Roman Law Period Of Codification
justinian legislation code child time novels justinianian succession private emperors
ROMAN LAW PERIOD OF CODIFICATION - Supremacy of the Emperors as Sole Leyislators. - From the time of Diocletian downwards the making of the law was exclusively in the hands of the emperors. The senate still existed, but shorn of all its old functions alike of government and legislation. The responses of patented. jurists were a thing of the past. It was to the imperial consistory alone that men looked for interpretation of old law or promulgation of new.
In the reign of Diocletian rescripts were still abundant ; but the constitutions in the Theodosian and Justinianian Codes from the time of Constantine downwards are mostly of a wider scope, and of the class known as general or edictal laws (leges generales edictales). It would be wrong, however, to infer that rescripts had ceased ; for Justinian's Code contains various regulations as to theiiform, and the matter is dealt with again in one of his Novels. The reason why so few are preserved is that they were no longer authoritative except for the parties to whom they were addressed. This was expressly declared by the emperors Areadius and Honorius in 398 in reference to those in answer to applications for advice from officials ; and it is not unreasonable to assume that a limitation of the same sort had been put at an earlier date on the authority of those addressed to private parties. Puchta is of opinion that the enactment of Honorms and Arcadius applied equally to decreta, for the reason that during this period matters of litigation did not come under the cognizance of the emperors except on appeal, and that under tbe new arrangements of Constantine the judg-ment of affirmance or reversal was embodied in a rescript ad-dressed to the ma,gistrate from whom the appeal had been taken. The rule of Arcadius and Honorius was renewed in 425 by Theo-dosius and Valentinian, who qualified it, however, to this extent, - that, if it contained any distinct indication that the doctrine it laid down was meant to be of general application, then it was to be received as an edict or lex generals. To this Justinian adhered in so far as rescripts in the old sense of the word were concerned ; but he declared that his judgments (decreta) should be received everywhere as laws of general application, and so should any inter-pretation given by him of a lex generalis, even though elicited by the petition of a private party. The imperial edicts, adjusted in the consistory, were usually addressed to the people, the senate, or some official, civil, military, or ecclesiastical, according to the nature of their subject-matter.
Establishment of Christianity as the State disposi.
tion has sometimes been manifested to credit nascent Christianity I with the humaner spirit which began to operate on some of the 1 institutions of the law in the first century of the empire, but which in a previous section we have ascribed to the infiltration into the jus civik of doctrines of the jus naturale, tho product of the philo-sophy of the Stoa. The teaching of Seneca did quite as much - nay far more - to influence it then than the lessons that were taught in the little assemblies of the early converts. It would be a bold thing to say that, had Chiistianity never gained its pre-dominance, that spirit of natural right would not have continued to animate the course of legislation, and to evoke, as years pro-gressed, most of thoso amendments in the law of the family aud the law of succession that were amongst the most valuable contribu-tions of the imperial constitutions to the private law. It may well be that that spirit was intensified and rendered more active with the growth of Christian belief ; but not until the latter had been publicly sanctioned by Constantine, and by Theodosius declared to be the religion of the state, do we meet with incontestable records of its influence. We find them in enactments in favour of the church and its property, and of its privileges as a legatee ; in those conferring or imposing on the bishops a supervision of charities and charitable institutions, and a poxver of interfering in matters of guardianship ; in the recognition of the efficacy of certain acts done in presence of two or three of the clergy and thereafter re-corded in the church registers ; in the disabilities as to marriage and succession with which heretics and apostates were visited, and in a variety of minor matters. Of greater importance were thrce features for which it was directly responsible, - the repeal of the caduciary provisions of the Papia-Poppwan law, the penalties im-posed upon divorce, and the institution of the cpiscopalis audientia.
The purpose of the caduciary law was to discourage celibacy and encourage fruitful marriages ; but legislation in such a spirit could not possibly be maintained when celibacy had come to be inculcated as a virtue, and as the peculiar characteristic of a holy life. The penalties alike of orbit= and coelibatus were abolished by Constan-tine in the year 320. The legislation about divorce, from the first of Constantine's enactments on the subject down to those of Justin-ian, forms a miserable chapter in the history of the law. Not one of the emperors who busied himself with the matter, undoing the work of his predecessors and substituting legislation of his own quite as complicated and futile, thought of interfering with the old prin-ciple that divorce ought to be as free as marriage and independent of the sanction or decree of a judicial tribunal. Justinian was the first who, by one of his .Novels, imposed a condition on parties to a divorce of common accord (communi consensu), namely, that they should both enter a convent, otherwise it should be null ; but, so distasteful was this to popular feeling, and so little conducive to improvement of the tone of morals within the conventual precincts, that it was repealed by his successor. The legislation of Justinian's predecessors and the bulk of his own were levelled at one-sided re-pudiations, imposing penalties, personal and patrimonial (1) upon the author of a repudiation on some ground the law did not recog-nize as sufficient - and the lawful grounds varied from reign to reign - and (2) upon the party whose misconduct gave rise to a repudia-tion that was justifiable. The bishop's court (episcopcde judicium, episcopalis azulientia) had its origin in the practice of the primitive Christians, in accordance with the apostolic precept, of submitting their differences to one or two of their brethren in the faith, usu-ally a presbyter or bishop, who acted as arbiter. On the establish-ment of Christianity the practice obtained legislative sanction, Constantine giving the bishop's court concurrent jurisdiction with the ordinary civil courts where both parties preferred the former, and by a later enactment going so far as to empower one of the parties to a suit to remove it to the ecclesiastical tribunal against the will of the other. For various reasons, advantage was taken of this power of resorting to the bishop to an extent which seriously interfered with the proper discharge of his spiritual functions, so that Honorius judged it expedient to revert to the original rule, and, at least as regarded laymen, to limit the right of resort to the episcopal judicatory to cases in which both parties consented. It is impossible to say with any approach t,o exactitude what effect this intervention of the clergy as ludges in ordinary civil causes - for they had no criminal jurisdiction - had on the development of the law. But it can hardly have been without some influence in still further promotin,g the tendency to subordinate act and word to will and animzts, to deal leniently with technicalities, and to temper the rules of the jus civile with equity and considerations of natural right.
