Page:EB1911 - Volume 23.djvu/604

Rh potestas he had never been, such as a paternal or maternal grandfather, when there was a natural potestas to underlie and justify the civil one—or when an ancestor gave in adoption a grandchild who was in his potestas but would not become sui juris by his death. The mode of strict adoption also was simplified, the old procedure by sales and manumissions, which degraded the child too much to the level of a slave, was abolished. The modes of legitimation or children born of a concubine, 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 in a similar way to that of strict adoption. 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 (servilis cognatio) was recognized as creative not only of disabilities but of rights. The modes of manumission were multiplied, and the restriction of the legislation of the early empire abolished; and a freedman invariably became a citizen, Junian Latinity and dediticiancy 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 nec 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 emancipation of lands and houses—for in jure cessio had disappeared with the formular system—a solemnis traditio, i.e. a written instrument and delivery following thereon, and both before witnesses, had been gradually substituted. Of this there is no trace in the Justinianian Code. For Justinian abolished all remains of the distinction between res mancipi and res nec mancipi, between full ownership, bonitarian ownership and nudum jus Quiritium, placing movables and immovable on a footing of perfect equality so far as their direct conveyance was concerned. But, as regarded the possession required of an acquirer to cure any defect in the conveyance, he made a marked difference between immovable and movables. For, amalgamating the old positive usucaption of the jus civile with the negative “prolonged possession” (longi temporis possessio) that had been first introduced for immovables in the provinces (probably by the provincial edict), and afterwards by rescripts of Caracalla for movables, he declared 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 possession 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 in the same province, or for twenty if he resided in another one.

The same causes that led to the colonate induced the introduction of emphyteusis, —an institution which had already existed in some

of the Eastern provinces when independent, and which came to be utilized first by the emperors, then by the church, and afterwards 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 supervision on the spot. Its nature and conditions (which bore a certain similarity to the earlier jus in agro vectigali of the Western Empire, with which it was ultimately fused, and to hereditary leases sometimes granted in the early Empire) were carefully defined by Zeno and amended by Justinian. The emphyteuta, as the grantee of the right was ultimately called, did not become owner; the granter still remained dominus, all that the grantee enjoyed being a jus in re aliena, but 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 conventional 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 period, or if the emphyteuta allowed the lands to deteriorate, or if he attempted 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 transaction; 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 requirements were complied with, and the lord (himself declining to purchase) stated no reasonable objection to the proposed alienee, he was not entitled to resist the alienation, provided a payment (laudemium) was made to him of 2% of the sale price or of the value of the lands 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 simplification 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.

Changes in 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 provincials generally acquired testamenti 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 unchallengeable by the heirs-at-law, even though they were able to prove that neither familiae mancipatio nor testamenti nuncupatio had intervened. Hence the universal adoption of what Justinian calls the praetorian testament, which, however, underwent considerable reform at the hands of the emperors, notably Theodosius II. and Valentinian III., in the requirement (in the ordinary case) of signature by the testator and subscription by the witnesses, thereby becoming, what Justinian calls the tripartite testament. There was much hesitating legislation on the subject before the law was finally established as it stands in the Justinianian books; and even at the last we find it encumbered with many exceptions 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 made before a magistrate and 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 testament, 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 death-bed had by word of mouth directed his heir 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 had been 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 (except as regards adopted children) and settling the canons of descent—which were the same for real and personal estate—solely on the basis of blood kinship, 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 (germani) and (by Nov. 127) the children of any that had predeceased. Where there were ascendants 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 and their children, and grandchildren of brothers and sisters german; the division here was on the same principle as in the second class. The fourth class included all other collaterals according to propinquity, apparently to the remotest degree, and without distinction between full and half blood;