Page:EB1911 - Volume 23.djvu/603

CODIFICATION] (529-531), his Institutes (November 21, 533), his Digest of excerpts from the writings of the jurists (December 16, 533), and the revised edition of his Code, in which he incorporated his own legislation down to date (November 16, 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 some have been lost.

Taking his enactments in the Code and his Novels together, we have of Justinian's own legislation not far short of 600

constitutions. Diocletian's contributions to the Code are more than twice 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 mostly reformatory enactments, many of those in the Novels as long as an average act of parliament, and often 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 redundancy 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 great moment and of most salutary tendency. The emperor sometimes loved to pose as the champion of the simplicity and even-handedness 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.

Changes in the Law of the Family.—With the Christian emperors, from Constantine downwards, almost 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 husband 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 accurate 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, marriage needing nothing more than simple interchange of consent, except as between persons of rank (illustres) or when the intention was to legitimate previous issue; in the latter case a written marriage settlement (instrumentum dotale) was required, and in the former both such a settlement and 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 the dos, many new provisions were introduced, principally for curtailing the husband's power of dealing with it 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 marriage was dissolved. Between the time of Constantine and that of Theodosius and Valentinian a new form-of matrimonial settlement became established. It became apparently a legally-sanctioned practice for a man to make (apart from ordinary marriage presents) a settlement on his intended wife either by actual transfer or by promise of a provision which was to remain his property (though without the power of alienation) during the marriage, but to pass to her on his predecease or on divorce by his fault. This got the name of donatio ante nuptias, or sometimes, as being a sort of counterpart for the dos, antipherna. There was some important legislation about it by the two last-mentioned emperors; Leo and Justin followed suit; and Justinian, in his Code and Novels, published five or six enactments for its regulation. The general result was that, wherever a dos was given or promised on the part of the wife; there a donatio of equal amount 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 or increased 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 (to the same extent 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 husband's death or by a divorce for which he was in fault, she had an hypothec and other 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 patria potestas in name still held a prominent place in the Justinianian collections; but it had been shorn of most of the prerogatives that had characterized it in earlier periods. To expose a newborn child was forbidden under penalties. To take the life of a grownup one—unless it was a daughter slain with her paramour in the act of adultery—was murder; for the domestic tribunal, with the judicial power of life and death in the paterfamilias as its head, had long disappeared.

Further, a parent could no longer sell his child save 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. This noxae deditio was formally abolished by Justinian. All that remained of the patria potestas, in short, in the Justinianian law was little more than would be sanctioned in most modern systems as natural emanations of the paternal relationship.

Thus he had right of moderate chastisement for offences (for the infliction of graver punishments he had to apply to the magistrate), of testamentary nomination of guardians, of pupillary substitution (enlarged by Justinian), and of withholding consent from the marriage of a child, but subject in this last case to magisterial intervention if used unreasonably.

How the right of the paterfamilias over the earnings and acquisitions of his children was modified by the recognition of the peculium castrense has been shown in a previous page. But the modification was carried to such an extent by the Christian emperors 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 (peculium profecticium). Of some of the child's acquisitions (bona adventicia) his father had, down to the time of Justinian, the life interest and right of administration; but by his legislation even these might be excluded at the pleasure of the parties from whom the acquisitions had been derived or by maladministration of the father.

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 temporarily suspended. But by one of the chapters in the famous 118th 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 reforming spirit was manifested. Adoption of filiifamilias was no longer followed in all cases by a change of family or the adoptee, but only when either the adopter was in fact one of his ancestors in whose