si consentiant, auctoritas nostra permittit: aliter eos iudices esse non patimur, nisi voluntas iurgantium interposita, sicut dictum est, condicione praecedat, quoniam constat episcopos [et presbyteros] forum legibus non habere nec de aliis causis secundum Arcadii et Honorii divalia constituta, quae Theodosianum corpus ostendit, praeter religionem posse cognoscere. Si ambo eiusdem officii litigatores nolint vel alteruter, agant publicis legibus et iure communi: sin vero petitor laicus, seu in civili seu in criminali causa, cuiuslibet loci clericum adversarium suum, si id magis eligat, per auctoritatem legitimam in publico iudicio respondere conpellat. “There is often a controversy of various persons in regard to the episcopal court. That this complaint may not proceed further, it is necessary that a sanction be issued by the present law. Therefore when a case arises between clerics and there is an agreement between the litigants themselves, a bishop shall have the right to act as judge, provided, however, that a bond of mutual promise shall precede. This privilege Our Authority also grants in the cases of laymen, if they should agree. Otherwise We do not allow the bishops to be judges, unless the wish of the disputants should precede, as has been said, by interposing this condition, since it is established that the bishops [and priests] do not have a court according to the laws, and they cannot have cognizance of cases except in religious matters, according to the divine imperial constitutions of Arcadius and Honorius, which are revealed in the Theodosian corpus. If both litigants of the aforesaid office, or either one of them, should be unwilling, they shall conduct their cases according to the public statutes and the common law. But if the plaintiff should be a layman, whether in a civil or in a criminal case, and if he should rather choose such a course, he may compel his adversary who is a cleric of any position whatever to answer to his charges in a public court through the statutory authority” (Pharr 1952, p. 545-546). The puzzling term et presbyteros, bracketed in Mommsen’s edition, has been interpreted by some as a posterior addition. Perhaps it was inserted to extend the law to cases where bishops exceptionally delegated their legal competences to priests. See Ferrari delle Spade 1939–1940, p. 220.
42 Interpretatio Nov. Val. 35, pr.: Lex ista de diversis rebus multa constituit: sed inprimis de clericis quod dictum est, ut nisi per conpromissi vinculum iudicium episcopale non adeant, posteriore lege Maioriani abrogatum est. De reliquis praecipit, ut, si quis laicus clericum seu in civili seu in criminali negotio per auctoritatem iudicis ad publicum provocaverit, pulsatus sine dilatione respondeat. “This law establishes many provisions about various matters, but first of all, what was said about clerics, namely, that they shall not come to an episcopal court except by a bond of mutual promise to abide by the decision, was abrogated by a later law of Majorian. For the rest, the law commands that if any layman through the authority of a judge should summon to a public court a cleric, whether in a civil or in a criminal case, the defendant shall answer to his charges without delay” (Pharr 1952, p. 548).
43 Interpretatio Nov. Val. 35, § 2: Clericus si aliquem lite pulsaverit, in foro illius, quem ad iudicium provocat, audiatur, si tamen pulsatus non adquieverit ad episcopi vel presbyteri venire iudicium. Quod si alius fecerit ille qui pulsat, defensores causae ipsius taliter notari praecipit, ut ab omni officio et prosecutione causarum habeantur extranei. “If a cleric should sue any person in litigation, he shall be heard in the forum of that person whom he summoned to court, provided, however, that the defendant should not agree to come to the court of a bishop or priest. If the plaintiff should do otherwise, the law commands that the defenders of such cases shall be branded in such a manner that they shall be held extraneous to every office and prosecution of cases” (Pharr 1952, p. 548).
44 Nov. Val. 35, § 2: In clerico petitore consequens erit, ut secundum leges pulsati forum sequatur, si, ut dictum est, adversarius suus ad episcopi [vel presbyteri] audientiam non praestat adsensum: poena defensoribus negotii, qui in eodem extraordinario iudicio adfuerint atque egerint, huiusmodi constituta, ut causidicum officii amissio, iurisconsultum existimationis et interdictae civitatis damna percellant. “In the case of a cleric who is a plaintiff, the consequence will be that he shall follow the forum of the defendant, according to the laws, if as has been said, his adversary should not give his assent to a hearing by a bishop [or priest]. The punishment for the defenders of the case, if they should assist and should conduct the case in the aforesaid extraordinary court, has been established as follows: the advocate shall be smitten by the forfeiture of his office, the jurisconsult by the loss of his status and of his citizenship, which shall be interdicted to him” (Pharr 1952, p. 546).
