The Law 159
a honestior could expect to be spared the more humiliating punishments dealt
out to humiliores (e.g., ET 59, 64, 75, 83, 89, 91, 97, 108, 111).
While all of these provisions had a basis in Roman law, significant innova-
tions do occur. Usually this entailed a modification in the methods of pun-
ishment and a greater emphasis placed on the discretionary authority of the
judge in matters of punishment. For example, on the subject of forgery ET 41
closely follows a commentary of the 3rd-century jurist Paul (Pauli Sententiae):
ET 41 PS 4.7.2
Anyone who produces or knowingly
uses a forgery, or persuades or
compels another to make one,
shall suffer a capital penalty.41
Not only shall he who tampers with,
suppresses or destroys a testament,
but also anyone else who knowingly
with dolus malus instructs or under-
takes this to be done, shall be held
liable for the penalty of the Cornelian
law [i.e. deportation].42Whereas the original treats the offence as capital and punishes the guilty with
deportation (presupposed by PS 4.7.1), ET 41 is purposefully imprecise in fix-
ing a specific punishment, simply stating that the offender would be punished
capitally. This could mean any number of things, including exile, deporta-
tion, and execution. The basis for all of this is the Cornelian law on forgery
(mentioned specifically in PS 4.7.2),43 which was overhauled substantially
by Constantine in the 4th century. But Constantine’s law applied the maxi-
mum penalty (i.e. death) only in the most serious of cases; in most instances
the usual punishment was deportation.44 Documentary proof had acquired
41 ET 41: “Qui falsum fecerit, vel sciens falso usus fuerit, aut alterum facere suaserit, aut
coegerit, capitali poena feriatur.”
42 Pauli Sententiae (herafter cited as PS) 4.7.2: “Non tantum is, qui testamentum subiecit
suppressit delevit, poena legis Corneliae coercetur, sed et is qui sciens dolo malo id fieri
iussit faciendumve curavit.”
43 This oversight was not accidental, nor was it an isolated incident. ET 83 follows closely
PS 5.6.14 concerning the unlawful confinement, selling and purchasing of a freeman, but
ignores the reference in the original to the source for this—the Lex Fabia, a statute of
unknown date (presumably the 2nd or 1st century BC). Similarly in ET 123, a brief provi-
sion that prohibited creditors from seizing a pledge without the proper authorization of
a judge, they ignored the specific reference in the original, PS 5.26.4, to the Lex Iulia de
vi private. A similar air-brushing out of this Roman legal tradition is found in the Code of
Euric; see Harries, “ ‘Not the Theodosian Code’ ”, p. 47.
44 Codex Theodosianus 9.19.2.