In the Parent's Place

A brother and a dead brother's son

A man dies without a will. He leaves a full brother, and the son of another full brother who died before him. Nobody was emancipated and no ascendant survives. Each column below is one layer of the law, and every share names the clause that decided it.

Tick his mother. The civil law and the praetor do not move: a mother who was not in her husband's hand is no agnate of her son (III.24), and Gaius's text breaks off at the section that probably gave her a statutory claim (III.33a, below). Under Novel 118 as enacted the nephew's half becomes nothing. Chapter three lets brothers' children in beside their uncles, then adds that when ascendants are called with the brothers, nullo modo ad successionem ab intestato fratris aut sororis filios vocari permittimus. In 548 Novel 127 c.1 gives him his father's share, a third. The Laurentian manuscript and the Basilica already carry that third inside the Greek of Novel 118, in words that Schoell and Kroll's apparatus marks ex nov. CXXVII, 1 interpolata: copied in, that is, from the later law.

Tick in manu as well, and the civil law gives the mother 1/2 beside the brother: a mother in the father's hand stands where a sister stands, sororis autem nobis loco est (III.14).

Four layers, not two

A. The strict civil law as Gaius reports it (III.1 to III.24): the Twelve Tables and their interpretation. The self-successors (sui heredes, those in the dead man's power) take first, grandchildren in their father's place; then the nearest agnates, kin through males whose line no emancipation has broken; women beyond sisters and anyone related through a woman take nothing.

B. The praetor's bonorum possessio as Gaius reports it (III.25 to III.38): emancipated children are called proinde ac si in potestate parentis mortis tempore fuissent, then the agnates with their title unimpaired, then the cognates by nearness of degree. The Latin names for these orders, the rule for counting degrees and collatio bonorum are Poste's commentary, not Gaius, and the page labels them so.

C. Novel 118 as enacted: given at the Seventh Milestone on 16 July 543 (Dat. xvii. k. Aug.), for cases arising from the July of the sixth indiction (c.6). Descendants first; then ascendants, with brothers and sisters by both parents beside them; then collaterals. Chapter four abolishes the difference between agnates and cognates.

D. Novel 118 as amended by Novel 127 c.1, dated 548 by its editors and applying ex kalendis Ianuariis praesentis undecimae indictionis: a dead full brother's children take their father's share beside the ascendants and the brothers.

These are snapshots, not one reform. Between Gaius and the Novels lie changes the page does not model and does not credit to Novel 118. Blume's headnote to the Novel names four: C. 6.55.9 on grandchildren, C. 6.57 on children succeeding their mothers, C. 6.58.14 on female agnates beyond sisters, and Novel 84 on full blood over half. Poste's commentary names two decrees of the senate: the Tertullianum, which gave a mother a statutory claim, and the Orphitianum, which gave children one to their mother's estate and was probably passed soon after the Institutes of Gaius were written. And Novel 118 binds only some of Justinian's subjects: in illis volumus obtinere, qui catholicae fidei sunt (c.6). The page models only the case the Novel covers.

Any family in the vocabulary

Every relative below is a person in a graph with a father and a mother. The engine derives from the graph who was in the dead man's power, who is an agnate and at what degree, who is a cognate, who is a brother by both parents and whose children stand in a dead parent's place, and it cites a clause for each step. Status matters under Gaius and not under the Novels: mark someone emancipated, a mother in manu or an heir who declines, and watch which columns move.

A convention, labelled: the child of an emancipated man is taken to have been born after the emancipation, and so outside the dead man's family. Tick kept in the family to override it for a child who stayed in his grandfather's power.

The texts' own examples, held out

The engine was built from the rule clauses only. The worked examples inside the same texts were set aside, and the engine never reads them: Gaius's moieties (III.8) and his brother and nephew (III.15), the two sentences of Novel 118 that begin Unde consequens est and Et e diverso, and the preface of Novel 127, which says what Novel 118 had done. With them run III.16, which prints its own rule (so it checks the implementation, not a derivation), the civil and praetorian outcomes of Inst. 3.1.9, and two examples printed outside these texts by W. A. Hunter in 1885.

18 of 18 printed outcomes reproduced: 15 of 15 from the texts, 3 of 3 from Hunter.

Plant a fault

Each button makes a copy of the clause table with one phrase misread, runs the unmodified engine on the copy, and reruns the example that phrase should decide. The clean table reproduces it; the doctored copy must not. 3 of 3 planted misreadings break their example.

No fault planted.

Only a law-school table?

The objection a Roman lawyer would make: textbooks print this table, and the reform was simply agnation replaced by blood. The page answers with two results you can operate. The first counts, across a declared family vocabulary, where the four layers, the two Greek witnesses and the readings of the texts actually part company. The second loads, one at a time, the places where the texts decide nothing.

The disagreement atlas (default snapshot)

The default vocabulary: a man who dies his own master, and from one to 3 living relatives drawn, with repetition, from 14 kinds, with a status bit (in the family or emancipated) for sons, brothers and the dead father of a grandchild or nephew, and manus for the mother. Relatives of the same kind share their dead parent. That makes 2,209 families in the default snapshot. Every family runs through all four layers under the readings chosen above. Change the controls and count to replace these rows with the current result. The default counts describe this vocabulary and nothing else: they are not a share of any Roman population.

Two things the default count shows. The manuscript split of Novel 118 changes the answer in 85 families, the amendment of Novel 127 in 18: the witnesses reach further than the law that was supposed to have made the change, because they also call a dead brother's children beside an ascendant when no brother is alive, where Novel 127 is silent. And no family in this vocabulary is refused, and the reading of III.28 moves none, because the vocabulary has no living father, no adoption and no heir who declines. Widen it with the family editor to see them.

Where the texts decide nothing

Each of these loads its family into the editor above, where the reading named can be flipped.