Abandonment of the Formulctr System of Procedure.1 - The for-mular system, with its remit from the prxtor to a sworn judex who was to try the cause, was of infinite advantage to the law ; for the judgment was that of a free and independent citizen, un-traminelled by officialism, fresh from soine centre of business, and in full sympathy with the parties between whom he had to decide. Such a system was incompatible with the political arrangements of Diocletian and Constantine ; and it is with no surprise that we find the former of these sovereigns instructing the provincial governors that in future, unless when prevented by pressure of business (or, according to a later constitution of Julian's, when the matter was of trifling importance), they were themselves to hear the causes brought before them from first to last, as had pre-viously been the practice in the extraordinariae cognitiones. The remit in such cases was not, as formerly, to a private citizen, but to what was called a jucicx pedaneus, probably a matriculated inember of the local bar ; and for a time his delegated authority was embodied in a formula after the old fashion. But even this exceptional use of it did not long survive, for an enactment by the two sons of Constantine, conceived in terms the most compre-hensive, declared fixed styles to be but traps for the unwary, and forbade their use in any legal act whatever, whether contentious or voluntary. The result was, not only the formal disappearance of the distinction between the proceedings in jure and in judicio, but the practical disappearance also of the distinctions between actions in jus and in factum, and between etctiones direetac and actiones utiles, the conversion of the interdict into an actio ex inter-dict°, admission of the power of amendment of the pleadings, con-demnation in the specific thing claimed, if in existence, instead of its pecuniary equivalent, and execution accordingly by the aid of officers of the law.
Under the new system a process was full from first to last of intervention by officials. The in jus vocatio of the XII. Tables - the procedure by which a plaintiff himself brought his adversary into court - ryas a thing of the past. In the earlier part of the period the proceedings commenced with the litis denuntiatio intro-duced in the time of Marcus Aurelius and remodelled. by Constan-tine ; but under Justinian (though probably begun before his reign) the initial step was what was called the libellus conventionis. This Wa.3 a, short and precise written statement addressed by the plaintiff to the court, explaining (but without detail) the nature of' the action he proposed to raise and the claim he had to prefer ; this was accompanied with a formal undertaking to proceed with the cause and follow it out to judgment, under penalty of having to pay double costs to the defendant. If the judge was satisfied of the relevancy of the libel, he pronounced an interlocutor (inter-locutio) ordaining its service on the respondent ; this was done by an officer of the court, who cited him to appear on a day named, usually at a distance of two or three months. The defendant, through the officer, put in an answer (libellus contradictionis), at the same time giving security for the proper maintenance of the defence and eventual satisfaction of the judgment. On the day appointed the parties were first heard on any dilatory pleas, such as defect of jurisdiction ; if none were offered, or those stated re-pelled,.they then proceeded to expound their respective grounds of action and defence, each finally making oath of his good faith in the matter (juramentuni calumniae), and their counsel doing the same.
From this point, svhich marked the litis contestatio or joinder of issue, the procedure was much the same as that injudicia under the formular system. But in all cases in which the demand was that a. particular thing should be given or restored, and the plaintiff desired to have the thing itself rather than damages, execution was specific and effected through officers of the law (manu militari). Where, on the other hand, the condemnation was pecuniary, the usual course was for the judge, through his officers, to take pos-session of such things belonging to the defendant as were thought sufficient to satisfy the judgment (pignus ica causa judiccai captum), and they were eventually sold judicially if the defendant still refused to pay ; the MisSio ill bona of the classical period was rarely resorted to except in the case of insolvency.
Th,e Valentinianian Law of Citations.2 - This famous enact-ment, the production of Theodosius (II.), tutor of the youthful Valentinian III., was issued from Ravenna in the year 426, and was addressed to the Roman senate. It ran thus : - " We accord our approval to all the writings of Papinian, Paul, Gains, Ulpian, and Modestine, conceding to Gaius the same authority that is enjoyed by Paul, Ulpian, and the rest, and sanctioning the citation of all his works. We ratify also the jurisprudence (scienwieding, Der Justinianeische Libeilprocess, Vienna, 1365 ; Bethmann-Flollweg (as on p. 681, note 1), vol. iii. (1866); Muther (erit. Wieding), in the Krit. Vierteljahrschrif t, vol. ix. (1867), pp. 161 sq., 329 sq. ; Wieding, in same journal, vol. xii. (1870), p. 228 sq. ; Bekker (as on p. 681, note 1), vol. ii. chaps. 23, 24 ; Baron, Gesch. d. ram. Rechts, vol. i. p. 448 sq.
tia) of those earlier svriters whose treatises and statements of the law the aforesaid five have imported into their own works, - Scwvola, for example, and Sabinus, and Julian, and Marcellus, - and of all others whom they have been in the habit of quoting as autho-rities (omniurnque quos celebrarunt), provided always, as their antiquity inakes them uncertain, that the texts of those earlier jurists are verified by collation of manusciipts. If divergent dicta be adduced, that party shall prevail who has the greatest number of authorities on his side ; if the number on each side be the same, that one shall prevail which has the support of Papinian ; but, whilst he, most excellent of them all, is to be preferred to any other single authority, he must yield to any two. [Paul's and Ulpian's notes on his writings, however, as already enacted, are to be disregarded.] Where opinions are equal, and none entitled to preference, we leave it to the discretion of the judge which he shall adopt."
