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CODIFICATION] 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

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

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,

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 , 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. 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.

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  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, 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 (, sc.  ), 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 , which, was revised and republished by Leo under the name of . The Basilica 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 ), 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 , 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  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.

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

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