A Possible Conflict of Laws in Roman Britain

Author(s): C. E. Stevens
Source: The Journal of Roman Studies, Vol. 37, Parts 1 and 2 (1947), pp. 132-134
Published by: Society for the Promotion of Roman Studies
Stable URL: https://www.jstor.org/stable/298463
Accessed: 05-04-2020 04:43 UTC

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

Society for the Promotion of Roman Studies is collaborating with JSTOR to digitize,
preserve and extend access to The Journal of Roman Studies

This content downloaded from 195.43.22.140 on Sun, 05 Apr 2020 04:43:39 UTC
All use subject to https://about.jstor.org/terms
 A POSSIBLE CONFLICT OF LAWS IN ROMAN BRITAIN

By C. E. STEVENS

It is well known that in the various collections of imperial legislation there is only one
enactment specifically addressed to Britain, Cod. Theod. XI, 7, 2, of 2oth November, 3I9,
to Pacatianus, Vicar of the Britains.1 It is a short text and may be at one point corrupt,2
but the general sense is clear: a decurion is liable to pay tax on his own property (whether
held' in hand ' or occupied by coloni), he is not liable for the property and coloni of another
decurion. The text is normally cited by students of Roman Britain to prove that the
institutions of the colonate applied to Britain,4 and this it certainly proves. The purpose
of this paper, however, is to inquire whether something more may not be extracted from it.
The principle contained in the law is actually established by legislation of more recent
date also included in the Codex Theodosianus. That it appears in the Code at all is due to
the hasty and unsystematic way in which the compilers of the Code went to work; legisla-
tion was simply collected with little regard to whether it had been repeated or even super-
seded. Repetitions of clearly defined principles by subsequent emperors are indeed common
in the Code, for in the mass of legislative output it was possible for a law to go astray in the
bureaux, so that it might be or become unknown to those who had to administer it. 6 Two
principal questions arise for discussion in connection with this British enactment: (i)
How did it reach Britain in the first place ? (ii) How did it get into the Code ? In exa
each the classical study of Seeck on the construction of the Code must be our guide.7
The rule that a ' dominus ' is only liable for tax on his own estate is an answer to
abuses which are common to all provinces as well as Britain. The two enactments affecting
Africa, for instance, show that an important motive for such legislation was chicanery
arising out of the obligation laid upon proprietors to take over plots of waste land.8 It
is not very likely, therefore, that a specific enactment set out in this quite general way would
be dispatched to the Vicar of Britain alone or even to the Vicar of Britain at all. Seeck
quotes from the subscriptions to certain laws of the Code sentences which prove that laws
were submitted by the imperial chancelleries to the bureaux of the Praetorian Praefects
and by them transmitted in separate copies to the lower administrative officials, and it
is fair to assume on analogy that this is what occurred here. There should, therefore, have
been available a copy of this law in the central imperial chancery, a copy in the chancery
of the Praetorian Praefect at Trier, and a copy in various local chanceries, one of them
Britain.
It is not surprising that the compilers of the Code failed to light upon the copy of this
law in the imperial archives, in view of the mass of legislation with which they were stuffed;
it is doubtful whether they were able, in the disturbed conditions of the time, to ransack
the archives of the Praetorian Praefect, at this time at Arles; it is quite certain that they
could not get documents from Britain. How comes it then that this enactment is only
preserved in the Codex from its least likely source, the British end? There can only be