This constitution has always been regarded as a sig,nal proof of the lamentable condition into which jurisprudence bad sunk in the beginning of the 5th century. Constantine, a hundred years earlier, had condemned the notes of Ulpian and Paul upon Papin-ian. There were no longer any living jurists to lay down the law (jura condere); and, if it was to be gathered from the writings of those who were dead, it was well that the use of them should be regulated. The Valentinianiau law proceeded so far in the same direction. It made a selection of the jurisconsults of the past whose works alone were to be allowed to be cited, - Papinian, Paul, Ulpian, and Modestine, the four latest patented counsel of any distinction ; Gaius, of authmity previously only in the schools, but whose writings were now approved universally, notwithstand-ing that he had never possessed the Piz respondendi ; and all the earlier jurists to whom those five had accorded their imprimator. But it went yet a step further, for it declared all of them, with the sole exception of Papinian, to be of the same authority, and de-graded the function of the judge in most cases, so far at least as a question of law was concerned, to the purely arithmetical task of counting up the names which the industry of the advocates on either side had succeeded in adducing in support of their respective contentions. It is probable that, from the days of Hadrian down to Alexander Severus, when the emperor in his council had to frame a rescript or a decree, its tenor would be decided by the vote of the majority ; but that was after argument and counter- argument,. which must in many cases have modified first impressions. Taking the votes of dead men, who had not heard each other's reasons for their opinions, was a very different process. It may have been necessary ; but it can have been so only because a living juris-prudence had no existence, - because the constructive talent of the earlier empire had entirely disappeared.
Th,e Gregorian and Hermogenian Codcs. - The first of these Codes was a collection of imperial rescripts (with a few edicts, &c.) made by one Gregorianus in the very end of the 3d century, and probably at the instigation of Diocletian, though whether in the East or the West critics are unable to decide. The collection of Hermogenianus, also of rescripts, seems to have been a supplement to the earlier one. As the latest enactment in it belongs to the year 365, the prob-ability is that the collection was published about that time. Both Codes, although the work of private parties, received statutory re-cognition from Theodosius and Valentinian in their commission for the preparation of a collection of edictal law; and from the language of Justinian in reference to them there is reason to believe that in the courts they were regarded as authoritative, even to the ignoring of all rescripts not embodied in them.
The Theodosian Code and Post- Theodosian 'Novels. - Three years after the publication of the " law of citations " Theodosius nomi-nated a commission to initiate the preparation of a body of law which, if his scheme had been carried into execution, would have rendered that of Justinian unnecessaiy. In a constitution some ten years later he explains the motives that had actuated him, - that he saw with much concern the poverty-stricken condition of jurisprudence and how very few men there were who, notwithstanding the prizes that awaited them, were able to nrake themselves familiar with the whole range of law ; and that he attributed it very much to the multitude of books and the large mass of statutes through which it was dispersed, and which it was next to impossible for any ordinary mortal to master. His scheme was eventually to compile one single code from materials derived alike from the writing,s of the jurists, the Gregorian and Hermogenian collections of rescripts, and the edictal laws from the time of Constantine downwards. His lan-guage leaves no doubt that it was his intention to have this general code very carefully prepared, so as to make it a complete exponent of the law in force, which should take the place of everything, statutory or jurisprudential, of an earlier date. The collection of edicts which he directed his commissioners to prepare, and which was to contain all that had not been displaced by later legislation, even though some of them naight be obsolete by disuse, was to be the first step in the execution of his project. For some reason or other nothing followed upon this enactment ; and m 435 a new and stronger commission was nominated to collect the edicts, but nothing was said in their instructions about anything ulterior. The work was completed in three years, and published at Constantinople early in the year 438, with the declaration that it should take effect from 1st January following ; and a copy was communicated to Valentinian, who ordained that it should come into force iu the West from 12th January 439. The arrangement is in sixteen books, subdivided into titles, in which the constitutions are placed in chronological order. They cover the whole field of law, private and public, civil and criminal, fiscal and municipal, military and ecclesiastical. The private law is contained in the first five, which unfortunately are very defective. The imperial edicts subsequent to the publication of the Code got the name of Novels (novellae COTatieldi071€4).
