Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/737

Rh CODIFICATION.] ROMAN LAW 713 the means of recovering it from the husband or his heirs when the marriage was dissolved. Between the time of Constantino and that of Theodosius and Valentinian it had become the practice for a man to make a settlement on his intended wife of a provision which was to remain his property (but without the power of aliena- tion) during the marriage, but to pass to her on his predecease ; it got the name of donatio ante nuptias or sometimes, as being a sort of return for the dos, antipherna. The earliest legislation about it was by the last -mentioned emperors; Zeno and Justin followed suit ; and Justinian, in Code and Novels, published five or six enact- ments for its regulation. The general result was that, wherever a dos was given or promised on the part of the wife, there a donatio 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 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 (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 hus- band's death or by a divorce for which he was in fault she had 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 Justin- ianian collections; but it had been shorn of most of the prerogatives that had characterized it in the republic. To expose a new-born child was forbidden under penalties. To take the life of a grown- up 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. For the same reason a parent could no longer sell his child as a slave, at least he could do so 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. All that remained of it in the latest Justinianian law was no more than is sanctioned in most modern systems as natural emanations of the paternal relationship, the rights of moderate chastisement for offence, of testamentary nomina- tion of guardians, of pupilary substitution (enlarged by Justinian), and of withholding consent from the marriage of a child, but subject to magisterial intervention if used unreasonably. How the right of the paterfamilias over the earnings and acquisi- tions of his children was modified by the recognition of ihepeculium castrense has been shown in a previous page (p. 706). But the modification was carried to such an extent by the Christian em- perors 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 pro- fecticium). Of some of the child's acquisitions his father had, down to the time of Justinian, the life interest and right of ad- ministration ; but by his legislation even these might be excluded at the pleasure of the parties from whom the acquisitions had been derived. 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 sus- pended. But by one of the chapters in the famous 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 reform- ing spirit was manifested. Adoption was no longer followed in all cases by a change of family for the adoptee, but only when the adopter was in fact one of his parents, such as a paternal or maternal grandfather, when there was a natural potestas to underlie and justify the civil one. The modes of legitimation of children born out of wedlock, 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, and the old procedure by sales and manumissions, which degraded the child too much to the level of a slave, dispensed with. 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 restrictions of the legislation of the early empire abolished ; and a freedman invari- ably became a citizen, Junian Latinity and dediticiancy being no longer recognized. Amendments on the Law of Property and Obligation. In the law Law of of property the principal changes of the Christian empire were the property, 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 nee 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 mancipa- tion of lands and houses (for in jure cessio had disappeared with the formular system) a solemnis traditio, a written instrument and delivery following thereon, and both before witnesses, was gradu- ally substituted. Of this there is no trace in the Justinianian Code. For Justinian abolished all remains of the distinction between res mancipi and res nee mancipi, between full ownership, bonitarian ownership, and nudum jus Quiritium, placing movables and im- movables on a footing of perfect equality so far as their direct con- veyance was concerned. But, as regarded the possession required of an alienee to cure any defect in the conveyance, he made a marked difference between them. For, amalgamating the old positive usu- capion of the jus civile with .the negative "prolonged possession" (longi temporis posscssio) that had been introduced in the provinces (probably by the provincial edict), 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 posses- sion 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 introduc- Emphy- tion of emphyteusis, 1 an institution which had already existed in teusis. some of the Eastern provinces when independent, and which came to be utilized first by the emperors, then by the church, and after- wards 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 super- vision on the spot. Its nature and conditions were carefully de- fined by Zeno and amended by Justinian. The emphyteuta, as the grantee of the right was called, did not become owner ; the granter still remained dominus, all that the grantee enjoyed being a jus in re aliena, but de facto 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 conven- tional 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 at- tempted to alienate them (alienare meliorations, 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 transac- tion ; 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 require- ments were complied with, and the lord had no reasonable objection to the proposed alienee, he was not entitled to resist the alienation, provided a payment (laudemium) was made to him of two per cent, of the sale-price 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 simpli- fication 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. Amendments on the Law of Succession. The changes made in the Testa- law of succession by Justinian's Christian predecessors, especially mentary Theodosius II. and Anastasius, were far from insignificant ; but succes- his own were in some directions positively revolutionary. The sion. 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 con- 1 See Elia Lattes, Stitdi storici sopra il Contralto cFEnfiteusi nelle sue relazioni col Colonato, Turin, 1868, chaps. 1 and 3 ; and FranQois, De V Emphyteose, Paris, 1883. XX. 90