45 The compilers retained only nine of forty-nine Roman laws on the rights of Jews. Concerning these, see Linder 1997, p. 217-232; Nemo-Pekelman 2010, p. 219-222; Nemo-Pekelman 2013a.
46 Nemo-Pekelman 2010, p. 219-221.
47 C.Th. 2, 1, 10: Iudaei Romano et communi iure viventes in his causis, quae non tam ad superstitionem eorum, quam ad forum et leges ac iura pertinent, adeant sollemni more iudicia omnesque Romanis legibus inferant et excipiant actiones: postremo sub legibus nostris sint. Sane si qui per conpromissum ad similitudinem arbitrorum apud Iudaeos vel patriarchas ex consensu partium in civili dumtaxat negotio putaverint litigandum, sortiri eorum iudicium iure publico non vetentur: eorum etiam sententias provinciarum iudices exequantur, tamquam ex sententia cognitoris arbitri fuerint adtributi. “Jews who live under the Roman and common law shall address the courts in the regular way, not so much for the cases which belong to their superstition, but for the cases that concern jurisdiction, leges and ius; and all of them shall bring actions and defend themselves according to Roman laws; in short, they shall be subject to Our laws. In the civil cases only, if any should think that they should litigate before Jews or patriarchs as before arbitrators, by means of a mutual promise and with the agreement of both parties, it shall not be prohibited by public law to choose the verdict of such men. The judges of the provinces shall enforce their sentences as if such arbitrators had been assigned by the sentence of a judge”. For a detailed analysis of this law, see Nemo-Pekelman 2010, p. 69-77.
48 Harries 2003, p. 64-65, 79; Nemo-Pekelman 2010, p. 72-73.
49 Nemo-Pekelman 2010, p. 74-75.
50 C.J. 1, 9, 8: Iudæi Romano communi iure viventes in his causis, quæ tam ad superstitionem eorum quam ad forum et leges ac iura pertinent, adeant solemni more iudicia omnesque romanis legibus conferant et excipiant actiones. Si qui vero ex his communi pactione ad similitudinem arbitrorum apud Iudæos in civili dumtaxat negotio putaverint litigandum, sortiri eorum iudicium iure publico non vetentur. Eorum etiam sententias iudices exsequantur, tamquam ex sententia cognitoris arbitri fuerint attributi. “Jews who live under Roman common law shall address the courts in the regular way, for the cases which belong to their superstition as for the cases that concern jurisdiction, leges and ius; and all of them shall bring actions and defend themselves according to the Roman law. Indeed, if some of them shall deem it necessary to litigate before Jews as if they were arbiters, in a common pact, provided that it is civil cases, they shall not be prohibited by public law from accepting their verdict. The judges shall even enforce their sentences as if arbiters were appointed by the sentence of a judge”.
51 Berger 1959, contra Juster 1914, p. 103-105. Juster considered C.J. 1, 9, 8, to be a continuation of C.Th. 2, 1, 10.
52 Reinach 1960; Nemo-Pekelman 2013b; Nemo-Pekelman 2013c.
53 Nemo-Pekelman 2010, p. 73; Nemo-Pekelman 2013b.
54 Brev. 2, 1, 10: Iudaei omnes, qui Romani esse noscuntur, hoc solum apud religionis suae maiores agant, quod ad religionis eorum pertinet disciplinam, ita ut inter se, quae sunt Hebraeis legibus statuta, custodiant. Alia vero negotia, quae nostris legibus continentur et ad forum respiciunt, apud iudicem provinciae eo quo omnes iure confligant. Sane si apud maiores legis suae consentientes ambae partes, de solo tamen civili negotio audiri voluerint, quod interveniente conpromisso arbitrali iudicio terminatur, tale sit, quasi ex praecepto iudicis fuerit definitum. “All Jews who are known to be Romans shall conduct before the leaders of their religion only those actions that pertain to the discipline of their religion, so that, among them, they shall observe what has been established by Hebrew laws. But for all other cases which are embraced in Our laws and pertain to Our court, they shall contest before the judge of the province according to the law of all. Of course, if with their mutual consent, both parties should want to be heard before the leaders of their Law, in civil cases only, what shall be settled by the arbitral judgment after the agreement of a mutual promise shall have the same value as if it had been resolved by the sentence of a judge”.
55 Martin 2017, p. 322 n. 29.
Auteur
CNRS – Aix-Marseille University, TDMAM, Aix-en-Provence - marie.roux@parisnanterre.fr
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