The Collatio, the Vatican Fragments, and the Consultatio. - These were unofficial collections. The first - Collatio Legum Ifosaica-rum et Bomanarum, otherwise Lex Dei guam Dominus praeeepit ad Moysen--is a parallel of divine and human law, the former drawn from the Pentateuch and the latter from the writings of Gains, Papinian, Paul, Ulpian, and Modestine, rescripts from the Gregorian and Herruogenian Codes, and one or two later general enactments. Its date is probably about the year 390, but its authorship is un-known. The Vatican Fragramts were discovered by Mai in a palim-psest in the Vatican in 1820,--evidently part of a book of praetiee compiled in the Western empire, and of very considerable dimensions. The extant fragments deal with the law of sale, usufruct, dowries, donations, tutories, and processual agency, and are drawn from the writing,s of Papinian, Ulpian, and Paul, the two collections of re-scripts, and a few general enactments, the latest dating from the year 372. The compilation, therefore, may be of about the same antiquity as the Collatio. The Committal() (Veteris cujusdam Juriseansulti Consultatio) was first published by Cujas in 1677. It seems to be part of a collection of answers upon questions of law submitted for the opinion of counsel, and is of value. for the fragments it contains from Paul's Sentences and the three Codes. It is thought to have been written in France in the end of the 5th or beginning of the 6th century.
- The Romano-Barbarian Codes. - This title is usually applied to three collections compiled in western Europe after it had thrown off the sovereignty of Rome.
The Edictum Theodori,ci WaS compiled at the instance of Theodoric, king of the Ostrogoths, in or very soon after the year 500. Its materials were drawn from the writings of the jurists - principally the Sentences of Paul - the Gregorian, Hermogenian, and Theodosian Codes, and the later Novels, all reduced into 154 sections, with no systematic arrangement, but touching upon all branches of the law public and private, especially criminal law and procedure. It was professedly intended to apply to all Theodorie's subjects, both Goths and Romans.
The Lex Bomana Visigothorum or Breriarium Alaricianum was a much more ambitious and important collection. It was com-piled by a commission appointed by Alaric II., king of the 1Vestern Goths, with approval of the bishops and nobles, and published at Aire in Gascony in the year 506. The compilers selected their material partly from leges (statute law) and partly from jus (juris-prudential law), taking what they considered appropriate, without altering the text except in the way of excision of passages that were obsolete or purely historical. For the leges they utilized some 400 of the 3400 enactments (according to Haenel's estimate) of the Theodosian Code, and about 30 of the known 104 post-Theodosian Novels ; for the jus, - the Institutes of Gaius, Paul's Sentences, the Gregorian and Hermogenian rescripts, and the first book of Papinian's Responses (a single sentence). All of these, except Gams, were accompanied with an " interpretation," which re-sembles the interpretatio of the XII. Tables in that it is often not so much explanatory of the text as qualificative or corrective. Gains is contained in an epitome in two books, believed to have been only a reproduction of an abridgment already current, and dating from about the beginning of the 5th century. The Breviary exercised very considerable influence in Europe generally ; and there is no question that, until the rise of the Bologna school in the 12th century, it was from it, rather than from the books of Justinian, that western Europe acquired its scanty knowledge of Roman law.
The Lex Pwmana Burgundionum, formerly, owing to a mistake of a transcriber, called Papianus, is the collection which King Gundobald, when publishing his code of native law (Lex Bur-gundionum or Cundobada), had promised should be prepared for the use of his Roman subjects. It deals with private law, criminal law, and judicial procedure, distributed through 47 titles, and is arranged very much after the order of the Gundobada, from which it has a few extracts. Its statutory Roman sources are the same as those of the Breviary ; the jurisprudential authmities referred t,o are Gains and Paul, the latter in his Sentences, and the former (only time times altogether) in some other book than his Institutes.
III. THE JUSTINIA.NIAN LEGISLATION.
Justinian's Collections and his own Legislation. - It is J unnecessary to revert to the history of Justinian outside i; his legislative achievements, or even to speak of his collec-tions in detail, for both have already been described in the article JUSTINIAN I. (V01. xiii. p. 792 sq.). Am-bitious to carry out a reform more complete even than that which Theodosius had planned but failed to execute, he took the first step towards it little more than six months after the death of his uncle Justin, in the appointment of a, commission to prepare a collection of statute law (leges), among which he included the rescripts of the Gregorian and Hermogenian Codes. It was published in April 529; and in rapid succession there followed his Fifty Decisions (529-532), his Institutes (21st November 533), his Digest of excerpts from the writings of the jurists (16th December 533), and the revised edition of his Code, in which he incor-porated his own legislation down to date (16th November 534). From that time down to his death in 565 there followed a series of Novels (novellae constitutiones), mostly in Greek, which were never officially collected, and of which probably many have been lost.
Taking his enactments in the Code and his Novels to-gether we have of Justinian's own legislation about 400 ( constitutions. Diocletian's contributions to the Code are about three times as numerous; but most of them professed to be nothing more than short declaratory statements of pre-existing law, whereas Justinian's, apart from his Fifty _Decisions, were all reformatory enactments, many of them as long as an average Act of Parliament, and dealing with diverse matters under the same rubric. They cover the whole field of law, public and private, civil and criminal, secular and ecclesiastical. It cannot be said that they afford pleasant reading : they are so disfigured by redun-dancy of language, involved periods, and nauseous self-glorification. But it cannot be denied that many of those which deal with the private law embody reforms of the highest importance and of most salutary tendency. He sometimes loved to pose as the champion of the simplicity and evenhandedness of the early law, at others to denounce it for its subtleties ; sometimes he allowed himself to be influenced by his own extreme asceticism, and now and again we detect traces of subservience to the imperious will of his consort ; but in the main his legislation was dictated by what he was pleased to call humanitas so far as the law of persons was concerned, and by naturalis ratio and public utility so far as concerned that of things. The result was the eradication of almost every trace of the old jus Quiritium, and the substitution for it, under the name of jus Romanum, of that cosmopolitan body of law which has contributed so largely to almost every modern system.
