but among those the nearest in degree excluded the more remote,
and when all were of the same degree they 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 praeterition of a testator’s children, practically abolished bonorum possession contra tabulas as regards freeborn persons and established the principle that a child The 115th Novel. had, as a general rule, an inherent and indefeasible 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 to 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 some share, however small, of his parent’s hereditas, he was entitled to 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 accessory provisions, such as bequests, nominations of tutors, &c.; and if the share to which he was instituted was less than his legitim (legitima or debita portio) he was entitled to an action in supplement. 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 intestato, had been raised by Justinian (by Novel 18) 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 querela 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 recognition by his parent as one of his heirs, and that to deny him that position without statutory grounds 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 hereditas and bonorum possessio, so that the latter might be taken like the former without formal petition for a grant of it; the equiparation of legacies and singular trust-gifts, and Other changes. the application of some of their rules to mortis causa donations; the extension of the principle 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 deliberandi), 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 responsibilities 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.
iv. The Justinianian Law-Books.
Their Use in the Courts and in the Schools.—Although the Institutes
were primarily intended to serve as a text-book in the schools,
it was expressly declared that it 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,
Justinianian
law-books.
although Digest and Code were but collections of common
law and legislation 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 this go that, after the publication in 534
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
his decision, as being outside his collections the only fountain of the
law. To preserve the purity of the texts Justinian forbade the use
of conventional abbreviations (sigla) in making transcripts, visiting
an offender with the penalties of falsification (crimen falsi). Literal
translations into Greek were authorized, and indeed were necessary
for many of his subjects; so were indexes and παράτιτλα, i.e.
summaries of parallel passages, texts or individual titles.
Commentaries and general summaries were forbidden under heavy
penalties, as an interference with the imperial prerogative of
interpretation.[1] But these prohibitions do not seem to have been
enforced, as we have accounts and remains not only of translations
but of commentaries, 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 primarily for educational purposes; but they soon
passed into the hands of the practitioners and were used without
scruple in the courts. A Greek Paraphrase of the Institutes, usually
attributed to Theophilus, a professor in Constantinople and one of
Justinian’s commissioners, has been supposed to have been used
by him in his prelections. It embodies much more historical
matter than is to be found in the Institutes; but it contains a good
many inaccuracies and 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 reproduction in Greek
of Gaius, drawn up at Beirut, which was remodeled after the plan
of Justinian’s Institutes, and had the new matter of this latter work
subsequently incorporated in order to adapt it to the altered
conditions; but he denies that there is any sufficient authority for
ascribing it to Theophilus. If he be right in assuming that it was
really based on a redaction of Gaius, its historical explanations will
be received with all the more confidence.[2]
Fate of the Justinianian Books in the 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 being the Ἐκλογὴ τῶν νόμων ἐν
συντόμῳ γενομένη of Leo the Isaurian in 740, professedly
Their fate in
the East.
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, followed
by his son Leo the Philosopher, set themselves in the 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 since become obsolete, excising
redundancies, and introducing such of the post-Justinianian legislation
as they thought merited preservation. The result was the
Basilica (Τὰ Βασιλικά, sc. νόμιμα), which was completed and published
in the reign of Leo, though begun in the reign of Basil, who also
published a sort of institutional work, entitled Πρόχειρον, which, was
revised and republished by Leo under the name of Ἐπαναγωγὴ τοῦ νόμου.
The Basilica[3] consists of sixty books, subdivided into titles, following
generally the plan of the Justinianian Code, but with the whole law
on any particular subject arranged consecutively, whether from
Institutes, Digest, Code or Novels (see article Basilica), Leo’s son,
Constantinus Porphyrogenitus, made an addition to it in the shape
of an official commentary collected from the writings of the
6th-century jurists, the so-called Παραγραφαὶ τῶν παλαιῶν, which is
now spoken of as the scholia to the Basilica, and has done good
exegetical service for modern civilians. Later annotations by
jurists of the 10th to the 12th century are also called scholia but are
of less value. The Basilica retained its statutory authority until
the fall of the Byzantine Empire in 1453. But long before that
it had fallen into neglect in practice; and though nearly the whole
of it and a great part of its scholia have come to us, yet, not a single
complete copy of it exists. Its place was taken by epitomes
and compendia, the last being the Ἑξάβιβλος of Constantinus
Harmenopoulos about 1345, “a miserable epitome of the epitomes
of epitomes,” as 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 been sanctioned thirteen years before, in 1822.[4]
Their 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,
apart from Italy, derived their acquaintance with Roman
law. Theoderic’s Edict can have had little influence after
Their fate in
the West.
Justinian’s recovery of Italy, and the Romano-Burgundian
law was no doubt gradually displaced by Alaric’s Breviary 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, mainly through the agency of the church.
There must, however, have been other repertories of Roman law in
circulation (and among others probably either Gaius’s Commentaries
or Ulpian’s Rules), as witness a testament made in Paris in
the end of the 7th century, mentioned by Savigny as 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. We know that 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 the Novels (a private
work by a Constantinopolitan professor), not improbably prepared by
command of the emperor himself. That Justinian’s works soon came
- ↑ Const. Deo Auctore, § 12; Tanta, § 21.
- ↑ Editions by Reitz, 1751, and Ferrini, 1884–97.
- ↑ Ed. Heimbach, 6 vols. with Latin translation (and in 1846 a supplement by Zachariae a Lingenthal), Leipzig, 1833–70. A new supplement forming vol. 7, by Ferrini and Mercati, was published in 1897.
- ↑ For the history of Byzantine law subsequent to Justinian, See Zachariae, Geschichte des Griechisch.-Röm. Rechts (3rd ed., 1892), and Historia juris Graeco-Romani (1839); Mortreuil, Histoire du droit byzantin (3 vols., 1843–46).