1 ' Unusquisque decurio pro ea portione convenia-
tur, in qua vel ipse vel colonus vel tributarius eius
convenitur et colligit; neque omnino pro alio
decurione vel territorio conveniatur. id enim
prohibitum esse manifestum est et observandum
deinceps, quo iuxta hanc nostram provisionem
nullus pro alio patiatur iniuriam.'
2 Mommsen's ' expectes talia, qui conuenitur
colligit' is not very easy to understand. Gothofredus
thought that ' colligit' could be used absolutely
'colligit fructus'.
3 It is accordingly cited by Lot, L'Imp6t foncier
et la Capitation personelle 35, n. 6, as one of his
proofs for ' La Solidarit6 fiscale du Proprietaire
et du Colon'.
4 e.g. Haverfield, Romanization of Roman Britain,
4th ed., 1923, 65; Collingwood, Economic Survey
of Ancient Rome (ed. T. Frank) iII, 87.
' Cod. Theod. xl, I, 3I (pp. Italy, referring to
Africa, A.D. 4I2); VIII, 8, io (pp. Italy, A.D. 422);
xii, I, i86 (proconsul Africae, A.D. 429).
6 Seeck, Geschichte d. Untergangs d. antiken Welt
VI, 172-6.
7 Regesten der Kaiser und Pdpste i-i8.
8 See Seeck in P-W vi, 30-3.

This content downloaded from 195.43.22.140 on Sun, 05 Apr 2020 04:43:39 UTC
All use subject to https://about.jstor.org/terms
 A POSSIBLE CONFLICT OF LAWS IN ROMAN BRITAIN 133

one explanation and Seeck has given it. The law with the British subscription was avail-
able because it lay with such a subscription in the archives at Rome, and it lay there because
it had been cited by British advocates in a case taken right up to the supreme appellate
court of an emperor.9 If the case was important enough to be taken past even the court
of the Praetorian Praefect, it does not look as though it was merely a question, e.g., of
chicanery over the occupation of waste land. It must be some extremely knotty point of
law, something, to take an English parallel, which would ' go up to the House of Lords '.
That there was such a case is quite an interesting fact to be added to our knowledge
of Roman Britain, but it would be far more interesting if we could say what the case was.
Here we are reduced, indeed, to conjecture. Nevertheless, if it can be shown that a legal
difficulty peculiar to Britain could have existed necessitating an appeal to the highest court
and that this law is excellently adapted to citation by an advocate in argument upon it,
the conjecture might be allowed plausibility. And the likelihood of precisely such a difficulty
can be shown.
The Welsh laws, codified in the tenth century by Hywel Dda, include sections
illustrating the very curious and idiosyncratic method of land tenure known as
'Priodolder '.10 To summarize briefly, ' Priodolder ' allows a remote reversionary interest
in land. The title of land occupied did not become fixed until the fourth generation,
whereupon the land became ' priodolder' and its owner (or joint owners) ' priodawr'.
Now this right maintained itself until the ninth generation even if the land were quitted.
The returning ' ninth man ' (the expression is from the Welsh laws themselves) would
have a better title against the intervening possessor and his family who were not yet
' priodorion ', the right, in fact, of ' priodolder ' against ' non-priodolder '. But if the new
family had themselves held for four generations, then, to quote a modern commentator,
'there could be two distinct persons having rights of " priodolder " in the same land at
the same time ; that is, if we employ the English term, there could be two distinct full
and equivalent titles of proprietorship in the same land."'
That the legislation is thoroughly archaic is not only obvious on the face of it, but is
shown by the fact that the vindication of rights was effected by a traditional formula which
had a strange traditional name-' diasbad uuch annwfn,' ' the cry over the abyss.' Never-
theless it is not likely to be absolutely primitive. There is no parallel (as there usually
is in the most primitive parts of Welsh law) for ' priodolder' in Irish legislation, and the
system seems to postulate the coming of fixed agriculture and land-holding on the way to
becoming settled. It is applicable in fact to the conditions of Roman Britain and the period
immediately preceding it. Now on Eastern analogies, Celtic custom would maintain itself
in the wilder regions of the West,12 whose inhabitants, there is reason to believe, had the
status of ' gentiles ',13 and old Celtic customs would thus be available in Wales for the use
of the eventual codifiers. But in the rest of Britain, Celtic customs would be, at least in
strict law, abolished as a result of the Edict of Caracalla, and the forms of Roman real
property law would apply to the extinction of the ' priodolder ' custom.14 But let us take
the case where a Briton, responsive it may be, to the teachings of Agricola, has founded an
estate and built a villa in four generations his family will have a good title in Celtic
custom, i.e. about A.D. 200. Suppose that thereupon, while Celtic law is still valid, the
title is for some reason lost to another family which also in four generations acquires
'priodolder'. Then about the time of Constantine, the ' ninth man ' could make his