Amendments on the Law of the Family. - With the Christian emperors the last traces disappeared of the old conception of the familia as an aggregate of persons and estate subject absolutely to ; the power and dominion of its head. Manus, the power in a hus-band over his wife and her belongings, was a thing of the past ; both stood now on a footing of equality before the law ; perhaps it might be more aceurate to say, at least with reference to the Justinianian legislation, that the wife was the more privileged of the two in respect both of the protection and the indulgence the law accorded her. With manus the old confarreation and coemption had ceased, rnaniage needing nothing more than simple interchange of consent, except as between persons of rank or when the inten-tion was to legitimate previous issue ; in the latter case a written marriage settlement was required, and in the former either such a settlement or a marriage in church before the bishop and at least three clerical witnesses, who granted and signed a certificate of the completed union. The legislation of the Christian emperors on the subject of divorce, largely contributed to by Justinian in his Novels, has already been referred to. In regard to dowries many new pro-visions were introduced, principally for curtailing the husband's power of dealing with the dowry while the marriage lasted, enlarging the right of the wife and her heirs in respect of it, and simplifying the means of recovering it from the husband or his heirs when the ruartiage was dissolved. Between the time of Constantine and that of Theodosius and Valentinian it had become the practice for a man to make a settlement on his intended wife of a provision which was to remain his property (but without the power of aliena-tion) during the marriage, but to pass to her on his predecease ; it got the name of donatio ante impacts or sometimes, as being a sort of return for the dos, antiph,erna. The earliest legislation about it was by the last-mentioned emperors ; Zeno and Justin followed suit ; and Justinian, in Code and Novels, published five or six enact-ments for its regulation. The general result was that, wherever a dos was given or promised. on the part of the wife, there a donatio was to be constituted on the part of the husband ; that, if one was increased during the marriage, a corresponding increase was to be made to the other ; that it might be constituted after the marriage without infringing the rule prohibiting donations between husband and wife, which caused Justinian to change its name to donatio propter nuptias ; that the wife might demand its transfer to her (as she could. that of the dos) on her husband's insolvency, but under obligation to apply its income to the maintenance of the family ; and that on the dissolution of the marriage by her hus-band's death or by a divorce for which he was in fault she had ample remedies for reducing it into possession.
The change in the complexion of the relations between husband and wife under the Christian emperors, however, was insignificant when compared with that which had overtaken the relation between parent and child. Justinian in his Institutes reproduces the boast of Gaius that nowhere else had a father such power over his children as was exercised by a Roman paterfamilias. True it is that the patrict potestas in name still held a prominent place in the Justin-ianian collections; but it had been shorn of most of the prerogatives that had characterized it in the republic. To expose a new-born child was forbidden under penalties. To take the life of a grown-up one - unless it was a daughter slain with her paranaour in the act of adultery - was murder ; for the domestic tribunal, with the judicial power of life and death in the paterfamilias as its he,ad, had long. disappeared. For the same reason a parent could no longer sell his child as a slave, at least he could do so only when the child was an infant and he in such extreme poverty as to be unable to support it. Even the right to make a noxal surrender of his son to a party who had suffered from the latter's delict had silently become obsolete ; so greatly had. altered sentiment, in sympathy with legislation, curtailed the power of the paterfamilias over those in his potestas. All that remained of it in the latest Justinianian law was no more than is sanctioned in most modern systems as natural emanations of the paternal relationship, - the rights of moderate chastisement for offence, of testamentary nomina-tion of guardians, of pupilary substitution (enlarged by Justinian), and of withholding consent from the marriage of a child, but subject to magisterial intervention if used unreasonably.
IIow the right of the paterfamilias over the earnings and acquisi-tions of his children was modified by the recognition of the peculiunt castrense has been shown in a previous page (p. 706). But the modification was carried to such an extent by the Christian em-perors as finally to negative the father's ownership altogether, except as regarded acquisitions that were the outcome of funds advanced by him to his child for his separate use (penal= pro-fecticium). Of some of the child's acquisitions his father had, down to the time of Justinian, the life interest and right of ad-ministration ; but by his legislation even these might be excluded at the pleasure of the parties from whom the acquisitions had been derived. By the classical law the father's radical right in his son's peculium castrense revived on the latter's death ; for if he died intestate the former appropriated it not as his son's heir, but as an owner whose powers as such had been merely temporatily sus-pended. But by one of the chapters in the famous Novel on the law of intestate succession even this prerogative of the paterfamilias was abolished, and all a child's belongings except his peculium, profecticium were recognized as his own in death as well as in life, so that if any of them should pass to his parent on his intestacy it should Only be by title of Inheritance and in the absence of descendants.
