714 ROMAN LAW [CODIFICATION. stitution 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 recognized 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 nad inter- vened. Hence the universal adoption of what Justinian calls the prsetorian 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 testator 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 he 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 give 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 deminutio minima ; applying to agnates the same successio graduum that the praetors 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) the children of any that had predeceased. Where there were 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 stirpes, but all of the same degree took per capita. A reform effected by Justinian by his 115th Novel ought not to Sass unnoticed ; for it rendered superfluous all the old rules about isherison and praeterition of a testator's children, practically abolished bonorum possessio contra tabulas, 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 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 at least his " legitinx" (legitima or debita portio), 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 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 intestato, 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 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 was to put upon him an indignity which the law would not permit. Amongst the other beneficial changes effected by Justinian may other be mentioned the assimilation so far as possible of hcrcditas and diang. 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 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 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 bencficio 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. IV. THE JUSTINIANIAN LAW-BOOKS. Their Use in the Courts and in the Schools. Although the Insti- Justii tutes were primarily intended to serve as a text-book in the schools, ianiai it was expressly declared that they and the Digest and the Code law- should be regarded as just so many parts of one great piece of books 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 this 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 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 very necessary for many of his subjects ; so were irapdrirXa 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 nands 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 of Justinian'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 Gaius, the historical explanations will bejreceived with all the more confidence. Fate of the Justinianian Books in the East. The literary work indicated in the preceding section was continued throughout the 6th fate i century. But tlie next three were comparatively barren, the only thing worth noting being the 'EicXo-yr; TUV t>6/j.uv tv ffwr6/ju^ yevo/j^vrj of Leo the Isaurian in 740, 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 the end of the 9th and beginning f 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 Bacnui, i.e., v6fjufj.a), 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 Hp6x ft po"i which was revised and republished by Leo under