9 Seeck's words are worth quoting (Regesten I6):
'Wenn der Kaiser oder seine Stellvertreter in
einer streitigen Sache konsultiert oder an sie
appelliert wurde, so mussten ihnen die vollstandigen
Akten iibersandt werden, und zu diesen geh6rten
auch die Gesetze, auf welche die Parteien sich
beriefen. Auf diese Weise konnten Urkunden aus
den entlegensten Provinzen an die beiden Kaiserhofe
und in die Archive der h6chsten Appellationsrichter
gelangen.'
10 Venedotian Code II, I4; Dimetian Code i,
3, 38; Gwentian Code HI, 30, IO.
1I1 Ellis, Welsh Tribal Law and Custom in the
Middle Ages I, 2IO.
12 Cf. Theodoret, Graec. Affect. Curatio Ix
(ed. Raeder, 223); Mommsen, Ges. Schr. VI, 467.
13 Wheeler, Trans. Cymmrodorion Soc. (I920-I)
83-6 ; the use of the title ' protector ' among these
people (see MacAlister, CIIC I, 358, cf. Y. Cymmrodor
ix, I) should be noted, though parallels are to seek;
compare, however, ILS 28 I 3.
14 Mitteis, Reichsrecht und Volksrecht I59-I6i.

This content downloaded from 195.43.22.140 on Sun, 05 Apr 2020 04:43:39 UTC
All use subject to https://about.jstor.org/terms
I34 A POSSIBLE CONFLICT OF LAWS IN ROMAN BRITAIN

' cry across the abyss ', and claim the remedies that Celtic law defined (normally, division
of the estate between the claimant and the occupier). Such claims and their vindication
would be bad in law if the creation of a new ' priodolder ' right had commenced after the
Edict of Caracalla; but would they be bad if it had commenced before ? Here is just such
a case as-mutatis mutandis-might arise in England to-day. In England it would surely
have to ' go up to the House of Lords '. One can feel confident that under the Empire
there was no one in Britain, probably no one at Trier, who was competent to settle such
a juristic problem: here is surely a case which would have to go up to the fountain head
of jurisprudence, to Rome itself. The issue would be :-Can double ' dominium' be
admitted, so that the claim of the ' ninth man ' can be satisfied? What sort of cases could
a British counsel retained for the sitting proprietor quote in his aid ? Surely he could quote
just such a law as this. ' By implying,' he could argue, ' that no one pays taxes for any other
territorium but his own, the law lays down that a man is only " dominus " of his own estate,
so -that an estate can only have one " dominus ".' The latest fiscal legislation would thus
be a ' case in point' for the British counsel; indeed, its actual wording ' nullus pro alio
patiatur iniuriam ' could be held as applying in a curiously exact way to the position of the
occupying landlord. He would suffer injury if the principles of Celtic law were admitted,
in that he would have to surrender up to half his estate to the ' ninth man '.
It is not, of course, maintained, that we can prove outright that such a case is at the
back of Cod. Theod. xi, 7, z. Nevertheless, it must be emphasized in recapitulation that
some very knotty point of law must be in question and that the opposition of Roman and
Celtic theories of land ownership is especially calculated to provide it. Furthermore it is
claimed that our Law from the Code is very well adapted both in time, in content and in
specific language, to be cited by a counsel in such a knotty case. The hypothesis of a Conflict
of Laws, showing in the West circumstances which have been discussed notably by Mitteis
in the East, may indeed be no more than a hypothesis ; nevertheless, I trust that it has here
been given plausibility as an explanation of the solitary British document of Roman Law.

This content downloaded from 195.43.22.140 on Sun, 05 Apr 2020 04:43:39 UTC
All use subject to https://about.jstor.org/terms