In every other branch of the law of the family the same reform-ing spirit was manifested. Adoption was no longer followed in all eases by a change of family for the adoptee, but only when the adopter was in fact one of his parents, such as a paternal or maternal grandfather, - when there was a natural potestas to underlie and justify the civil one. The modes of legitimation of children born out of wedlock, especially that by subsequent marriage of the parents, first introduced by Constantine, were regulated, and the extent of the rights of the legitimated issue carefully defined. Emancipation was simplified, and the old procedure by sales and manumissions, which degraded the child too much to the level of a slave, dispensed. with. Tutory at law was opened to the pupil's nearest kinsman, whether on the father's side or the mother's ; and the mother herself, or the child's grandmother, might be allowed, under certain conditions, to act as its guardian. Slavery was often converted into the milder condition of colonate ; but, even where this did not happen, the rights of owners were not allowed to be abused ; for slaves were permitted to claim the protection of the magistrate, and cruelty by a master might result in his being deprived of his human property. Kinship that had arisen between two persons when one or both were slaves (servals cognatio) was recognized as creative not only of disabilities but of rights. The modes of manumission were multiplied, and the restrictions of the legislation of the early empire abolished ; and a freedman invari-ably became a citizen, Junian Latinity and decliticiancy being no longer recognized. - Amendments on the Law of Property and Obligation. - In the law ] of property the principal changes of the Christian empire were the ; simplification of the forms of conveyance, the extension of the colonate, the introduction and regulation of emphyteusis, and the remodelling of the law of prescription. Simplification of the forms of conveyance was necessary only in the case of res mancipi, for res nee mancipi had always passed by delivery. From the Theodosian Code it is apparent that movable res mancipi usually passed in the same way from very early in the period, and that for the mancipa-tion of lands and houses (for jure cessio had disappeared with the formular system) a solemnis traditio, a written instrument and delivery following thereon, and both before witnesses, was gradu-ally substituted. Of this there is no trace in the Justinianian Code. For Justinian abolished all remains of the distinction between res mancipi and re: nec mancipi, between full ownership, bonitariau ownership, and nuclunt. jus Quiritium, placing movables and im-movables on a footing of perfect equality so far as their-direct con-veyance was concerned. But, as regarded the possession required of an alienee to cure any defect in the conveyance, he made a marked difference between them. For, amalgamating the old positive usu-capion of the jus eivile with ;the negative " prolonged possession " (longi tempo?* possessio) that had been introduced in the provinces (probably by the provincial edict), he declare,d that possession on a sufficient title and in good faith should in future make the possessor legal owner of the thing possessed by him, provided that the posses-sion of himself and his author had endured uninterruptedly for three years in the case of a movable, and in the case of an immovable for ten years if the party against whom he possessed was resident iu the same province, or for twenty if he resided in another one.
The same causes that led to the colonate induced the introduc-tion of emphyteusis,' - an institution which had already existed in t some of the Eastern provinces when independent, and which came to be utilized first by the emperors, then by the church, and after-wards by municipalities and private landowners, for bringing into cultivation the large tracts of provincial land belonging to them which were unproductive and unprofitable through want of super-vision on the spot. Its nature and conditions were carefully de-fined by Zeno and amended by Justinian. The emphyteuta, as the grantee of the right was called, did not become owner ; the granter still remained dominus, all that the grantee enjoyed being a :MS in, re aliena, but de facto so extensive as hardly to be distinguishable from ownership. It conferred upon him and his heirs a perpetual right in the lands included in the grant, in consideration of a fixed annual payment to the lord (canon) and due observance of conven-tional and statutory conditions ; but he was not entitled to abandon it, nor able to free himself of the obligations he had undertaken, without the lord's consent. The latter was entitled to hold the grant forfeited if the canon fell into arrear for three years (in church lands for two), or if the land-tax was in arrear for the same petiod, or if the emphyteuta allowed the lands to deteriorate, or if he at-tempted to alienate them (alienare meliorationes, as the text says) without observance of statutory requirements. These were that he should intimate an intended alienation and the name of the intended alienee to the lord, so that the latter, before giving his assent, might satisfy himself that he would not be a loser by the transac-tion ; and, if the alienation was to be by sale, he had to state the price fixed, so as to give the lord the opportunity of exercising his statutory right of pre-emption at the same figure. If those require-ments were complied with, and the lord had no reasonable objection to the proposed alienee, he was not entitled to resist the alienation, provided a payment (laudemium) was made to him of two per cent. of the sale-price in consideration of his enforced consent.
The changes in the law of obligation were more superficial than those in the law of property, and consisted principally in the simpli-fication of formalities and in some cases in their entire abolition. To describe them, however, would carry us into details which would here be out of place.
Amendments on the Law of Succession. - The changes made in the law of succession by Justinian's Christian predecessors, especially Theodosius II. and Anastasius, were far from insignificant ; but his own were in some directions positively revolutionary. The testament per aes et libram of the jus civile probably never obtained. any firm footing in the East ; for it was only by Caracalla's constitution conferring citizenship on all his free subjects that pro-vincials generally acquired tcstamenti factio ; and by that time a testament bearing externally the requisite number of seals had been recog,nized as sufficient for a grant of bonorum possessio, unchallenge-able by the heirs-at-law, even though they were able to prove that neither familiae mancipatio nor tcstamenti nuncupatio had inter-vened. Hence the universal adoption of what Justinian calls the praetorian testament, which, however, underwent considerable re-form at the hands of the emperors, notably in the requirement (in the ordinary case) of signature by the testa.tor and subscription by the witnesses. There was much hesitating legislation on the subject before the law was finally established as it stairds in the Justinianian books ; and even at the last we find it encumbered with many ex-ceptions and reservations in favour of testaments that were merely deeds of division by a parent among his children, testaments made in time of plague, testaments recorded in books of court, testaments entrusted to the safe-keeping of the emperor, and so forth. Codicils had become deeds of such importance as, in the absence of a testa-. ment, to be dealt with as imposing a trust on the heir-at-law ; it was therefore thought expedient to deny effect to them unless attested by at least five witnesses. And a most important step in advance was taken by Justinian in the recognition of the validity of an oral mortis causa trust ; for lie declared that, if it should be represented to a competent judge that a person on his deathbed had by word of mouth directed his heir-at-law to g,ive something to the complainant, the heir should be required either on his oath to deny the averment or to give or pay what was claimed.
