Page:Decline and Fall of the Roman Empire vol 5 (1897).djvu/550

 528 APPENDIX The patria poteatas still holds an important place in the Justinianean law, although the rights which it gave the father over the children were small indeed compared with the absolute control which he had enjoyed in ancient times. The tendency was to diminish these rights and to modifj' the stern conception of patria potestas by substituting the conception of a natural guardianship ; a change corresponding to the change (promoted by Christianity) in the conception of the family, as held together by the duties of affection rather than b}" legal obligations. The two most important points in the later transformation of the patria potcstai were (1) its conversion into a parental jjoiesi«s, the mother being recognised as having the same rights and duties as the father (thus her consent as well as the father's is necessary for the contraction of a marriage) ; and (2) the increased facilities for emancipation when the child came to years of discre- tion ; emancipation seems to have been effected by the act of setting up a separate establishment. These principles were established by the Iconoclasts ; but Basil revived the Justinianean legislation. Here, however, as in many other cases, the letter of Basil's law books was not fully adopted in practice, and was modified by a Novel of Leo VI. which restored partly the law of the Ecloga. In respect to the guardianship of minors the tendenc}- in the later civil law had been to supersede the tutela by the cura — the tutor who was appointed in the interests of the family b}* the curator appointed in the interests of the public. The office of guardian came to be regarded as a public office for the good of the ward. Yet the old distinction of cura and tutela still subsisted in the Jus- tinianean law books, though in use it was practically obsolete. The Ecloga logically developed this tendency ; here tutela does uot appear at all, only cAira (KovpaTcopeia). And, as on the death of one parent the children were under the care of the sur- viving parent, there was no question of guardianship except in the case of orphans. The Ecloga provides — and here we see the ecclesiastical influence — that, when the parents have not designated a guardian, the guardianship of orphans is to devolve on ecclesiastical institutions (e.y., the 6p<pavoTpo<piiov at Constantinople), and to last until the wards niarrj or reach the age of twenty. Here again the Basilica returned to the .Justinianean law. These examples wU give some idea of the general character of the development of B}-zantine civil law. Two interesting points may be added in connexion with the law of inheritance. Constantine VII. enacted-* that if any one died intestate and childless, only two-thirds of his property went to relatives (or the fisc), the remaining third going to the Church for his soul's benefit. The other point is the institution of testamentary executors, for so we maj- best translate the word iTrirpoTToi in its Byzantine use.^ The institution was but incompletely developed, and ultimately fell into disuse, but Zacharia remarks that Byzantine law was "on the highwaj' to an institution similar to the English trustees, executors and ad- ministrators ".® In criminal, as in civil law, the Iconoclastic legislators made striking innova- tions in the Justinianean system — sometimes entirely departing from it, sometimes developing tendencies which were already distinctlj- perceptible in the civil code of the Gth centurj-. But, whereas in the case of the civil law the Basilian legis- lation was characterized as a return to the Justinianean system — a return some- times com])lete, sometimes partial, but always tending to subvert, so far as possible, the Iconoclastic legislation, — it is quite otherwise in the case of the criminal law. Here, the system established by the Ecloga is retained in most cases, and some- times developed further. The criminal law of the Ecloga is very remarkable. It was intended to be, and professed to be, more humane than the old Roman law ; but a modern reader captivity. 5 In the old law JTriVpon^os was the translation of tutor. * Op. cit., p. 162-5.
 * This had been preceded by a similar law of Leo VI., applying to persons who died in