In the matter of intestacy there was long a halting between two opinions, - a desire still further to amend the law in the direction taken by the praetors and by the legislature in the Tertullian and Orphitian senatusconsults, and yet a hesitancy about breaking altogether from the time-hallowed principle of agnation. Justinian in his Code went far beyond his predecessors, making a mother's right of succession independent altogether of the jus liberorum ; extending that of a daughter or sister to her descendants, 'without any deduction in favour of agnates thus excluded ; admitting emancipated collaterals and. their descendants as freely as if there had been no capitis deminatio minima ; applying to agnates the same successio graduum that the prmtors had allowed to cognates, and so forth. But it was by his _Novels, especially the 118th and 127th, that he revolutionized the system, by eradicating agnation altogether and settling the canons of descent - which were the same for real and personal estate - solely on the basis of blood kin-ship, whether through males or females, and whether crossed. or not by a capitis deminutio. First came descendants of the intestate, male and female alike, taking per capita if all were of the same degree, per stirpes if of different degrees. Failing descendants, the succession passed to the nearest ascendants, and, concurrently with them, to brothers and sisters of full blood and (by Nov. 127) tho children of any that bad predeceased. Where there v,.ere ascend-ants alone, one-half of the succession went to the paternal line and one-half to the maternal ; where there were ascendants and brothers and sisters, or only brothers and sisters, the division was made equally per capita ; when children of a deceased brother or sister participated it was per stirpes. In the third class came brothers and sisters of half-blood or by adoption and their children ; the division here was on the same principle as in the second class. The fourth class included all other collaterals according to pro-pinquity, and without distinction between full and. half blood ; the primary division was per stiqes, but all of the same degree took per capita.
A reform effected by Justinian by his 115th Novel ought not to pass unnoticed ; for it rendered superfluous all the old rules about disherison and prazterition of a testator's children, practically abolished bonorum possessio contra tabula% and established the principle that a child had, as a general rule, an inherent and inde-feasible right to be one of his father's heirs in a certain share at all events of his succession, and that a parent had the same right in the succession of his child if the latter had died without issue. The enactment enumerated certain grounds upon which alone it should be lawful for a parent to disinherit his child or a child his parent, declaring that in every case of disherison the reason of it should be stated in the testament, but giving leave to the person disinherited t,o dispute and disprove the facts when the testament was opened. If a child who had not been disinherited - and one improperly disinherited was eventually in the same position - was not instituted to at least his " legitim." (legitima or debita portio), he was entitled t,o have the testament declared null in so far as the institutions in it were concerned, thus opening the succession to himself and the other heirs-at-law, but without affecting the minor provisions, such as bequests, nominations of tutors, &c. The legitim, which under the practice of the centumviral court had been one-fourth of the share to which the child would have been entitled ab intesktto, was raised by Justinian to one-third at least, and one-half where there were five or more entitled to participate. He did not allow challenge of the will to be excluded, as in the earlier guerela inofficiosi testamenti, because the testator had made advances to his child during his life or left him a legacy which quantitatively equalled the legitim ; his idea. was that a child was entitled to recog,nition by his parent Ca One of his heirs, and that to deny him that position was to put upon him an indignity which the law would not permit.
Amongst the other beneficial changes effected by Justinian may be mentioned the assimilation so far as possible of heralitas and bonorum possessio, so that the latter might-be tak-en like the former without formal petition for a grant of it ; the equiparation of legacies and singular trust-gifts, and the application of some of their rules to mortis causa donations ; the extension of the rule of " transmission " to every heir without exception, so that, if he died within the time allowed him for considering whether or not he would accept (tempus deliberancli), his power of acceptance or declinature passed to his heirs, to be exercised by them within what remained of the period ; the introduction of entry under inventory (cum beneficio inventarii), which limited the heir's re-sponsibilities and rendered unnecessary the nine or twelve months of deliberation ; and the application of the principle of collation to descendants generally, so that they were bound to throw into the mass of the succession before its partition every advance they had received from their parent in anticipation of their shares.
Th,eir Use in the Courts and in the Schools. - Although the Insti-tutes were primarily intended to serve as a text-book in the schools, it is-as expressly declared that they and the .Digest and the Code should be regarded as just so many parts of one great piece of legislation and all of equal authority, and that, although Digest and Code were but collections of legislation and doctrine that had proceeded originally from many different hands, yet they were to be treated with the same respect as if they had been the work of Justinian himself. But, while everything within them was to be held as law, nothing outside them was to be looked at, not even the volumes from which they had been collected ; and so far did tbis go that, after the publication of the revised. Code, neither the first edition of it nor the Fifty Decisions were allowed to be referred to. If a case arose for which no precedent was to be found, the emperor was to be resorted to for its decision as being outside his collections the only fountain of the law. TO preserve the purity of the texts Justinian forbade the usc of conventional abbreviations (sigla) in making transcripts, visiting an offender with the penalties of falsification (crimen falsi). Liteml translations into Greek were authorized, and indeed were very necessary for many of his subjects ; so were irapdrrOsa or summaries of the contents of individual titles (although the jurists read the word less strictly). Commentaries and general summaries were forbidden under heavy penalties, as an interference with the imperial prerogative of interpretation • but the prohibition does not seem to have been enforced, as we 'have accounts and remains not only of translations but of comment-aries, notes, abridgments, excerpts, and general summaries even in Justinian's lifetime. These, it is true, were mostly by professors (antecessores) and their productions may have been intended pri-marily for educational purposes ; but there can be little doubt that they soon passed into the hands of the practitioners and were used without scruple in the courts. A Greek Paraphrase of the Insti-tutes, usually attributed to Theophilus, a professor in Constantinople and one ofJustinian's commissioners, is commonly supposed to have been used by him in his prelections. It embodies much more his-torical matter than is to be found in the institutes ; but its value has been very differently rated by different critics. Its latest editor, Ferrini, who puts a high estimate on it, is of opinion that the original of it was a paraphrase of Gains, which was remodelled after the plan of Justinian's Institutes, and had their new matter incorporated in order to adapt it to the altered conditions ; but he doubts if there be any sufficient authority for ascribing it to Theo-philus. If he be right in assuming that it was really a redaction of Gains, the historical explanations will beseceived. with all the more confidence.
Fate of the Justinianian Books in th.e East. - The literary work indicated in the preceding section was continued throughout the 6th century. But the next three were comparatively barren, the only thing worth noting beinn• the 'EnXoyfi Tar, P61.0.73, ?V OtIPTI4Up VP0/26,71 of Leo the Isaurian in740, professedly an abstract of the whole Justinianian law amended and rearranged ; but it was repealed by Basil the Macedonian on account of its imperfections and its audacious departure from the law it pretended to summarize. The last-named emperor, with his son Leo the Philosopher, set them-selves in tho end of the 9th and beginning of the 10th centuries to the production of an authoritative Greek version of the whole of the Justinianian collections and legislation, omitting what had be-come obsolete, excising redundancies, and introducing such of the post-Justinianian legislation as merited preservation. The result was the Basilica (Ta. 13aaracKci, i.e., roatua), which was completed in the reign of Leo, though probably issued in a preparatory stage in the reign of Basil, who also published a sort of institutional work, the lIpbxeLpov, which was revised and republished by Leo under the name of 'Thraralaryli 7011 v6p.ou. The Basilie,cs consists of sixty books, subdivided into titles, following generally the plan of the Justinianian Code, but with the whole law on any particular sub-ject arranged consecutively, whether from Digest, Code, or Novels (sec BASILICA, V01. Bi. p. 419). Leo's son, Constantinus Porphyro-genitus, made an addition to it in the shape of an official com-mentary collected from the writings of the 6th-century jurists, the so-called llapatypag5at riesv raXati3v, which is now spoken of as the scholia to the Basilica, and has done good exegetical service for modern civilians. The Basilica retained its statutory authority nntil the fall of the Byzantine empire in 1453. But long before that it bad practically been abandoned ; and not a single complete copy of it exists. Its place was taken by epitomes and compendia, the last being the Etd,943Xos of Constantinus Harmenopulus of 1345, " a miserable epitome of the epitomes of epitomes," aos Bruns calls it, which survived the vicissitudes of the centuries, and finally received statutory authority in the modern kingdom of Greece in the year 1835, in place of the Basilica, which had laeen sanctioned thirteen years before, in 1822.
Th,eir Fate in the West. - Before the rise of the Bologna school it was to a much greater extent from the Romano-barbarian codes ,. than from the books of Justinian that central and western Europe derived their acquaintance with Roman law. Theodoric's Edid can have had little influence after Justinian's recovery of Italy, and the Romano-Burgundian law was no doubt gradually displaced by the Breviary (Lex Ram,. Visigothorum) after Burgundy had fallen into the hands of the Franks ; but the Breviary itself found its way in all directions in France and Germany, penetrating even into England, to a great extent through the agency of the church. There must, however, have been other repertories of Roman law in circulation, as witness a testament made in Paris in the end of the 7th century, preserved by Mabillon, in which the testator uses the old formula of the jus civile, - "ita do, ita lego, ita testor, ita vos Quirites testimonium mihi perhibetote," - words that are not to be found either in the Visigothic or the Justinianian collections.
In his pragmatic sanction of the year 554 Justinian anew accorded his imperial sanction to the jura and leges, i.e., the Digest and Code, which he says he had long before transmitted to Italy, at the same time declaring that his Novels were to be of the same authority there as in the East. Two years after this came Julian's Latin epitome of them, not improbably prepared by command of the emperor himself. That they all came at once to some extent into use is beyond question ; for there is preserved in Marini's collection the testament of one Mannanes, executed at Ravenna in the reign of Justinian's immediate successor Justin II., in which the requirements of both Code and Novels are scrupulously observed. Of other monuments of the same period that prove the currency of the Justinianian law in Italy several are referred to by Savigny in tbe second volume of his History of the Roman Law in the Middle Ages, among which may be mentioned the Turin gloss of the In-stitutes, which Fitting ascribes to about the year 545, and two little pieces known as the Dictatum de consiliariis and the Collectio tutoribus, which form an appendix to some manuscripts of Julian's epitome of the Novels, and may possibly have been fro'm his pen. The invasion of the Lombards, the disturbance they caused in Italy for two centuries, and the barrier they fornied between it and the rest of Europe militated against the spread of the Justinianian law north-wards ; but it was taught without much interruption in Ravenna, the seat of the exarchs; to which (but this is doubtful) the school (stadium) of Rome, revived by Justinian, is said to have been trans-ferred. By the Lombards, as their savagery toned down, the Roman